A (CA421/2022) v R [2023] NZCA 602

A (CA421/2022) v R [2023] NZCA 602 [29 November 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OFTHE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA421/2022[2023] NZCA 602BETWEEN A (CA421/2022)AppellantAND THE KINGRespondentHearing: 6 November 2023Court: Collins, Brewer and Muir JJCounsel: M G Robinson for AppellantE J Hoskin for RespondentJudgment: 29 November 2023 at 9.30 amJUDGMENT OF THE COURTA The application to adjourn the appeal is declined.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr A appeals three convictions namely, two convictions for rape and one forkidnapping the complainant (V).[2] There are four grounds of appeal:(a) Propensity evidence was improperly admitted.(b) Grice J, the trial Judge, declined to give the jury a direction unders 122 of the Evidence Act 2006. Such a direction would have involvedthe Judge warning the jury about accepting evidence concerning Mr A'sconduct, which was alleged to have occurred more than 10 years beforethe trial.(c) Mr A had insufficient time to prepare for the trial.(d) No medical evidence was adduced which could have helped prove Vfabricated her allegations and assisted the jury in understanding Mr A'spsychological issues.[3] After the jury were empanelled, Mr A pleaded guilty to a representative chargeof sexual conduct with V, a dependent family member, contrary to s 131(1) of theCrimes Act 1961.1 There is no appeal in relation to that conviction. The jury acquittedhim of three charges of performing an indecent act on V and two charges of sexualviolation by unlawful sexual connection, also against V. Mr A was sentenced to a totalterm of seven years and six months' imprisonment in respect of the four charges forwhich he was convicted.21 R v A HC Wellington CRI-2021-035-761, 5 August 2022 [Sentencing notes] at [2].2 At [128].Adjournment application[4] At the hearing, Mr A sought an adjournment of his appeal. Counsel for Mr A,Mr Robinson, told us that a psychologist had informed him that Mr A may satisfy thecriteria for a diagnosis of Autism Spectrum Disorder (ASD), but further time wasrequired to have him properly assessed. There were four reasons why we declined theadjournment application:(a) On 20 October 2023, French J declined an application for anadjournment of Mr A's appeal. That application was based on Mr Aanticipating he would be diagnosed with ASD. Nothing has changedsince French J declined to adjourn Mr A's appeal.(b) There is no suggestion Mr A was unfit to stand trial or insane at the timeof the offending. Evidence demonstrating that Mr A suffers a degree ofASD was not relevant to the grounds of appeal against conviction.Such evidence might have been relevant to a sentence appeal, but therehas been no appeal against the sentence imposed by Grice J.(c) A psychological report was made available to the High Court pursuantto s 38 of the Criminal Procedure (Mentally Impaired Persons) Act2003. In that report Dr Lomas said that Mr A did not display signs ofpsychosis. She also recorded he was willing to participate in a sexoffender treatment programme.(d) Mr A was convicted in June 2022. He was sentenced on 5 August 2022.If an adjournment had been granted it is likely the appeal would not beheard until the second quarter of 2024. It is not in the interests of Mr Aor V for his appeal to be left unresolved for close to two years.Background[5] In 2006, V became a foster child of Mr A and his wife. At the time, V wasthree and a half years old. During her teenage years V's relationship with her fostermother deteriorated and at the same time Mr A became obsessed with V. The natureof Mr A's relationship with V was succinctly described in the following way by Grice Jin her sentencing notes:3[13] Mr A wrote love letters to the victim and text messages, professing hisdevotion to her and stating he wanted to marry her. Mr A told the victim hewanted to have a baby with her and it was God's will that they were together.Mr A used God and religion to justify the sexual relationship with the victim.The victim had been brought up in the household of Mr A and his wife, whichin general was very religious.[14] The victim returned Mr A's sexual affections. She said she felt shehad to go along with the pretence of a relationship because it was the only wayshe could get her freedom, such as having her phone or hanging out withfriends. She said she also did it as she didn't want to offend God and felt thatshe just had to keep the peace in this way. She felt burdened to continue therelationship and to constantly reassure Mr A of their loving relationship.[15] When the victim didn't respond to Mr A's affections in kind, he wouldbecome needy, insecure, angry and controlling. He would cry and threaten tokill himself if she did not return his affection. Mr A told the victim, on morethan one occasion, that if she left him for another man, he would kill her andany partner before killing himself.First rape[6] The first rape occurred soon after V had turned 16 years of age. When Mr Aand V were alone in their home, he went into her bedroom and made her remove herclothes. He put on a condom and used his weight to pin her down on the bed, Mr Ainserted his penis into V's vagina. This caused her to cry out in pain. She told him tostop. He ignored her pleas and put his hand over her mouth to stop her making anynoise while he continued to rape her.Sexual conduct with a dependent person[7] The representative charge of sexual conduct with a dependent person coveredthe period from after the first rape to when V turned 18. After the first rape, Mr A andV developed a consensual sexual relationship, which involved them having sex on aregular basis.3 Sentencing notes, above n 1.Second rape and kidnapping[8] The kidnapping and second rape occurred in mid-2021 when V was18 years old. V wanted to end the sexual relationship. Mr A responded by threateningto take his own life by going into the bush with the aim of dying through exposure.[9] The following weekend Mr A again asked V to have sex with him and tomarry him. She refused. He then dragged her into a bedroom, smashed her phone anddetained her by binding her hands with his belt. V attempted to escape, but Mr Acaught her and dragged her back into the bedroom where he demanded that V marryhim and consent to have his baby. Fearing for her life, V agreed to have sex withMr A. He then removed her underwear and proceeded to rape her.Other alleged offending[10] For completeness we record that the charges Mr A was acquitted of includedallegations he committed sexual offending against V when she was 12–16 years of age.Those charges alleged instances of inappropriate touching of V, digital penetration andthat Mr A exposed himself to her.Propensity evidence[11] The propensity witness, P, lived next-door to Mr A and his family when shewas about 12 years old. She told the police Mr A became obsessed about her.She described Mr A as being "touchy, feely" towards her when he initiated play fightsand held her hips and hands when helping her do some woodwork.[12] When P was approximately 13 years old and living in a different suburb, Mr Adrove her home after she had had dinner with Mr A and his family. On the way homeMr A put his hand on her leg and told her that God had come to him in a dream. He saidthat God had told him that his wife was going to die and that P would become his wifeand become mother to his children.[13] Soon thereafter Mr A left a box of chocolates in P's family letterbox for her.The package was addressed using a nickname that Mr A used for P.[14] P told her family what had happened. They reported it to the police who toldMr A to leave P alone. She believed that soon thereafter Mr A hacked her Facebookaccount and sent threatening messages to her boyfriend from her account.[15] P told the police that Mr A came to a supermarket where she worked part-timeand that Mr A hugged her, said he was sorry and asked for forgiveness. P also told thepolice that Mr A would often come to the supermarket where P worked.[16] Prior to trial, Mr A challenged the admissibility of P's evidence. In a judgmentdelivered on 22 March 2022, approximately two months before the commencement ofthe trial, Simon France J ruled P's evidence was admissible. In doing so, the Judgeobserved:4[19] There is little doubt the witness' evidence, if accepted by the jury, cansupport the propensity claim advanced by the Crown. From a physicalviewpoint there is the touching of the witness in the shed and then in the car.From an obsession viewpoint there is a pattern alleged of initiating contact,maintaining an unusual and inappropriate focus on the young girl throughvehicles such as Facebook, and later it is alleged both continuing to seekcontact when told not to, and struggling with the idea of leaving the witnessalone. And then, strikingly, the alleged comment about marrying her andhaving children, all made to a 13-year-old girl. If accepted this occurred, itwill provide legitimate support to the complainant's claims that he said thesethings to her, his daughter.First ground of appeal[17] The first ground of appeal alleges a miscarriage of justice occurred through Pbeing allowed to give propensity evidence. Mr Robinson submitted that P's evidenceat trial was significantly different from that which was considered by Simon France Jwhen he made his propensity ruling and that had the true extent of P's evidence beenappreciated before the trial, the High Court would have excluded P's propensityevidence.[18] There are three reasons why the first ground of appeal fails to gain traction.4 R v [A] [2022] NZHC 478.(a) There was little difference between P's pre-trial statement and her evidence[19] Most of the evidence which P gave at trial was consistent with the evidencethat was before Simon France J when he ruled P's evidence was admissible.In particular, the following key parts of P's evidence at trial were the same as theevidence that was considered by Simon France J:(a) P's evidence that Mr A touched her thigh while being driven home fromhis house in his car.(b) P's evidence that Mr A told her about the dream in which God had saidhis wife would die and that she would marry Mr A and become themother of his children.[20] There were two instances in which the evidence before Simon France J wasnot repeated by P when she gave evidence at trial:(a) When P spoke to the police, she said Mr A touched her hips when shewas doing some woodwork. In fact, P explicitly denied this happenedwhen she gave her evidence at trial.(b) The trial evidence differed from the pre-trial evidence on the frequencyof Mr A's visits to the supermarket where P worked. In her statementto the police P said this happened "often" and "like clockwork forweeks" whereas at trial, P agreed Mr A went to the supermarket onlythree or four times.[21] There were other minor changes between P's pre-trial evidence and theevidence she gave at trial, namely:(a) Her evidence at trial about Mr A initiating play fights was less specificthan the evidence considered by Simon France J.(b) P's trial evidence was more specific than the pre-trial evidence aboutthe Facebook posts and comments attributed to Mr A.(c) The trial evidence was more specific about private messages sent byMr A to P.[22] We accept there are some changes between the evidence considered bySimon France J and the evidence given by P at trial. The changes were, however,minor and, as we explain at [23], may well have assisted Mr A.(b) There was no miscarriage of justice[23] P's propensity evidence supported V's allegations of Mr A having offendedagainst V when she was a similar age to P. No miscarriage of justice arose becauseMr A was acquitted in relation to all charges that alleged offending against V beforeshe was 16 years old.(c) The propensity evidence was admissible[24] Most importantly, the propensity evidence was plainly admissible. It clearlydemonstrated that Mr A had a tendency to engage in highly inappropriate andobsessive behaviour towards young girls. As Simon France J observed, there was astriking similarity between Mr A's comments to P about God telling him that shewould become his wife and mother to his children and the comments he made to V onthis topic. This evidence by itself was highly probative of the Crown's theory thatMr A became obsessed with V and used God and religion to justify sexually exploitingher.Second ground of appeal[25] The second ground of appeal alleged a miscarriage of justice arose becauseGrice J failed to consider giving a warning under s 122(2)(e) of the Evidence Act aboutthe conduct of Mr A, which was alleged to have occurred more than 10 yearspreviously.[26] A warning under s 122 is not mandatory. As the Supreme Court has recentlyexplained, trial judges are required to manage s 122(2)(e) issues with some care, ifthey emerge on the facts.5 In this case:(a) Section 122(2)(e) did not apply to V's evidence, which concernedevents that occurred less than 10 years before the trial.(b) In relation to P's evidence, Mr Robinson conceded before us thats 122(2)(e) likely did not apply. He said the evidence "was on the cuspso that you could argue it started within the ten year period" but "itwasn't clearly over the line" where s 122(2)(e) was engaged. He notedthat P's earliest evidence concerned Facebook posts in August 2012,and the trial occurred in May 2022, so the ten-year threshold was nottriggered.(c) Following her summing up and after the jury had begun theirdeliberations, Grice J discussed s 122(2)(e) with counsel.Mr Robinson, who was trial counsel, explained to us that following thatdiscussion with the Judge, he elected not to formally apply to haveGrice J recall the jury and give them a s 122(2)(e) direction.[27] Although the way the Judge dealt with the s 122(2)(e) question was less formalthan would normally be desirable,6 we are satisfied no miscarriage of justice arose.Given Mr Robinson's acknowledgement that P's evidence was not more than 10 yearsold at the time of the trial, the lack of a s 122(2)(e) direction cannot have occasioneda miscarriage of justice because s 122(2)(e) was not in fact engaged.[28] Further, giving the jury a direction under s 122(2)(e) about P's evidence isunlikely to have assisted Mr A. As Ms Hoskin, counsel for the Crown, pointed out,the jury may well have inferred that the Judge thought it was necessary to warn themabout the accuracy of P's evidence but that no such warning was required in relation5 R (SC 78/2018) v R [2023] NZSC 132 at [4]–[5] and [49]–[50] per Winkelmann CJ, O'Regan andWilliams JJ.6 At [50] per Winkelmann CJ, O'Regan and Williams JJ.to V, thus inadvertently bolstering V's evidence. A s 122(2)(e) direction about P'sevidence may well have worked against Mr A's interests.[29] The second ground of appeal therefore fails.Third ground of appeal[30] Mr A was charged in 2021 for offending which was said to have occurredbetween 2015 and 2021. His trial commenced 10 months later. He nevertheless claimsthat he had "insufficient time to prepare his case".[31] Mr A has not attempted to impugn Mr Robinson's conduct of his trial. He doesnot allege Mr Robinson failed to follow his instructions, or that Mr A was somehowill-advised or that he was inadequately prepared to give the evidence he gave overthree days of the trial. Instead, Mr A's argument appears to be that if he had had moretime he would have called medical experts to support his theory that V had sufferedfrom developmental trauma disorder and chaotic attachment disorder, and that hehimself had "disassociated resulting in the fracturing of aspects of his memoryfollowing [a] break-down".[32] Absent any allegation of trial counsel error, there is no basis for alleging amiscarriage of justice occurred through not having sufficient time to prepare for trial.[33] In any event, at a callover of Mr A's case on 18 May 2022, Grice J recordedthat Mr A told her in a "articulate and considered" response that he wanted his trial toproceed as scheduled and that although he had recently received hard copies ofdocuments derived from his laptop and mobile phone records, he assured the Court"he had the time and capacity to go through and analyse" all the material and he"would be ready for trial".[34] There is therefore no merit in the third ground of appeal.Fourth ground of appeal[35] No indication has been given to us about what medical evidence Mr A wouldhave wished to call at his trial to impugn the reliability of V or to assist the jury inunderstanding his evidence.[36] Absent any indication as to what the evidence in question might be, the fourthground of appeal fails.Result[37] The application to adjourn the appeal is declined.[38] The appeal against conviction is dismissed.Solicitors:Robinson Legal, Wellington for AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent