P (CA284/2015) v R [2016] NZCA 576

P (CA284/2015) v R [2016] NZCA 576 [2 December 2016]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF THE COMPLAINANTS AND ANYPERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS AWITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDUREACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA284/2015[2016] NZCA 576BETWEEN P (CA284/2015)AppellantAND THE QUEENRespondentHearing: 14 November 2016Court: Winkelmann, Duffy and Whata JJCounsel: P H Tomlinson for AppellantB D Tantrum and P J Arnold for RespondentJudgment: 2 December 2016 at 11.30 amJUDGMENT OF THE COURTA An extension of time to appeal is granted.B The appeal against conviction and sentence is dismissed.C Order prohibiting publication of name, address, occupation or identifying particulars of appellant.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] The appellant, P, was found guilty following a jury trial before Judge Thomas in the Hamilton District Court and convicted on two charges of sexual violation by unlawful sexual connection and one charge of indecent assault. He wassubsequently sentenced by Judge Thomas to four years and six months'imprisonment.1 He appeals against those convictions.2[2] The grounds of appeal can be conveniently summarised as follows:(a) in the face of the closing address by the Crown, the trial Judge's directions as to the complainant's motivation to lie about theoffending were inadequate;(b) trial counsel failed to follow P's instructions, in particular, to callmedical evidence regarding his mobility at the time of the offending;3(c) irrelevant but highly prejudicial evidence was led by the Crown; and(d) there was insufficient evidence to support a conviction on one of the sexual violation charges (charge 4).[3] A further ground of appeal that trial counsel had failed to cross-examine the complainant on inconsistencies in her evidence was abandoned during the course of the hearing.1 R v [P] DC Hamilton CRI-2013-019-4922, 15 December 2014.2 He has also filed an appeal against his sentence but that appeal will only be pursued if the appeal against conviction is at least partially successful, such that the sentence should therefore be reduced.3 P's written submissions also addressed under this ground of appeal a failure to call P's son as awitness. However, this argument was not pursued at the hearing.Facts[4] Initially P faced six charges in relation to two complainants, one of whom was his teenage stepdaughter, J, and the other her friend, S. The jury found P guilty on three charges relating to S.[5] At the time of the offending S was 14 years of age. S stayed at the P family home on 6 April 2013 and 6 September 2013.4 These were the only occasions when S stayed there.[6] On the first occasion S and N, who was also staying over, shared a bedroom. The two girls were initially in separate beds. However, there was some discussion about ghost stories which caused S to feel afraid and so during the night N shifted into bed with S. Later on that evening, while S and N were asleep, S said that someone entered the bedroom and penetrated her genitalia with his finger, causing her to wake up. At the time S was lying in bed facing away from the perpetrator. Her opportunity to see him was limited. The room was in darkness. S said that she thought the perpetrator was on his knees next to the bed as she saw him stand up when he went to leave the room. Initially, S thought J might have been responsible for this assault. However, S eventually concluded that the perpetrator was P since she remembered the person who entered her room as being tall and well built, which J is not. P is tall and well built.[7] On the second occasion S stayed in a room on her own at the P home. She said that P entered the bedroom during the night, penetrated her genitalia with his finger and licked her anus. On this occasion S had a better opportunity to identify P as she was awake when he entered the room, though this opportunity was also somewhat limited as, like the first occasion, she was lying facing the wall in a dark room. However, she distinctly remembered feeling bristles against her bottom during the assault. P has a goatee beard and he was the only male in the house on that occasion. Some 15 minutes after the second incident P returned to the room where S was and shined a torch on her. S was unnerved by this and so she left the4 The charge notice says 30 August 2013, however, the evidence at trial was that the incident occurred on the same day as a hockey game which was held on 6 September 2013.room, went to J's room and got into bed with her. Sometime later P entered J's roomand shone his torch on the two girls.[8] Apart from describing the criminal acts and attributing them to P, S gave few details about how they were carried out. On neither occasion did S turn to face the perpetrator, nor did she confront him in any other way. S said that after the second incident she lay there crying for a short time; she described herself as being "really frozen".[9] S spoke with J the morning after the second incident and told her about the offending. Then, two weeks later, S wrote a note to her mother telling her about the recent offending and the earlier incident in April 2013.[10] P denied touching S on either occasion. His case was that S was lying. Hedid confirm that on the second night S stayed over he had entered the girls' rooms onmore than one occasion using torch light to check on them. He said it was his practice to move around the house at night using a torch.Extension of time to appeal[11] P filed his notice of appeal several months out of time and thus requires an extension of time to appeal. He appears to have had some difficulty instructing counsel in the time period following his sentencing and the Crown does not seriously oppose leave. In these circumstances we grant an extension of time to appeal.Crown's over-emphasis on S's lack of a motive to lie[12] The Crown on a number of occasions in its cross-examination of P questioned whether S had any motivation to lie about the offending. The prosecutorconcluded this line of questioning by asking P to confirm that he could "give this jury no logical reason why she would have an axe to grind against you".[13] Then, in closing, the Crown repeatedly made strong submissions to the juryalong the lines that S had no motive to lie about the offences or about P'sinvolvement in them. In doing so the Crown referred to the sparse contact that S hadpreviously had with P, the burdensome nature of making a complainant against P and all that would involve, and queried why a young girl who hardly knew P would make up false accusations against him. These remarks were framed in a way that carried the suggestion P had no explanation to counter them.[14] We consider that the combination of the cross-examination of P and these passages in the Crown closing created the risk the jury would believe there was an onus on P to explain why the complaint had been made. There was of course no such onus.[15] In his summing-up the Judge directed the jury on the presumption of innocence and followed that by saying:[6] The presumption of innocence means that the defendant does not have to give or call any evidence and he does not have to establish his innocence. While that sounds simple enough you must always be acutely aware of it. For example, Ms Dunn cross-examined the defendant about how little he and [S] had had to do with each other before she made these allegations. You may recall that she got him to agree that they had barely talked to each other, that there was nothing he had done or said to her on previous occasions to upset her in any way. Those were perfectly legitimate questions. They were designed to demonstrate that there appeared to be no reason for [S] to then suddenly make false allegations against the defendant. The burden of proof though means that the defendant does not have to point to any reason why [S] or [J] would make up these allegations. He did not offer any reason for them to do that and he does not have to. The Crown has to prove that the allegations are true. The defendant does not have to prove anything.[16] We consider that these directions cured any unfair prejudice which may havearisen from the Crown's remarks. In the above passage, the Judge specifically targeted his directions about the burden of proof to Crown counsel's remarks. Those directions would have made it abundantly clear to the jury that it was for the Crown to prove the case against P and that he was under no obligation to prove anything. Accordingly, we see no merit in this ground of appeal.Trial counsel's failure to call medical evidence for the defence[17] P complains that, contrary to his instructions, his trial counsel, Mr Sturm, failed to call expert medical evidence that P believes would have shown he could not have committed the offences. For the purposes of the appeal, P provided affidavitevidence outlining how, on 9 August 2013, he underwent significant orthopaedic surgery which fused two of his cervical vertebrae. He says that at the time of the second incident he was still in pain and his mobility was considerably restricted. P says that he asked Mr Sturm to call a doctor or specialist as a witness, in order to give evidence about his condition. He also says that he provided copies of his medical records to Mr Sturm before the trial. P describes having heated discussions with Mr Sturm about the use of this evidence. In the end, however, he followed Mr Sturm's advice and did not call the evidence at trial.[18] Mr Sturm gave evidence and was cross-examined before us. He was adamant that he did not receive copies of the medical reports until after the trial and before the sentencing. He referred to his file notes, which went some way to confirm his account. He acknowledged that before the trial P had raised the use of medical evidence and was made responsible for providing copies of his medical records to Mr Sturm. However, Mr Sturm says those records never arrived until after the trial. It also emerged in the cross-examination of Mr Sturm that a private investigatoradvised him to examine whether P's case may be assisted by medical evidence.[19] Mr Sturm said that in principle he had not seen the medical evidence as being important for the defence as it was his understanding, correctly as it turns out, that the evidence would not establish that P was physically incapable of performing the criminal acts. Mr Sturm was of the view that it was enough for him to obtainevidence from other members of the household about P's recent surgery and itsimpact on his mobility. Further, Mr Sturm saw this evidence as having limited use as it was only relevant to the incident involving S in September 2013, whereas at trial P was facing charges of sexual offending against J and against S for the April offending, both of which predated the surgery.[20] The account Mr Sturm gave in his evidence to us is consistent with the advice he gave in a letter to P dated 17 May 2014. On the question of when Mr Sturmreceived copies of the medical records we prefer Mr Sturm's evidence, which issupported by his file notes. Thus, we are satisfied that P did not provide copies of his medical records to Mr Sturm until after the trial, in which case he can hardly be criticised for not calling this evidence at trial.[21] We also note that, in his affidavit in support of his appeal, P does not specify that he instructed Mr Sturm to call medical evidence on his mobility. Before the trial there was no more than a general discussion between Mr Sturm and P about calling this evidence.[22] To conclude on this point, Mr Sturm advised P against calling this evidence.P accepted and followed Mr Sturm's advice. With the benefit of hindsight P may wish he had called that evidence. It may have bolstered P's denial insofar as itsuggested that he would have had at least some difficulty carrying out the alleged offending in September. However, that is not the test; for this ground of appeal to succeed a departure from clearly given instructions is required.5 Such a departure is not present on the current facts.[23] That notwithstanding, we have also considered whether Mr Sturm's failure tocall this evidence was an error by counsel such that the appeal should be allowed. For such a ground to succeed P must prove a real risk that counsel error affected the outcome by rendering the verdict unsafe.6 No such risk arises on the facts. Simply put, the medical evidence is not so cogent as to render the verdicts unsafe. It was only ever going to be relevant to the September offending and it does not suggest that P was fully immobile.[24] We see no basis for finding that the decision not to call the medical evidence has caused a miscarriage of justice. This ground of appeal must fail.Admission of irrelevant and highly prejudicial evidence[25] P contends that the Crown led irrelevant and highly prejudicial evidence against him. First, there was evidence in relation to a conversation P had with his wife to the effect that he thought it would be good if J masturbated before she had sexual experiences with a partner. Secondly, there was evidence of P behaving in a very violent way around the home, including him bashing his head through an internal door and punching himself in the face.5 See Hall v R [2015] NZCA 403 at [69].6 See R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730; and R v Scurrah CA159/06, 12 September 2006 at [17]–[18].[26] We accept that this evidence had no relevance to the charges involving S. However, at trial there were also the charges of offending against J, who was a member of the P household. The Crown sought to provide a narrative of the circumstances in the household at the time of this offending. That narrative included evidence of the attitude that P displayed towards J, hence its reliance on his reference to J learning to masturbate. It also seems to have included the violent climate of thehousehold created by P's outbursts. There was no suggestion from the Crown thatthis evidence was relevant to the charges relating to S.[27] Because all charges were heard together and the Crown relied uponpropensity reasoning for proof of P's offending against both J and S, it followed thatthe jury heard evidence that was not relevant to the charges involving S. We acknowledge that the trial Judge gave no direction warning the jury to disregard this evidence when it came to reaching a verdict on the charges against S. Nonetheless, we are satisfied this evidence did not cause the verdicts on those charges to miscarry. The evidence had no direct connection with S. Seemingly it did not lead to guilty verdicts on the charges involving J, despite the Crown linking the evidence to those charges. We cannot see therefore how this evidence could have influenced the guilty verdicts. Accordingly this ground of appeal fails.Insufficient evidence to support conviction on charge 4[28] Charge 4 relates to the incident in April 2013. P argues that because S did not immediately identify him, and instead held the belief it was J who had digitally penetrated her, there is insufficient evidence to link him to this incident. However, we consider this was a matter for the jury. S provided an explanation for why she first thought it was J and later changed her mind. At trial the defence relied uponthis change of mind to undermine S's reliability and credibility as a witness. The jury were not persuaded. They heard the explanation S offered for her initial uncertainty and how she came to believe it was P. Whether that was a plausible explanation was quintessentially a question for the jury to decide. This ground of appeal must fail.Sentence appeal[29] As P has not succeeded on any ground in his conviction appeal, it is not necessary for us to address his sentence.Result[30] An extension of time to appeal is granted.[31] The appeal against conviction and sentence is dismissed.[32] To protect the identity of the complainants, particularly J, we make an orderunder s 200 of the Criminal Procedure Act 2011 prohibiting publication of P's name,address, occupation or identifying particulars.Solicitors:Crown Solicitor, Auckland for Respondent