WILSON v R [2019] NZCA 584

WILSON v R [2019] NZCA 584 [26 November 2019]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA15/2019[2019] NZCA 584BETWEEN STEWART MURRAY WILSONAppellantAND THE QUEENRespondentHearing: 6 August 2019Court: Kós P, Woolford and Dunningham JJCounsel: A J McKenzie for AppellantM J Lillico and A D H Colley for RespondentJudgment: 26 November 2019 at 9.30 amJUDGMENT OF THE COURTA Leave to appeal out of time is granted.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] In 1996 Mr Wilson was convicted on 23 charges of sexual and violentoffending against women in the 1970s, 1980s and 1990s. He was sentenced to a totalof 21 years' imprisonment.1 On the expiry of his sentence Mr Wilson became subjectto an extended supervision order.2[2] In 2018, Mr Wilson faced further charges. Following a trial by a jury he wasfound guilty on a further 11 charges of sexual and violent offending against two otherwomen, and a nine-year-old girl, in the 1970s.3 He was acquitted of a further fourcharges of sexual and violent offending against the girl's mother. Sentencing on atotality approach, as if Mr Wilson had been sentenced on the latest charges in 1996,Lang J sentenced him to a further discrete sentence of two years and four months'imprisonment.4[3] Mr Wilson appeals both conviction and sentence. On conviction he contendsthat:(a) the Judge should have stayed all charges pre-trial;(b) there was insufficient identification evidence in relation to the firstcomplainant (and those charges should have been dismissed rather thanleft to the jury); and(c) the Judge erred in allowing the Crown to add a charge of attempted rapemid-trial in relation to the second complainant.[4] On sentence he contends that the sentence imposed was manifestly excessive,primarily because the Judge did not discount sufficiently for delay.Background[5] In 1996 Mr Wilson was found guilty on seven counts of rape, one count ofattempted rape, two counts of wilful ill-treatment of children, one count of bestiality,one count of attempting to stupefy and two of stupefying, three counts of assault on afemale and six counts of indecent assault. As Heron J noted at the time, a number of1 R v Wilson HC Wellington T104/95, 15 March 1996 [1996 sentencing notes].2 Chief Executive of the Department of Corrections v Wilson [2012] NZHC 1634.3 In this judgment, complainants C, E and G respectively.4 R v Wilson [2018] NZHC 3117 [2018 sentencing notes].those were representative charges and a great deal of evidence on the chargessuggested multiple offending.5 Heron J observed:6These crimes were committed on women and girls over a period of some25 years and had a number of common features. Women and girls, often theirdaughters, would be taken to your home on the pretext of friendship.Before long your true intentions would become plain and they would besubjected to assaults, indecencies and often raped. They were in mostinstances cowed by the violence you dealt them. In many cases I find theywere often drugged by you through the widespread excessive use of sedativesor sleeping pills.[6] In sentencing Mr Wilson in 1996, Heron J noted the timing of the offendingmeant that he had neither the power to impose preventive detention nor a minimumperiod of imprisonment. Had he had the power to do the former, he wouldunequivocally have done it. Had he the power to do the latter, a minimum sentence ofnot less than 15 years would have been imposed.7[7] Heron J divided the charges into three categories. The first concernedoffending between 1972 and 1985. Each discrete sentence was made concurrent,the longest being eight years' imprisonment. The second category concernedoffending between 1986 and 1994. Again, each discrete sentence was madeconcurrent, the longest this time being 10 years' imprisonment. The third categorywas a discrete offence of cruelty against Mr Wilson's own daughter. A three yearsentence was imposed for that. The three categories were then to take effectcumulatively, resulting in an end sentence of 21 years' imprisonment.8 As Lang J laternoted, that was the longest finite sentence imposed in New Zealand at the time.9[8] At the time of the 1996 trial, the Crown had prepared a second indictmentcomprising of a further 23 charges of additional sexual and violent offending againstseveral other women. In 2000, however, the Solicitor-General entered a stay onthe second indictment.5 1996 sentencing notes, above n 1, at 2.6 At 2.7 At 6–7.8 At 7–9.9 2018 sentencing notes, above n 4, at [18].[9] None of the complainants in the 2018 trial were included in the stayed secondindictment. Three of them did not approach the police until after the 1996 trial.[10] Complainant C was one of Mr Wilson's neighbours in Wellington in the early1970s. She met Mr Wilson and his then-partner, and became friendly with the latter.Her evidence was that in 1971 or 1972 Mr Wilson attempted to break into herapartment. She called the police, who checked and cleared the premises.After the police left, Mr Wilson re-emerged from a hiding place and attacked her.After doing so he compelled her to go out to dinner with him. He then stupefied herand raped her on three separate occasions before leaving early the following morning.Alerted by publicity about the 1996 trial, C attended that trial. Thereafter she laid acomplaint with the police.[11] Complainant E's evidence was that in 1976 she had answered an advertisementin which a man had sought the company of a woman. The man proved to beMr Wilson. She went to Mr Wilson's flat to socialise with him and some other friends.In a statement to police she said that after the friends left, Mr Wilson made her removeher clothes. The statement equivocated as to whether he then penetrated her.Mr Wilson was initially charged with the rape of E. During trial, unsurprisingly, E wascross-examined about whether penetration actually occurred. At the close ofthe Crown case, an alternative charge of attempted rape was added.10 The jury foundMr Wilson guilty of that charge, rather than rape.[12] Complainant G was a nine-year-old girl at the time of the offending againsther. Her mother, complainant H, had answered a similar advertisement to the oneresponded to by E — an advertisement seeking female company. Mr Wilson came tostay with complainant H. He became part of the household of G and H for severalweeks in late 1979 and early 1980. Mr Wilson was found guilty of one charge of rapeof G and three charges of doing an indecent act on her. He was found not guilty ofsexual offending against H.10 R v Wilson HC Auckland CRI-2017-083-1624, 15 October 2018 (Reasons for Ruling No 2).Leave to appeal[13] It appears the present appeal was filed two days out of time. There is noprejudice and the Crown does not oppose leave being granted. Leave was thereforegranted at the hearing on 6 August 2019.Stay[14] The 2018 trial Judge, Lang J, dealt with a pre-trial application for stay of allcharges.11 He recorded that the basis of the application was that it was no longerpossible that Mr Wilson could receive a fair trial.12 In fact there appear to have beentwo bases argued before the Judge:(a) pursuit of the present charges, in the face of the stay entered onthe second indictment in 2000, constituted an abuse of process; and(b) Mr Wilson could not receive a fair trial given the delay in prosecutingalleged offences dating back to the 1970s.[15] On the first argument, the Judge held that although the courts had a power toreview a stay (or to lift a stay), the courts exercise restraint in that consideration.13There was no "prosecutorial estoppel"; Mr Wilson had no grounds for any legitimateexpectation in 2000 that he would not be prosecuted for further offending beyondthe second indictment. Public policy issues were here in competition: allegations ofserious offending should be determined, but in practical terms Mr Wilson was likelyto receive little or no additional punishment. The fundamental concern of the Court,based on the decision of the Supreme Court in CT (SC88/2013) v R,14 was whether,notwithstanding the delay that had occurred, it nevertheless remained possible for afair trial to be conducted.1511 R v Wilson [2018] NZHC 1504 [Stay judgment].12 At [2].13 At [36], citing Rewa v Attorney-General [2018] NZHC 1005, [2018] 3 NZLR 233 at [35]–[39].14 CT (SC88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465.15 Stay judgment, above n 11, at [37]–[38].[16] Turning then to the second argument, the Judge noted delay of the magnitudeinvolved here presumptively raised prejudice to both the Crown and defence.Witnesses on either side may no longer be available; and the memories of those whoare will have been adversely affected.16 But the allegations here related to events thatwere said to have occurred when each of the complainants was alone with Mr Wilson.On that basis the Judge concluded there was little likelihood that Mr Wilson would beprejudiced by the unavailability of material witnesses.17[17] The Judge considered that by far the strongest argument for Mr Wilson underthis heading arose from the extensive publicity generated at the time of his 1996 trial,and subsequent or recent publicity concerning events after he completed the sentenceimposed by Heron J. The media had applied the epithet "Beast of Blenheim" toMr Wilson; counsel had submitted that there was no prospect of him receiving a fairtrial because every potential juror would know about his background. The Judge washowever satisfied that appropriate and strong directions to the jury, in combinationwith the use of separate question trails for each charge, would enable the jury to focuson the evidence relevant to each charge and minimise the risk of resort to inappropriatereasoning. The Judge therefore concluded that Mr Wilson could receive a fair trialnotwithstanding his past convictions and the publicity he had been subjected to.The application for stay was dismissed.18Submissions[18] Mr McKenzie submitted that the Judge had taken too narrow a view of the stayapplication, focusing on whether the appellant could receive a fair trial.More consideration should have been given to the procedural delays in the case,particularly in relation to complainants C and E. The police had had their complaintsbefore sentencing the appellant in 1996, and well before any decision to staythe second indictment in 2000. The Judge had not addressed the "inherent unfairnessof facing charges for offending that he had already served any sentence for and whichwere somehow outside any prosecutorial decision in 2000 to let sleeping dogs lie" —at least in the cases of complainants C and E.16 At [41].17 At [42].18 At [49]–[55].Discussion[19] Serious crimes should be prosecuted, despite delay by the complainant inmaking a complaint, unless prejudice compels a stay.19 The principles governing stayrelevant to this appeal are set out in CT (SC88/2013) v R.20 In a case involving delay,the fundamental consideration remains whether a fair trial is possible. If a judge issatisfied that despite all proper directions being given to mitigate risk, a fair trial is notpossible, then a stay should be granted.21[20] We are satisfied that the Judge correctly identified the relevant principles, andapplied them here appropriately. The Judge noted the delay by the police ininvestigating complainants C and E's complaints that were made in 1996 and 1976respectively. The Judge took that delay into account, but concluded it was outweighedby the seriousness of the charges, the relative strength of the Crown case, andthe ability of Mr Wilson to present a defence. He was able to receive a fair trial. Thejury acquitting on all charges in relation to complainant H tends to confirm thatassessment.[21] Mr McKenzie effectively renewed the argument that it was improper forthe Crown to pursue these charges in 2018 when in 2000 it had issued a stay in relationto all further charges identified at the time. We are satisfied there was nothing in thispoint. The Judge was right to conclude that Mr Wilson gained no legitimateexpectation as to non-prosecution in relation to other complainants by the Crown'sactions. As a matter of general principle, there is no issue estoppel in criminal law.22Further, these four complainants were not within the second, stayed indictment.[22] The question of stay fell to be determined on conventional principles — basedhere on prejudice by delay and media attention. We consider the Judge's analysiscannot be faulted, and we do not uphold this ground of appeal.19 CT (SC88/2013) v R, above n 14, at [26] and [31]–[32]; and R v O [1999] 1 NZLR 347 (CA) at350–351.20 CT (SC88/2013) v R, above n 14, at [26]–[32].21 At [32(c)].22 R v Humphrys [1977] AC 1 (HL); and R v Davis [1982] 1 NZLR 584 (CA) at 588–589.Identification evidence[23] At the conclusion of the Crown case, counsel for Mr Wilson sought dismissalof all charges relating to complainant C. He did so on the basis there was insufficientevidence of identity to permit the charges to go to the jury.[24] The Judge dismissed that application in a ruling given on 12 October 2018,with reasons three days later.Submissions[25] Mr McKenzie submitted that complainant C had made a number of errors inrelation to identification of the person who broke into the flat. She rememberedthe assailant as Mr Wilson, but also that his wife's name was "Lorraine". She alsorecalled that Mr Wilson and "Lorraine" lived behind a dairy on Marjoribanks Street inMt Victoria, Wellington, and that "Lorraine" worked at a local chocolate factory.There was no evidence that Mr Wilson lived behind a dairy in Marjoribanks Street.His partner at the time was not named Lorraine.23 There was no evidence that sheworked at a chocolate factory. Rather, she worked as a prostitute. Mr McKenziesubmitted, further, that there was a risk that, as C had attended the 1996 trial as amember of the public, which trial had involved charges of offending against Lorraine,she had "somehow transported that into her memories of being attacked".Contamination from watching the 1996 trial was, therefore, a live issue.[26] In addition, Mr McKenzie submitted that no photo montage was undertakendespite the ability to source photographs of Mr Wilson as at 1971. Complainant Cnever directly said that the person in Court in 1996 was the same person that raped herin 1971 or 1972.Discussion[27] There were clearly reasons for a jury to be concerned about the evidence of C.The complainant was by then elderly and ill.24 Complainant C was clearly wrong23 Somewhat later he married a different woman named Lorraine.24 Her evidence was taken separately from the trial, and we were advised she had died shortly afterthe 2018 trial.about the name of Mr Wilson's partner and that she worked with her at a chocolatefactory.[28] These points were put squarely in cross-examination to C. She did not waveron the name, but did waver on the question of employment at the chocolate factory.All these points were put to the jury in counsel's closing address. Despite that, the jurywere satisfied beyond reasonable doubt that Mr Wilson was the person who attackedcomplainant C in her flat.[29] We consider the Judge was correct to rule that there was sufficientcircumstantial evidence of identification. Complainant C's evidence was thatthe assailant identified himself as "Murray Wilson" before entering the room — therebeing an extant acquaintanceship between them already. It followed from that that Cknew Mr Wilson and was able to recognise him. Mr Wilson did in fact live inMarjoribanks Street at the time. Complainant C recognised Mr Wilson again whenshe attended his trial as a member of the public in 1996.[30] The Judge concluded that the Crown had adduced sufficient evidence to enablea properly directed jury to reasonably conclude that C had correctly identifiedMr Wilson as the person who entered her flat and sexually assaulted her. We agree.This was not a case where a formal identification procedure was required: complainantC recognised Mr Wilson from the existing acquaintanceship, and was (unwillingly) inhis company for several hours, including at a hotel restaurant, before the sexualassaults began upon her.25[31] We do not, therefore, uphold this ground of appeal.Additional charge mid-trial[32] Complainant E had equivocated in the statement she had made to the police.She said both that Mr Wilson had penetrated her private parts and that, although hehad tried to do so, he had been unable to penetrate her. In evidence-in-chief and in25 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [28]; and Parker v R [2013] NZCA392 at [16].cross-examination in 2018, she maintained he had raped her, and been able to penetrateher. She acknowledged the inconsistency in her police statement.[33] An application was then made by Mr Wilson that those charges be dismissed.It was declined by the Judge in the same ruling that dealt with identification.The Judge said that the jury should be left to determine the weight they gave tocomplainant E's evidence at trial.[34] At the end of the Crown case the Crown sought leave to amend the charge inrelation to complainant E. The Crown sought to add an alternative charge of attemptedrape in relation to her. This reflected the earlier inconsistent police statement.The Judge granted the application, pursuant to s 149 of the Criminal Procedure Act2011.Submissions[35] Mr McKenzie submitted that it was unfair to permit the alternative charge tobe laid. The defence strategy was to minimise cross-examination and rely on theinconsistency as presenting the quickest route to a not guilty verdict. The inclusion ofthe alternative charge was unfair for three reasons. The Crown had chosen to "set sail"on the charge of rape, despite being aware of the inconsistent statement in 1996.The defence too "set sail" on this charge, not really challenging the complainant'snarrative because the defence was limited to the failure to penetrate, on which thestatement was the best evidence. Had the alternative charge of attempted rape beenadvanced by the Crown initially, it would likely have been stayed pre-trial, giventhe prosecution of attempted crimes 43 years later held little purpose.Discussion[36] As the Judge observed, s 149 contemplates a situation exactly like that here:where a complainant does not come up to proof on the completed offence, but does onattempt. As the Judge also observed, in that event Mr Wilson should be convicted ofthe attempt rather than being wrongly convicted of the substantive offence.[37] We also agree with the Judge's observation that there was no unfairness toMr Wilson in granting the amendment. We have read the trial evidence.The cross-examination challenges E's account not just of penetration (as to which herstatement had been equivocal) but also as to whether any violence, stupefaction andsexual activity at all occurred. The Judge observed that defence counsel had"cross-examined the complainant squarely on that basis". The Judge did not considercounsel would have cross-examined E any differently had he known the Crown wouldseek to amend the charge based on his cross-examination. The Judge observed, andwe agree, that defence counsel must (or should) have appreciated that that line ofcross-examination would likely lead to an application to amend.[38] Finally, we add that we are unpersuaded by the speculative proposition thata stay would have been more likely had the 2018 charging document expresslyincluded the attempt charge. That is not our appreciation of the trial as it unfolded.Sentence appeal[39] The sentence Mr Wilson received in 1996 included a number of charges thatoccurred in the same time period as those in the 2018 trial: 1971 to 1980. The Judgedetermined, therefore, that Mr Wilson would have to be sentenced on the basis ofthe sentence he would have received had Heron J in 1996 been sentencing Mr Wilsonon all charges — those before him in 1996, and those before the Judge in 2018.26The Judge considered that the 2018 offending, standing alone, would have attracted avery substantial sentence.27[40] The following aggravating factors were identified in relation to Mr Wilson'soffending. The offending against C involved home invasion and prolonged detention.Repeated sexual violation occurred, in combination with threats to kill. The offendingwas also premeditated. The offending against E also involved detention over aconsiderable period of time. That in relation to G involved repeated offending againsta vulnerable nine-year-old complainant in her own home, a gross breach of trust26 2018 sentencing notes, above n 4, at [19].27 At [20]. In 1996 the maximum sentence on a charge of rape was 14 years' imprisonment, bycontrast to the 20 year maximum sentence applicable today: Crimes Act 1961, s 128B(1).because he had been invited to the home as a member of the family. A range ofcriminal acts had been committed against that young girl, with devastating effects onher subsequent life.28[41] The Judge said he would have adopted the following starting points forthe offending against each complainant: seven years' imprisonment in the case of Cand G, and three to four years' imprisonment in the case of E. A sentence of 10 to 12years' imprisonment would have been available for Mr Wilson's offending taken as awhole.29[42] The Judge then considered what uplift would have applied in 1996 had thecurrent charges been before Heron J. He determined that an uplift of two years andeight months' imprisonment would have been appropriate to reflect the offending inrespect of those three complainants. That would have brought the end sentenceimposed in 1996 to 23 years and eight months' imprisonment.30[43] The Judge did however discount the sentence by four months' imprisonmentto reflect the fact that returning to prison at the age of 72 years would be difficult forMr Wilson.31[44] The Judge gave particular consideration to whether Mr Wilson's sentenceshould be reduced given the delay in having the present charges heard. But heconsidered no discount was needed because the delay had not affected Mr Wilson:"[u]ntil charges were laid there were no restrictions on your liberty" and he had noreason to believe further charges would be laid.32[45] The final sentence was therefore two years and four months' imprisonment.3328 At [21]–[24].29 At [22]–[25].30 At [29]–[30].31 At [33].32 At [35].33 At [43].Submissions[46] Mr McKenzie submitted that the offending for which Mr Wilson was sentencedin 2018 was less serious than the principal charge in the pre-1986 category ofoffending which had attracted a sentence of eight years' imprisonment from Heron J.As such, the sentences for the current offending should have been concurrent withthe other pre-1986 sentences on the approach adopted by Heron J.Secondly, Mr McKenzie submitted that even if a further cumulative term ofimprisonment was warranted, the Judge erred in disallowing a significant discount onaccount of delay. Had Mr Wilson been charged in 1996, or even 2006, he would havecompleted any sentence already. He was sentenced in 1996 to 21 years' imprisonment,but had been detained, either in prison or subject to parole and/or an extendedsupervision order for 28 years as at 1 December 2018. The post-sentence detentionwas ignored by the Judge in sentencing.Discussion[47] We do not think the objections made to Mr Wilson's sentence are sound.[48] First, had the further charges been considered by Heron J in 1996, we agreewith Lang J that that would have altered the approach taken by Heron J, and resultedin a significant uplift to the eight year sentence given for the pre-1986 charges.And regardless of whether Heron J would in fact have taken that course (which mayonly be speculated upon), it is the course that he should have taken. These convictionssignificantly altered the scale and seriousness of criminal offending by Mr Wilsonduring the relevant period. Viewed on a totality basis, in 1996, a sentence of onlyeight years would have been manifestly inadequate. An alternative approach, whichmay well have appealed to Heron J would have been to sentence discretely in relationto the child complainant, G, which was the course he took in relation to the crueltycharges concerning Mr Wilson's daughter. On either approach, an uplift of two yearsand four months could not have been objected to.[49] Secondly, although a reduction in sentence is an available response to reflectdelay in the bringing of charges, that is more appropriate as a response to prosecutorialor institutional default, in breach of the right to trial without undue delay guaranteedby s 25(b) of the New Zealand Bill of Rights Act 1990.34 There was no prosecutorialor institutional default here. Mr Wilson's liberty was not unreasonably restricted byawaiting trial on the new charges, which were resolved with expedition after chargeswere laid. Mr Wilson's complaint here is really a re-run of his stay argument.Although the charges are historic, a stay was not appropriate and the sentence fitsthe crimes committed.[50] Thirdly, it may be noted that New Zealand does not have the procedure presentin other jurisdictions whereby a defendant may (with the prosecution's consent) askfor other outstanding offences to be taken into account in sentencing.35 The procedureenables a limited clearing of the books, and an appropriate sentence for the whole tobe imposed, although it may not enable a later plea of autrefois convict.36The procedure is not without obvious difficulties, such as the potential forunderstatement and exclusion from the sentencing process of complainants.Plainly any such innovation, if such it be, would be a matter for Parliament.[51] For these reasons we do not consider the sentence imposed in 2018 to havebeen manifestly excessive.Result[52] Leave to appeal out of time is granted.[53] The appeal against conviction is dismissed.[54] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent34 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [18]; and Smail v R [2011] NZCA 403 at[100]–[103].35 See, for example, Penalties and Sentences Act 1992 (Qld), s 189; the Sentencing Council (Englandand Wales) Definitive Guideline on Offences Taken into Consideration and Totality (2012); andStephanie Bishop and others Garrow & Turkington's Criminal Law in New Zealand (online ed,LexisNexis) at [CRI358.4].36 R v Nicholson [1947] 2 All ER 535 (CA) at 536.