GOTTY v R [2017] NZCA 528

GOTTY v R [2017] NZCA 528 [17 November 2017]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 ZEALANDCA324/2017[2017] NZCA 528BETWEEN STEPHEN MARK GOTTYAppellantAND THE QUEENRespondentHearing: 6 September 2017Court: French, Williams and Woolford JJCounsel: M Kan for AppellantK S Grau for RespondentJudgment: 17 November 2017 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] Following a judge alone trial in the Auckland District Court, Judge Field foundStephen Gotty guilty of two charges of sexual violation by unlawful sexual connectionwith the complainant C.1 In light of Mr Gotty's offending history, sentencing was1 R v Gotty [2016] NZDC 25447.transferred to the High Court and he was sentenced by Downs J to preventivedetention.2[2] Mr Gotty appeals against conviction only. He argues Judge Field erred in hisassessment of the evidence to such an extent there was a real risk the error affected theoutcome of the trial.3 In short, he argued that the evidence was insufficient to supporta guilty verdict beyond a reasonable doubt.The facts[3] At the time of the offending, the complainant C was a remand prisoner in EchoUnit at Mt Eden Correction Facility. He was held in a cell just down from Mr Gotty.But he was not happy with his cell mate and conditions in that cell, and he was anxiousto be moved.[4] C says that at an early stage in his remand, he recognised Mr Gotty from streetlife in Auckland city though he did not know him. They talked and Mr Gottyessentially offered to take care of C in the unfamiliar prison environment. C was 19at the time and, in his own words, a "little white boy". This was his first real prisonstay. The appellant on the other hand was 56 years old, fit, strong and athletic. He hadspent much of his adult life in prison.[5] Mr Gotty did not have a cell mate in his cell at the time so there was a sparebed. At Mr Gotty's urging, C vacated his allocated cell and moved into Mr Gotty'scell.[6] That evening after lock down, Mr Gotty started talking in an intimidating wayand then performed oral sex on C. He next insisted that C perform oral sex on him.C did not consent to either act, but he said he was too intimidated by Mr Gotty to resisthis demands or protest. He simply submitted to Mr Gotty because, he said, he fearedfor his physical safety if he did not. Mr Gotty, he said, was not just much older thanhim, but much larger and stronger. He made it clear he did not want sexual contactwith Mr Gotty and found the thought of it disgusting.2 R v Gotty [2017] NZHC 1102.3 Criminal Procedure Act 2011, s 232(2)(b).[7] Mr Gotty then withdrew his penis from C's mouth and masturbated untilejaculating. C showered immediately. C said he slept fitfully, if at all, for much ofthe night. He slept fully clothed and on his stomach. He said he must have dozed offbecause partway through the night he woke to discover Mr Gotty trying to pull his(C's) trousers down. C feigned sleep but, as Mr Gotty continued, C jumped up andchallenged him to explain what he was doing. Mr Gotty said he thought C was toohot. Mr Gotty made no further advances that night.[8] The next morning after breakfast, C feigned a serious stomach ailment in orderto be taken from the cell to the prison medical facility. Once C was taken there, heexplained some of what had happened and he was transferred to an 'at risk' facilityand interviewed by medical staff, prison staff, and then the police. He eventuallyexplained all of what he said he had experienced.[9] Mr Gotty was then taken to an interview room by prison officers. He said tothe officers "I did not touch him" and "I never touched that kid". He said this beforethe reason for the investigation was explained to him. Mr Gotty denied any sexualactivity occurred at all. He said C's whole story was a fabrication and that he(Mr Gotty) had simply agreed to help a young guy out who appeared lost and isolated.He said the only motive he could think of for such a lie was C must have been tryingto obtain ACC compensation through his complaints of sexual abuse.[10] The Judge rejected Mr Gotty's story and accepted that of C. He accepted thatMr Gotty's spontaneous utterance to prison officials when confronted was ambiguousand did not necessarily amount to an admission of sexual behaviour. The Judgetherefore set that evidence to one side.4 But, the Judge found, other aspects of theevidence suggested that the C's story was reliable and credible:5(a) Mr Gotty had gone out of his way to get C to move into his cell.(b) C on the other hand had gone to extraordinary lengths the next morningto get himself out of Mr Gotty's cell.4 R v Gotty, above n 1, at [20].5 At [22]–[24].(c) The evidence was that C was genuinely upset at what he hadexperienced in the cell the night before. The Judge found it was veryunlikely that he was malingering for purposes unrelated to the eventsas C related them.[11] The Judge found guilt proved beyond a reasonable doubt.6Assessment[12] We do not consider the Judge's reasoning can be in any way faulted.We explain why below by reference to the specific grounds advanced by the appellant.But we begin with a brief discussion of the applicable principles of law.[13] This appeal essentially attacks the factual findings made by a Judge sittingalone in accordance with the appeal ground set out in s 232(2)(b) of the CriminalProcedure Act 2011. The appellant must therefore demonstrate that the Judge'sassessment of the evidence was attended by such error that there is "a real risk" theoutcome of the trial was affected.[14] As this Court has noted in Roest v R factual findings that form the basis of averdict reached by a Judge sitting alone are to be treated on appeal as the equivalentof a jury verdict.7 So where an appeal amounts to a challenge to those findings, theprinciples in R v Owen will apply accordingly.8 It is well to repeat those:9(a) The appellate court is performing a review function, not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and reliability of the witnesses is a classicexample.(c) The weight to be given to individual pieces of evidence is essentiallya jury function.(d) Reasonable minds may disagree on matters of fact.6 At [25].7 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].8 R v Owen [2007] NZSC 102; [2008] 2 NZLR 37 at [13]; affirming the principles set out in R vMunroe [2007] NZCA 510, [2008] 2 NZLR 87.9 R v Owen, above n 8, at [13].(e) Under our judicial system the body charged with finding the facts isthe jury. Appellate courts should not lightly interfere in this area.(f) An appellant who invokes s 385(1)(a)[10] must recognise that theappellate court is not conducting a retrial on the written record.The appellant must articulate clearly and precisely in what respect orrespects the verdict is said to be unreasonable and why, after makingproper allowance for the points made above, the verdict shouldnevertheless be set aside.[15] It is not for this Court to set aside a verdict on the basis that we disagree withthe Judge's factual assessment. Something more is required to meet the "real risk"test.Inconsistent evidence[16] Counsel for Mr Gotty, Mr Kan, identified 11 alleged inconsistencies in C'sevidence which he submitted completely undermined its credibility and reliability. Hecomplained that these inconsistencies were left entirely unremarked upon bythe Judge.[17] For the most part, the 11 alleged inconsistencies relate to matters of peripheraldetail. It is entirely understandable that the Judge would not have picked over theseminor matters of evidence in order to assess C's reliability and credibility. Theysimply would not have helped.11[18] Two of the 11 matters do warrant further consideration however.[19] The first relates to whether Mr Gotty asked C to engage in anal sex.At multiple points in his evidential video interview, C alleged that Mr Gotty asked himto agree to this. C confirmed this again in cross-examination. Mr Kan then highlighted10 Section 385 of the Crimes Act 1961 was replaced by s 232 of the Criminal Procedure Act. Thenew section does not materially change the approach to conviction appeals: Wiley v R[2016] NZCA 28, [2016] 3 NZLR 1 at [56].11 For example alleged inconsistencies in C's evidence over when he and Mr Gotty met in Echo Unit(in fact there was no inconsistency — at one point in evidence in chief C said he met Mr Gottyoutside his cell and at another point he said the first meeting was while at breakfast — thesestatements are entirely consistent); and whether Mr Gotty was "helping himself" to C's "canteen"(an issue not mentioned in C's first interview but raised in evidence at trial — C said he simplydid not think it was important enough to raise at the first interview — in our view a satisfactoryexplanation).the fact that C subsequently conceded that nothing actually happened. This, it wassubmitted, was a fundamental inconsistency in an important aspect of the evidence.[20] This submission amounts to a hopeful misreading of the evidence which is, oneven cursory inspection, in fact perfectly consistent. C's point was that the anal sexdid not happen because he would not agree to it. That was a key reason why he feignedillness the next morning. He did not wish to be forced into having anal sex withMr Gotty the next night. But C never conceded at any point that his evidence aboutMr Gotty's request for anal sex was false.[21] The second inconsistency related to the circumstances in which, later in thenight, C stopped Mr Gotty from removing his pants while he, C, appeared to besleeping. Mr Kan submitted C's evidence was inconsistent about important details ofthat alleged incident.[22] In evidence in chief C said he "jumped up, freaked out a bit and asked[Mr Gotty] what he was doing". In the evidential video interview, C said that as helay on his stomach he could feel Mr Gotty lifting up his waist and pulling down hispants. He said at that point he jumped up and said "what the fuck".In cross-examination however, C said that he lay awake feigning sleep for about30 seconds to see what Mr Gotty was trying to do before jumping up and stoppinghim.[23] The versions are not the same but that does not make them inconsistent. In fact,the version about feigning sleep was in the evidential video interview elsewhere. Thisis just an example of a witness adding further details.[24] The inconsistency ground is without merit.Mr Gotty's evidence was consistent[25] In a further ground, related to the foregoing, Mr Kan contrasted what hesuggested was the inconsistent evidence of C with the clear and consistent evidenceof Mr Gotty. It made no sense, he argued, for a seasoned inmate to commit these acts;what is more, he took it upon himself to press the prison staff to obtain medicalassistance for C the following morning; and once challenged by police he immediatelyoffered to give a DNA sample to prove his innocence.[26] Before addressing the argument itself, it is important in this context to reiteratethat it is not for this Court to come to its own view of the evidence. This is not arehearing on the papers. A more fundamental flaw in reasoning or assessment isrequired. But even if it were the role of this Court to undertake a general evidentialreview, we would not have disturbed Judge Field's preference for the evidence of Cover that of Mr Gotty. And we take that view for the same reasons the Judge did. Whywould a seasoned and self-reliant inmate give up the advantage of a solo cell for noapparent return? Why would C go so far out of his way to escape from the cell intowhich he had just moved, when it came with the additional advantage of a respectedprotector?[27] We entirely agree with Judge Field's conclusion that Mr Gotty's evidence wasnot credible, while C's evidence was credible and consistent.Failure to address lack of forensic evidence[28] C said he showered and cleaned himself thoroughly after the first incidentbecause he "felt yuck". C refused an offer by medical staff of a genital examinationwhich presumably would have involved a search for any relevant DNA. Mr Gotty onthe other hand willingly agreed to give a DNA sample when requested.[29] The Judge considered that, in the circumstances, forensic evidence would haveoffered little assistance to him in any event. The case, he considered, was therefore astraightforward contest of credibility.12[30] Mr Kan submitted that this was a fundamental error. He submitted that DNAevidence was in fact critical to establish the guilt or otherwise of Mr Gotty. And in itsabsence, the evidence of C alone ought not to have been considered sufficient.12 R v Gotty, above n 1, at [23].[31] We disagree. DNA evidence would have provided very little assistance in thiscase. Mr Gotty did not ejaculate in or on C. And C had showered and cleaned himselfafter the first incident. This aspect is unsurprising. He found the episode traumaticand plainly wanted to rid himself of any traces of it. According to counterintuitiveevidence read by consent at trial, about half of young people refuse a genitalexamination when it is offered and, especially in males, medical examination generallyprovides no probative evidence of sexual abuse.[32] Judge Field was plainly correct in the approach he took to the lack of forensicevidence.Demeanour and appearance[33] Mr Kan submitted that the demeanour and appearance of Mr Gotty in contrastto that of C played too large a part in Judge Field's reasoning.[34] We do not agree that appearance and demeanour were as significant as Mr Kansubmitted. Apart from the obvious and relevant difference in size and experiencebetween the two men, we do not see that appearance and demeanour played anysignificant role in the Judge's reasoning. We reject this ground.Result[35] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent