ARMISHAW v R [2019] NZCA 456

ARMISHAW v R [2019] NZCA 456 [26 September 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA307/2019[2019] NZCA 456BETWEEN LYNDON MARK ARMISHAWAppellantAND THE QUEENRespondentHearing: 10 September 2019Court: Clifford, Collins and Woolford JJCounsel: K J Basire for AppellantA J Ewing for RespondentJudgment: 26 September 2019 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Armishaw appeals his conviction and sentence in relation toone representative charge of indecent assault. He was sentenced to 7 months' homedetention in relation to that charge and another charge of indecent assault to which hepleaded guilty after trial.[2] Initially Mr Armishaw faced four charges:(a) two charges of sexual violation;(b) bestiality; and(c) a representative charge of indecent assault on a girl between 12 and16 years of age[3] At trial, Mr Armishaw was discharged by Judge Gilbert in relation to one ofthe charges of sexual violation.1 The jury convicted Mr Armishaw of the indecentassault charge but could not reach verdicts in relation to the second sexual violationand bestiality charges.[4] During the trial Mr Armishaw admitted another indecent assault involvingthe complainant (V). After the trial, Mr Armishaw was charged with the second chargeof indecent assault arising from the events he admitted at trial. Following anagreement with the Crown, Mr Armishaw pleaded guilty to the second indecent assaultcharge and the Crown elected not to proceed with the unresolved sexual violation andbestiality charges. Mr Armishaw was sentenced by Judge Gilbert on 12 June 2019 inrelation to the two indecent assault convictions.2[5] Mr Armishaw appeals his conviction on the basis that the jury impermissiblyconvicted him of the indecent assault charge based on his admission of the otherindecent assault which, at that stage, was not the subject of a charge. The sentenceappeal contends that the Judge reached a wrong factual conclusion when determiningthe criminality of his offending.1 Criminal Procedure Act 2011, s 147.2 R v Armishaw [2019] NZDC 11218.BackgroundThe allegations[6] The Crown alleged that in 2003 Mr Armishaw was living next to V and hermother in Christchurch. V was 9 years old at the time. The first charge of sexualviolation alleged that during the course of 2003, Mr Armishaw took V into hisbedroom and penetrated her vagina with his finger. This charge was dismissed byJudge Gilbert during the trial when it became apparent Mr Armishaw was living inAuckland at the time of this alleged offending.3[7] The other charges concerned events that were said to have occurred in 2006.Mr Armishaw was living in Christchurch but, at this time his house was about25 minutes' walk from where V and her mother were living. Mr Armishaw maintainedcontact with V and her mother and on occasions V would go and stay with him.[8] The second sexual violation charge arose from an occasion when V was stayingwith Mr Armishaw. She maintained that he raped her in his bedroom. The bestialitycharge also arose from events at Mr Armishaw's home and were based on V'sstatements that Mr Armishaw made her watch him having anal intercourse with hisdog.[9] The representative indecent assault charge that Mr Armishaw was found guiltyof occurred when V was staying with him. She alleged that on several occasions, whenputting her to bed he would kiss her on the mouth using his tongue.Telephone conversation[10] Almost two years before the trial, V telephoned Mr Armishaw. The telephonecall was made after discussions between the police and V. Unbeknown toMr Armishaw at the time, the telephone call was recorded by the police.During the telephone conversation V asked Mr Armishaw if he remembered touchingher "inappropriately" in his house. Mr Armishaw immediately acknowledged that heknew "exactly" what V was talking about. He later said during the telephone call that3 R v Armishaw [2018] NZDC 9781.he could remember V lying in bed and him "rubbing" her and V saying that she felt"real horny".[11] When Mr Armishaw was questioned by the police he acknowledged afterhearing the telephone conversation replayed, that he did touch V on one occasion, buthe did not say how or when this occurred.[12] Mr Armishaw gave evidence at his trial. He admitted having rubbed V on herleg and pelvic area, saying that had occurred after V had hugged him around the waist.He maintained this happened only once and that when V told him she had "never feltso horny" he came to his senses and stopped touching her. When that version of eventswas put to V in cross-examination she denied having hugged Mr Armishaw or sayingthat she felt horny.[13] Mr Armishaw denied the charges or that he had offended in any way against Vapart from the incident we have mentioned at [10]–[12].[14] Trial defence counsel were content to allow the jury to hear what Mr Armishawsaid during the telephone conversation. It was reasoned that Mr Armishaw's franknessduring the telephone conversation and his denials of any other offending supported hiscase.Summing up[15] In his summing up to the jury, Judge Gilbert gave a standard direction thatthe jury were to consider the evidence relating to each charge separately and reacha separate verdict on each charge. This direction was reinforced when the Judge wentthrough the question trails, telling the jury to focus only on the evidence relevant toeach particular question in the question trails.[16] When directing the jury in relation to Mr Armishaw's admissions that we havereferred to at [10]–[12], the Judge said:[71] In this case, Mr Armishaw has accepted an occasion of touching on[V's] thigh and pelvis area when she said that she felt horny. However, hedenies the specific allegations that are contained in the charges. Well, if youaccept his denial of the specific allegations contained in the charge sheet, thenobviously the proper verdict is not guilty. If what he says has left you unsure,that is you accept his denial of the specific allegations is a reasonablepossibility, then again, the proper verdict is not guilty because you will havea reasonable doubt. It is only if you reject his evidence on those key points,and you are left sure about what [V] said in relation to each of the charges,that you may find him guilty.[72] Now as I have just mentioned, Mr Armishaw has admitted oneincident of improper touching of her thigh up to her pelvic area. But hestrongly denies the specific allegations that the Crown has levelled at him.The Crown says that Mr Armishaw has minimised what he did inthis admission. Further, the Crown case is that his admission to impropertouching demonstrates a tendency on his part to have an improper sexualinterest in [V] at the relevant time. That, it says, must be relevant to assessingboth the credibility of her story, but also the credibility of his denials to thespecific allegations in the charges.[73] Well I simply want to warn you that if you accept he did havean improper interest in [V] at the relevant time based on the admission that hehas made, you cannot just jump from that conclusion to a finding of guilt inrelation to the charges the Crown has laid. That sort of reasoning isimpermissible. The Crown has laid very particular allegations in this case andit must prove those particular allegations. You can take into account hisadmission, such as it is, but it is only one piece of the evidence. You mustconsider all of the evidence and ask that fundamental question in relation toeach charge relating to [V] – has the Crown proven its case beyond reasonabledoubt?Grounds of appeal against conviction[17] Ms Basire, counsel for Mr Armishaw in this Court, submitted thata miscarriage of justice occurred when Mr Armishaw was convicted of indecentassault in relation to the allegation that he had kissed V on numerous occasions onthe mouth using his tongue.[18] This submission was underpinned by a series of propositions that can bedistilled to the following three key points:(a) Mr Armishaw should have been charged either prior to or during trialin relation to the incident in which he rubbed V's leg and pelvic area.(b) The failure to charge Mr Armishaw in relation to this offence meant"the jury chose to convict [Mr Armishaw] on the only charge ofindecent assault available".(c) Having pleaded guilty post-trial to the second indecent assault charge,Mr Armishaw now has two convictions when he should only have one.[19] The appeal against conviction is based on the proposition that the jury musthave impermissibly convicted Mr Armishaw of indecent assault for kissing V becausehe had admitted to indecently assaulting her by rubbing her leg and pelvic area.Analysis[20] The allegation of indecent assault made by V both before and during trial wasthat Mr Armishaw had, on several occasions kissed her on the mouth using his tonguewhen putting her to bed. Mr Armishaw acknowledged before trial that he had"rubbed" V inappropriately. During the trial he explained that the "rubbing" incidentinvolved him touching V's leg and pelvic area. For her part, V denied there wasa "rubbing" incident as described by Mr Armishaw.A second indecent assault charge before trial?[21] It is not surprising the Crown did not attempt to lay a second indecent assaultcharge before trial because the evidence supporting such a charge was very opaque.There are two reasons why we say this:(a) Mr Armishaw's acknowledgement during the telephone conversationthat he had rubbed V inappropriately was vague and could reasonablyhave been thought to be connected to the other charges of sexualoffending against V that he faced.(b) Moreover, it is clear from the transcript of that conversation thatthe "rubbing incident" was not V's principal concern. That transcriptshows she resisted Mr Armishaw's attempts to suggest that was the onlytime he had acted inappropriately with her. She attempted to engagewith him on a wider range of incidents. As matters transpired duringthat conversation, she was unsuccessful in those attempts, not gettingto the incidents that gave rise to the charges Mr Armishaw facedincluding the very serious charges of rape and bestiality.Given those considerations, the Crown may well have concluded before trial that tolay a separate charge based on that incident, and bring the recorded conversation in aspart of its case, could well be counter-productive. Mr Armishaw's subsequent relianceon that telephone call bears out that concern.A second indecent assault charge during trial?[22] Currently s 191 of the Criminal Procedure Act 2011 enables new charges to beadded "before the trial and within any prescribed period". The "period" referred to isdefined as expiring when the trial callover memorandum is filed.4 Time may beextended to lay a new charge with the leave of the Court.5 This aspect of the law willchange in July 2020, when s 136A of the Criminal Procedure Act takes effect.That new provision provides a procedure for adding charges during trial.[23] At the time of Mr Armishaw's trial, there was little real prospect of the Crownbeing able to add a new charge of indecent assault during the trial.[24] Thus, the first premise advanced in support of the conviction appeal, whichwe have summarised at [18(a)] lacks merit.[25] The second premise advanced by Ms Basire, which we have summarised at[18(b)] is equally unappealing. In his summing up Judge Gilbert made it very clearthe jury:(a) had to focus only on the evidence relevant to each charge;(b) could not convict Mr Armishaw of the indecent assault charge that wasbefore them unless they were satisfied beyond reasonable doubt of hisguilt in relation to that charge; and(c) could not jump to the conclusion that he was guilty of indecentlyassaulting V if they accepted that he had an improper interest in V basedupon his admissions of having rubbed her leg and pelvic area.4 Crown Prosecution Regulations 2013, reg 6(1).5 Regulation 6(2).[26] There is no basis upon which we can conclude the jury must have ignored theseinstructions. On the contrary, it is highly likely the jury convicted Mr Armishaw ofindecent assault after assessing V's evidence and the evidence contained in his ownacknowledgement that he had a tendency towards giving effect to his sexual interestin V by touching her inappropriately.[27] The third point made on behalf of Mr Armishaw can also be disposed ofsuccinctly. Mr Armishaw has been convicted twice for indecently assaulting Vbecause:(a) The jury was satisfied beyond reasonable doubt that V was tellingthe truth when she described how Mr Armishaw would kiss her on hermouth using his tongue when putting her bed.(b) He pleaded guilty to rubbing her leg and pelvic area in a sexualisedmanner.Propensity evidence[28] Questions were raised by Ms Basire as to whether it was appropriate forJudge Gilbert to have treated Mr Armishaw's admission of "rubbing" V's leg andpelvic area as propensity evidence. Ms Basire was concerned that neither trial Crownor defence counsel clearly addressed the jury on the basis that Mr Armishaw'sadmission could be used as propensity evidence.[29] Judge Gilbert proceeded on the basis that the Crown consideredMr Armishaw's acknowledgement was admissible as propensity evidence.On reviewing the transcript of Crown counsel's closing address, we agree withMs Basire that Crown counsel did not appear to clearly state that the evidence ofMr Armishaw's touching V's leg and pelvic area was propensity evidence.[30] We do not think it significant that neither counsel at trial addressed the jury onthe basis that the evidence in question was propensity evidence.[31] The evidence of telephone conversation was offered by the Crown andMr Armishaw's admission that he had rubbed V on her leg and pelvic area onlyemerged during Mr Armishaw's evidence-in-chief. Prior to then his admissions, suchas they were, could reasonably have been thought to relate to one or more ofthe charges of sexual offending against V. Thus, this was one of those cases in whichthe propensity evidence emerged during the trial.[32] The defence appeared to offer Mr Armishaw's explanation of the "rubbing"incident to offset its use as direct evidence on one of the other charges of sexualoffending against V. The Crown did not appear to use this evidence for the purpose ofpropensity at trial.[33] Whether this evidence should engage the propensity rules of evidence is opento debate. It appears to have been used at trial as relationship evidence that is part ofthe factual matrix.6 On appeal, the Crown submits that since the evidence was that ofmisconduct by the defendant to the victim, it was admissible as it was directly relevantto the issue at trial.7 While there is merit to this argument, the evidence is moreappropriately considered under the propensity analysis.[34] As observed by the Supreme Court in Mahomed v R, the definition ofpropensity evidence is not confined to the purpose for which the evidence is offered.8The relevance of this evidence goes beyond forming part of the background toMr Armishaw and V's relationship and leaves open the possibility of linkage andcoincidence reasoning.[35] The evidence in issue tended to show Mr Armishaw had a propensity to havea sexual interest in V and to act upon that interest by touching her inappropriately.It was therefore propensity evidence as defined in s 40 of the Evidence Act 2006.[36] In terms of s 43 of the Evidence Act, the evidence is admissible. The evidencehad probative value to an issue in dispute in the proceeding namely, whether onanother occasion or occasions, Mr Armishaw had inappropriately kissed V on her6 For example, see Perkins v R [2011] NZCA 665 at [20].7 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [56]–[57].8 At [60]–[61].mouth using his tongue. We are satisfied the evidence in question has probative valuebecause it must have occurred close in time to the kissing incident or incidents, thereare close similarities between the two types of touching and our assessment that it isunusual for an adult to have a sexual interest in a young child.9 The fact thatthe rubbing incident was a "one off" event is not determinative.10 The evidence inquestion did not have an unfairly prejudicial effect on Mr Armishaw becauseJudge Gilbert gave the jury a clear direction on how it could legitimately use thatevidence.[37] Judge Gilbert cannot be criticised for having treated Mr Armishaw'sadmissions as propensity evidence. The fact that trial counsel did not clearly do so isof no moment. It was the responsibility of the trial Judge to give the jury properdirections and that is what he did.Appeal against sentence[38] When sentencing Mr Armishaw Judge Gilbert said that he found thatMr Armishaw had kissed V on her mouth on more than one, but not more thana handful of occasions. Mr Armishaw says this factual finding was incorrect asthe evidence at his trial demonstrated it could only have happened on two occasions.[39] Judge Gilbert was ideally positioned to make the factual findings that he did.The basis upon which he could have concluded that the kissing occurred more thanonce but not more than a handful of occasions was as follows:(a) V said that the kissing happened probably every time she stayed atMr Armishaw's place.(b) V's mother said that V would go to Mr Armishaw's place quite oftenand stayed there "a couple of times on her own".(c) A third witness, another neighbour at the time, said V had sleep oversand would go and spend some time at Mr Armishaw's place on her own.9 Thompson v R [2019] NZCA 385 at [30]–[34].10 M (CA718/2018) v R [2019] NZCA 357 at [18].[40] In our assessment, there is no real point of distinction in the circumstances ofthis case between "a couple" and "a handful" of incidents of offending.[41] There is therefore, no basis upon which we can conclude that Mr Armishaw'ssentence is manifestly excessive.Result[42] The appeal against conviction is dismissed.[43] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent