RANSFIELD v R CA760/2013 [2014] NZCA 309

RANSFIELD v R CA760/2013 [2014] NZCA 309 [7 July 2014]NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA760/2013[2014] NZCA 309BETWEEN LUKE KAPERIERA RANSFIELDAppellantAND THE QUEENRespondentHearing: 18 June 2014Court: White, Keane and MacKenzie JJCounsel: C D Bean for AppellantK Raftery for RespondentJudgment: 7 July 2014 at 12.30 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by MacKenzie J)[1] The appellant appeals against his conviction following trial before Judge Tompkins and a jury in the Hamilton District Court in August 2013 on a count of sexual violation by rape.[2] The incident occurred on 16 March 2010 after a party at the home of thecomplainant's brother in Hamilton. The Crown case was that the complainant hadbecome intoxicated and left the house to sleep it off in her vehicle, parked in a carport outside. She fell asleep on the front seat and woke to find someone had repositioned her and was having sex with her. Her brother looked out a window andsaw the appellant raping his sister, with the appellant's co-accused standing next to him. When the brother came out of the house the two men ran off across the road towards a park, where police later found one used and one unused condom. The day after the rape, 17 March 2010, the appellant, having heard that he was a suspect, came to the police station. He gave a DVD interview in which he denied having had intercourse with the complainant. He consented to a medical examination. Later scientific examination gave DNA matches for both the appellant and the complainant on the used condom, and a DNA match for the complainant on a swab taken from theappellant's penis.[3] At trial, the appellant and his co-accused both accepted that the appellant had sex with the complainant, and the sole issue was consent.[4] The conviction appeal is based on two grounds:(a) the way in which the initial lie told by the appellant to police was used by the Crown resulted in the trial being conducted in an unfair manner; and(b) the Crown incorrectly placed an onus of proof on the appellant in closing submissions to the jury.[5] On the first ground, Mr Bean for the appellant points to two factors that are suggested to give rise to an unfair trial. The first is that in the Crown closing address the Crown submitted that the appellant had lied to the police initially but, when faced with scientific evidence about his DNA linking him to the complainant, he changed his evidence to a further lie about consensual intercourse. Mr Bean acknowledgesthat the appellant's account had changed, but says that at no point was the appellantcross-examined by the Crown about whether this change was a result of forensic evidence. He submits that it was unfair for the Crown to invite the jury to draw aninference as to the motivation for that change when the appellant had no opportunity to respond to that proposition.[6] The second factor is that the Crown suggested to the appellant in cross-examination that the initial police interviewing officer did not believe theappellant's account. Mr Bean submits that the belief of the police officer in theveracity or otherwise of the appellant's interview is inadmissible and irrelevant, andthat when this is contrasted with the Crown submission to the jury about how it should approach the credibility of the victim, unfairness has resulted.[7] The appellant said in his DVD interview that he had gone to the house where the party was taking place. A woman at the party tried to make a pass at him. He did not want anything to do with her and pushed her away. He then left the party with three friends and walked home. The DVD interview was played at trial. The appellant also gave evidence. In his evidence-in-chief, he said that he had left the party but had later returned. He had walked back with his co-accused. When they arrived they saw the complainant outside by her truck. He spoke to her and then went into the house to get a beer. When he came back outside he asked her if she was still keen to hook up. She said that she was, they started kissing, one thing led to another and they had consensual sex. He asked her if she wanted a threesome, she agreed, and his co-accused joined in. The complainant had oral sex with the co-accused, at the same time she was having vaginal sex with the appellant. Whenthe complainant's brother came out, the appellant said "she's loving" it or words tothat effect and then walked off.[8] The appellant was asked in evidence-in-chief why he had given a different story in his interview. He said that he was in shock to be confronted with an allegation of rape after consensual sex. He said that eventually he consulted a lawyer. As a result of that he visited the police again, to give a DNA test.[9] In cross-examination, the prosecutor established that at the time of the interview the appellant was aware of his right to obtain legal advice, at no cost, and then said:Q. You didn't take the opportunity to talk to a lawyer, did you?A. No I didn't.Q. What you chose to do, and let's be very clear about it Mr Ransfield it was your choice, you chose to lie?A. Yeah I did lie and I'm sorry about that.Q. You chose to lie because you thought you could talk your way out ofit, didn't you?A. No, that's not true.Q. You didn't think anybody would be able to pin it on you because you were effectively a stranger, that's what you thought, wasn't it?A. No, that's not true as well.Q. And you maintained that lie repeatedly throughout the interview,didn't you?A. Yes I did.Q. Again, and again, and again that's what happened isn't it?A. Yes it was.Q. And the fact that we know you knew you could get a lawyer to help you is evidenced by the fact that when the police officer clearlydidn't believe your lies then you asked for a lawyer, didn't you?A. Can you repeat that please?Q. During the course of the interview when the police officer clearly did not believe your lies then you asked for a lawyer, didn't you?A. That's when I know I needed a lawyer. Like that's when I sortaunderstood what was happening.Q. Well what was happening was you were telling a broad faced lie repeatedly and the police officer clearly didn't believe you. That's what was happening, wasn't it?A. I thought it was better for me to not ask for a lawyer 'cos then I would've looked guilty, so I just thought that the cop was gonna helpso I just carried on with the interview.[10] In re-examination, the appellant gave evidence that he had consulted Mr Morgan QC shortly after the incident and given him an account of the incident. His counsel called Mr Morgan as a witness. Mr Morgan gave evidence of theappellant's statement to him. That was admitted as a previous consistent statement. That statement gave an account of consensual sex with the complainant by the appellant and his co-accused. In cross-examination, Mr Morgan confirmed that hefirst met with Mr Ransfield on 13 August 2010, after the police had served the appellant with a notice seeking a DNA sample. Mr Morgan said it was explained to him that a DNA test had already been completed but that something had gone wrong and the police wanted another one, which was why the appellant had come to see him.[11] In closing, the Crown made a strong submission to the jury that theappellant's evidence was not credible. The parts of that submission which arerelevant to the ground of appeal are:Now the Crown doesn't just say that Mr Ransfield's account is implausible because of timing. The Crown says it's implausible because the reality is hecannot tell the same story twice. He gave a different account in his evidence- in-chief from that which he gave during cross-examination and he gave that on a number of occasions in a number of important respects. The reality is and I say in stark contrast to [the complainant] when he was challenged,when it was put to him he wasn't telling the truth. He came up with differentversions, different details. He tried to answer, he tried to get his way out ofwhat he saw was the challenge and the Crown says that didn't take him anywhere. The Crown says also that while you've heard evidence thatMr Ransfield had given an account like the one you heard yesterday and today on previous occasion, that account was an account given to a lawyerfive months after this occurred. Five months after he'd had an opportunity tostop, to reflect and in circumstances where he knew that forensic testing was being undertaken, that the police were looking for a DNA sample from him, he knew that the science was going to catch up with him. Faced with the knowledge that the science would catch up with him the Crown says he gave an account to Mr Morgan and that account was an entirely different one to that given to the police but importantly it was a different one to that given to you.The Crown says that in this case you can't accept the evidence ofMr Ransfield and you need to put it to one side. It's unreliable, it'suntruthful. Effectively he'll say what he has to say. You saw an example ofthat towards the end of his cross-examination today. You see I'd suggested to him that he'd given Mr Martin a condom and you'll know what youthought of the explanation that he provided to you as to how a second unused condom came to be out of its wrapper and discarded in the park along with the used condom that Mr Ransfield had had but the Crown saysyou won't have found that convincing at all. You'll recognise it for what itwas.[12] The essence of this aspect of the appeal is that it was unfair for the prosecutorto suggest that the change of story between the appellant's initial interview and hisevidence at trial was prompted by knowledge of the DNA evidence, when thatproposition was not put to the appellant in cross-examination to give him an opportunity to respond.[13] The short answer to that submission is that the proposition could not have been put to the appellant in cross-examination because the prosecutor did not then have an evidential basis on which to put it. It was only when Mr Morgan subsequently gave evidence of the story he was told, which differed from that given to the police officer, and that he was instructed when the second request for a DNA sample was made, that there was evidence to suggest a connection between the change in story and the likelihood that DNA evidence would implicate the appellant in sexual intercourse with the complainant.[14] Because the prosecutor was not aware of that evidence, she could not be expected to put it to the appellant in cross-examination. It was not unfair to the appellant for her to make the submission she did, when the later evidence of Mr Morgan provided an evidential foundation for it. When the submission was made, trial counsel for the appellant could have sought leave, even at that late stage, to recall the appellant to give further evidence in response to that submission. We need not consider what might have been appropriate if that had been done, because it was not.[15] For these reasons, we do not accept the appellant's submission that the prosecutor's address to the jury as to what might have motivated the change of storywas unfair because it was not put to the appellant.[16] A prosecutor should not suggest that an accused person has a motive or reason to lie, unless there is a sufficient evidential foundation to indicate that reason. Although the change of story came after the second request for DNA, not the first, the timing of the second request and the statement to Mr Morgan provided anevidential basis for the submission that the appellant's awareness of the DNAevidence was the reason he changed his story from a denial of intercourse to one of consensual intercourse. That evidential basis means that it was a submission that the prosecutor could properly make to the jury. It did not lead to unfairness to the appellant.[17] The second factor relied upon for the first ground of appeal is the Crown assertion to the appellant in cross-examination that the police officer conducting the DVD interview did not believe the appellant's account. That does not give rise to unfairness involving a risk of a miscarriage of justice. If the appellant's evidence attrial had been consistent with the interview, it would not have been appropriate for the prosecutor to suggest that the officer did not believe the appellant. The veracityof the appellant's evidence would be a matter for the jury. The officer's opinionwould be inadmissible and it would be improper to adduce it. But that is not the case. The appellant's evidence at trial was different from the interview, which was an admitted lie. The prosecutor's suggestion that the officer did not believe that liedid not lead to unfairness to the appellant.[18] The first ground of appeal must fail.[19] The second ground of appeal is that the Crown incorrectly placed an onus of proof on the appellant in the closing address. Counsel for the appellant relies on a number of comments by the prosecutor in her address. She said that the appellant and his co-accused were calling the complainant a liar, that this was a desperate thingto do, and "it's what they've done because it's what they have to do". The prosecutor also invited the jury to put the appellant's evidence to one side asunreliable and untruthful and said "[e]ffectively he'll say what he has to say". Shealso said of the appellant and the co-accused: "they have to say it because they have nothing else". She also said: "the defence may try and complicate your job".[20] One of the reasons for the rule that it is generally impermissible for a prosecutor to submit that an accused person has a motive to lie, and that this can be done only if there is an evidential foundation, is the potential to undermine the presumption of innocence.1 The evidential foundation we have discussed means that the submission was permissible in this case. But the prosecutor needed to be mindful, in making the submission, of the risk of undermining the presumption.[21] The prosecutor's remarks here were couched in quite strong terms. But, despite the force with which the submission was made, we are not persuaded that1 Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425.any of the comments complained of give rise to a risk that the jury may have misapplied the burden of proof. The burden was explained to them by the Judge in summing up. He also gave a full, and conventional, tripartite direction about the use of defence evidence. Immediately after making the remarks complained of about theappellant's evidence, the prosecutor went on to say "[t]he Crown invites you to putMr Ransfield's evidence entirely to one side and when you do that what are you left with?" To the extent that there was a risk that the references in the closing address towhich objection is made might have deflected the jury from the very clear directions they were given about the burden of proof and what they were to do if they rejectedthe appellant's evidence, that comment by the prosecutor redressed the balance. It succinctly and accurately restated the jury's task if they rejected the appellant'sevidence, namely to put it to one side and consider whether the Crown evidence proved its case.[22] The second ground of appeal must also fail.[23] For these reasons, the appeal against conviction is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent