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Cunha v Police [2016] NZHC 2878 (30 November 2016)

Last Updated: 17 January 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000315 [2016] NZHC 2878

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 30 November 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

CUNHA v NEW ZEALAND POLICE [2016] NZHC 2878 [30 November 2016]

[1] Mr Cunha faced two charges in the District Court. He was charged that on

8 June 2015 he did an indecent act on J, a young person then aged 12 years. Secondly, he was charged that on a date unknown between 5 August 2012 and 31

March 2013 he did an indecent act on B, a young person then aged 13 years.

[2] Following a Judge alone trial, Judge Field found Mr Cunha guilty on both charges in a decision delivered on 27 July 2016.¹ On 9 September 2016, Judge Field sentenced Mr Cunha to two years two months imprisonment.² Mr Cunha appeals against conviction. He alleges that in relation to each charge the Judge erred in a manner in which he assessed the evidence to an extent that a miscarriage of justice

_{has occurred.}³ _{In this context a miscarriage of justice will occur when any error has}

created a real risk that the outcome of the trial was affected.⁴

The first charge

[3] J’s family were members of a gymnasium facility in Auckland that provided members with a wide range of sporting and recreational facilities. J and other members of his family regularly took advantage of the facilities that the gymnasium offered.

The evidence

[4] The first charge was laid as a result of an incident that occurred on the afternoon of 8 June 2015. J’s evidence-in-chief was placed before the Judge in the form of an evidential interview recorded on videotape on 30 July 2015. He also gave oral evidence at the trial. J said that on the afternoon of 30 July 2015 he and his mother attended the gymnasium. During the course of the afternoon, J went into the toilet area of the facility. He said that he had earlier noted a male person “lurking around” in the toilet and this had caught his eye. He said that all of the conventional toilet cubicles were occupied or out of order. For that reason he entered a toilet

_{cubicle designed for use by persons with physical disabilities.}

¹ _{New Zealand Police v Cunha [2016] NZDC 20333.}

² _{New Zealand Police v Cunha [2016] NZDC 17584.}

³ _{Criminal Procedure Act 2011, s 232(2)(b).}

⁴ Section 232(4)(a).

[5] J said that the man whom he had observed earlier lurking in the area of the toilets then followed him into the cubicle and locked the door. J’s evidence as to what then occurred is captured in the following passage from his evidential interview:

I went in and then he came in with me then sort of closed the door, locked it and then he was like, “Do you want to touch me” and then honestly at first I thought it was some sort of prank or some kind of joke and he had like hidden camera or something it was like a prank and then I was like um and then also he pulled down his pants and underwear and he was like “Do you want to touch me” and I was um no thank you cause I was still, I was really nervous I was thinking what happens if he doesn’t let me out and stuff and he was like, “Can I touch you” and I was like “No sorry” and then he was and then I said um can I be, can you please let me out and then sort of ah sorry before that when I said no sorry you can’t touch me it was like he was like he put his hand on my head and he was like “Are you sure. Nobody will ever know” and I was like um “fine thank you” and then I asked “can you please unlock the door” and I was hoping he would or else because it was a really thick door probably [demonstrates thickness of door] it was about that thick and he sort of like thought about it for a little bit and then just shrugged and unlocked it and then I opened the door and went back and then it took a little bit maybe like 5 minutes and then I told my Mum and she was like ah no like she was like hoping that I was OK and stuff and then we sort of we started looking for him ...

[6] After J met up with his mother, she advised the club manager of what had occurred. J then identified Mr Cunha, who was still present at the facility, from photographs shown to him by the club manager. The manager spoke to Mr Cunha and then called the police. At that point the police took Mr Cunha to the police station where he was subsequently interviewed.

[7] During the interview Mr Cunha accepted that he had been in the toilet cubicle with the complainant on the afternoon of 8 June 2015. His version of events differed from that given by J in several important respects. First, Mr Cunha said that J had followed him into the cubicle rather than the other way around as J had described. Secondly, Mr Cunha acknowledged that he had asked J whether J wanted to touch him, but he said that he did so in a laughing or joking manner. He also said that he lifted up his t-shirt to expose his stomach at about this point. He denied that he had pulled down his pants and underpants so as to expose his penis and testicles.

[8] Mr Cunha told the police that he was in an awkward situation during the incident and that he had made a mistake in asking J whether J wanted to touch him.

He explained this by saying that English was not his first language, and that he sometimes did not know how to express himself in English. He said that J told him he wanted to leave, and that J then left the cubicle “kinda smiling”. In short, Mr Cunha contended that J had been the instigator of the incident. His position was that although he accepted should not have asked J to touch him nevertheless he did not intend to proposition J. He also denied that he had pulled down his pants and underpants so as to expose his penis and testicles.

[9] When cross-examined at trial, J maintained the version of events he had outlined in the evidential interview and denied that Mr Cunha’s version of events was correct. Mr Cunha then gave evidence and essentially maintained the version of events he had given the police when he was interviewed. He again maintained that he had not exposed his penis and testicles and denied any wrongdoing.

[10] J’s mother also gave evidence at the trial. She said that J was upset when he came out of the toilets and told her that he needed to speak to her in private. She said that when he told her what had happened he was shaking and had lost colour in his face. He was very emotional and was crying hysterically. J’s mother said that she then took him to see the club manager, who showed him the photographs from which he identified Mr Cunha as being the person who had accosted him in the toilet cubicle. At the suggestion of the police she later encouraged J to have a swim with his friends so that he could relax.

The Judge’s decision

[11] The Judge accepted J’s version of events in the following paragraphs of his decision:⁵

[9] Further to the complainant’s evidence there was the evidence of his mother. [J’s mother] observed the complainant. He was showing obvious signs of distress. He was, it was fair to say, almost hysterical and incoherent and significantly distressed and upset by what he says occurred. His reaction to the incident is not disputed and it seems to me that his reaction as observed by the mother and indicated by him is completely out of all proportion to a person showing him his stomach as some kind of joke.

⁵ New Zealand Police v Cunha, above n 1.

[10] I have reached the view, having seen and heard the evidence, that matters did happen in the way described by J. He would not, for example, have asked, “Can I leave?” if he had not felt that he needed to ask permission. I consider it highly unlikely, and in fact I reject, the proposition that J shut the door leaving the two of them alone in the room. He would have no reason to ask for permission to leave if he had felt that he could have left without that permission.

[11] The defence has challenged him on a number of issues, one important matter being the orange underpants which the complainant is adamant that he saw the defendant wearing. The defendant was questioned very shortly after the event and there has been no evidence of the kind of underwear that he was wearing at the time. In the course of his interview with the police he raised his t-shirt to show his midriff but there is no evidence before the Court as to the colour of the underwear that he was wearing at the time. The matter is left open but leaving the colour of the underpants to one side, I am quite sure, as I have said, that matters occurred as the complainant has described. I find that charge proved beyond reasonable doubt and I record a verdict of guilty to that.

Grounds of appeal

[12] On Mr Cunha’s behalf Mr Wright challenges the Judge’s conclusions on the following basis:

(a) The Judge placed excessive weight on the evidence given by J’s mother regarding J’s demeanour following his encounter with Mr Cunha.

(b) The Judge failed to set out reasons for rejecting Mr Cunha’s evidence.

(c) The Judge failed to take into account the fact that despite searching Mr Cunha’s address, the police failed to recover any orange underpants.

Decision

The evidence given by J’s mother

[13] As Mr Wright acknowledged during the hearing, the evidence given by J’s mother was clearly relevant because she was able to observe J’s demeanour immediately after the incident. That being the case, it was for the Judge as finder of fact to place such weight on the evidence as he saw fit. An appellate court would not

normally challenge the weight given by the finder of fact to individual pieces of relevant evidence. The passage from the Judge’s decision set out above at [11] makes it clear in any event that the Judge regarded the evidence of J’s mother as just one factor in his decision. I do not consider there is a foundation for the submission that the Judge placed excessive weight on that evidence.

[14] Furthermore, I consider the issue of J’s demeanour immediately after the incident was of considerable importance. On Mr Cunha’s version of events J had been the instigator of the incident, and he and Mr Cunha parted on amicable terms. That was hardly consistent with the manner in which he presented to his mother just a few minutes later. For that reason I consider the evidence of J’s mother provided strong support for J’s version of events.

Failure to give reasons for rejection of Mr Cunha’s evidence

[15] Generally speaking, a Judge should give reasons for rejecting the evidence of a key witness in a Judge alone trial. That becomes particularly important when the evidence is that of the defendant and the issue is one of credibility.⁶ I accept that the Judge in the present case did not expressly articulate the reasons why he rejected Mr Cunha’s evidence, but I consider it is implicit from the passages of the Judge’s decision set out above at [11] that he preferred J’s evidence and found the version of

events given by Mr Cunha to be highly improbable. Furthermore, the failure to expressly articulate reasons why a defendant’s evidence has been rejected will not necessarily result in a miscarriage of justice. By way of example, the trial Judge in R v Scutts had not articulated the reasons why she had rejected the defendant’s evidence but the Court of Appeal was able to infer that she must have disbelieved him.⁷

[16] Viewing the matter afresh, I consider that the Judge was correct to conclude

that Mr Cunha’s version of events was highly improbable. It is difficult to see why a

12 year old boy would instigate an encounter of the type Mr Cunha described with a total stranger. It is also difficult to believe that rebuff by Mr Cunha would have

_{caused J to have become distressed to the point where he sought his mother’s}

⁶ _{R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA) at 237.}

⁷ R v Scutts [2015] NZCA 599 at [40].

assistance. Furthermore, Mr Cunha’s explanation for lifting his shirt and asking J if he wanted to touch Mr Cunha is hardly convincing. Finally, it is difficult to see why J would have asked permission from Mr Cunha to leave the toilet cubicle when he was the person who had intruded on Mr Cunha in that cubicle. Taken as a whole, I consider Mr Cunha’s version of events to be fanciful.

The orange underwear

[17] The police did not recover any orange underwear when they searched Mr Cunha’s address with his consent. Mr Wright submits that this lends weight to Mr Cunha’s version of events.

[18] The difficulty with this proposition is that the search of Mr Cunha’s address took place some time after the incident on 8 June 2015. There could be any number of reasons why the orange underpants, if they ever existed, were not found at the address. Even if J was mistaken about the existence of the orange underwear I do not consider that the issue casts doubt on the correctness of the Judge’s conclusion regarding J’s credibility.

Conclusion

[19] It follows that none of the grounds advanced in respect of the appeal against conviction on the first charge have been made out.

The second charge

[20] The second charge was laid as a result of an incident that is alleged to have occurred at the same gymnasium towards the end of 2012. The complainant in respect of this charge, B, was 13 years of age at the time of the incident giving rise to the charge. He did not disclose that incident until mid-2015.

The evidence

[21] B’s family also belonged to the gymnasium. Like J’s family, B and his

family used the facilities there on a regular basis.

[22] B was the subject of an evidential interview on 20 July 2015. The recording of the interview formed the basis of his evidence-in-chief at trial and was supplemented by oral evidence and cross-examination. B said that the incident giving rise to the charge occurred one afternoon in late 2012 or early 2013 when he was having a shower at the gymnasium. B’s evidence about the incident is captured in the following passage from his evidential interview:

Okay, well pretty much I went, I was with my mum and my little brother and we were going to [the gym] ...and we went in there for you know we normally go in there well we used to go in there quite a bit. My brother would swim or I would go to the gym or something and then and then after a little, well an hour 2 hours we’d leave and we’d just finished, I’d gone down for a swim after using the gym and my brother was just finishing up in there and we went, we went to hit the showers you know in the gym and the showers it’s kind of hard to describe there’s about, there’s a big long hallway of showers and it looks like they’ve just tried to fit as many as they could into one area and you pretty much press the doors on each of the showers and it’s magnetised. So if you push hard enough then the magnet just lets go. So my brother jumped in one down the far end and I jumped in one about the middle, there was about 20 - 30 showers and then I was just in the middle of my shower and someone pushed on the door so I thought it was someone who’d accidentally pushed on one that they thought was empty to use the shower. So I gave it a push back but as soon as I push back they, they just really dug in and it sort of became a pushing war I supposed of who could hold the door. So you know this is a bit strange so I said this one’s taken and they just kept pushing to the point where they gave it a big shove and I pretty much like lost my grip on the wet floor and just went away from the door and a guy barged in and closed the door behind him and I was, I was like aw this one’s, this one’s taken. I didn’t say those words that I mean I said something like you know I’m in this one I’m using this shower and he didn’t say anything and then started coming onto me and I thought this is a bit weird so I gave him a push backwards and he didn’t seem to like that and he got quite physical and began to like grab my wrists and, and I tried to you know fight back just like cos I was smaller than I am now what was this, this was end of 2013 aw sorry end of 2012 beginning of 2013. So I would have been what in year 8 and then he basically, he was only wearing a towel and he grabbed my hand and tried to make me masturbate him and I didn’t like that and so I really gave him a shove I really tried to put in all my what I had and he got quite angry. So I decided to try and make a loud noise you know, so he’d leave and so I did and he didn’t like that and he kept telling me to shush and it was gonna be, it was okay and, and just be quiet and, and yeah I wasn’t gonna have that and then he grabbed his hand and he was trying to masturbate me and I really didn’t like that so I gave him a punch as best as I could and just below the ribs and then he got really quite violent and grabbed my wrists quite tight and was telling me to shut up and all this and then I obviously made a loud enough noise and told him to get out that he bolted, he didn’t want any more of it and so I closed the door and I sat there for about 20 minutes in the shower just trying to get over what had happened and yeah do you want me to tell you as much as I ...

[23] During the course of the same interview B gave the following description of the person who had accosted him in the shower:

Okay, he was bigger than me, he was probably a head taller than what I am now and he was foreign I know that because when he spoke you know he had a European accent Spanish or something like that just from how he said his words you could tell. He was roughly shaven so a bit of stubble. He had short hair. He had olive skin bit lighter than mine. He was quite, he was built. He wasn’t you know real bulky but he wasn’t mm how do you describe that, he was of a toned build mhmm and then from there I left the shower.

[24] During the interview the interviewer put a montage of eight photographs to B and asked him to say whether he recognised any of the persons in the photographs as the person who had confronted him in the shower cubicle. B immediately identified Mr Cunha as being that person. It is common ground that Mr Cunha was the only person in the photographs who belonged to the gymnasium where the incident giving rise to the charge occurred.

[25] In cross-examination at trial B maintained his version of events, and denied that he may have subconsciously picked out Mr Cunha from the photo montage because he may have seen him at the gymnasium on another occasion. B said that he had never seen Mr Cunha at the gymnasium before or after the day giving rise to the incident.

[26] Mr Cunha gave evidence at trial and adamantly denied that he was the person involved in the incident. He also said that B may have confused him with one of his Brazilian friends who also attended the gymnasium and was similar in appearance to Mr Cunha. This person also spoke with a similar accent to Mr Cunha. Mr Cunha declined to name this person, but said that people had confused him with his friend on other occasions. Mr Cunha mentioned this for the first time when giving evidence, so it was not possible for the proposition to be put to either B or the staff member from the gymnasium who gave evidence at the trial.

The Judge’s decision

[27] The Judge concluded he was satisfied that the prosecution had proved beyond reasonable doubt that Mr Cunha was the person involved in the incident that B

described. The Judge’s reasons are contained within the following passages of his verdict:

[13] The issue is whether or not the person who forcibly entered the shower cubicle is the defendant. Some issues have arisen there. The defendant adamantly denies that he is the person concerned. In this regard I have considered the evidence given and the description given by [B] concerning the person who came into the shower cubicle. He described the person as of lean build, light olive skin, having stubble, short black or dark brown hair and a foreign accent, possibly Spanish. He described his hair as being wet from the shower, covering his ears a little bit; all of this being a good, if not identical match, to the description given by the second complainant and indeed from my own observation of the defendant during his interview and in Court today. I am, of course, aware that descriptions of physical appearance can change over a period of a year or more but certain things remain constant; skin colour, hair colour, accent which is of particular importance here.

[14] His appearance also, in my view, is remarkably consistent with photographs produced by him of his appearance at about the time of the alleged incident. In other words, similar kind of hair-do, bearing in mind of course the fact that the person concerned was wet from the shower, and perhaps difficult to determine length and the way in which his hair was styled at the time. But in a general way, the hair described matches that of the defendant. So we have the evidence given concerning the remarkable similarities between the person who forced his way into [B’s] shower stall and the person involved with [J].

[15] The complainant picked out the defendant from a photo montage. There are some clear difficulties with that as a form of identification. Certainly from a montage of, I understand, eight photographs or images, the defendant was identified by the complainant as photo 7. He was quite sure about that and appears not to have taken much time to pick him out. However, as counsel pointed out, the montage contained one picture of the defendant and seven others who had not been members of the club. It is possible that the defendant may have registered subconsciously on the mind of the complainant through some earlier interaction at the club of which neither of them were aware so I have to treat that identification from the photo montage, some two years after the event, with extreme caution and I have to say that has little evidential value. However, the description given is important. The language, the description given and the evidence of the complainant here satisfied me beyond reasonable doubt that the defendant is the person concerned.

[16] I pause only to comment that in the course of his evidence the defendant raised the possibility that the assailant, if I can use that word, may have been another of his Brazilian friends. He maintains that he does have a Brazilian friend who may have been the perpetrator. At page 86 of the notes of evidence he says that he has been confused with this person before. He declined to get that person into trouble and appeared perhaps to resile from that position when questioned by me at page 87 of the notes. However, that is a matter I have taken into account but it seems to have been raised only during the course of this trial and not before. It was never mentioned to the police at interview and, indeed, the defendant himself says that this has only

just occurred to him over the course of this trial. On that basis it was not possible for counsel to put the suggestion to one of the gym personnel.

[17] In any event, the evidence given by [B] is detailed. As I have said, it involves attempts to masturbate the defendant and the complainant and the description given is strikingly similar.

[18] In all the circumstances I am satisfied beyond reasonable doubt that the defendant is the person who broke into the shower cubicle.

Grounds of appeal

[28] Mr Wright contends that the Judge failed to consider a key aspect of the defence case when considering this charge. In addition to Mr Cunha’s general denial the defence relied upon evidence adduced by the prosecution regarding times when Mr Cunha attended the gymnasium at the same time as B and members of B’s family. Mr Wright submits that these demonstrated that the prosecution could not establish that B and Mr Cunha were ever at the gymnasium at the same time during

2012.

[29] I agree that the Judge ought to have dealt expressly with this issue because it formed an important part of the defence case. It is therefore necessary for me to re- examine the issue afresh.

[30] B said in his evidential interview that he generally attended the gymnasium in the afternoons after school had finished, and usually in the company of other members of his family. He said he believed the incident occurred towards the end of

2012 when he was in Year 8 at school. He said that his father was not present on the day of the incident because he had gone away and that this confirmed it was towards the end of the year. He also said that he knew that it was not the holidays but said it was towards that end of the year.

[31] B’s mother also gave evidence and said that she generally took her children to the gymnasium after school and that they would also go there during the holidays. She also confirmed that her husband travelled a lot for work, but that he would also attend the gymnasium with other members of the family when he was home.

[32] Members of the gymnasium were issued with swipe cards that they used to gain access to the car park and through gates at the entrance to the facility. Attendances were recorded electronically by this means. On some occasions, but not always, the cards also enabled the gymnasium to record when members left the facility. As a result, the police were able to establish when Mr Cunha had been at the gymnasium on the same dates as members of B’s family. Mr Wright submitted that these showed that Mr Cunha did not have the opportunity to come into contact with B during the latter part of 2012.

[33] The prosecution produced a chart summarising the times when Mr Cunha and members of B’s family had been at the gymnasium on the same day during the period between September 2012 and January 2013. This showed that B’s mother and Mr Cunha had both attended the gymnasium on the same day but at different times on 9, 12 and 28 September 2009. B’s mother and Mr Cunha both attended the gymnasium at the same time on 19 November 2011, but B’s mother arrived at 11.51 am and left at 12.43 pm. Given that this was a Monday during the school year it is unlikely that B attended the gymnasium with her on this occasion. Similarly, Mr Cunha and B’s mother were also at the gymnasium at the same time on 23 November

2012. Again, however, B’s mother arrived at 1.19 pm and left at 2.38 pm. Given that this was a Friday during the school year it is also unlikely that B attended the gymnasium with his mother on this occasion.

[34] Mr Cunha arrived at the gymnasium at 3.55 pm on 19 December 2012 and left at 4.25 pm. The attendance records show that B and his mother arrived at the gymnasium on the same day at 3.21 pm but there is no record of the time at which they left.

[35] B then attended the gymnasium with his brother and both parents at 5.25 pm on 14 January 2013 but the records do not disclose when they left. Mr Cunha arrived at the gymnasium on that date at 5.35 pm and left at 6.26 pm. Given B’s recollection that his father was not present on the date when the incident occurred I consider it is unlikely that the incident occurred on this date.

[36] This leaves the mutual attendances on 19 December 2012 as being the only realistic occasion on which the incident could have occurred. Mr Wright says that the incident could not have occurred on that date because B said that it did not occur during the holidays, and the evidence disclosed that the school year for Year 8 students ended on 14 December 2012 at B’s school. As a result, B’s attendance on

14 December occurred at the beginning of the school holidays.

[37] I do not consider that this aspect of B’s evidence was necessarily correct. The attendance occurred just five days after the school year had finished, and at a time that would normally be after school had finished for the day. It also needs to be borne in mind that B was not asked to nominate a date for the incident until nearly three years after it occurred. His evidence makes it clear that he could only fix the date of the incident in broad terms, and having regard to events that were occurring at that time. The attendance records make it clear that B and Mr Cunha were together at the gymnasium at the same time on the afternoon of 19 October and there was therefore opportunity on that date for the incident to have occurred. I consider it likely that B wrongly assumed that the incident occurred during the school year because it occurred shortly after the school year had finished and at a time of day consistent with being after school hours.

[38] For that reason I do not accept that this aspect of the defence case was sufficient to cast doubt on the prosecution case to the point where the Judge’s verdict became unreasonable in terms of the established principles confirmed in R v Munro and Owen v R.⁸

[39] In addition to the evidence of opportunity the Judge was entitled to take into account, as he did, B’s accurate physical description of his assailant and also the highly pertinent fact that he spoke with a Spanish accent. Mr Cunha is of Brazilian descent and his native language is Portuguese.

[40] Furthermore, B had identified Mr Cunha from the photo montage immediately notwithstanding the fact that the incident had occurred a long time ago.

⁸ R v Munro [2007] NZCA 510, [2008] 2 NZLR 87; Owen v R [2007] NZSC 102, [2008] 2 NZLR

37.

The Judge placed little weight on that evidence because of the fact that the montage did not contain photographs of other users of the gymnasium but I am not convinced his caution was warranted. The critical requirement of a photo montage for identification purposes is that it contains photographs of persons who are broadly similar in appearance to the suspect. The defence do not contend that the montage used in the present case was deficient in that respect. Furthermore, B has always maintained that he had not seen Mr Cunha at the gymnasium prior to the date of the incident. For these reasons I consider that this form of identification evidence carried significant probative value.

[41] Next there is the propensity evidence. In a ruling delivered on 2 November

2015 Judge Field held that the evidence relating to each of the incidents giving rise to the charges was cross-admissible in respect of the charge relating to the other.⁹

_{That decision was upheld on appeal to this Court.}¹⁰

[42] The sole issue in relation to the second charge was whether the prosecution could establish that Mr Cunha was the person who confronted B in the incident that he described. In considering that issue the Judge was entitled to take into account the fact that Mr Cunha was shown to have engaged in similar conduct with another young boy in the toilet area of the same gymnasium approximately two and a half years later. The Judge regarded this aspect of the evidence as “a significant part of

the evidence that the Crown can rely upon”.¹¹ I agree. I consider that the propensity

evidence had significant probative value in relation to the second charge.

Conclusion

[43] It follows that the appeal against conviction on the second charge cannot succeed.

⁹ _{Police v Cunha [2015] NZDC 21654}

¹⁰ _{Cunha v Police [2015] NZHC 3271.}

¹¹ Police v Cunha above n 1, at [19].

Result

_{[44] The appeal against conviction is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland