MYLCHREEST v R CA134/2014 [2015] NZCA 74

MYLCHREEST v R CA134/2014 [2015] NZCA 74 [18 March 2015]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA134/2014[2015] NZCA 74BETWEEN AARON MICHAEL MYLCHREESTAppellantAND THE QUEENRespondentHearing: 17 February 2015Court: Miller, MacKenzie and Lang JJCounsel: S K Green for AppellantJEL Carruthers for RespondentJudgment: 18 March 2015 at 1.30 pmJUDGMENT OF THE COURTThe appeal is allowed. The conviction on count 2 is quashed, and a verdict of guilty on count 3 is substituted. The case is remitted to the District Court for sentencing on count 3.____________________________________________________________________REASONS OF THE COURT(Given by MacKenzie J)[1] The appellant faced trial in the District Court at Manakau before Judge Johns and a jury in December 2013 on five counts of sexual offending arising out of one incident involving one complainant, a five year old girl. Count 1 was for sexual violation by rape. Count 2 was for sexual violation by unlawful sexual connectionby digital penetration of the genitalia. Count 3 was an alternative count of indecent assault by touching the genitalia. Count 4 was for sexual violation by unlawful sexual connection by digital penetration of the anus. Count 5 was an alternative count of indecent assault by touching the anus. The appellant was found not guilty by a majority verdict on count 1, and guilty by a unanimous verdict on count 2. No verdict was required on count 3. He was found not guilty by a majority verdict on count 4 and guilty by a unanimous verdict on count 5.[2] There are three grounds of appeal. They are:(a) there was insufficient evidence for any jury to make a finding of guilt for count 2;(b) the Judge erred in directing the jury as to alternatives and as to how to reach a verdict where alternatives are posed in the indictment; and(c) there was a misdirection on the evidence on counts 2 and 3.[3] The complainant's mother, MH, was living with a man, K, in a convertedwarehouse in Pukekohe. On 21 January 2012 she and the complainant, A, had gone with K and his mother to visit K's brother. They were accompanied by the appellant, a friend of K. They returned home about midnight. A fell asleep on the way home. Her mother carried her into her room, put her to bed with her clothes on and placed a blanket over her and left her asleep in the bedroom. About an hour later MH and K went to bed. The appellant was then asleep on the couch.[4] The Crown case was that sometime between midnight and 5.30 am theappellant entered the complainant's bedroom. The allegations relating to count 1, on which the appellant was found not guilty, were that the appellant put his penis(which the complainant referred to as his "nuts") into the complainant's vagina (which the complainant referred to as her "little flower"). The allegations on the other four counts were that the appellant opened the complainant's legs with his hands and put his finger into her vagina, and that the appellant used his finger toscratch and put his fingers into the complainant's anus (which she referred to as her "poo hole").[5] When MH woke at about 8.30 am A was still asleep. When she came into the lounge after waking she seemed unhappy. She did not want her mother to touch her and said it was all her fault and she did not want to live here anymore. Her mother tried to get A to tell her what was wrong. As a result of what A said, she took her toMH's aunt, JH. They both spoke to A about what had happened. On 26 January JH took A to Dr Liu, a GP in Pukekohe, who spoke to A about what had happened and examined her. Later that day, A was examined by Dr Gapes, a paediatrician at Starship Children's Hospital.[6] The defence was a denial, so that the essential issue at trial was whether theevents had happened. The Crown case was based largely on the complainant'sevidential interview. Counsel for the Crown said to the jury in closing that the caseturned on A's evidence. The jury had to decide whether it accepted A's evidence, or whether the appellant's denial in his police interview raised a reasonable doubt aboutthat.[7] It is clear from the guilty verdicts on counts 2 and 5 that the jury must havebroadly accepted the truthfulness of A's account. It seems likely that the not guiltyverdict on count 1 reflects a doubt as to whether A's description of what the appellantdid constituted penetration. That seems more likely than the jury rejecting that part of her evidence as untruthful, when it clearly accepted other parts.[8] The essential question on this appeal therefore is whether, accepting A's evidence, supplemented by the prior consistent statement evidence, A's account ofwhat happened to her was sufficient to establish digital penetration for count 2. There was evidence from A, as well as from MH, JH and Dr Liu, of what A had said to them about the events. We have set out the most relevant parts of their evidence in an appendix.[9] It is apparent from the questions asked of A at the interview and clarified in her oral evidence that A was clear in the use of her terminology. That is clear bothfrom the transcript and from A's action in the interview, which we have viewed. Herreference to his "nuts" was a reference to the appellant's penis. The reference to her "little flower" was a reference to her vagina. And the reference to her "poo hole"was to her anus. She identified those parts on the anatomical diagrams given to her by the interviewer.[10] The passage marked I in A's interview, and the interviewer's clarification ofthat marked II, can be put to one side. Those passages clearly related to count 1. The evidence in the interview relevant to the other counts is in passages III, IV and V. The only part of that statement which can be understood to refer to digitalpenetration is the answer "in my little flower" at IV. That however is immediately followed, in the same answer, by a reference to her "poo hole". As we have said, A was clear in her distinction between her body parts. The second part of the answer is therefore potentially a correction of the first part of the answer. The interviewer'sreference in V to her little flower being sore refers back to the passage at I, and relates to the rape count, so is not supportive of digital penetration.[11] In A's oral evidence, the first reference to counts 2 and 3 is at VI where she agreed that his hand went to her little flower. That was in response to a leading question. When asked what his hand did at her little flower she answered by describing the appellant putting his hands around her back. That answer was consistent with her interview statement at IV where she responded to questions about touching her vagina by immediately referring to touching her anus. When asked"What did his hand do at your little flower' she said "He just did the same thing as he just put his hand on my bottom." She then referred to "in her bottom". Whenasked if she knew what he was doing with his hand when touching her little flowershe answered "no".[12] A's evidence-in-chief, therefore, did not describe digital penetration, as opposed to digital touching, of the vagina. In cross-examination the appellant'sdenials were put to her, as set out at VII. That cross-examination put the denial only in terms of the appellant putting his finger on her flower.[13] We do not consider that A's evidence was sufficient to establish digital penetration. It cannot be expected that a five year old child will give a description of sexual conduct which fits precisely within the legal definition of penetration. But onour assessment of A's evidence, it is unsafe to draw the conclusion that what she isdescribing is digital penetration of her vagina, rather than touching of her vagina.[14] The statements A made to her mother and her aunt, and to the doctor, are not sufficiently specific to establish penetration. MH's evidence relating to counts 2 and3, refers to a finger on the vagina. JH's evidence relates to count 1, not counts 2 and 3. Dr Liu also referred only to touching of the vagina, not digital penetration. The only penetration to which she referred was penile penetration. That evidence was all admitted as constituting prior consistent statements, and the Judge gave careful and accurate directions in summing up on the use to be made of those statements. Those statements are admissible as truth of their content. But those statements are not sufficiently specific to establish penetration when A's direct evidence does not do so.[15] The medical evidence was not capable of establishing or supporting penetration, either digital or penile.[16] There is a further factor which adds to our reservations about the safety of the verdict on count 2. Both MH and JH gave evidence about the condition of A'svagina. That evidence had no probative value on whether penetration, either penile or digital, had occurred. It carried a considerable risk of prejudice.[17] The jury, in considering the sufficiency of the evidence to prove penetration, did so with the benefit of counsel's addresses and the Judge's summing up. We needto examine the safety of their conclusion with that in mind. Counsel for the appellant challenges this passage in the Judge's summing up.[66] In terms of the submission that she has been consistent, his submission to you is in fact she has been inconsistent in her recall of thesealleged events. To her mother that morning it was a stroking the "nono", no mention of "nuts" or her "flower" or "bottoms". To Aunty [JH] it was that Mr Mylchreest rubbed his penis on her flower and in her bottom. To Dr Liu, suddenly it was a finger in the flower, a penis in bottom and flower, and in her evidential video it was finger and nuts in the flower and scratched her bottom.[67] He reminded you too, in her interview she also said that he was trying to hump her and he was scratching her poo hole. And at one point she even said he did not do anything, he thinks about it.[68] So he said to you in fact it is entirely inconsistent. It starts off with the touching and we end up with the acts of penetration of her flower and anus.[18] That passage accurately summarised the defence closing. Trial counsel in closing had not, however, accurately described Dr Liu's evidence. Counsel described Dr Liu as having said that A referred to "a finger in the flower". A'sevidence, which we have set out, described touching of the vagina, not digital penetration.[19] While we make no criticism of counsel's closing, or the Judge's summary ofthat closing, the incorrect suggestion that A had described to the doctor touching inher flower adds to our concern as to the safety of the verdict.[20] For these reasons, we consider that the verdict of the jury on count 2 cannot be supported having regard to the evidence, and that it must be set aside.[21] Counsel for the respondent submitted that, if we were to reach that conclusion, s 386(2) of the Crimes Act 1961 would allow the substitution of a conviction on count 3. That section provides:Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal or the Supreme Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed as may be warranted in law for that other offence, not being a sentence of greater severity.[22] We consider that it is appropriate to invoke that provision. A's evidence,which the jury must have accepted, established indecent touching of the vagina. There is no injustice to the appellant in now substituting a conviction on that account. That charge was addressed at trial in count 3, and the jury's verdict oncount 2 indicates that it would necessarily have found the appellant guilty on count 3 if that count had stood alone without count 2.[23] The substitution of a conviction on count 3 will necessarily affect the sentence. The appropriate course is to remit the case to the trial Court for sentencing.[24] The appeal is allowed. The conviction on count 2 is quashed and a verdict of guilty on count 3 is substituted. The case is remitted to the District Court for sentencing on count 3.Solicitors:Crown Law Office, Wellington for Respondent