BRASS v R [2022] NZCA 176

BRASS v R [2022] NZCA 176 [11 May 2022]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 AOTEAROACA496/2021[2022] NZCA 176BETWEEN DAKOTA BRASSAppellantAND THE QUEENRespondentHearing: 21 March 2022Court: Goddard, Simon France and Hinton JJCounsel: W T Nabney for AppellantE J Hoskin for RespondentJudgment: 11 May 2022 at 10.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Hinton J)[1] Dakota Brass was convicted in the District Court at Rotorua on 13 May 2021of the following 29 charges:(a) four charges of sexual violation by rape;(b) nine charges of assault with intent to injure;(c) six charges of male assaults female, including two representativecharges;(d) seven charges of strangulation, including one representative charge;and(e) three charges of injuring with intent to injure.[2] He was sentenced on 16 July 2021 to 12 years, six months' imprisonment witha minimum period of imprisonment of five years, six months.[3] Mr Brass now appeals against conviction pursuant to s 232 of the CriminalProcedure Act 2011 in respect of the four charges of sexual violation by rape.An appeal against sentence has been abandoned.1Background[4] The charges all relate to offending by Mr Brass against his former femalepartner. Mr Brass and the complainant had been in a relationship for four years as of2019.[5] The Crown case was that the complainant attended a police station on23 September 2019 bearing visible injuries and alleging ongoing domestic violenceby Mr Brass. In an evidential video interview (EVI) conducted on 21 October 2019she said that Mr Brass had enacted violence on her such as punching, biting, andchoking. In two subsequent EVIs conducted on 7 November 2019 she also detailedother specific incidents of violence, and said that Mr Brass had repeatedly raped her.[6] The trial commenced on 10 May 2021.[7] On the morning of the trial, Mr Brass pleaded guilty to 11 charges of violence,being seven charges of assault with intent to injure, two charges of male assaultsfemale, and two charges of injuring with intent to injure. The effect of these pleas was1 Brass v R CA496/21, 16 February 2022 (Submissions of Counsel for Appellant).that Mr Brass admitted almost all of the violence inflicted upon the complainant,except impeding her breathing. The trial thus proceeded with 18 charges to be decidedby the jury.[8] The defence had made a pre-trial application to have all references to twomiscarriages suffered by the complainant during her relationship with Mr Brassremoved from her second EVI. Judge Hollister-Jones ruled on that application on thefirst day of the trial, deciding that parts relating to miscarriages and detail associatedwith that were to be redacted.2 Other parts were to remain, to preserve thecomplainant's narrative around charge 12, male assaults female (relating to blowingair in the complainant's nose and mouth).[9] The Judge said:[8] I have carefully reviewed the transcript of this evidential interviewand I agree with the defence that references to the complainant miscarryingshould be removed. The fact that the complainant miscarried has no probativevalue and has the potential to cause considerable prejudicial impact.[9] However, I have determined that it is relevant that the complainantwas pregnant and at the time of the assaults she was bleeding. It is necessaryfor her to refer to going to hospital for checks so her narrative in relation tocharge 12 makes sense.[10] Accordingly, I have provided counsel with a redacted version of thesecond evidential interview that removes reference to the complainantmiscarrying and the detail associated with that. However, references to thecomplainant being pregnant, having some bleeding, and going to hospital fortests on the advice of her midwife remain.[10] Following his ruling, the Judge provided counsel with a draft edited version ofthe complainant's second EVI, and also a proposed consequential edit of Mr Brass'EVI.3[11] Also following the ruling, on 10 May 2021, Mr Brass pleaded guilty tocharge 12. He then sought to have the EVIs further redacted to remove references tothe complainant bleeding and going to the hospital. The Judge declined to redact the2 R v Brass [2021] NZDC 8982.3 R v Brass DC Rotorua CRI-2019-063-3197, 11 May 2021 (Minute 2).interviews further. Although he had relied in his earlier ruling on the narrative forcharge 12, the Judge said:4[8] I accept that it is necessary for there to be reference to the complainantgoing to hospital around 13 October. There should be a reason given for itand the complainant's evidential interview in its current form (as redacted)keeps the detail to the minimum. The reason for that was to avoid unnecessaryprejudice.[9] Given that charges 8 and 10 are still in play, it is not possible to redactthe complainant's second evidential interview any further.[12] At this point in the trial, the jury had heard the evidence of the complainantand her sister.[13] Following this evidence, on 12 May 2021, Mr Brass intimated he would pleadguilty to 10 further charges relating to impeding the complainant's breathing duringthe relationship.[14] At the same time, Mr Brass applied for severance of charges 1 to 5, being thefour charges of rape and one charge of assault with intent to injure (associated withthe first rape).[15] The Judge dismissed the application for severance.5 He referred to evidencefrom the complainant that the rapes usually followed violence.6 Further, hecommented that the evidence on the violence charges was admissible in relation to thesexual offending on a relationship propensity basis. The Judge said as follows:[16] The circumstances of the alleged rapes and, in particular, the violenceto which I have referred, is relevant to the issues of consent and reasonablegrounds for belief in consent. That evidence will have to be before any juryconsidering the rape charges.[17] A jury considering the rape charges will also have to be informedabout the nature of the relationship between the complainant and thedefendant. The violence to which the complainant refers surrounding therapes and the now-admitted violence that occurred through the relationship isrelevant relationship propensity evidence on the basis indicated by the Courtof Appeal in Perkins v R and K v R. In particular, the admitted strangulations4 R v Brass DC Rotorua CRI-2019-063-3197, 10 May 2021 (Minute 1).5 R v Brass [2021] NZDC 9131.6 At [15].are relevant evidence on a relationship propensity basis in respect of thecomplainant's narrative regarding the rapes.[18] What is about to change in respect of the defendant's position is guiltypleas regarding impeding breathing.[19] I have decided that these admissions will not result in an unfair trialon the rape charges because that is admissible material in respect of thosecharges.[20] The application for severance is declined and the trial will proceed.(footnotes omitted.)[16] Mr Brass then pleaded guilty to all remaining charges bar the four rape chargesand one charge of assault by elbowing the complainant's mouth.[17] The jury found Mr Brass guilty of those five remaining charges.Grounds of appeal[18] The first ground of appeal is that the Judge erred in declining to sever the fourcharges of sexual violation by rape. Mr Brass says he was unfairly prejudiced becausethe admitted violence relating to the assault charges was before the jury when theycame to consider verdicts on the charges of sexual violation by rape.[19] The second ground of appeal is that when the Judge gave his ruling to redactreferences in the EVI, to the complainant having a miscarriage, insufficient redactionswere made. Remaining references to the complainant bleeding may have left the juryinferring she had miscarried. This would have unfairly prejudiced the jury againstMr Brass.[20] The third ground of appeal is that references in Mr Brass' EVI to being held incustody since 13 September 2020 on the charges would have led the jury to considerthe charges had validity. This evidence had no probative value and had unfairlyprejudicial value likely to predispose the fact-finder against Mr Brass. For similarreasons Mr Brass had also objected to a reference in the EVI to his being arrested in astolen car. That point of appeal was abandoned once the Crown demonstrated theevidence had been deleted before the EVI was shown to the jury.[21] Initially a further ground of appeal was raised. This was that the Judge erredin allowing evidence relating to the charges to which Mr Brass later pleaded guilty tobe used as propensity evidence for the remaining charges. However Mr Nabney, forMr Brass, accepted that evidence of violence by Mr Brass against the complainant isrelevant and admissible, as held by Perkins v R, as evidence of their relationship.7That appeal ground was not advanced before us.Did the Judge err in declining to sever the rape charges?Submissions[22] Mr Nabney says there was a real risk of unfair prejudice from the remainingcharges being heard together because:(a) the jury had heard Mr Brass plead not guilty to the charges to which,on 12 May 2021, he pleaded guilty;(b) later in the trial, the jury heard Mr Brass' EVI in which he denied alloffending, including the offending for which he had plead guilty duringthe trial; and(c) the evidence given in relation to the charges of violence, apart from thesexual violence, was graphic and demonstrated Mr Brass usingsignificant violence on the complainant on multiple occasions.[23] If the charges had been severed, Mr Nabney accepts the jury would have beenentitled to hear admissions in relation to the charges on which Mr Brass was convictedfollowing his entry of guilty pleas. Mr Nabney further accepts the jury would havehad before them propensity evidence of violence in the relationship. However, he saysthe difference is that the jury would not have been influenced by the heightenedprejudice or emotion from watching the EVI and seeing Mr Brass deny responsibilityfor all the offending. Mr Nabney accepts that judicial direction was given as toprejudice and emotion, but says it was not enough to overcome these concerns in thecircumstances of the case.7 Perkins v R [2011] NZCA 665 at [26]–[27].[24] Ms Hoskin for the Crown says all charges against Mr Brass were appropriatelytried together. Mr Brass' piecemeal guilty pleas are his own responsibility, and theJudge gave appropriate directions in regard to them. Additionally, it would have beenimpossible to disentangle the sexual offending and violence allegations in thecomplainant's evidence. The offending was inherently linked. Further, it would nothave been in the interests of justice for the complainant and her sister to give evidenceagain in a separate trial.Discussion[25] A judge may order one or more charges laid against a defendant to be heardseparately if the interests of justice favour that course.8 Such an order may be madeduring trial.9 The court has a wide discretion and must seek to strike a balance betweenthe legitimate interests of a defendant and the public interest in the fair and efficientdespatch of the court's business.10 Charges connected in time and circumstances willusually be tried together. The relevant principles are well established.11[26] As Mr Nabney accepts, the violent offending was admissible evidence inrespect of the rape charges. Despite the suggestion that such evidence could have beenled in a less prejudicial way if the rape charges were the subject of a separate trial,the evidence would have needed to traverse the persistence, scope, and severity of thephysical abuse suffered by the complainant. Anything less would have resulted in thejury "being presented with a sanitised and quite misleading picture of thehousehold".12[27] We agree with Ms Hoskin that it would have been impossible to unravel theviolent and sexual offending. The complainant's evidence was that the sexualoffending was entwined with the violence. The rapes were always preceded byviolence. The violence was also relevant to the issue of consent.8 Criminal Procedure Act 2011, s 138(4).9 Section 138(5).10 Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257 at [28(e)], citing R v Anderson CA144/01,1 August 2001 at [10] .11 At [28].12 K(CA445/2018) v R [2019] NZCA 264 at [19].[28] Further, the complainant and her sister would have been required to giveevidence again if the charges were severed, which was not in the interests of justice.[29] It is a common defence strategy to use guilty pleas immediately before orduring a hearing to suggest an offender will accept responsibility for genuinewrongdoing, while defending allegations falsely made. Mr Brass' approach ofaccepting responsibility for the violent offending but denying the sexual offending wasa decision taken by himself and his trial counsel. So too was the decision to useMr Brass' EVI to his advantage by contrasting his demeanour in denying the differentcharges. Strategic decisions of this kind cannot reasonably then be relied on as causingunfair prejudice. We note further that the Judge gave a lies direction in relation toMr Brass' earlier denials.[30] The Judge also adequately directed the jury so as to neutralise the risk ofprejudice. In his opening remarks, the Judge cautioned:It's important that you bear in mind that even though the defendant has pledguilty to some charges, the presumption of innocence applies to all the chargeshe had pled not guilty to. It's the Crown's job to prove those charges.The standard of proof is beyond reasonable doubt.[]It's important that you use a number of tools and the first I suppose is the ruleof fairness; that is just because he has pled guilty to some charges it doesn'tmean he's guilty of all of them. In other words, you're not to undertake someblackening exercise because of these guilty pleas and you're not to beprejudiced in your consideration of the other charges.[31] In his summing up, the Judge ensured both counsel were content with thedirections he proposed to give the jury on the issue. No concerns were raised by trialcounsel (who were different to counsel on this appeal). Additionally, both trial counselcovered the issue in their closing addresses. The relevant passage from the Judge'ssumming up was as follows:Your consideration of charges 1 to 5 requires a surgical approach. You are toisolate out the evidence that applies to the charge under consideration, putaside any evidence that does not relate to it and ensure that you are not affectedby any irrelevant or prejudicial material. You are not to reason that becausethe defendant has pled guilty to charges 6 to 29, he must have committedcharges 1 to 5. That kind of reasoning would be decision-making based onemotion or prejudice, and judges, that is you, must not approach their task inthat way. I cannot emphasise this strongly enough. So, Mr Foreperson, if youhear any of the jurors start to reason, 'He did this, so he must have done that,'then you should stop them, refocus the jury on the surgical approach that Ihave laid out for you. This means that you must consider each chargeseparately and come to a separate decision on each by answering the questionsin the question trail in sequence. In considering each question in the questiontrail, you must focus your attention on the evidence relevant to that question.You will be asked for separate verdicts on each charge and you may, of course,reach different verdicts on different charges.[32] For the above reasons we find there was no error in the Judge declining to severthe charges.Did the Judge err by not sufficiently redacting from the EVIs references tomiscarriages?Submissions[33] Mr Nabney submits that while reference to "miscarriage" was redacted, therewas still significant remaining evidence that would have led members of the jury toinfer that there may have been a miscarriage. He says that given the Judge's rulingthat references to miscarriages were unfairly prejudicial, the remaining references tobleeding in the context of the complainant being pregnant were unfairly prejudicialsuch that they outweigh any relevance.[34] Specifically, Mr Nabney says there was a reference to spotting and bleedingand a reference to blood on undies in the complainant's EVIs. He also points to thefollowing exchange:Interviewer: Okay. So at, so at [the address] so when you've moved to [theaddress], so you've already started bleeding.Complainant: Mm.[]Interviewer: Yeah, okay and so at, from that day of that hiding when you're,so you've already started to bleed and —Complainant: I've already been bleeding for a good amount of weeks.[35] In addition, Mr Brass' EVI refers to the complainant having to go to hospital.[36] Mr Nabney referred also to the complainant saying, "and I was still mis, I wasstill bleeding" and the complainant being asked "when that happened with your armin your cast you had started to bleed vaginally from your vagina". However,Ms Hoskin brought our attention to the edited transcript where the first reference hadbeen deleted and the second reference had been truncated to " you had started tobleed". Mr Nabney accepted those references had in fact been edited as described.[37] Mr Nabney submits that nonetheless the combination of references to bleedingin the context of the complainant being pregnant, and having to go to hospital, despitenot being specifically referred to as a miscarriage, would have left it open for membersof the jury to speculate as to a miscarriage. He says this is highly prejudicial becausethere was no evidential link between the actions taken by Mr Brass and the miscarriagesuffered by the complainant.[38] Ms Hoskin says that reference to the complainant attending hospital becauseshe was pregnant and bleeding provided a date reference and context for the remainingcharges. The Judge noted that the admission to hospital was intimately connected tocharge 12 and provided a frame of reference. Counsel did not object to the proposedredactions of the complainant's EVI at the time. Although Mr Brass pleaded guilty tocharge 12, the judge correctly determined that the remaining evidence still provided acontext for charges 8 and 10.[39] Further, Ms Hoskin notes that as soon as Mr Brass accepted responsibility forcharges 8 and 10, the relevance of the evidence of attending hospital andbleeding/spotting fell away. The Judge then appropriately told the jury to disregardthat evidence.[40] Neither counsel made any reference to the complainant bleeding or spotting orattending hospital in their closing addresses. The only time the evidence was referredto was when the Judge directed the jury that it was no longer relevant and should bedisregarded: "you are to put the reference to pregnancy and going to hospital for testsout of your mind". Ms Hoskin says the jury was carefully directed as to the risk ofprejudice in this case, and there is no basis for assuming the jury did not follow thisdirection.Discussion[41] We consider that the Judge's rulings regarding redaction of evidence relatingto miscarriage were correct in the context of the charges then before the jury. Further,these redactions were greater than Mr Nabney had understood them to be.[42] Following the guilty pleas, the directions provided by the Judge wouldappropriately have neutralised the remaining references focused on in Mr Nabney'ssubmissions. Also, the Judge made clear to the jury from the outset, consistently andrepeatedly, that there was no place for prejudice in the trial.[43] We do not see any error or unfair prejudice to Mr Brass in this regard. Nor isinclusion of the limited evidence complained of a matter capable on its own of causinga miscarriage of justice.Did the Judge err by not redacting references in Mr Brass' EVI to his being incustody since September 2019?Submissions[44] Mr Brass' EVI was carried out on 9 March 2020 at Rimutaka Prison. The EVIreferred to Mr Brass being arrested on 26 September 2019 and held in custody sincethen.[45] Mr Nabney says the jury would be prejudiced by this material because theywould wonder why Mr Brass had been held for such a significant period of time incustody. They would illegitimately reason that there must be some validity to thecharges he faces. While the Judge in his summing up endeavoured to deal with thepoint by saying that the only reason the defendant was in custody was because of thecharges he was facing at the trial, Mr Nabney says this would not have overcome theprejudice.Discussion[46] Against the backdrop of Mr Brass pleading guilty to a large number of thecharges during the trial and in front of the jury, references to his being in custodyawaiting trial would have had little impact. The Judge directed the jury immediatelyafter Mr Brass' EVI was played and again in summing up that they were not toimproperly use the references to Mr Brass being in custody. Defence counsel in factused Mr Brass' pre-trial imprisonment as part of the defence strategy, suggesting thatthe complainant exaggerated her claims to get Mr Brass out of her life.[47] Again we do not see any error on the part of the Judge, nor any unfair prejudiceto Mr Brass.Result[48] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent