MPK (CA343/2018) v R [2019] NZCA 51

MPK (CA343/2018) v R [2019] NZCA 51 [14 March 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT UNDER THE AGE OF18 YEARS PROHIBITED BY S 204 OF THE CRIMINALPROCEDURE ACT 2011.NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFAPPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA343/2018[2019] NZCA 51BETWEEN MPK (CA343/2018)AppellantAND THE QUEENRespondentHearing: 14 February 2019Court: Miller, Simon France and Peters JJCounsel: W C Pyke for AppellantE J Hoskin for RespondentJudgment: 14 March 2019 at 10.00 amJUDGMENT OF THE COURTA The appeal is allowed.B We quash the appellant's convictions and order a retrial.C Matters of bail are to be determined in the District Court.D The record of the first warning given to the appellant by the District Courtat Manukau on 7 February 2018 is cancelled in respect of the convictionsquashed.E MPK's name is to be removed from the Child Sex Offender Register.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] MPK was convicted following a trial before Judge Hikaka, sitting with a jury,of sexual offending against a stepdaughter, aged around five at the time of the allegedevents. He appeals his conviction on the ground that the trial Judge's failure to sumup the defence case has caused a miscarriage.Facts[2] MPK was in a relationship with the child's mother for around three years.It ended when the complainant was six. About two years later the complainant wasstaying with her father and his partner. The occasion arose when it was considerednecessary to talk to the complainant about sexual matters. It was during thisconversation that the offending was disclosed.[3] During the time he was part of the family, MPK would sometimes have care ofthe complainant at night while her mother worked. It was alleged that on severaloccasions MPK undressed the complainant and licked all over her body. On oneoccasion this included the genital area. It was also alleged that during these eventsMPK would lie on top of the complainant and rub his penis against her vagina.[4] MPK was convicted of the three charges the faced, all being charges ofindecent act on a child under 12 years of age.1 He was sentenced to a term of threeyears and three months' imprisonment.21 Crimes Act 1961, s 132(3).2 R v [MPK] [2018] NZDC 10552.The trial[5] The trial began on 30 January 2018 and ended on 5 February 2018.The appellant denied the offending. He gave a detailed video statement to the policethat was played at trial. He did not testify but called two witnesses. Themes thatemerged from the extensive cross-examination of the complainant were:(a) The complainant's acknowledgement of often having detailed dreams;(b) An inconsistency between the complainant and her father and hispartner over why the conversation about sex occurred, and what shedescribed to the father as having happened. The complainant disagreedwith the detail provided by her father to the police;(c) The complainant's propensity to throw temper tantrums and bestubborn when she could not get her own way; and(d) Exploration of the conduct underlying the charges. The complainantsaid the appellant called it "the eating game". It was put to her theeating game involved different conduct (mainly tickling) and that aswell as her and the appellant, her brother was a participant.The complainant rejected this.[6] The first witness called by the defence was the head of a pre-school thecomplainant had attended when aged three. It is plain she was then a difficult childbehaviourally. The second witness was the appellant's mother who also commentedon the behaviour of the complainant when she was visiting. The defence's focus wason reinforcing the stubborn nature of the complainant, the point being herunwillingness to acquiesce to things she did not like.The summing up[7] The Judge's summing up of the respective cases was brief and consisted of:33 R v [MPK] DC Manukau CRI-2016-092-9436, 5 February 2018.[23] simply put, the Crown ask you to accept the complainant is a truthfuland reliable witness and if you accept her evidence the charges will be provedbeyond reasonable doubt and your verdict will be one of guilty. The defenceask you to consider all the background, the behavioural issues that have beenhighlighted in his closing and accept the defendant's denial, or at the veryleast, after looking at all the evidence, the defence says you will be left in astate of reasonable doubt about what really happened, and your verdict willbe one of not guilty.(Emphasis added).[8] We note for the record that when the Judge instructed the jury on the elementsof the offence there was no elaboration of what was in issue or the respectivearguments. We also note that the Judge in the usual way invited comments fromcounsel following the summing up. Counsel apparently queried the brevity of thedescription of the respective cases, but unfortunately the Judge did not act on that.Discussion[9] The appeal is of narrow scope and irresistible.[10] The law concerning the obligation to sum up the nature of respective cases issettled.4 It is well recognised that the complexity of the case, and the logistics, suchas when closing addresses were made, will influence the depth to which a Judge mustgo, but the obligation is to identify the key themes of the respective cases.These passages from a recent decision of this Court in Waters v R capture the points: 5[8] there are limits on a judge's duty to put the defence case to the jury.The judge must be satisfied that the defence case is fully understood bythe jury. The extent of the detail that the judge must traverse will depend onthe case. In a complex case, the judge will generally need to go throughthe key factual allegations for both sides, to give them order and coherencefor the jury, and make it easier for them to carry out their assessment. In asimple case this is not as important, because the issues will be obvious andthe facts to be determined will not require particular organisation to assist indeliberations, or particular elucidation to ensure a clear understanding of therespective positions. A judge is not required to repeat all defence counsel'sarguments or assist the defence case by setting out inconsistencies or othermatters already referred to by counsel.4 In Gurran v R [2015] NZCA 347 at [54], the Court emphasised it is the "nature" of the case thatmust be summarised, not all the detail, citing R v Shipton [2007] 2 NZLR 218 (CA) at [37] andRangihuna v R [2010] NZCA 540 at [23].5 Waters v R [2018] NZCA 84.[9] But the Crown and defence case should be summarised at least as totheir broad form in a balanced and clear way by the judge. It is a judge's dutyto assist a jury in its difficult task, and such a summary will help them. In hissumming-up in this case, the Judge should have briefly outlined what thecomplainant said and what [the defendant] said. It did not need to beexhaustive or deal with the facts of each particular charge. A few paragraphscould have set out the essence of the two conflicting accounts. But this wasnot done. Good practice was not observed.[11] The brief statement by the Judge in this case did not satisfy his obligation. It isno answer to observe the respective cases were treated the same. That is a differentpoint concerning balance but does not cure an omission to put the cases.The deficiency in the direction that was given is that it does not assist the jury inunderstanding why it was being asked to look at the complainant's behavioural issues.What is it they are meant to suggest in terms of the allegations? Further, thebehavioural issues were only one aspect of several themes that were advanced.Without wishing to belabour the point, the passage we have cited says only thatthe defence invited the jury to look at behavioural issues and that based on theevidence they should have had a reasonable doubt. That is not putting the case.[12] In Waters v R, the recent case from which passages have been cited, this Courtwas able to conclude the deficiency in putting the case did not cause a miscarriage.Matters that were noted were the simplicity of the case, the absence of witnesses otherthan the complainant and defendant, the fact that the closings and summing up alloccurred on the same day, the clarity of the defence closing, and the detailed questiontrails. The Crown urges a similar approach here, characterising the deficiency as oneof undue brevity rather than omission.[13] We have reached a different view on these facts from the Court in Waters.The appellant here did not testify but did call evidence. Normally there should besome explanation to the jury about the purpose of such evidence in the sense of whatrole the appellant sees it playing in his or her defence. To what aspect of the case doesit go? Here the defence evidence was to reinforce the complainant's behavioural issuesconcerning which there were two themes. First, the complainant's behaviour was atits best when MPK was part of her life, the implication being it is therefore unlikelythat offending was occurring. Second, the complainant had never been shy aboutprotesting and throwing tantrums when confronted with things she did not want to do;again, the implication being, that she would not have suffered MPK's assaults insilence. The defence also highlighted inconsistencies between the complainant andher parents about what she said had happened, emphasised the complainant'sacceptance that dreams were a significant event for her, and asserted the innocence ofany games played involving MPK.[14] In our view, contrary to the Crown submission, the summing up is an exampleof not putting the cases, rather than putting them too briefly. There is no profit inspeculating on what might have been enough; the appellate task is to assess what wasdone. A judge's obligation to put the cases exists because it is considered a necessaryaspect of the trial process. Its omission will make it difficult to be satisfied the trialhas not miscarried. Sometimes, as in Waters, that conclusion will be possible, but thisis not such a case. There was a defence advanced and evidence called in support, andthe essence of it had to be put to the jury, but was not. The convictions cannot stand.[15] We conclude with some general observations. Summarising the respectivecases, especially if the summing up follows immediately upon the closings, can be adifficult task. Closing addresses are not always the models of clarity counsel mayimagine them to be. That is the case here where, even with the advantage of the writtentranscript, we have not found it easy to extract themes or key points.6[16] Where that occurs, and the trial Judge is left with some uncertainty about thematter, it is recommended that the Judge consult with counsel to ensure the mainthemes are presented. How that is done is a matter for the Judge. Normally it will bea matter of telling counsel the key points the Judge will be putting to the jury andseeking feedback. Sometimes, however, the Judge may just wish to ask.[17] We are not suggesting this is always necessary or there is some rule that a Judgemust do so. Rather, the point is that the Judge has an obligation to sum up therespective cases. If the closings have left the Judge in a situation where he or she isnot able to do that, steps should be taken to improve the situation.6 Note that Mr Pyke, for the appellant, was not trial counsel.Result[18] The appeal is allowed.[19] We quash the appellant's convictions and order a retrial.[20] Matters of bail are to be determined in the District Court.[21] The record of the first warning given to the appellant by the District Court atManukau on 7 February 2018 is cancelled in respect of the convictions quashed.[22] MPK's name is to be removed from the Child Sex Offender Register.Solicitors:Crown Law Office, Wellington for Respondent