MORGAN v R [2019] NZCA 565

MORGAN v R [2019] NZCA 565 [18 November 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF THE COMPLAINANT ANDANY PERSONS UNDER THE AGE OF 18 YEARS WHO APPEAREDAS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDUREACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA251/2019[2019] NZCA 565BETWEEN ANDREW ROBERT MORGANAppellantAND THE QUEENRespondentHearing: 9 October 2019Court: Cooper, Lang and Mander JJCounsel: G A Walsh for AppellantJ E Mildenhall for RespondentJudgment: 18 November 2019 at 4 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The appellant, Andrew Robert Morgan, was found guilty on one representativecharge of sexual violation by unlawful sexual connection, four charges (three of whichwere representative) of sexual conduct with a child under 12 years of age and onecharge of committing an indecent act with intent to offend. The trial Judge,Judge Spear, sentenced him to an effective total of seven years' imprisonment.1[2] Mr Morgan now appeals against conviction on the basis that new, credible andcogent evidence is available which impacts on the safety of the convictions. He alsoappeals against sentence on the basis that the sentence was manifestly excessive as aresult of the Judge adopting a starting point that was too high, giving insufficient creditfor previous good character and making no allowance for time spent on bail withoutany compliance issues.Background[3] During the period of the offending, the complainant lived with her parents andsiblings in both Auckland and Hamilton.[4] When the family was living in Auckland, Mr Morgan would regularly visitthe family, having travelled up from Hamilton, and on occasions he stayed overnight.The complainant described the offending as occurring every time he visited. She saidthat when she was alone with him in her upstairs bedroom at the family home, helicked her genitalia, touched her genitalia, rubbed his penis on and around her genitaliaand procured her to touch his penis. This offending occurred between 2010 and 2015when the complainant was between five and nine years of age.[5] The family subsequently moved to Hamilton. One day in July 2015, whenthe complainant was aged 11 years, Mr Morgan took her to the spa pools at Te Aroha,booking them in for a 45-minute session in a private pool. The complainant changedinto her swimsuit and entered the pool. Mr Morgan had not brought any swimminggear with him and entered the pool with the complainant after taking off his clothes.While there, he procured the complainant to touch his penis.[6] There was another incident after they had returned to Mr Morgan's home.He again exposed his penis to her. Her evidence was that she was by then sufficiently1 R v Morgan [2019] NZDC 9225.mature to appreciate what he was doing to her and put a stop to it saying, "I'm 11 nowand I don't like it, I don't want to do it".[7] It may be noted that none of the charges Mr Morgan faced required proof of anerection. The erectile dysfunction issue was raised as part of a credibility challenge todemonstrate the complainant was not telling the truth.The conviction appeal[8] The defence at the trial was that the appellant did not commit any of the actsalleged against him. He said that not only did the acts not happen, they could not havehappened as he suffered from erectile dysfunction which prevented him getting anerection. The complainant had given evidence at trial that Mr Morgan's penis was"kind of like a boner" and "usually up". Under cross-examination she claimed that itwas "sticking out from his body", as opposed to being flaccid.[9] The appellant gave evidence in which he described his various health issuesincluding the fact that he had had a triple bypass, as well as referring to the erectiledysfunction, a ruptured shoulder and difficulties with his knee following an assault hehad suffered whilst doing security work. In respect of the erectile dysfunction issue,he claimed that he had not been able to have an erection since 1990 or 1992. He saidhe could not recall getting an erection during the period of 2010 to 2015.[10] In response to Mr Morgan's evidence, the Crown was allowed to callrebuttal evidence.2 A retired urologist was called to give general evidence abouterectile dysfunction, but Mr Walsh, for the appellant, noted he had no professionalinteraction with or knowledge of the appellant. Mr Walsh submitted an expert shouldhave been called to underpin Mr Morgan's focus on health issues anderectile dysfunction and corroborate the defence theory that the appellant wasphysically incapable of committing the offences in question.[11] The new evidence now said to be available would be given by Mr Morgan'sgeneral practitioner, Dr Leong. Mr Walsh contended that Dr Leong was able to give2 R v Morgan [2019] NZDC 5134 at [5]–[6].relevant expert evidence having regard to his first-hand knowledge of Mr Morgan'shealth issues. If he had been called at trial, the jury would have had each ofthe appellant's health issues explained to them and would have been told that for aman who was in his 70s at the time of the offending, the combination of his healthissues rendered him less likely to be able to achieve an erection. Dr Leong could haveconfirmed that Mr Morgan had been prescribed medication to assist witherectile dysfunction.[12] Mr Walsh conceded that the proposed evidence is not fresh, in that it couldhave been obtained prior to trial with reasonable diligence. However, he submittedthe evidence was credible: it was plausible and capable of belief.3 It was plausiblethat Mr Morgan's ill health would mean he was less likely to achieve an erection andtherefore less likely to have committed the offences of which he was convicted.The evidence now available rendered the convictions unsafe. Consequently, there hadbeen a miscarriage of justice.[13] As Mr Walsh recognised, the relevant law is in this Court's judgment inR v Bain and the Privy Council's judgment in Lundy v R (recently confirmed bythe Privy Council in Pora v R).4 In the former, it was held that an appellant whowishes the court to consider evidence not called at the trial must demonstrate that thenew evidence is sufficiently fresh and credible. If the evidence could with reasonablediligence have been called at the trial, it will not qualify as sufficiently fresh, althoughthe overriding criterion is always what course will best serve the interests of justice.5[14] In Lundy v R, the Privy Council emphasised that new evidence should beadmitted if the interests of justice require it:6[120] The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series of tests.If the evidence is not credible, it should not be admitted. If it is credible,the question then arises whether it is fresh in the sense that it is evidence which3 In assessing whether new evidence is credible, it is necessary to decide if it is plausible and capableof belief: H (CA240/2015) v R [2016] NZCA 57 at [25], applying R v Pendleton [2001] UKHL66, [2002] 1 WLR 72 at [18].4 R v Bain [2004] 1 NZLR 638 (CA) at [22]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273at [120]; and Pora v R [2015] UKPC 9, [2016] 1 NZLR 277.5 R v Bain, above n 4, at [22].6 Lundy v R, above n 4.could not have been obtained for the trial with reasonable diligence.If the evidence is both credible and fresh, it should generally be admittedunless the court is satisfied at that stage that, if admitted, it would have noeffect on the safety of the conviction. If the evidence is credible but not fresh,the court should assess its strength and its potential impact on the safety ofthe conviction. If it considers that there is a risk of miscarriage of justice ifthe evidence is excluded, it should be admitted, notwithstanding thatthe evidence is not fresh.[15] In this case it is appropriate also to bear in mind that for an appeal to succeedon the basis that relevant and credible evidence was not called the Court must besatisfied that there has been a miscarriage of justice. The question here is whether wecan conclude that the evidence, if admitted, would not have affected the outcome ofthe trial.7[16] For various reasons, we have not been persuaded that there was a miscarriagein this case. First, as Ms Mildenhall points out, this Court has not been provided withthe proposed evidence for the purpose of assessing its cogency. Under r 12B ofthe Court of Appeal (Criminal) Rules 2001, the evidence should have been set out inaffidavit form. All that we have is a brief letter from Dr Leong attached to Mr Walsh'ssubmissions. The letter, dated 13 September 2019, was addressed to whom it mayconcern and said:I was Andrews GP until March 2019.I met with Melissa James (lawyer) to discuss aspects of Andrew's Medicalhistory.Andrew was prescribed Sildenafil by myself at Andrews request for erectiledysfunction.This had been prescribed by his previous GP while in Auckland.My recollection and my perusal of his notes is that I did not spend a lot of timediscussing the issue as he had had it prescribed previously and wanted it to becontinued.I assumed that he wanted it as it worked and did not cause him significant sideeffects.I discussed that there is no investigation nor is there an acceptable way ofexamining a patient to tell if the patient has erectile dysfunction. We aretotally reliant on the history given by the patient.7 Criminal Procedure Act 2011, s 232(4)(a); and R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145at [28].It is fair to say the reports of erectile dysfunction are more likely to occur withincreasing age diabetes and other conditions that will block otherblood vessels ie Ischaemic heart disease. Andrew has diabetes Ischaemicheart disease and is currently 79 years old.Kind regardsDr Mike LEONG[17] Despite the failure to provide an affidavit we have considered the letter.It confirms that, on the basis of his self-reported condition, Mr Morgan was firstprescribed with Sildenafil to deal with erectile dysfunction when living in Auckland.Dr Leong explains why he was then prepared to write the prescription as Mr Morgan'sHamilton doctor: essentially, because Mr Morgan asked for it and it been prescribedin Auckland. Such evidence, if given, would not have countered in any direct orconvincing way the evidence of the complainant about what she actually experiencedwhen with Mr Morgan. Dr Leong's recorded assumption, that Mr Morgan wantedthe drug because it worked; seems a reasonable one in the absence of any evidence tothe contrary and if anything might justify a conclusion that supportedthe complainant's account rather than countering it. Based on the letter, which is allwe have to go on, we do not consider the evidence Dr Leong could give is cogent.[18] Secondly, there is force in another submission made by Ms Mildenhall.She pointed out that on 15 October 2018 the original trial date of 23 October 2018 hadbeen vacated for the specific purpose of enabling the defence to obtain expert evidencebut no such evidence was called at the trial.8 Judge Connell was plainly reluctant togrant the adjournment, given the complainant's young age, the fact she hadcomplained to police over a year earlier, and the December trial date had been fixedin March, when the Court was notified the trial ready to proceed.9 The Judgeregistered surprise at the fact that Mr Morgan had not previously mentioned thedysfunction issue to counsel, but considered it necessary to grant the adjournment toenable Mr Morgan to consult an urologist.10 Despite this, no expert evidence wascalled for the defence.8 R v Morgan DC Hamilton CRI-2017-019-6588, 15 October 2018.9 At [4]–[5].10 At [9]–[10].[19] Mr Morgan nevertheless gave evidence about his inability to have an erectionat the trial. He said since 1990 or 1992 he had been unable to get an erection.His doctor prescribed first Viagra, then Cialis but about 1995 or 1996 he decided notto use it, because of concerns about his heart problems. He claimed that since then,although he had discussed the issue with his doctor "many times", he had been told hecould not take the relevant medication because of his heart condition. The last timehe could remember getting "a decent erection" was around 2000. The expert calledby the Crown in rebuttal was a recently retired consultant urological surgeon of manyyears' experience, Mr Cresswell.[20] Mr Cresswell confirmed in evidence-in-chief that erectile dysfunction is of itsnature largely self-reported and could be caused by various medical issues such as lowtestosterone and also "general health issues such as high blood pressure."He explained that drugs such as Viagra or Sildenafil work by boosting the transmittersof arousal stimuli from the nervous system to the arterial system. He explained thatpelvic surgery, and operations on the rectum or the prostate could cause impotence.He said Viagra was about 80 per cent successful as a treatment for erectile dysfunctionbut age was a significant factor, with dysfunction being much more common in menover 70. It could also happen (and was not rare) that men in their 70s and 80s andimpotent with one partner of long standing may be stimulated to erection by contactwith another partner; impotence could fluctuate in the same person including as aresult of confidence issues. He confirmed that Viagra should not be used inconjunction with angina drugs.[21] In cross-examination, Mr Cresswell confirmed that Viagra and Cialis havevarying degrees of success, and that depends on the individual concerned.The combination of those drugs with "nitrolingual spray", which Mr Morgan said heused, would have a negative effect and should be avoided. He agreed he was unawarewhether Mr Morgan could obtain an erection through different stimuli. These wereall responses to questions obviously designed to give an expert underpinning for partsof Mr Morgan's evidence. It has not been explained how Dr Leong could have givendifferent or more comprehensive evidence. Perhaps more importantly there is nothingin his letter of 13 September 2019 that takes the matter any further than whatMr Cresswell was able to confirm.[22] We agree with Ms Mildenhall that Dr Leong could not give direct evidenceabout Mr Morgan's claimed erectile dysfunction. Other evidence about his healthcondition was not contested. Overall, we consider there is no realistic possibility thatDr Leong could provide expert evidence that might be useful to a jury if called.[23] There is another problem with Mr Morgan attempting to rely on Dr Leong'sevidence. His evidence was that he had not taken Viagra or Cialis since around the late1990s. Mr Morgan returned to Hamilton from Auckland in late 2006. Yet accordingto Dr Leong, Mr Morgan asked him to prescribe Sildenafil when he was in Hamilton.11Far from helping the defence this would contradict Mr Morgan's own evidence.[24] Mr Walsh was not counsel in the District Court, but the appeal is not advancedon the basis of counsel error. We do not see how it could be. In all the circumstanceswe do not accept that calling Dr Leong would have materially assisted the defence.Nor do we consider the fact he was not called affected the outcome of the trial or ledto a miscarriage of justice.[25] The conviction appeal is accordingly dismissed.Sentence appeal[26] The Judge applied this Court's judgment in R v AM.12 He considered a startingpoint of 10 years' imprisonment was appropriate in respect of the offending thatoccurred in Auckland.13 He identified the relevant aggravating features asthe complainant being young and vulnerable, abuse of trust, age disparity, the factthe offending occurred over a period of five years and harm to the complainant.14He added an uplift of one year in respect of the offending linked to the visit tothe Te Aroha spa pools.1511 Mr Cresswell gave evidence that Viagra was the original trade name of the drug now calledSildenafil. He explained that Cialis is a different drug, but in "the same group of drugs."12 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.13 R v Morgan, above n 1, at [12].14 At [13].15 At [15].[27] There was no expressed remorse and a concession that Mr Morgan made abouthaving been unwise to go into the Te Aroha pool naked was an attempt to minimisethe significance of the event, not remorse.16 The Judge allowed a reduction of oneyear on account of Mr Morgan's life as a good and contributing member ofthe community.17 Age and health problems likely to make prison a harder sentencethan for a younger person led to a further reduction in the sentence of three years.18The result was a seven-year term of imprisonment, imposed on the lead offence ofsexual violation.19 Concurrent terms of two years were imposed on the four chargesof sexual conduct with a child under 12, and one year's imprisonment on the chargeof committing an indecent act with intent to offend.[28] Mr Walsh argued the starting point was too high, claiming that eight to nineyears' imprisonment would have been more appropriate for the totality of theoffending. He then pointed to the pre-sentence report which recognised Mr Morgan'sheavy involvement in the community, particularly in relation to sport in both coachingand administrative roles. He emphasised the lack of any previous convictions andsubmitted that Mr Morgan's history and record justified a higher discount for previousgood character than that which had been allowed. He submitted that for this factoralone a discount of two years should have been given. He accepted that the discountgiven by the Judge in respect of age and ill health was appropriate.[29] Mr Walsh next noted that Mr Morgan had been admitted to bail on10 October 2017 and remained on bail until the verdicts were delivered inMarch 2019. The 17 months on bail did not give rise to any issue. Mr Walshsuggested that some recognition could have been given to that factor by way of afurther discount on sentencing. The lower starting point, and additional discountswould result in an end sentence of between three to four years.[30] We have not been persuaded that the sentence to an effective term ofseven years imposed by the Judge was excessive.16 At [16].17 At [17].18 At [18].19 At [19].[31] It is clear from the Judge's sentencing remarks that he regarded the case assuitably placed at the lower end of band three of the bands identified for unlawfulsexual connection in R v AM (CA27/2009).20 This Court said that band wasappropriate for the most serious offending involving unlawful sexual connection.It was designed to encompass cases involving two or more of the factors increasingculpability to a high degree, the examples given of being offending in relation to youngcomplainants or over an extensive period. It was also said that the band would beappropriate where more than three of the relevant factors were present to a moderatedegree.21[32] Here, there was a serious breach of trust, a vulnerable complainant havingregard to her age and a pronounced disparity in age between her and Mr Morgan.There was extended abuse over a prolonged period and, obviously, significant harm.As to that, the victim impact statement, made when the complainant was 13 years ofage, referred to ongoing health issues caused by stress, missing school and fallingbehind because of the need to attend counselling sessions and difficulty stayingfocused, problems interacting with male authority figures and distrust of others, evenold friends. A counsellor described the impact on the complainant as having been"devastating".[33] It was open to the Judge to deal separately with the Te Aroha offending byadding a further year to the starting point he arrived at with respect to the Aucklandbased offending. Equally, he could have adopted a starting point of 11 years forthe totality of the offending. Either way, we do not regard the effective overall startingpoint of 11 years as being excessive. There was here a combination of the factorsidentified as increasing culpability in R v AM (CA27/2009). Breach of trust andvulnerability were present to a high degree and other aggravating features present to amoderate degree. We reject the argument that the starting point was too high.[34] We are also satisfied that there can be no proper criticism of the discountswhich the Judge allowed for mitigating factors. In a case such as this involvingoffending over a long period against a young child, it is difficult to sustain an argument20 R v AM (CA27/2009), above n 12, at [120].21 At [120].for a greater discount for good character than the one year which the Judge allowed.In any event, the further allowance of three years about which Mr Morgan does notcomplain was fulsome. The total allowance for mitigating considerations of four yearswas in our view more than adequate.[35] The appeal against sentence must also fail.Result[36] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent