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R v R CA243/04 [2004] NZCA 357 (21 October 2004)

Last Updated: 22 April 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA243/04 CA302/04

THE QUEEN

v

[R]

Hearing: 12 October 2004 Coram: Hammond J
Goddard J Randerson J

Appearances: J H M Eaton for Appellant
B M Stanaway for Crown Judgment: 21 October 2004

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

Introduction

[1] The appellant seeks leave to appeal out of time against his conviction by a jury in May 2000 on one count of rape, three counts of sexual violation by unlawful sexual connection and one count of indecent assault. Each of those charges was laid representatively. He also appeals, by way of rehearing, against an effective total sentence of 10 years imprisonment imposed for that offending.

R v [R] CA CA243/04 [21 October 2004]

[2] The original appeal against sentence (CA207/00) was filed on 26 June 2000. The appellant was declined legal aid at that time and his appeal determined on the basis of written submissions. He now says that had legal aid been granted to him at that time he would have had the opportunity of discussing his case with counsel and would have pursued an appeal against conviction. Mr Stanaway for the Crown did not oppose leave to appeal against conviction being granted out of time and we are satisfied that leave should be granted.

The appeal against conviction

[3] The grounds of appeal advanced against conviction are that the trial Judge’s summing up was unbalanced; that he erred by permitting opinion evidence to be led relating to the victim’s intellectual capacity; and that he misdirected the jury in relation to that evidence. For these reasons it is said that a miscarriage of justice occurred.

[4] The victim, who was 16 years old at the relevant time, was the appellant’s stepdaughter. She is intellectually handicapped and the opinion evidence called by the Crown at trial established that she has a mental age of somewhere between five and eleven years, depending on the particular skill level assessed. The appellant had been in the role of a stepfather to her for about five years prior to his offending against her and was thus well aware of her limited intellectual capacity. When she attained the age of 16 years he commenced a wide range of sexual activity with her, including full sexual intercourse. This occurred over a period of seven months.

[5] At trial, the appellant admitted that the sexual activity alleged had taken place, with the exception of anal intercourse. His defence was that this sexual activity was at all times consensual and, if not, he believed on reasonable grounds that the victim was consenting.

[6] Mr Eaton submitted that in summing up the trial Judge had given “the strongest possible direction to the jury to find the appellant guilty” and that his summing up effectively amounted to “a second closing address for the Crown”. He said the Judge was completely dismissive of the defence of consent and that although
he frequently reminded the jury that factual matters were for them to determine he nevertheless pressed the jury towards a particular finding so that the “fairness and balance” required was lost (citing R v Fotu [1995] 3 NZLR 129, 138). A number of passages in the summing up were singled out for criticism, the cumulative effect of which, Mr Eaton submitted, was unfairness to the appellant. He pointed, for example, to the Judge’s direction on inferences. When directing the jury on the appellant’s state of mind at the time of offending, the Judge had given the standard direction on inferences. Mr Eaton argued that such a direction was inappropriate because the appellant had given evidence at the trial. The effect of the direction on inferences was for the jury to disregard his evidence.

[7] A further example of alleged unfairness was the Judge’s direction on lies. Again, this was a standard direction. However Mr Eaton, who was not trial counsel, argued that it was unclear from the transcript what lies had been relied on by the Crown or were being referred to by the Judge. Therefore, a lies direction had also been inappropriate.

[8] The major thrust of Mr Eaton’s criticism was however directed to those passages of the summing up where the Judge, having given standard directions as to consent, then gave a series of directions which Mr Eaton submitted reflected his personal view of the appellant’s defence of consent or reasonable belief in consent. These directions were reinforced by a number of rhetorical questions, which Mr Eaton submitted amounted to a forceful argument in favour of guilty verdicts. In comparison, the Judge had been dismissive of the appellant’s evidence, which he disposed of by posing further “argumentative rhetorical questions”.

[9] Mr Eaton’s second major area of criticism was directed to the evidence given by the victim’s teacher and the principal of her school as to her developmental age; and similar evidence given by Dr Greaves, a clinical psychologist, who had been counselling the victim in relation to the allegations for over a year before trial. Mr Eaton submitted that this evidence should not have been permitted, challenging the qualifications of the teacher and principal to give expert evidence as to the mental age of the complainant, and challenging the independence and objectivity of Dr Greaves because of her professional relationship with the victim. He said the jury
had the benefit of hearing all three of those experts give unchallenged evidence to the effect that the complainant had the mental age of a young child. Consequently the defence of consent could not succeed. Mr Eaton was further critical of the Judge’s treatment of that evidence in his summing up, specifically his advice to the jury to think of the victim’s schooling level of somewhere in the 5-6 year old category in terms of children they may know of the same age. He said that “such a direction was inappropriate because, firstly this complainant was a physically developed sixteen year old and secondly because such a direction invited the jury to take an emotional approach to determining the issue of consent”. Mr Eaton further submitted that these directions by the Judge about the victim’s intellectual abilities were not balanced by reference to statements made by the victim herself and by the fact that she watched programmes on television like the Jerry Springer show and had seen sex movies on Sky Television. He specifically referred to the point (made by defence counsel in cross-examination of the victim) that all sexual activity had been preceded by a request as to whether she wanted to participate in sexual activity and her agreement to that proposition, which the Judge did not mention.

[10] Mr Eaton’s overall submission was that the summing up lacked balance and fairness and had the effect of overawing the jury in favour of guilty verdicts.

Discussion

[11] Whilst the Judge’s summing up can fairly be described as robust and to the point, the reality is that the Crown’s case was overwhelming. The factual matrix was that of a 46 year old man in the position of a parent to a 16 year old girl with very limited intellectual ability (assessed as in the lower 1% of the community). As the appellant had lived with the victim and her mother for about five years before the offending commenced, he must have been well aware of the victim’s substantial intellectual limitations. The jury knew of this background. As the Judge remarked when later passing sentence on the appellant:

... Startling in the expert evidence given in the court, particularly by her teachers, was the fact that at the age of seventeen, they are still attempting to teach her to catch the bus. The notion that you thought that she was consenting is simply preposterous, and was rightly rejected by the jury.

[12] The evidence of the victim’s special needs teacher and the principal of her school as to her abilities and social skills was unchallenged and could not credibly have been challenged. Although the trial Judge characterised the evidence of the teacher and principal as expert, the nature of their evidence was, as Mr Stanaway submitted, predominantly of fact resulting from their observations of the victim. However the opinions they expressed in relation to her academic, emotional and social levels were well within their realms of expertise and they were entitled to give those opinions. The principal has 28 years of experience in dealing with children with intellectual and physical disabilities and her assessment, and that of the victim’s teacher, was made by reference to the range of levels of all students at the school. The victim’s teacher said this of her:

Level 1 is what [the victim] is, is 5 and 6 year olds, some students will fit into some things in level 2 getting up to 7 and 8 year olds. I have ten this year in my class and last year [the victim] was one of my pupils. [She] last year turned 16 on 1 March. Out of the 11 pupils in my class they range from 13 to 17 year olds. As far as academic, [the victim] is in the first level. Emotionally and socially she is about 10 to 12 year old level, immature, simplistic, just starting to get a little bit of a sense how friendships work a little bit of a sense of relationships but she is very simplistic in her view of life. ...

[13] The victim’s initial disclosures were made at the school and the principal, when describing her counselling of the victim over these initial disclosures, said:

... I sat there having to think how I could explain to a child who looks 16 but has the mental age of a 7 8 year old. I tried to think how would you tell somebody who has no idea, no concept of the meaning of such a thing. It is like dealing with a little child ...

[14] The evidence of the psychologist, Dr Greaves, was in the nature of expert evidence and she was qualified to give such evidence. We find no basis in her evidence for the suggestion that she was biased in favour of the prosecution simply as the result of her professional counselling of the victim following referral by the Accident Compensation Corporation. As Mr Stanaway submitted, Dr Greaves did not stray from giving limited expressions of opinion and did not impress as being an advocate for the Crown or biased towards the appellant. However, Mr Eaton pointed to one passage in Dr Greaves re-examination, where she said in response to a question as to why she had focussed on the victim’s understanding of relationship issues, rather than on special sexual education:

... part of my job as [an] ACC counselor is that she learns to keep safe that she learns how to protect herself from further, from any kind of exploitation because people with retardation with intellectual disabilities are very vulnerable and I focus with the reasons she came to see me she clearly had limited understanding of relationships. [emphasis added]

[15] Dr Greaves use of the word “further” and “exploitation” was criticised by Mr Eaton as suggestive of guilt, but we are satisfied that Dr Greaves was quick to correct any impression that she might have been commenting on the ultimate issue and made it clear that she was answering in the context of wider relationship issues.

[16] The Judge also reminded the jury that expert witnesses do not decide trials. He was however entitled to also indicate to the jury that weight could be attached to the collective evidence of the three expert witnesses, as their evidence was unchallenged.

[17] In relation to the central issue of consent, the Judge repeatedly reminded the jury that determination of that issue was a matter for them. He was, however, entitled to also draw their attention to the evidence upon which the Crown was relying to support the charges. He balanced this by references to the appellant’s evidence and to his “claim that he believed, he really believed, she was consenting”. He also encapsulated the essence of the defence in some detail when summarising defence counsel’s closing address. The rhetorical questions he posed, and which were criticised by Mr Eaton, were pointed but they served to focus the jury on the issues. The direction on inferences, whilst not specifically related to the evidence given by the appellant at trial, was nevertheless unexceptionable. Later, when giving a direction about reasonable belief in consent, the Judge referred to the appellant’s evidence at trial as follows:

... is it reasonably possible that he believed she was consenting? So you have to consider his evidence. You have to consider what he said to the Police. You have to consider her evidence and what she said to Mrs Stewart and Mrs Russ. It is not what the accused thinks now. It was what he really believed at the time these things occurred, the material times.

[18] The lies direction criticised by Mr Eaton, when read in the context of the evidence given by the interviewing detective, was appropriate. The appellant had initially denied to the detective that any sexual activity had taken place but
subsequently, at trial admitted all of the sexual activity alleged, except for anal intercourse. The prosecutor in her closing address remarked about this conflict in the appellant’s evidence, so a lies direction was appropriate in the circumstances.

[19] When read as a whole the summing up, although robust, accurately identified the central issues for the jury and focussed their attention upon them. All of the necessary legal directions were given. The important matter is that the Judge clearly identified the issues of fact that the jury were required to determine and made clear to them that it was for them to determine those issues. As the focus at trial was the issue of consent or reasonable belief in consent, the summing up can be said to have fairly reflected this. The only other issue was that of credibility/reliability in respect of the charge of anal intercourse, on which the appellant was acquitted.

[20] Overall, we do not find that the summing up was unbalanced or lacked fairness. Rather, we find that it reflected the overwhelming nature of the Crown’s case, whilst also making plain what the defence response to that was. In this regard, the following passage from R v Burrett CA264/03 12 February 2004 is apt:

[38] We have concluded that in the end the ultimate and only issue in the case was isolated for determination by the jury and that the Judge provided an adequate balance to those parts of the summing up where he undoubtedly expressed himself in strong terms. The fact is that the Crown case was a strong one. The Judge was entitled to reflect that in his summing up.

[21] In similar vein, this Court in R v Hoko [2003] NZCA 128; [2003] 20 CRNZ 464 said:

As we have already said, a trial Judge is entitled to express views on the evidence and assist the jury, so long as the jury is given clearly to understand that they are entitled to disregard those views. There is no obligation to strive artificially for balance in cases where the case for the Crown is strong and that of the defence strains credibility. What is of overriding importance is that the jury clearly understand the critical issues and their role in determining whether or not the Crown has proved its case, and are left to make their own findings.

[22] Furthermore, it is evident that the jury were not overwhelmed by the summing up because they spent some 11 hours deliberating on their verdicts on the first day and then went out overnight. This indicates that they were giving very careful consideration to their task. During their deliberations they also asked a number of questions, including a request for all of the victim’s evidence to be
replayed. It is notable that they acquitted the appellant on the count of anal intercourse. All of these factors indicate that the jury clearly understood their task, went about it assiduously and were not simply overwhelmed in favour of guilty verdicts.

Appeal against sentence

[23] The appeal against sentence was advanced on the ground that the sentence of 10 years was manifestly excessive for three reasons: first, because the Judge failed to factor into the sentencing equation that the sexual activity that occurred was almost always initiated by the appellant seeking and obtaining the victim’s consent; secondly, because the Judge erred in his treatment of the not guilty pleas by failing to recognise that the appellant had been acquitted on the count of sexual violation by anal penetration; thirdly, because the Judge was not justified in finding that the appellant had engaged in a “devious premeditated course, taking care to wait until she was sixteen so as, in your mind to give a veneer of credibility to what you knew very well you should not be doing”.

[24] Taking a realistic approach, however, Mr Eaton accepted that he could not vigorously contend for a reduction in sentence and the three points he raised can be briefly dealt with. First, there can be no credit accorded to the appellant for obtaining a consent from the victim which was not rational or informed and when she was intellectually unable to give her consent. The fact that the appellant did not apply physical force in achieving his sexual objective is simply an absent aggravating factor, and his sentence would undoubtedly have been higher had he used force. Secondly, the Judge did not treat the appellant’s not guilty pleas as an aggravating factor. However, no credit could be accorded to him as he had not accepted any responsibility nor shown any remorse. His acquittal on the count of sexual violation by anal penetration did not constitute a mitigating factor. Thirdly, there was ample evidence for the Judge to find that the appellant had engaged in a devious and premeditated course of conduct which included taking advantage of the fact that the victim had reached the legal age of consent for a woman of normal intellectual capacity.
[25] The trial Judge correctly assessed the starting point as eight years imprisonment for a contested rape after a defended hearing and we are satisfied that the further two years he added was appropriate given the significant aggravating features of gross breach of trust, duration of offending and the age and intellectual disparity between himself and the victim.

Result

[26] Leave to appeal the conviction out of time is granted. Both the appeals against conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington