FITZGERALD v R [2017] NZCA 479

FITZGERALD v R [2017] NZCA 479 [20 October 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF NAMED WITNESS UNDER 18 YEARSOF AGE PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA710/2015[2017] NZCA 479BETWEEN ANTHONY MAURICE FITZGERALDAppellantAND THE QUEENRespondentHearing: 4 October 2017Court: Asher, Brown and Collins JJCounsel: P K Hamlin and P J M Osborne for AppellantK S Grau for RespondentJudgment: 20 October 2017 at 10.00 amJUDGMENT OF THE COURTA The application for leave to adduce fresh evidence on appeal is declined.B Appeal against conviction dismissed.C Appeal against sentence dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Fitzgerald was found guilty by a jury sitting in the District Court atAuckland of three charges of doing an indecent act on a young person and one chargeof indecent assault of a young person.1[2] On 20 November 2015, Mr Fitzgerald was sentenced by Judge Paul to two anda half years' imprisonment.2 He initially appealed his convictions and sentence. Inthe hearing before us, Mr Hamlin, counsel for Mr Fitzgerald, abandoned the appealagainst sentence.[3] The grounds of appeal against conviction fall into three categories, all of whichare underpinned by the submission that a miscarriage of justice occurred whenMr Fitzgerald was convicted.3 The grounds of appeal are that:(a) one complainant, V1, has since the trial retracted her allegations againstMr Fitzgerald;(b) the police lost exculpatory evidence in the form of a Facebook messageor messages containing a statement from one or possibly twocomplainants, V2 or V3 that, before trial one or both had retracted theirallegations against Mr Fitzgerald;(c) Mr Fitzgerald's trial counsel acted incompetently in three ways:(i) by not providing Mr Fitzgerald with photos the police took ofhim at the time he was arrested. One such photo was used to1 Crimes Act 1961, s 134(3), maximum penalty seven years' imprisonment.2 Police v Fitzgerald [2015] NZDC 23128.3 Criminal Procedure Act 2011, s 232(2)(c). "Miscarriage of justice" is defined in s 232(4) asmeaning "any error, irregularity, or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity".cross-examine Mr Fitzgerald in a way in which he saysundermined his credibility;(ii) by not investigating the "missing" Facebook page or pages; and(iii) by not complying with instructions to call two witnesses, W1and W2, who Mr Fitzgerald claims would have influenced theoutcome of the trial.[4] We are satisfied none of the grounds of appeal against conviction have anymerit.Overview[5] Mr Fitzgerald is 60 years old. He lived an unconventional lifestyle thatincluded him allowing a number of girls, some as young as 10, to stay at his homeovernight. Mr Fitzgerald was a solo parent beneficiary who cared for his teenage son.No other person lived permanently at his home. He would be frequently naked in hishome but maintains he would dress or cover up whenever he had visitors. The younggirls who stayed at Mr Fitzgerald's home appreciated the opportunity to stay with himbecause of his relaxed lifestyle and the paucity of rules that applied in his house. Itwas the Crown's case that Mr Fitzgerald allowed some of the girls who stayed in hishome to sleep in his bed and that he sexually offended against four of them at hishome, and that he also sexually offended against two of the complainants when hetook them for drives in his car.[6] At trial, Mr Fitzgerald faced six charges. In addition to the four charges wehave referred to in [1], Mr Fitzgerald was found not guilty of one charge of sexualviolation of V4 by unlawful sexual connection and one of indecent assault of V3, whois a sister of V2.[7] Mr Fitzgerald was convicted of two charges involving complaints made by V1who at the time was 13 years old. Both incidents were alleged to have taken placebetween 27 September 2013 and 14 October 2013. V1 stayed at Mr Fitzgerald's homeduring part of that time. In the early hours of one morning, Mr Fitzgerald drove V1 toa beach. On the way back, she sat in the front passenger seat. While driving his car,Mr Fitzgerald placed V1's hand on his penis. The following night V1 slept in MrFitzgerald's bed with him. While they were in his bed, he placed V1's hand on hispenis.[8] On 10 February 2014, V1 disclosed to the mother of V2 and V3 thatMr Fitzgerald had offended in the way we have described. She was subsequentlyinterviewed by the police and reconfirmed her complaint. She gave evidence and wascross-examined at Mr Fitzgerald's trial. V1 has consistently adhered to her allegationsagainst Mr Fitzgerald.[9] Mr Fitzgerald was also convicted of two charges involving complaints madeby V2 who at the time was aged 12. Both incidents occurred between1 November 2013 and 1 December 2013. V2 was staying at Mr Fitzgerald's homeduring part of this period. On one evening Mr Fitzgerald told V2 to sleep in his bed.He got into the bed naked and placed her hand on his penis. The following morningMr Fitzgerald took V2 for a drive in his car. While doing so he touched V2's breastsand vagina on the outside of her clothing. This offending lasted about 20 minutes. V2complained to her mother about Mr Fitzgerald's conduct on 1 December 2013. In herpolice interview V2 outlined the allegations we have summarised in this paragraph.She also adhered to her account of events when she gave her evidence at MrFitzgerald's trial.[10] Mr Fitzgerald denied all the allegations against him. In his evidence at his trialhe said that on one occasion V2 got into his bed against his wishes and that when hewoke up she was touching his testicles. He claimed that was the only occasion thatany of the young girls who visited his home actually slept in his bed.First ground of appeal: V1's alleged retraction[11] Two sisters have sworn affidavits in this Court to support the claim that,subsequent to the trial, V1 retracted her allegations against Mr Fitzgerald. The test fordetermining an application to adduce fresh evidence on appeal is well-settled: theevidence must be credible and fresh.4 If the evidence is both credible and fresh, itshould generally be admitted unless the court is satisfied at that stage that, if admitted,it would have no effect on the safety of the conviction.5[12] The first of those witnesses is W3 who gave evidence at Mr Fitzgerald's trial.She was around 13 years old at the time of the offending. W3 and her sister, W1,explained in their evidence that they would sometimes stay at Mr Fitzgerald's homeand that they and their mother developed a close friendship with Mr Fitzgerald. Thatfriendship continues to this day. W3 explained to us that she speaks to Mr Fitzgeraldby telephone once or possibly twice a week and writes to him on a regular basis.[13] In her affidavit, W3 said that the only time she and W1 slept on Mr Fitzgerald'sbed was when they had nightmares or there was a bad storm. The acknowledgmentby W3 in her affidavit that she did sleep on Mr Fitzgerald's bed was in sharp contrastto her evidence at trial in which she insisted that neither she nor anyone else had everslept in Mr Fitzgerald's bed.[14] W3 said in her affidavit that she never saw anything untoward happen atMr Fitzgerald's home, although she acknowledged in her affidavit that V1 told her onemorning that she had been sexually assaulted the previous evening by Mr Fitzgerald.[15] W3 said that she could recall V1, V2 and V3 staying overnight atMr Fitzgerald's home but insisted that they never slept in his bed. W3 also said shewas in Mr Fitzgerald's car when he took V1 and V2 on drives. It is her evidence thatMr Fitzgerald never touched V1 or V2 in the way they alleged.[16] In her affidavit, W3 says:[V1] told me, in the middle of December 2016, that she was sorry for lyingsorry that she put [Mr Fitzgerald] in jail and that she had to do what she hadto do.[17] The second witness relevant to this ground of appeal is W1 who is now17 years old. W1 did not give evidence at Mr Fitzgerald's trial although she says she4 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.5 At [120].was willing to do so. We will return to this issue when considering the third groundof appeal.[18] W1 explained in her affidavit that she met Mr Fitzgerald when she was atprimary school through his son and that she and W3 would stay overnight at his home.W1 said that she occasionally saw Mr Fitzgerald walking about his home naked butthat when he saw W1 he would cover himself up. By the time W1 was at High School,she says other girls, including the complainants at trial would stay at Mr Fitzgerald'shome. She says in her affidavit there were times when Mr Fitzgerald would allow her,W3, V2, V3 and three other girls "to sleep in his bed with him but this was very rarely".She said she "didn't see any of the girls sleeping naked in the bed with[Mr Fitzgerald]" but that he "would be naked in bed or would be wearing a lavalava"and that he told the girls that if they were not comfortable with him being naked thenthey should leave. The acknowledgement by W1 that a number of girls, including W3,V3 and V2 slept in Mr Fitzgerald's bed conflicted with the evidence that W3 gave attrial on this issue.[19] W1 said in her affidavit that she never saw Mr Fitzgerald offend againstanyone. She also says that after the trial:[W3] told me that [V1] had apologised to her that she had lied about[Mr Fitzgerald's] allegations. This occurred a few months ago, beforeChristmas 2016.She also said that she is a friend of V1's sister and that V1's sister had told her that V1had lied, and that V1's mother was angry at V1 for having lied.[20] The suggestions by W3 and W1 that V1 has retracted her allegations lackcredibility. The reasons we have reached this conclusion can be distilled to thefollowing points:(a) V1 has been entirely consistent in her allegations against Mr Fitzgerald.She made a detailed statement to the police, gave evidence at trial andwas cross-examined about her allegations. She did not waver whentested about her complaints. It is highly improbable that more than ayear after the completion of the trial she would "confess" to W3, out ofthe blue, that she had lied about her allegations.(b) V1's mother was interviewed by the police after the Crown receivedthe affidavits from W3 and W1. V1's mother rejects the allegation thatshe is angry with V1 and fully supports her daughter.(c) V1 was also spoken to by Sergeant Keene, the officer in charge of thecase. She rejected the suggestion that she had recanted her allegations.Mr Hamlin was critical of the way Sergeant Keene spoke to V1 andcriticised the Crown for not engaging an independent expertinterviewer to talk to V1. We make no comment about this criticism.We do however record our concern that this ground of appeal has beenadvanced without any supporting evidence from V1, and that it wasfounded upon vague hearsay comments.(d) There are too many inconsistencies in W3's evidence. She could giveno explanation for telling the jury that she had never slept inMr Fitzgerald's bed but now says she did so when she had nightmaresor during a storm. W3's evidence at trial that she never slept inMr Fitzgerald's bed cannot be reconciled with the evidence given byher sister that W3 and at least six other young girls slept withMr Fitzgerald when he was either naked or wearing a lavalava.[21] In our assessment, there is a close bond of friendship between W3, W1 andMr Fitzgerald that has permeated their evidence and led to W3 and W1 making falseclaims that V1 has withdrawn her allegations against Mr Fitzgerald. The evidence,such as it is, falls well short of the threshold of being sufficiently credible to warrantadmission on appeal.Second ground of appeal: alleged missing Facebook message or messages[22] The second ground of appeal alleges that a Facebook message, or messages,which allegedly contained a retraction or retractions by either V2 or V3, or both, hasbeen lost by the police. In his evidence, Mr Fitzgerald went further and said thatSergeant Keene had deliberately destroyed the Facebook message or messages inquestion, and that he had also fabricated other Facebook messages that were producedin evidence by the Crown. All Facebook messages produced as exhibits were obtainedfrom W3 by Detective Clayton, Sergeant Keene's assistant who downloaded theFacebook messages from W3's computer and sent them to his personal email address,and then forwarded them to Sergeant Keene.[23] This aspect of the appeal was supported in part by Mr Whale, a computerforensic expert who said that the police failed to follow proper procedures when theydownloaded W3's Facebook pages and that a forensic copy of the complete hard driveof the computer that W3 used to send and receive Facebook messages should havebeen obtained in order to ensure the messages were not lost or altered inadvertently.Mr Whale's evidence is sufficiently fresh and credible. We are however satisfied that,if admitted, Mr Whale's evidence would have no effect on the safety of Mr Fitzgerald'sconviction.[24] Notwithstanding the failure of the police to follow standard procedures whenextracting the Facebook messages from W3's computer, we are satisfied there is nomerit to the second ground of appeal. The reasons for this conclusion are as follows:(a) There is some uncertainty as to whether the "missing" Facebookmessage or messages came from V2 or V3. If the message in questionwas from V3 then it would no longer be relevant to the appeal asMr Fitzgerald was found not guilty of the charge concerning V3'sallegations.(b) If the "missing" Facebook message or messages was a retraction by V2then no prejudice was suffered by Mr Fitzgerald because the copies ofthe Facebook messages produced in evidence included messages fromV2 in which she explained to W3 her allegations against Mr Fitzgeraldand then said in a following message that "I am lieing [sic] about that[previous] message". The evidence at trial was, therefore that V2 hadsent in a Facebook message to W3 that she had lied about herallegations. V2 was cross-examined on this topic and the jury had thebenefit of hearing and considering her explanation.6 It is difficult to seehow Mr Fitzgerald's case could have been assisted by a secondFacebook message from V2 saying that she had lied about herallegations.(c) We are far from satisfied that there was a missing Facebook message.This is because when Ms O'Halloran, trial counsel for Mr Fitzgerald,made inquiries she was assured by W3 and her mother that all theFacebook messages had been produced. We record that W3 says shetold the police there was a missing Facebook message. We do notaccept however that W3 told Ms O'Halloran there was a missingFacebook message or messages. We consider that W3's evidence onthis topic is the product of her misplaced support for Mr Fitzgerald.Third ground of appeal: trial counsel incompetence[25] The third ground of appeal alleges Ms O'Halloran caused a miscarriage ofjustice by failing to properly discharge her responsibilities as Mr Fitzgerald's trialcounsel.7 In dismissing this ground of appeal we record that we had the benefit of adetailed affidavit from Ms O'Halloran and observed her being cross-examined atlength by Mr Hamlin. We were impressed by Ms O'Halloran's diligence andprofessionalism. As we shall explain in the following paragraphs, it is very clear thatthe complaints made about Ms O'Halloran are unfounded.[26] The first limb of the third ground of appeal alleges Ms O'Halloran failed toprovide Mr Fitzgerald with a copy of photos taken of him on 28 March 2014, the dayhe was arrested. The significance of this is that when he gave evidence, Mr Fitzgeraldsaid he could not have indecently assaulted V2 because, at the time, his hand wasbandaged following an injury that he had suffered and that the bandage was notremoved until early April 2014. The photos taken of Mr Fitzgerald by the police on28 March 2014 showed that neither hand was bandaged. Mr Fitzgerald says hiscredibility was undermined when Crown counsel cross-examined him about the6 V2's explanation was that her mother told her to write the message to "get [W3] off [V2's] back".7 The relevant principles for trial counsel incompetence were outlined by this Court in Hall v R[2015] NZCA 403. See also R v Scurrah CA159/06, 12 September 2006 at [17]–[18].photos showing his hands were not bandaged and that Ms O'Halloran failed in herduty by not providing him with the photos before he gave evidence so that he couldbe prepared for the cross-examination that ensued.[27] Ms O'Halloran's evidence however was that she did not have the photos asthey were not disclosed to her by the police. Ms O'Halloran's explanation was clearlyset out in her affidavit and she was not challenged on this point. In thesecircumstances, there can be no basis to the suggestion that Ms O'Halloran failed tofulfil her obligations to Mr Fitzgerald.[28] The second limb of the third ground of appeal was that Ms O'Halloran failedto properly investigate the "missing" Facebook messages. Mr Fitzgerald, when hegave evidence before us, expanded upon this allegation by claiming thatMs O'Halloran had accepted a bribe from the police and that she and Sergeant Keenecollaborated in some way to ensure the missing Facebook message or messages werenot produced. We reject Mr Fitzgerald's claim that Ms O'Halloran accepted a bribe.There is no merit to the second limb of the third ground of appeal becauseMs O'Halloran was told by W3, the source of the Facebook messages, thatMs O'Halloran had all the Facebook messages. We are satisfied that if Ms O'Halloranhad been told by W3 there was a missing Facebook message or messages she wouldhave made inquiries and fully investigated that issue. In any event, even if there wasa missing Facebook message or messages, no prejudice was suffered by Mr Fitzgeraldfor the reasons we have outlined in [24(b)].[29] The third limb of the third ground of appeal is that Ms O'Halloran failed in herduty by not calling as witnesses W1 and W2. The evidence produced byMs O'Halloran demonstrates however that there were very sound reasons for notcalling these girls as witnesses.[30] In relation to W2, Ms O'Halloran obtained an outline of her proposed brief ofevidence and arranged for her to travel to Auckland from the central North Island townwhere she was living. W2 did not however make the journey to Auckland and nowcannot provide an explanation for not doing so. Even if W2 had attended the trial,there would have been a major risk in calling her to give evidence because she toldMs O'Halloran that one morning she saw V2 in bed with Mr Fitzgerald. That evidencewould have assisted the Crown case and would have been highly detrimental to MrFitzgerald.[31] Ms O'Halloran was told by W1's mother that W1 would be a reluctant witness.It is now easy to appreciate her reluctance because in her affidavit filed in this CourtW1 says that she and six other girls slept in Mr Fitzgerald's bed when he was eithernaked or wearing only a lavalava. That evidence would have been highly damagingto Mr Fitzgerald's case. It would also have contradicted that part of W3's evidence inwhich she told the jury that neither she nor W1 had slept in Mr Fitzgerald's bed. Itwould also have undermined Mr Fitzgerald's evidence that he always behavedappropriately with the girls who slept in his home and that only V2 had slept in hisbed and that she had done so contrary to his wishes.[32] Mr Hamlin properly acknowledged in his closing submissions that the decisionnot to call W1 and W2 involved a careful judgement by Ms O'Halloran and that therewere legitimate reasons for not calling them as witnesses. Ms O'Halloran's decisionnot to have W1 and W2 give evidence was a sound decision for her to have made inthe circumstances of this case. Her conduct of Mr Fitzgerald's defence was, in allmaterial respects, competent and appropriate.Result[33] The application for leave to adduce fresh evidence on appeal is declined.[34] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent