JOHNSON v R [2022] NZCA 449

JOHNSON v R [2022] NZCA 449 [23 September 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA117/2021[2022] NZCA 449BETWEEN TANE JOHNSONAppellantAND THE KINGRespondentHearing: 21 July 2022Court: Courtney, Thomas and Peters JJCounsel: J M Hudson for AppellantBCL Charmley for RespondentJudgment: 23 September 2022 at 11 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] Tane Johnson was found guilty on two charges of sexual violation by rape, onecharge of sexual violation by unlawful sexual connection, one charge of injuring withintent to injure and four charges of male assaults female. In addition, at the start ofthe trial he pleaded guilty to one charge of criminal harassment and one charge ofcausing harm by posting a digital communication.1 Judge Glubb imposed a sentenceof nine years and six months' imprisonment.2[2] Mr Johnson appeals his convictions.3 He asserts that a miscarriage of justiceoccurred as a result of the Judge's directions to the jury about prejudice and sympathy.Mr Johnson submits that these directions were not sufficiently tailored to combat theprejudice arising from evidence about his criminal history and other evidence aboutthe relationship between himself and the complainant.The offending[3] The complainant, H, was in a relationship with Mr Johnson for about18 months. The relationship lasted from June 2017 to approximately December 2018or January 2019. The evidence disclosed a generally dysfunctional, violentrelationship. H said that she had changed her locks at one point with the assistance ofWomen's Refuge. There was evidence that she had been supplied with a police safetyalarm. Her sister gave evidence that described the relationship as "toxic scary,frightening."August to September 2017 — The first address[4] The offending began not long after the start of the relationship, in either Augustor September 2017. During an argument which arose out of H receiving a call from amale friend, Mr Johnson grabbed her and threatened her (charge 1: male assaultsfemale).September 2017 to February 2018 — The second address[5] H moved to a house in a different suburb at a time when the relationship wasgood. However, there was soon violent offending.1 Initially, Mr Johnson faced 15 charges. He pleaded guilty to charges 13 and 14 (criminalharassment and causing harm by digital communication) at the start of the trial. Charges 2, 3, and15 were dismissed during the course of the trial. He was acquitted of charges 11 and 12. He wasfound guilty on the remaining charges 1 and 4–10.2 R v Johnson [2021] NZDC 3137.3 There is no appeal against sentence.[6] During the course of an argument Mr Johnson held a pillow over H's face andthen strangled her (charge 4: male assaults female).[7] On a number of occasions Mr Johnson kicked H's legs, causing bruising(charge 5: representative charge, male assaults female).[8] H ended the relationship in February 2018 and moved out of the secondaddress.February to September 2018 — Visit to New Lynn[9] After February 2018 H lived with her mother for a time. One day she went toNew Lynn to visit Mr Johnson, where he had his house bus parked. There was anargument and H got into her car to leave. Mr Johnson followed her, pulled the windowdown, leaned inside and bit her on the cheek (charge 6: injuring with intent to injure).September to December 2018 — The third address[10] In September 2018 H moved to an address in a different suburb. Mr Johnsonwas staying with her during this time.[11] On one occasion Mr Johnson arrived home and demanded sex. When Hrefused, he grabbed her by the hair and forced her to perform oral sex and then pushedher over the kitchen bench and raped her (charge 7: sexual violation by rape).[12] On another night when H was at home asleep Mr Johnson came in late. Whenshe asked him to leave, he ripped off her clothes and raped her, then sexually violatedher (charges 8 and 9: sexual violation by rape and sexual violation by unlawful sexualconnection).[13] On one occasion Mr Johnson confronted H at the top of a stairway and, withhis fist, struck the side of her face with such force she believed her eardrum had burst(charge 10: representative charge, male assaults female).Harassment and harm through digital communications[14] The relationship ended in December 2018. However, Mr Johnson began toharass H by making calls to her cellphone, sending her abusive text messages andcoming to her property in breach of his bail conditions. He also created an Instagramaccount and posted photographs of H on it naked (charge 13: criminal harassment).[15] Mr Johnson circulated sexually explicit photographs of H to her local gym, toan acquaintance and to H herself with a false invitation to "come to my gang bang".In addition, he sent a video to H's employer of H having sexual intercourse (charge 14:causing harm by posting a digital communication).The Judge's directions regarding prejudice[16] The date range for the sexual violence charges was between 1 September 2018and 31 December 2018. At the conclusion of H's evidence however, the Crown soughtto amend the date range so that it ran from 19 December 2018 to 31 January 2019 onthe basis that, as a result of H's evidence, it was more likely that the alleged offendingoccurred after Christmas 2018.[17] Mr Johnson gave evidence. He denied all of the offending. On his account, Hwas unreliable, quick to call the police in an effort to maintain control in therelationship and capable of aggression herself. Mr Johnson's defence to the allegedsexual violence at the third address was that it could not have happened becausebetween 1 and 13 September he was in custody and from 14 September to 1 Octoberhe was bailed to an address in Kumeu, some distance from the third address. The bailwas electronically monitored, with Mr Johnson wearing an EM bail bracelet. Therewas a statement of agreed facts recording that between 1 and 13 September 2018 and17 to 20 December 2018 Mr Johnson was in custody, and that between 13 Septemberand 17 December he was on electronically monitored bail with a curfew. The curfewwas initially 24 hours, but was reduced to between 7 pm and 7 am. Mr Johnson alsomade mention in his evidence of having been in prison.[18] In submissions the prosecutor referred generally to the need to put asidefeelings of sympathy and prejudice. In closing, Mr Hudson, who was defence counsel,specifically addressed the evidence about Mr Johnson being in custody and subject toEM bail conditions, and the need to set aside any prejudice the jury might feel inrelation to those facts.[19] The Judge gave the following direction on prejudice and sympathy:[7] Prejudice and sympathy ladies and gentlemen of the jury. As well,you must reach your decision uninfluenced by prejudice or sympathy. Putaside any emotional feelings about what you have heard or the people who areinvolved. This is particularly so in this case where the complainant is a youngwoman with children living in what might be described as a dysfunctionalrelationship. Some of you may or may not hold strong views on that topic.[8] Additionally, of course, in the course of the evidence you heardreference to the defendant being in custody, in jail, on bail with an electronictracker at various times. Being breached for failing to comply with his bail.Getting arrested and finally having fines remitted.[9] We also heard about the defendant's plea of guilty to a charge of wilfuldamage, amended after a charge of assault with a weapon had been initiallylaid. Now, we do not know precisely what occurred, when that happened nor,for that matter, do we know what those facts were. But it seems a proper Courtprocess resulted in the completion of that matter. However, commentary onthe reason for that outcome is entirely speculative and you should not factorthat into your consideration of these matters.[10] The defendant has also pleaded guilty to two charges and thoseunderlying facts have been detailed in the s 9 agreement. The fact that he haspleaded guilty to those charges must not affect your assessment of theremaining charges. Rather, you must approach the balance of the charges withclear and open minds.[11] You have also heard that the complainant was involved in some waywith the Women's Refuge and, certainly, they changed her locks at one point.But also that she had been provided with a personal safety alarm. What I sayabout all of those matters, that detail was all properly before you and was partof the backdrop of this troubled relationship. Importantly, however, it saysnothing about the guilt or innocence of the defendant and you must not use itin that way. The nature of these allegations and the material detailed must notresult in any sympathy for or prejudice against the defendant or for thecomplainant.[12] When you are considering your verdicts you are judges of the fact.Judges can never allow their decisions to be influenced by feelings ofprejudice against or sympathy for any defendant or anyone else connectedwith the case. Decide this case in a cool, calm and dispassionate manner.[20] Mr Hudson, who appeared for Mr Johnson on the appeal, submitted that thesedirections were insufficient to protect Mr Johnson from the influence of unfairprejudice and sympathy and created a real risk that the outcome of the trial wasaffected. Specifically, he criticised the directions as not being sufficiently tailored tothe case and instead as essentially listing the potentially prejudicial aspects of theevidence before giving a general instruction. Mr Hudson argued that this approachserved to highlight the prejudicial aspects rather than mitigate them.[21] Mr Hudson also submitted that the direction that the evidence "says nothingabout the guilt or innocence of the defendant and you must not use it in that way" wascontrary to the defence case and would have been confusing to the jury. This wasbecause, as discussed, the defence case was advanced on the basis that Mr Johnsoncould not have committed the sexual offences because he was either in custody or onelectronically monitored bail between 1 September and 20 December 2018. As aresult, the evidence was highly relevant to the jury's assessment of guilt on thosecharges. Mr Hudson submitted that the Judge's direction created a risk that the jurywould be encouraged to discount evidence directly relevant to its assessment of thosecharges.[22] Mr Hudson relied on a number of cases in which this Court has referred to theneed for trial judges to ensure that the direction regarding prejudice and sympathysufficiently addresses that issue, in light of the evidence that has been given.4We agree that the nature of the evidence called for a more extensive direction onprejudice and sympathy than usual, having regard to Mr Johnson's time in custody andon EM bail. However, we are satisfied that the directions given by the trial Judge weresufficient to address the issues arising from this evidence.[23] The Judge was right to identify the particular issues that had the potential toproduce feelings of prejudice against Mr Johnson. It was not a mere listing of thepotentially prejudicial aspects of the evidence. Nor do we accept that the Judge'sdirections that the evidence about Mr Johnson being in custody and on bail "saysnothing about the guilt or innocence of the defendant and you must not use it in thatway" was likely to result in the jury being confused about the purpose of that evidencebeing called. The summing up is to be viewed in its entirety. That direction was given4 Taylor v R [2010] NZCA 69; Henning v R [2012] NZCA 301; and R v Hodges CA435/02, 19August 2003. Ms Charmley, for the Crown, referred to the case of Cavanagh v R [2010] NZCA36.in the context of a very clear direction regarding prejudice. The jury would haveunderstood from it that the damaging evidence about Mr Johnson, including his timein custody and on bail, was not to be held against him. The direction might have beenworded slightly differently — for example, that the jury should not think that becauseMr Johnson had been in prison or on bail that made it more likely that he was guiltyof the offences. However, the purpose of the evidence being called was madeabsolutely clear later in the summing up when the Judge said, in relation to the sexualviolence charges:[54] The defendant denies any of these events ever occurred. He says hedid not rape [H] and more so, maintains given he was on an electronic braceletbefore 20 December, he would not have been able to come as alleged [to] herhome late at night.[55] In relation to the latter incident, he claimed not to have seen thecomplainant after 15 December until sometime late in January 2019. Theeffect of that evidence being that there was simply no opportunity for thatalleged offending to occur.And:[69] For the defendant again, he simply says it did not happen. There wasno opportunity and no sexual activity. So the issue of consent or reasonablebelief in consent does not arise.[24] When the Judge summarised the defence case later in the summing up, hereferred again to the issue of timing and Mr Johnson's reliance on the fact that he hadbeen on EM bail and the relevance of Mr Johnson being in custody and on bail duringthat period:[114] In terms of the allegation in charge 6, that is the injuring with intentto injure, [Mr Hudson] drew on the timeframes relevant around [that] and hesubmitted that it is probably more likely to have occurred, if it did occur at all,between 1 February and 23 June, he said, and the reason for that was becausehe was in custody after 23 June for a period and he was on EM bail from30 September. So that is really – an[d] April was really the only time that theywere in the house together. That is inconsistent with the timestamp you haveseen.[116] He made the point that in relation to allegation 7, that only happenedat the end of the year around October on the first of those, when – and, ofcourse, that is an important point for the defence, they submit that if that iswhen it happened, he was on electronic monitored bail so he could not becoming home late and doing it at that time.[118] I have also spoken to you about the key and being let in, matters ofthat [sort]. It is clear from [H's] evidence that she said that she was asleep andwoken at that time. [Mr Johnson] made the point that there could not havebeen the rape, when he was in custody, could not have been the rape when hewas at [the EM bail address]. Heard evidence of the electronically monitoredbail and the fact there were not any breaches of it. So between 1 October and15 December he was with the complainant. From 5 October the 24 hourcurfew was relaxed and it then became a seven-to-seven curfew. Thesignificance being there is a lot of detail there he said but what it shows is thelack of ability or lack of opportunity for him to offend in that way. He alsomade the point the defendant says he did not meet her after he wassubsequently arrested through until the end of January and so he submits therewas no opportunity for this rape to have, or either of these offences to haveoccurred as alleged.[25] In our view, by the end of the summing up the jury would have understoodfully that (1) it could not hold Mr Johnson's imprisonment and time on bail againsthim when deciding whether he was guilty, but (2) his periods in custody and on bailwere important to the defence case because they were relevant to deciding whetherthere was an opportunity for him to commit the offences as alleged.[26] This ground of appeal fails.Failure to address the evidence about Mr Johnson breaking into H's house[27] During the course of her evidence, H was asked where she was living fromSeptember 2017 and how long she was at that address. In answering that question, Hgave evidence that was not relevant and was clearly prejudicial to Mr Johnson:Um, I went to, I went to Fiji in February of 2018 and that's when – and I'dended it with Tane to move out and so my parents bought me a ticket to go toFiji the day before so it would have been in February that I moved out but,while, before I'd – when he found out I was going to Fiji he'd come to thehouse and ripped up all my clothes, pissed in my drawers, cut up pretty mucheverything so I had nothing to take away with me to Fiji and when I got backfrom Fiji I didn't go back to that house 'cos my family moved all my stuff forme while I was away.[28] There was discussion in chambers and the Judge subsequently gave thefollowing direction:Ladies and gentlemen of the jury, some evidence has just been given by thecomplainant in relation to an allegation of entering into her home just prior toher going to Fiji, damage to clothing, matters of that sort. That is not thesubject of a charge that's before you, nor for that matter has it ever been thesubject of a charge and what I simply say to you is it's irrelevant for presentpurposes and you should put that to one side. Ignore that in your considerationof the complainant's evidence and Mr Johnstone will move on with her in thatregard. I'll remind you of course when I sum up to you, that you should ignorethat evidence, but we'll move on with the balance.[29] However, although the Judge indicated that he would return to this issue whensumming up, he did not do so. Mr Hudson criticised the directions for omittingreference to that evidence. He submitted only that the omission added to theinsufficiency of the directions. There was, however, no specific prejudice said to havearisen from it.[30] We are satisfied that the Judge's omission to return to this evidence could notpossibly have affected the outcome of the trial. Clearly, the evidence was irrelevantand prejudicial. But it was dealt with immediately and in an appropriate way. Further,and unlike the other prejudicial evidence adduced, this evidence was not relied on byeither the Crown or the defence. It was not mentioned by any other witness. It wasnot mentioned by the prosecutor in closing.[31] We note that Mr Hudson did not raise the matter with the Judge at theconclusion of the summing-up. We agree with Ms Charmley's submission for theCrown that addressing it again at that point had the potential to draw unnecessaryattention to it.[32] This ground of appeal fails.Result[33] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent