TAKIWA v R [2019] NZCA 315

TAKIWA v R [2019] NZCA 315 [17 July 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA109/2019[2019] NZCA 315BETWEEN DAMIAN PETER TAKIWAApplicantAND THE QUEENRespondentCourt: Gilbert, Wylie and Thomas JJCounsel: J P Temm for ApplicantA J Ewing for RespondentJudgment:(On the papers)17 July 2019 at 2 pmJUDGMENT OF THE COURTA The application for recall, styled as an application for leave to bring a secondappeal against conviction, is declined.B The application for leave to appeal on a question of law is declined for wantof jurisdiction.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] Damian Takiwa has applied for leave to bring a second appeal against hisconviction for sexual violation by rape which was upheld by this Court in 2018.1He also seeks leave to appeal on a question of law against a ruling by the trial Courtin his retrial which was ordered by this Court in respect of other allegations.2[2] Mr Takiwa has also appealed against his sentence. That is an appeal as of rightand is not the subject of this decision.Background[3] Following a trial by jury in July 2017, Mr Takiwa was convicted on two countsof rape of a teenaged girl. Although both charges were representative, charge onecovered a single incident whereas charge two covered three specific allegations.This Court dismissed the appeal in respect of charge one but allowed the appeal inrespect of charge two, primarily on the basis that the three specific incidents shouldhave been charged separately and the Judge's directions were deficient in this regard.A retrial was ordered. Mr Takiwa's sentence required adjustment and it was remittedback to the District Court for resentencing on charge one only.[4] The Supreme Court declined leave to appeal.3[5] Mr Takiwa's resentencing on charge one was deferred until completion ofthe retrial on charge two (the retrial). The retrial took place in February 2019.Charge two from the first trial was separated into three separate rape allegations.The Crown applications to call propensity evidence about, and admit into evidencethe conviction on, charge one were granted.4[6] The trial Judge discharged Mr Takiwa under s 147 of the Criminal ProcedureAct 2011 on two of the three charges on the basis the complainant's evidence wasinsufficiently detailed. Mr Takiwa was acquitted by the jury on the third charge.1 Takiwa v R [2018] NZCA 152.2 R v Takiwa [2019] NZDC 1823.3 Takiwa v R [2018] NZSC 88. Mr Takiwa's proposed appeal to the Supreme Court in respect ofcharge one was on the basis that: (a) he would be prejudiced by the conviction on charge one beingled at his retrial; and (b) the timeframe for the first rape was too wide.4 Evidence Act 2006, s 49.[7] Mr Takiwa's application for leave to bring a second appeal against hisconviction on charge one in the first trial is on the grounds that his acquittal atthe retrial renders his earlier conviction unreasonable, as the verdicts are inconsistent.[8] Mr Takiwa also seeks leave to appeal the Judge's ruling at the retrial thatthe jury were to be provided with a summary of facts relating to the conviction oncharge one.Jurisdiction[9] The jurisdiction is generally known as the Smith jurisdiction, it having firstbeen discussed in detail in R v Smith.5 In that decision, this Court explained itsinherent power to reopen judgments where a serious error of process requires the courtto act to prevent a miscarriage of justice.6 As noted by this Court in its recent decisionin Lyon v R, the court's jurisdiction has been described in various ways including to"reopen", "revisit" and "recall".7 In Lyon the application was formulated as anapplication for leave to bring a second or further appeal.8 This Court determined thatsuch an application is best described as a recall application and we adoptthis terminology.[10] This Court will be careful not to undermine the principle of finality, meaningleave will not be granted where an alternative remedy is reasonably available.The jurisdiction is reserved for exceptional cases.9 As this Court explained inR v Palmer:10The principle of finality (which Smith upholds) would be eviscerated if anappellant can re-open a case simply by relying on arguments (whether entirelynew or abandoned or rejected at a first appeal) which challenge the correctnessof the trial decision.[11] The Court must be satisfied:115 R v Smith [2003] 3 NZLR 617 (CA).6 At [36]–[38]. See also McMaster v R [2016] NZCA 612 at [46]–[56].7 Lyon v R [2019] NZCA 311 at [25].8 At [2].9 Wong v R [2011] NZCA 563 at [13].10 R v Palmer [2007] NZCA 350 at [10].11 At [8].(a) there was a fundamental error in procedure;(b) a substantial miscarriage of justice would result if the error is notcorrected; and(c) there is no alternative effective remedy available.Was there a fundamental error in procedure?[12] Although this Court dismissed the appeal against the conviction on charge one,it did make some criticisms of the charge. It was framed as a representative chargewhen a single instance of rape was alleged; the timeframe of 5 May 2015 to 15 April2016 was too broad; and the locality identified was Rotorua when in fact the offendingoccurred at a Rotoma address, some 40 kilometres away.[13] The alleged fundamental error in procedure at the appeal in respect of chargeone is that this Court did not recognise the significance of the incorrect date range andlocation issues. Mr Takiwa relies on the following:(a) The time frame in respect of charge one cannot be correct.The complainant had left the Rotoma address before the first date in thecharge notice, being 5 May 2015. She had in fact left the addressaround 16 April 2015, and Mr Takiwa himself had left the address by16 September 2015.(b) Evidence from three witnesses at the retrial meant the timing ofthe complainant's departure from the Rotoma address became morecertain.(c) One of those witnesses (SM) has located a receipt identifying the dateon which she moved from Rotoma to Rotorua. The evidence at the firsttrial was that the complainant remained at the Rotoma address fora matter of days only following SM's move. These factors togethermean that the complainant must have left the Rotoma address aroundtwo weeks or more before the first date specified in charge one.(d) This Court took the view that the complainant could have returnedto the Rotoma address, but it was some 40 kilometres from Rotorua andno public transport was available. The complainant was only 13 yearsold and could not therefore have travelled to the address on her own.(e) The complainant gave inconsistent accounts in the two trials as to whenshe left the Rotoma address.[14] We agree with Ms Ewing's response on behalf of the Crown. The issuesidentified were already before this Court at the appeal, meaning the application is insubstance an attempt to relitigate the appeal.[15] The fact the complainant had moved away from Rotoma before the first datespecified in charge one was discussed by this Court. Under the heading "Unreasonableverdict", it said:12[20] Mr Takiwa contends that because of the specified time frame in chargeone (between 5 May 2015 and 15 April 2016) it was "highly unlikely" for himto have been alone with the complainant at any given time, let alone for himto have the opportunity to sexually offend against her. Thus, the verdict isunreasonable.[16] This Court acknowledged that the complainant's family had moved to aproperty in Rotorua on 14 April 2015 and the complainant joined her family therea matter of days afterwards (no later than 18 April 2015). The Court was also awarethat, by 16 September 2015 at the latest, both Mr Takiwa and his partner had leftthe Rotoma address permanently.13[17] This Court said, however, that despite the complainant's shift from the Rotomaaddress, there was still the opportunity for rape to have occurred at the address ata time after the charge period had commenced. The Court referred to evidence whichshowed the complainant continued to spend time at that address, although she neverstayed the night.1412 Takiwa v R, above n 1.13 At [21].14 At [23]–[24].[18] Mr Takiwa's contention that he had no opportunity to rape the complainantover the timeframe specified in charge one was also considered by this Court.Mr Takiwa advanced three arguments in support of that proposition, including thatthe complainant did not live at the Rotoma address during the time and that the Rotomaaddress was isolated without public transport. This Court said:[26] We consider it was open to the jury to convict Mr Takiwa onthe evidence before them. It was not necessary for the Crown to provethe complainant was living in the same household as Mr Takiwa on apermanent basis when the first rape occurred. We accept the Crown'ssubmission that it would have been possible for Mr Takiwa to offend againstthe complainant at the Rotoma address when she was not living therefull-time. We consider it is unrealistic for Mr Takiwa to say that while visitingthe Rotoma address there was no opportunity for the complainant to spendsome time alone with him. In this regard, we accept the Crown's submissionthat even in crowded chaotic households two persons can find themselvesalone together.[19] This Court did refer to the fact the defence relied primarily on the evidence ofSM and another witness as to the date the complainant's family relocated from Rotomato Rotorua and noted there was no evidence to corroborate the dates.15 The Courtnoted that the jury could have rejected or questioned the reliability of that evidence.Despite saying that, however, the Court observed that the evidence showedthe complainant did not have a "settled living arrangement", describing it as appearingto be "both fluid and changeable", characterised by being "shuttled back and forth"between the two properties.16 In such circumstances, the Court considered it was opento the jury to conclude that Mr Takiwa would not have been precluded from offendingagainst the complainant due to the nature and timing of her living arrangements.[20] The Court therefore concluded the jury verdict was not an unreasonable one.[21] Other than SM being able to provide corroborating evidence of the date onwhich she moved to Rotorua, all the issues advanced on behalf of Mr Takiwa werealready before the Court at the first appeal. We do not consider the corroboratingevidence of the move could have made a material difference to this Court's analysisgiven its comments on the opportunity for Mr Takiwa to have offended, despitethe complainant not living at the Rotoma address during the period covered by charge15 At [27].16 At [28].one. In our view, the position is akin to that described in Palmer v R and to allowMr Takiwa's application for recall of this Court's earlier judgment would underminethe principle of finality.17[22] For these reasons, we do not consider there was a fundamental error inprocedure.Would a substantial miscarriage of justice result?[23] There are two bases advanced in support of this ground. First, the evidenceat the retrial about the date of the complainant's family's relocation to Rotorua.This has already been discussed.[24] Secondly, Mr Takiwa relies on the s 147 dismissals and acquittal at the retrial.In Mr Temm's submission, for Mr Takiwa, that the complainant's account of the threeother allegations of rape has now been dismissed involves not just issues of credibilitybut demonstrates her factual account was "simply not possible". However, twodifferent juries can properly reach different verdicts on the same events and ona victim's credibility and reliability. As this Court has said:18Just as it is open for a jury to accept parts of a complainant's evidence but notother parts, it must also be open for a different jury in another trial withdifferent evidence to take a different view of a complainant's credibility andreliability [I]t is to be expected that different juries considering the sameevents may quite properly reach different verdicts on the evidence beforethem.[25] In any event, this is not a case where the second jury has reached a differentverdict on the same events. Charge one involved different events from the chargessubject to the retrial.[26] For these reasons, we do not consider a substantial miscarriage of justice wouldresult if the recall application is not granted.17 R v Palmer, above n 10.18 McMaster v R, above n 6, at [84].[27] Given these conclusions, we do not need to address the third requirement forleave, whether there is an alternative effective remedy.[28] It follows from the analysis above that we do not consider Mr Takiwa's casefalls into the exceptional category where the Smith jurisdiction should be exercised.Application for leave to appeal on a question of law[29] For leave to be granted, the question of law must arise "in proceedings thatrelate to or follow the determination of the charge".19 This requires a close connectionbetween the decision under appeal and determination of the charge.20[30] The correctness of the ruling under appeal must have been capable ofinfluencing the final outcome. Mr Takiwa was acquitted on the one charge left to thejury at the retrial. If there was an error in the ruling, this Court could order a retrial,enter an acquittal or vary the sentence imposed.21 None of those options would beavailable to this Court, even if there were an error, given Mr Takiwa's acquittal.There is no jurisdiction to grant leave to appeal in the circumstances.Result[31] The application for recall, styled as an application for leave to bring a secondappeal against conviction, is declined.[32] The application for leave to appeal on a question of law is declined for want ofjurisdiction.Solicitors:Crown Law Office, Wellington for Respondent19 Criminal Procedure Act 2011, s 296(3)(a).20 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [41].21 Criminal Procedure Act, s 300.