GLASSIE v R [2018] NZCA 308

GLASSIE v R [2018] NZCA 308 [14 August 2018]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 AOTEAROACA743/2017[2018] NZCA 308BETWEEN ESTALL JHANA GLASSIEAppellantAND THE QUEENRespondentHearing: 19 April 2018Court: Williams, Wylie and Thomas JJCounsel: I M Brookie for AppellantJ C Pike QC for RespondentJudgment: 14 August 2018 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] Mr Glassie faced nine charges involving violence and sexual violation inrelation to his partner, C. They included four counts of male assaults female,1 one ofassault with intent to injure,2 one of injuring with intent to injure,3 and three counts of1 Crimes Act 1961, s 194(b).2 Section 193.3 Section 189(2).sexual violation by unlawful sexual connection.4 The charges covered allegedoffending over a two-day period in April 2016.[2] Mr Glassie was tried before Judge M E Sharp and a jury in the District Courtat Auckland. At the commencement of the trial, he pleaded guilty to three of the sixviolence charges (two counts of male assaults female and one count of injuring withintent to injure). The jury found him guilty on all other charges. Judge Sharpsentenced Mr Glassie to 12 years and eight months' imprisonment.[3] Mr Glassie appeals against his convictions on those charges that he did notenter guilty pleas on.Factual allegations[4] Mr Glassie and C had been in an on-again, off-again relationship for five years.He had moved back to C's address shortly before the offending. The factualallegations in relation to the charges relevant to this appeal are as follows.[5] On 27 April 2016, C returned home following a netball game. The pairengaged in consensual sex. During this, Mr Glassie became angry and accused C ofhaving recently had sexual intercourse with someone else. He punched her repeatedlyin the head, back and stomach. He went to the laundry to retrieve C's underwear,believing there would be evidence in them of recent sexual intercourse. When Cfollowed him to the laundry, he slapped her causing her to fall back into the laundrywall.[6] Later the following evening, when the pair were in bed, Mr Glassie raised theaccusations of infidelity again. He began beating C. She admitted the allegation inthe hope that would cause the violence to stop, but it did not. Mr Glassie then gave C"the biggest hiding" in her words. Mr Glassie strangled C and then beat her more.Following this Mr Glassie forced C to perform oral sex on him and he punched heruntil she agreed to his demand for anal sex. Mr Glassie then penetrated C's anus withhis fingers and then his penis.4 Section 128(1)(b).[7] C sustained a number of injuries: significant bruising to the left eye and therear of the left ear, significant bruising to the right temple and behind that ear, a brokenlittle finger and bruising to that hand, abdominal tenderness, bruising to theleft shoulder and upper back, and a small abrasion at the anal entrance.Mr Glassie's response[8] Mr Glassie did not give or call evidence in his defence. But, through hiscounsel, he accepted the oral sex took place but maintained it was consensual. Heargued that the two male assaults female charges and the one assault with intent toinjure did not occur. Neither, it was argued, did the anal penetration (digital andpenile) occur. C, it was argued, exaggerated the level of violence used against her, andlied about the sexual violations.Grounds of appeal[9] Mr Glassie advanced three grounds of appeal as follows:(a) The verdict on the oral sex charge was unreasonable in light of C'sinconsistent evidence.(b) The Judge failed to give an appropriate reliability warning under s 122of the Evidence Act 2006 in relation to medical evidence.(c) The Judge failed to properly direct the jury in relation to comments bythe prosecutor in closing address that the complainant had no motive tolie.Unreasonable verdict[10] The test for whether a jury's verdict is unreasonable is found in R v Owen:5[17] a verdict will be unreasonable if, having regard to all the evidence,the jury could not reasonably have been satisfied to the requiredstandard that the accused was guilty.5 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.[11] Mr Glassie argued that C's evidence was inconsistent and contradictory.Mr Glassie argued that no reasonable jury could be satisfied beyond reasonable doubtthat oral sex took place, and if it did, that C did not consent and Mr Glassie did notreasonably believe that she did.[12] In her evidence in chief, C described the incident in these terms: so he's forcing me to give him a blow job and, you know, lots of blow jobsbecause apparently that's what I'm good for um I wouldn't do it, I didn't wantto do it so he'd slap me, he, a couple of times.[13] Under cross-examination C acknowledged that she may have agreed tooral sex:Q: But what I am saying to you is that you did it because you wanted to.Do you agree with that?A: Maybe, yes.Q: Well it's a pretty simple question, [C].Q: maybe you did want to do it — have I got that right?A: Yep.[14] Later during cross-examination, C provided her explanation:Q: But I think even on your story you agree that on the Thursday nighthe tried to initiate oral sex with you, he tried —A: Well, there were times when I just let him do it because I was over thehitting.Q: And —A: It was either that, take it or get a hiding, get hit more.[15] In re-examination the prosecutor asked as follows:And then you said maybe you did it because you wanted to, okay? I'm justtrying to work out whether you're clear about whether your video's right orwhether you can't remember or whether you think maybe you did want to givehim a blow job?[16] C answered as follows:So I didn't get hit. I mean, it's hard to say, like, I may not have wanted to giveit so he'd slap me and then I'd give it for the fact that he would stop slappingme.[17] At the conclusion of the Crown case, Mr Glassie sought a s 147 discharge inrespect of this charge. Judge Sharp dismissed the application finding that thevariations in C's account went to credibility which was a matter for the jury.[18] We accept there were apparent inconsistencies between C's evidence in chiefand her responses to questions in cross-examination, but those inconsistencies werecleared up later in cross-examination and then again on re-examination. C said sheacquiesced to oral sex because she would be beaten if she did not.6 It was entirelyopen to the jury to accept this explanation in light of the evidence of violence the daybefore (which Mr Glassie admitted) and C's extensive evidence of violence during thecourse of the second evening. It is difficult to see how any intimate or sexual activitythat evening could have been consensual given the violent context in which it all tookplace, if the jury accepted that evidence.[19] We see no merit in this ground.Reliability warning[20] A Doctors for Sexual Assault Care (DSAC) doctor, Dr Sarah Aly, examined C.She took two anal swabs, one of which identified that male DNA was present in theanal passage which was 30 times more likely to be that of Mr Glassie or a male towhich he was paternally related, than any New Zealand male paternally unrelated tohim. The evidence provided moderate support for C's allegations. It then emergedthat a third rectal swab, which was marked as having been taken by Dr Aly on therelevant form, was never received by ESR. The doctor could not explain the absenceof the swab. A second problem was that, contrary to DSAC "best practice", Dr Alydid not change her gloves between taking vaginal and anal swabs. Dr Aly said it was6 According to s 128A(2)(a)–(c) of the Crimes Act, a person does not consent to sexual activity ifhe or she allows the activity because of force applied or threatened to be applied to him or her orsome other person, or if they are fearful of the application of force to him or her or some otherperson.never her practice to change her gloves in such circumstances. She had been a DSACdoctor for many years.[21] Section 122 of the Evidence Act relevantly provides as follows:122 Judicial directions about evidence which may be unreliable(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinionthat any evidence given in that proceeding that is admissible maynevertheless be unreliable, the Judge may warn the jury of the need forcaution in deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.(3) In a criminal proceeding tried with a jury, a party may request the Judgeto give a warning under subsection (1) but the Judge need not complywith that request—(a) if the Judge is of the opinion that to do so might unnecessarilyemphasise evidence; or(b) if the Judge is of the opinion that there is any other good reasonnot to comply with the request.(4) It is not necessary for a Judge to use a particular form of words in givingthe warning.[22] Section 122(1) makes clear that the relevant opinion as to whether admissibleevidence "may nevertheless be unreliable", is that of the judge. Discretion isinvolved.7 In Ross v R, this Court considered that: 8[53] If a judge considers a warning is needed, what is required is a warningof the need for caution, an explanation as to why such caution is necessaryand identification of the risks. There can, however, be a concern that in certaincases (for example where reliability issues are already obvious to the jury) thejudicial imprimatur can artificially tip the scales against witnesses. (footnotes omitted.)7 R v Taylor [2010] NZCA 69.8 Ross v R [2017] NZCA 587.[23] In this case, the Judge directed the jury in relation to the medical evidence asfollows:[71] It's entirely a matter for you to decide what you think about thisevidence; whether you accept it or whether you consider it to be reliableevidence. If you decide that it is unreliable evidence, then of course youshould not accept it. If you are not sure how reliable it is and whether you canplace much weight on it, then you should just disregard it altogether.[72] On the other hand, all things considered, if you consider that Dr Alywho after all was an extremely experienced DSAC doctor, was a good reliablewitness of integrity and that the processes that she followed were scientificallyunchallengeable, then it will be for you to determine whether you accept herevidence. If you don't accept her evidence, then you shouldn't go on to evenlook at the ESR evidence, because one follows from the other. But if youaccept her evidence and you are satisfied beyond reasonable doubt of that andthat you should give it appropriate weight, then you'll want to go on toconsider the ESR evidence.[73] So it's right that I discuss this with you and that I say to you that youshould be cautious about all of this evidence and make a decision, first off,about whether you accept what Dr Aly said and that what she did was anappropriate scientific process and that you are satisfied beyond reasonabledoubt that there was not contamination so that the samples which ESRanalysed were samples that did give the results in question. I don't think thatthere is any suggestion that the ESR process itself was in any way flawed;merely that you couldn't rely on their results unless you were satisfied ofDr Aly's processes first.[74] But the Crown does say to you that the analysis of the DNA in the analswab put the DNA strength at the low end of the second lowest of all of thecategories. And Mr Brookie says to you that that's just not good enough.Whereas of course you have extremely strong support for the DNA of someof the semen which was evaluated and analysed from the vaginal swab, ascoming from a DNA profile of somebody like Mr Glassie. And there's amighty difference between the strength of the two categories.[75] So I ask you to give serious thought and consideration to Dr Aly'sevidence and to what impact it should or does have for you on the ESRevidence. But it is for you and if you consider that she was reliable and thather processes were not flawed, then you can place such weight on it as youwish.[24] Mr Glassie contended that these directions failed to acknowledge specificshortcomings in the scientific evidence and that this failure was fatal.[25] We accept as a general proposition that when applying s 122, a judge shouldpoint out specifically why evidence may be unreliable. This is to assist the jury todecide whether to accept it, and if they do, to assist in evaluating the weight to attributeto it. But in this case, what was the risk of unreliability?[26] Dr Aly acknowledged she did not change her surgical gloves between thetaking of vaginal and anal swabs. She accepted that this was inconsistent withthe DSAC guidelines contained in the handbook. Her evidence was:That is my clinical practice, that's the way I was taught to do an examinationand I do note that in the DSAC handbook it talks about changing gloves butthat's not something that I've routinely been taught or routinely done.[27] But the issue at trial was not compliance with the DSAC handbook. It waswhether there was a reasonable possibility of false results through the transference ofgenetic material from one site to another. The doctor was acutely conscious of theneed to avoid cross-contamination:Q: Because, of course, contamination across swabs effectively underminesany results that might be obtained?A: Yes, but at no point do I touch the swabs with my gloved hands.[28] We do not consider the risk that the doctor's evidence was unreliable in thisrespect was such that the Judge needed to go further than she did in advising the juryto be cautious.[29] The second complaint related to the third of the three anal swabs Dr Alyrecorded on the examination form as having been taken during the examination of C.The samples were then forwarded to ESR for analysis. ESR records showed that itreceived only two of the three samples. ESR received a perianal sample (from a swabtaken from around the external area of the anal sphincter) and an anal sample (from aswab taken two to three cm inside the anal entrance). But there was no record of ESRreceiving a rectal sample (from a swab taken from the rectal cavity beyond the analcanal) despite the fact that Dr Aly recorded on the examination form that she had takenone. The doctor acknowledged that she may have filled out the form incorrectly. Shethen accepted the possibility that she may also have mislabelled the two samples thatit seems were sent on to ESR. But, she said, while the latter was a theoreticalpossibility, it was "extremely unlikely".[30] Thus the evidence went no further than that a rectal sample had somehow beenlost either as a result of Dr Aly's or ESR's error. While perhaps of general interest inthe case, such evidence said nothing about the specific reliability of the samples thatwere analysed by ESR. It could not be said that the doctor's evidence had been soundermined that there was a genuine risk the samples examined by ESR wereunreliable due to cross-contamination.[31] On analysis, the two anal samples returned negative results for the presence ofsemen. This led to ESR undertaking the more sensitive male DNA focussedY-STR test on the anal sample. The perianal sample was not further tested and, ofcourse, the rectal sample was lost.[32] It was the Y-STR test on the anal sample that produced male DNA that was30 times more likely to be that of Mr Glassie or someone paternally related to himthan to any other unrelated male in New Zealand. This was considered to be "moderatescientific support" for the proposition that the DNA originated from Mr Glassie.[33] For Mr Glassie, it was argued that it was possible his DNA was depositedaround the perianal area during consensual sex (or transferred there when C showeredafter the events in question). Mr Glassie then sought to rely on Dr Aly's apparent errorwith the samples and her failure to follow DSAC guidelines in relation to the changingof gloves, to suggest it was also possible that she had botched the anal swab processand introduced Mr Glassie's DNA into C's anus with the swab. The theory wasMr Glassie's DNA could have been innocently deposited in or around the perianal areaduring consensual sex and then swept up by an ineptly executed anal swab. It was inthe context of the argument for that possibility that the reliability of Dr Aly's evidencewas put in issue.[34] There are two problems with this thesis.[35] First, Dr Aly said she knew well that the anal swab must not touch the perianalarea. She said, "care is taken to only place that swab in the area we're trying to sample,for example, not touching the perianal area when we're trying to take an anal swab".The evidence of potential mistake and failure to follow guidelines did not therefore goto the point Mr Glassie was advancing. The only evidence on the question was thatcross-contamination was carefully avoided.[36] Second, there was no evidence that Mr Glassie had deposited DNA in or aroundC's perianal area during consensual sex anyway. Nor was there evidence that, if suchmaterial had been deposited, it could be picked up by a swab carefully placed(according to the doctor's evidence) in the anal canal itself. Evidence was needed toestablish these possibilities, for example through cross-examination of C and bycalling a defence expert. We therefore agree with the Crown that such argument wasno more than speculation without evidential foundation. The fact that it then reliedfor its efficacy upon an unrelated mistake (if indeed it was a mistake) and an equallyunrelated failure to follow DSAC guidelines, cannot have corrected the problem.[37] This was not the sort of situation where a carefully calibrated reliabilitywarning was required, in which unrelated problems with the doctor's evidence neededto be specified. We are satisfied the Judge's directions were sufficient to meet theneeds of the case.Motive to lie[38] In closing address, the Crown identified three "key factors" for why the juryshould accept C's evidence. The third of these factors was "a complete lack of motiveto lie".[39] This was later expanded:So the final thing I want to touch on in respect of [C's] evidence is the lack ofmotive to lie, okay. She went to the police station the same day. She's clearlygot these injuries that you can see, and clearly on its own that is serious, she'sgot a little broken finger, she's got bruising to her face, she's got bruisingbehind her ears, she's got bruising on her shoulder. That alone is seriousthere's no need to fabricate or lie or elaborate or make it all up, and whilst, ofcourse, there is no onus on a defendant to prove motive as to why she mayhave exaggerated or made it up, if you accept there is no plausible motive tofabricate then it can in fact support the proposition that [C] is telling the truth.[40] In re-direction, following further submissions from defence counsel, the Judgeagreed to direct the jury on motive to lie. She said:[93] Next issue. In her closing address, the prosecutor Ms Lummisreferred to [C] having an absence of motive to lie. Now you need to be clearthat regardless of the absence of evidence of motive to lie, the onus of proofremains on the Crown throughout. There is no onus on the defence to provea motive to lie and I also remind you that absence of evidence of motive to lieis not the same thing as an absence of motive.Submission[41] Mr Glassie argued that a stronger direction was required. He submitted thatthe Judge should have directed the jury to set the Crown's motive to lie submission toone side entirely. She should have explained to the jury that:(a) There is no logical connection between C's physical injuries and theabsence of motive to lie.(b) The absence of evidence of motive does not add to the Crown case, C'smotives may have only been known to her.(c) There is no requirement on the defendant to suggest a motive.Analysis[42] It is well settled in New Zealand that it is permissible for prosecutors toquestion defendants (should they choose to give evidence) on a complainant's motiveto lie and to close on the subject.9 But prosecutors must be moderate in their treatmentof the subject.10 The risk that must be guarded against is the prospect that raising theabsence of evidence of a complainant's motive to lie will subtly shift the onus of proofin the minds of the jury and lead them to convict unless the defendant can offer aplausible reason for why the complainant must be lying.[43] In the present case, defence counsel closed very firmly on the proposition that,except for the charges where a guilty plea had been entered, C had greatly exaggeratedand/or lied throughout. The defence's closing address is replete with references toreasons for why C's evidence in respect of the sexual violation and strangulationcharges were utterly discredited through internal inconsistency, narrative shifts andimplausibility. This is the kind of case where, even in the absence of evidence fromthe defendant himself, a careful reference by the prosecutor to the complainant's lack9 R v T [1998] 2 NZLR 257 (CA) at 265; and Parker v R [2008] NZSC 25.10 R v E [2007] NZCA 404, [2008] 3 NZLR 145 at [55] and [57].of a motive to lie cannot be criticised. We do not read the comments of the prosecutoras going too far. She was careful to remind the jury that the submission she made didnot shift the onus of proof, but lack of motive was an appropriate matter to be takeninto account.[44] Following that submission, it was then for the Judge, utilising her judicialimprimatur, to ensure that the jury did not lose sight of which side carried the onus.We are satisfied that her direction was adequate in this respect. She reminded the juryexplicitly that the defence was not required to prove C had a motive to lie and shefurther reminded them that even if there was no evidence of a motive to lie that didnot mean that there was no such motive. The Judge was not required to direct the juryto set the submission to one side.Result[45] The appeal is therefore dismissed.Solicitors:Crown Law Office, Wellington for Respondent