MEARS v R [2019] NZCA 9

MEARS v R [2019] NZCA 9 [20 February 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA388/2017[2019] NZCA 9BETWEEN SHANE WILLIAM MEARSAppellantAND THE QUEENRespondentHearing: 29 November 2018Court: Williams, Peters and Gendall JJCounsel: P K Hamlin for AppellantJ E L Carruthers for RespondentJudgment: 20 February 2019 at 11.00 amJUDGMENT OF THE COURTA The application to adduce fresh evidence is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] Following a jury trial in the District Court at Auckland, the appellant,Mr Mears, was convicted of sexual violation and indecent assault of the complainant,N.1 He was sentenced by Judge Ronayne to four years and six months' imprisonment.2[2] He appeals against both convictions on the basis of new evidence which, it isargued, undermines the credibility of the complainant's version of the facts.3[3] An application for leave to admit that evidence is also made accordingly.Factual allegations at trial[4] The appellant was 34 and the complainant 13 at the time of the incident thatled to the convictions. The complainant was known to the appellant.[5] In the small hours of 1 June 2016, the appellant and the complainant exchangedFacebook messages whereby he arranged to pick her up from her house to buy herfood. Instead the appellant drove to a quiet suburban street and gave her a cigaretteand some alcohol. She began to drink and smoke while the appellant watched apornographic video clip for a brief period on his phone. The complainant said shecould see it but then he turned it away from her. In her evidence she described whatshe saw. She said it showed "a boy and a girl they were both naked and the girlwas being bent over ". The appellant asked her whether she wanted him to teachher how to give oral sex. He then indecently assaulted her over her clothing.The complainant resisted and he stopped.[6] The appellant drove to a second location. On this occasion, the appellantreclined the complainant's seat, held her hands above her head and penetrated hergenitalia digitally. The complainant bit the appellant's arm, started to cry and told himto stop. The appellant withdrew and a short while later drove the complainant toMcDonald's and bought her some food. The appellant asked her to delete their1 Crimes Act 1961, ss 128(1)(b) and 134(3).2 R v Mears [2017] NZDC 8956.3 The appellant's notice of appeal includes also an appeal against sentence but that aspect was notadvanced.exchange of messages from her phone once she could connect to the McDonald'sWi-Fi. She did this and the appellant drove her home.[7] The following day the complainant met with her boyfriend. She typed anaccount of the incident on his phone. She was too shy to speak directly to him aboutit. He called the police. The complainant was medically examined and completed anevidential video interview (EVI) sometime later.The appellant's counter narrative[8] In his EVI, the appellant accepted that he had messaged the complainant onFacebook early in the morning of 1 June 2016. He asked her why she was still awakeand on Facebook. She said she was having problems at home. She said her motherhad not fed her that night. The appellant offered to buy her food. The complainantwanted lollies but he refused and offered McDonald's instead. When the appellantarrived at the complainant's house, he messaged her from the street to tell her he hadarrived. He picked her up and drove off. He stopped on the way to McDonald's toroll a cigarette. They were parked for about 15 minutes while he smoked it and rolleda second one. There were RTD cans on the back seat. The appellant refusedthe complainant's request for a cigarette and a drink of alcohol.[9] The appellant said while they were stopped, the complainant spoke aboutdifficulties she was having with her mother and her mother's new partner.The appellant said after that brief stop, they drove directly to McDonald's.[10] The appellant said there was no discussion of sex. There was no sexualbehaviour. He did not access pornography on his phone in the car. In factthe appellant's case was he could not have accessed the internet, except by Wi-Fi,because his phone account had no data. They did not stop anywhere else. Finally, heagreed that the complainant had deleted their Facebook exchanges while atMcDonald's, but that was at her suggestion because she did not want her boyfriend tofind out. She told the appellant that her boyfriend would have "had a mental".The appellant did not suggest she delete the messages.Timing and pornographic websites[11] For reasons that will become clear, the timing of the events of the morning of1 June 2016 was important. In her EVI, the complainant initially said she was pickedup at around 3.00 am, but later in the interview said she was picked up at around2.30 am. In cross-examination at trial she clarified the position by explaining that shewas picked up before 3.00 am but they were parked at around 3.00 am. CCTV at theMcDonald's drive-through put them there at 4.00 am. The complainant estimated shewas in the car with the appellant for two to three hours.[12] Detective Brown gave evidence as the officer in charge. He produced an editedrecord of the appellant's internet browsing history. It recorded internet usage forthe brief period between 3.03 am and 3.04 am. At 3.04 am the record showed theappellant had visited a pornography site, xnxx.com, and attempted to access a videoclip at this site titled "young and wasted":03:04 My account mobilem.vodafone.co.nz03:04 My account mobilem.vodafone.co.nz03:04 Vodafone NZ mobile - Vodafone NZm.vodafone.co.nz03:04 http://www.xnxx.com/?k=young+and+wasted&p=11&durf=10min_moreis not availablewww.xnxx.com03:04 My account mobilem.vodafone.co.nz03:03 My account mobilem.vodafone.co.nz[13] As we shall see, in fact there is also a record of the appellant accessingxnxx.com for a browsing session that began at approximately 2.22 am.However, Detective Brown does not appear to have produced evidence of this earlierbrowsing session at trial.[14] At the trial, the prosecutor closed to the jury with a firm submission thatthe appellant should not be believed because, consistently with the complainant'sstory, the internet browsing history showed he had indeed been viewing pornographyat 3.04 am without using his home Wi-Fi. On the objective evidence, she submitted,the complainant was the truthful witness and the appellant was lying. In a straightcredibility contest between the appellant and the complainant, this submission andthe evidence upon which it was based were plainly important.[15] As we have said, the appellant's response to this interpretation of events wasto suggest that the only way he could have accessed the website identified was byWi-Fi because his phone had no data, so he must have been at home while visiting thatsite.New evidence[16] The appellant sought leave to produce four affidavits in support of his appeal:his own, and those of his partner Robyn, his step-daughter Tina, and atelecommunications expert Dr Arasaratnam Sathyedran.4 The evidence furtherchallenged the complainant's story about the appellant viewing pornography in herpresence and the timing of their journey.Primary fact evidence[17] The new primary fact evidence can be briefly summarised. Robyn deposedthat after the trial she had obtained the appellant's Vodafone New Zealand Ltd(Vodafone) data usage records for the relevant period. These demonstratedthe appellant had not accessed the internet using data on his mobile phone between2.34 am and 3.55 am on 1 June 2016. As she had tried to explain at the trial, the phoneaccount had no data, and therefore was reliant on Wi-Fi for access to the internet. Thismeant he could not have been accessing pornography from his car, as the complainanthad alleged. Robyn also noted that the appellant's trial counsel, Mr Juran, had failedto make any of these enquiries and had also failed to determine whether her daughterTina could have given relevant evidence.4 The names of the appellant's partner and step-daughter have been changed in order to preventidentification of the complainant.[18] Tina is now 18. She was 15 at the time of the offending. She deposed that onthe morning in question she went to bed at around 1.00 am after talking withthe appellant. She said she woke up at 3.17 am because she heard the appellant's carreversing out of the driveway. She said she checked her phone which was under herpillow and that is why she could be so precise about the time. She said she knewthe appellant was going to get food as he did that regularly at odd hours. She explainedthat she was not in New Zealand during the trial because she was on a studentexchange trip. She said neither the appellant's trial lawyer nor his private investigatorattempted to make contact with her while she was away. It appears that no-one knewshe had relevant evidence to give. Nor did she realise its relevance.[19] In the appellant's own affidavit he also deposed that he did not know that Tinacould give relevant evidence at the time of the trial nor did he understand theimportance of the Crown timeline in the trial evidence.Expert evidence[20] The expert telecommunications evidence was a little more complicated.It began with the Crown filing the affidavit of Dr Bradley Sowden, principal engineerat Vodafone. This was in response to the new evidence of Robyn. The thrust of hisaffidavit was that between approximately 2.23 am and 2.35 am, the data usage onthe appellant's phone strongly suggested the appellant was downloading a video at thattime. This was consistent with the appellant's internet browsing history and Vodafonenetwork records which indicated the appellant had accessed the web page"www.xnxx.com/video1136974/paulina_james_teeny_bopper_-_teen_sex_video" at2.22.58 am. This site was not accessed using Wi-Fi.[21] Dr Sathyedran filed an affidavit in response on behalf of the appellant. He isa telecommunications engineer with (among other things) 13 years' experience inmanagement and analyst roles at Vodafone. He deposed that the website xnxx.comwas accessed at around 2.22 am but it was not possible to be sure that this video clipwas the source of the data download shown on Vodafone's records. He suggested sucha conclusion would be speculative unless all other options could be definitively ruledout. Further, he deposed that the appellant had attempted to access different parts ofthe same website at 3.03.24 am, 3.03.41 am and again at 3.04.19 am but was redirectedto the Vodafone site to buy more data. It could not therefore have been the case thatat 3.03–3.04 am the appellant was watching "young and wasted" on his phone. But,Dr Sathyedran accepted that still pictures of the start of each movie could nonethelessbe visible on the phone before the user was redirected to the Vodafone site.Should the new evidence be admitted?[22] We are satisfied that it is in the interests of justice to admit the appellant's newevidence and the Crown's evidence in response. The evidence for the most part is notstrictly speaking fresh but it is sufficiently credible and significant in a trial that was astraight credibility contest between the appellant and the complainant, that it is inthe interests of justice to admit it.5Appeal standard[23] The appellant argues that the new evidence confirms a miscarriage of justicehas occurred in terms of s 232(2)(c) of the Criminal Procedure Act 2011. That is, itdemonstrates an error, irregularity or occurrence in or in relation to or affectingthe appellant's trial that has created a real risk that the outcome of the trial was affectedin terms of s 232(4)(a) of the Criminal Procedure Act.[24] As this Court noted in Wiley v R, miscarriage of justice should be interpretedas excluding from its scope cases in which an error which might otherwise have beenfatal is immaterial because the only reasonably possible verdict in any event wasguilty.6 There are some exceptions to that broad proposition, but they are not materialin this case.7 The risk in question must therefore be real rather than theoretical. If itis real, the appeal must be allowed.5 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71.6 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [43]–[44]. See also R v Matenga [2009] NZSC18, [2009] 3 NZLR 145.7 See for example Wiley v R, above n 6, at [44], primarily in relation to s 232(4)(b).[25] The relevant questions for us are therefore as follows:(a) Does the new evidence demonstrate that there was an error orirregularity in the trial?(b) If there was, is it nonetheless the case that even without the error orirregularity, the only reasonably possible verdicts on the evidence wereguilty?Appellant's submissions[26] The appellant submits that the new evidence demonstrates two fundamentalflaws in the prosecution case. The first is that Tina's evidence establishes at least areasonable possibility that the appellant did not leave his home until 3.17 am.This meant, if believed, the appellant could not, at 3:04 am, have accessedthe xnxx.com website in the car with the complainant because he had not left the houseat that stage. The complainant must therefore have lied about at least that part of whathappened in the car. Second, and in any event, the xnxx.com video clip referred to byDetective Brown in his edited record of the appellant's Vodafone data usage was notaccessed by the appellant at 3.04 am. The appellant had no data by then. This supportsthe appellant's submission that the complainant must have been lying.[27] The Crown compounded these evidential irregularities when confidentlyclosing on the basis that the internet browser history confirmed the complainant's storythat the appellant was watching pornography on his phone while they were in the cartogether. There was, the Crown submitted, objective evidence to corroboratethe complainant's narrative and prove the appellant was a liar. It could now beestablished that this prosecution theory was demonstrably false. In a credibilitycontest, this pointed clearly to a real risk that the outcome was affected.Was there an error or irregularity in the trial?[28] It is important to be precise about the nature of the claimed error or irregularity.It is useful to start with the telecommunications evidence. Does the new evidencefrom Drs Sowden and Sathyedran suggest that the evidence given by the complainantand Detective Brown in relation to the xnxx.com website was false? We do not thinkthat point has been established.[29] First, Detective Brown's evidence was that the appellant's browser historyidentified "a website he visited" at 3.04 am. It was, the Detective said, a pornographywebsite. Second, the complainant described what she saw as we have set out above:a boy and girl naked, with the girl bent over. Third, the expert evidence was that at3.04 am the appellant had no data left on his phone account, but he could nonethelessbring up still images of the video clips he clicked on — including in this case "youngand wasted". He was only unable to play the video itself — that is, to view movingimages.[30] We do not think it overly pedantic to point out that neither Detective Brownnor the complainant actually said the appellant was watching a video clip.The complainant was not asked whether what she saw was still images or movingpictures. In her EVI she only confirms seeing a picture:Q. Ok. Any when we [were] talking about what happened you told meabout seeing his phone and that you saw a picture of well you saw anaked boy and girl.A. Mm hm.[31] To be fair, the question probably did not occur to anyone. It seems simply tohave been assumed that if the phone internet browsing history showed the site hadbeen visited, the video clip itself must have been viewed. Remember, this scenarioalso suited the defence at trial because the defence case was the appellant's phone hadno data. The record of the appellant's browser history that is reproduced at [12]demonstrates that the site was visited but could not be accessed — note the term "notavailable" at the relevant entry followed by three indications that the appellant hadbeen redirected to his own Vodafone account. We presume anyone familiar with theseaccounts would understand what these entries meant.[32] The relevant error (and there is no question that it was an error) was not inthe evidence but in the prosecutor's interpretation of it. She, it must be now agreed,mistakenly suggested that the appellant was watching the video clip itself at 3.04 am.The Judge impliedly repeated that mistake when in summing up he said "[t]hesubmission by the Crown is that the defendant lied to you in his interview aboutlooking at porn on his phone ". And further "[t]he Crown says that you can be surethat he lied when you compare what he said with the external record of phone use, andthis lie says the Crown tells you something of his general lack of truthfulness aboutwhat took place that night".[33] The defence did not challenge the claim that the appellant was viewingpornography on his phone. The defence argument, primarily through the evidence ofRobyn, was if the appellant was watching pornography, he could only have done soby Wi-Fi and so must have been at home. The complainant's story, in relation tothe pornography, helped to prove she was lying. Given that theory of the defence, itcan be understood why trial counsel did not think it necessary to challenge the Crown'sclaims that the appellant had watched a video clip in the complainant's presence.[34] The second claimed error or irregularity related to the new evidence of Tinaabout the time of the appellant's departure that morning. Tina appeared before us andwas cross-examined. She maintained her position that the appellant left the house at3.17 am. She impressed us as a truthful witness. But the surrounding evidencesuggests that, though truthful, she was almost certainly mistaken.[35] The relevant evidence is that of Dr Sowden where he demonstrates thatbetween roughly 2.22 am and 3.04 am the appellant was accessing the internet usinghis phone data rather than Wi-Fi. This means that at those times the appellant wasalmost certainly not at home where his phone would default to his home Wi-Fi access.There was no suggestion in the evidence that the home Wi-Fi system was notoperating. In the context of a man who, on the evidence of Robyn and Tina, was aninsomniac who spent lengthy periods on the internet during the small hours, Wi-Fifailure would have been memorable and referred to in his evidence. Instead, as wehave said, the defence theory was that any internet access had to be by Wi-Fi becausehis phone had no data. This turned out to be factually incorrect and the evidenceshowed that the appellant was using phone data between the times identified.[36] That Tina must have been mistaken is not at all surprising. On her ownevidence, she had just woken up, looked out the window, checked her phone and goneback to sleep immediately. She was tired having, she said, not gone to sleep until1.00 am and it was a school night.[37] We conclude that Tina's belief about the time of the appellant's departure,though honest, was mistaken.Was the error material?[38] Would the jury have inevitably returned a guilty verdict even if the prosecutorhad not, in her closing statement, erroneously assumed the appellant was watching"young and wasted" at 3.04 am, and if the Judge had not impliedly repeated her errorin his summing-up? This question sets an intentionally high standard. We must besatisfied that the error could not possibly have made a difference to the outcome ofthe trial. And in a case in which the complainant's credibility was the key tothe appellant's conviction, a conclusion that the error made no difference is not to bearrived at lightly. Nonetheless, we have concluded that the prosecutor's error wouldnot have made a difference in this case. Our reasons are as follows:(a) The expert telecommunication evidence of Dr Sowden suggests thatthe appellant had almost certainly downloaded and viewed a video clipcalled "paulina james teeny bopper" at around 2.22 am. The appellantused phone data not Wi-Fi. Given that there was no suggestion that hishome Wi-Fi was not working, this suggests that he was not home at thetime. Dr Sathyedran, on the other hand, said browsing options otherthan pornography could not be discounted as the cause of the large datausage at that time. For three reasons we consider that Dr Sathyedran'ssuggestion can, however, be set to one side. First, Dr Sowden'sevidence was that the initial sharp spike in data usage at 2.22 am,followed by a slightly lower constant rate, was typical of video viewing— a brief buffering period at the start, followed by steady usage at theminimum rate necessary to prevent the video stuttering or freezing.Second, the internet browsing history relied upon by Dr Sathyedranshowed the "paulina james teeny booper" video was accessed at2.22 am. Third (and not to be lost sight of), the appellant accessing thevideo clip is consistent with what the complainant said she saw.(b) There were therefore two reasoning pathways by whichthe complainant's story could be believed by the jury if the prosecutor'serror had not been made. The first is that the "paulina james teenybopper" video clip was what she was referring to in her EVI.This would have meant she was with the appellant in the car frombefore 2.22 am. Though this timing is earlier than the complainant'sestimate of being picked up at around 2.30 am, it was consistent withthe appellant's estimate of around 2.00 am. The alternative reasoningpathway is that the complainant actually saw stills of the "young andwasted" video clip at 3.04 am and was referring to those in her EVI.(c) The consistency of these two options with the primary evidence meansthe prosecutor's error did not mask a doubt about the complainant'scredibility that would have been exposed if the error had not been made.Rather, the complainant's evidence was still well supported by othercircumstantial evidence albeit not precisely in the way the prosecutorhad closed to the jury. While that itself is not sufficient to satisfythe standard in Wiley, it is an important factor in the overallconsideration of the case.(d) The photograph booklet containing the appellant's brief internetbrowsing history record between 3.03 am and 3.04 am was beforethe jury. It showed that access to the "young and wasted" video cliphad been brief at 3.04 am and then overridden by the Vodafone "myaccount" site. The jury may well have understood that by the time itretired to consider its verdict.(e) In any event, the complainant's evidence that the appellant waswatching pornography in the car was peripheral context. The jury couldhave disbelieved the complainant on that detail and still returned aguilty verdict.(f) The broader context is also important — viewed overall,the complainant's story was inherently credible and the appellant's wasnot. The appellant picked up the complainant claiming she had said shewas hungry. He said he felt sorry for her situation. He did not howevertake her to get food until at least an hour, and probably closer totwo hours, later. Instead he drove to a quiet suburban street (even onhis own evidence), parked the car and had a cigarette. If he was trulyworried about the complainant's nourishment, why did he stop?The appellant did not say in his EVI that the complainant needed adviceand counselling causing him to change his mind about McDonald's andstop to talk with her first before feeding her. On his narrative they weretogether in the car for 15 minutes while it was parked for him to have acigarette, plus the time it took to get to McDonald's, buy food, deletethe complainant's Facebook messages, and go home again. The recordof the appellant's data usage suggests (consistent with thecomplainant's evidence) that he and the complainant were together inthe car for a much longer period than that.8(g) The complainant's story was also broadly consistent throughout.That is, from her rendition of what happened in the typed account toher boyfriend later on the day of the incident, to the EVI two to threeweeks later and then in her evidence in Court. The prosecutor wascorrect to highlight this broad consistency.[39] We conclude therefore that while the mistake was unfortunate, it did not matter.This is one of those cases where the only reasonably possible verdict was guilty.8 It could perhaps be possible that the appellant went out alone for some other reason and returnedhome immediately prior to visiting the complainant. However, given his understanding of theubiquity of CCTV surveillance at intersections and at McDonald's, had he been able to say that atan earlier time he was actually somewhere else, we consider that he would certainly have said soby reference to the possibility of surveillance cameras corroborating that claim.Result[40] The application to adduce fresh evidence is granted.[41] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent