NAGPAL v R [2016] NZCA 605

NAGPAL v R [2017] NZCA 605 [14 December 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA173/2016[2017] NZCA 605BETWEEN VINEET NAGPALAppellantAND THE QUEENRespondentHearing: 10 November 2016Court: Asher, Dobson and Ellis JJCounsel: V C Nisbet for AppellantH W Ebersohn for RespondentJudgment: 14 December 2016 at 3:00pmJUDGMENT OF THE COURTA An extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Mr Nagpal appeals his convictions on one charge of sexual violation by unlawful sexual connection, three of indecent assault, and one of doing an indecent act. His appeal has a narrow focus. It is based on the evidence concerning thecomplainant's refusal to undergo a medical examination immediately after theincident in question and what the prosecutor said to the jury about that.1[2] The notice of appeal was filed out of time but the Crown does not oppose an extension.Facts[3] At around 9.12 pm on 12 July 2015, the complainant (D) arrived at a bus stop, after working late. It was very cold. She thought she had missed the 9.14 bus, and the next bus was not for another half hour. A car pulled up and the man inside, Mr Nagpal, asked her for directions and then offered her a lift.[4] D accepted, got into the car and thanked him. Mr Nagpal replied that she could thank him in some other way. They had driven only a short distance when he unzipped his pants and forced her to touch his penis. She told him she did not want to and wanted to get out of the car. Mr Nagpal pulled over and parked in a side street. He reclined her seat and forced himself on top of her. He put his hand inside her pants and underwear and inserted his finger. He grabbed her breast and tried to kiss her, which resulted in her getting his saliva all over her cheek. She kicked the horn, and he went back to his seat. She said she wanted to get out and he said he would drop her home.[5] A short distance down the road Mr Nagpal pulled over again, and said she could watch while he masturbated. She threatened to call the police and he unlocked the door and allowed her to leave.[6] D then made her way to another bus stop and contacted two friends. One of them urged her to call the police, which she did. The police picked her up from the bus stop. Constable Turner said at trial that D looked stressed and distraught, as though she had been crying for some time, and that she had a stammer in her voice. Constable Freestone gave similar evidence. The police tried to retrace the route she had taken with Mr Nagpal, and then took her to the police station.1 Another ground of appeal, relating to the Judge's alleged failure to refer to a detail mentioned by defence counsel in closing, was not pursued before us.[7] At the station, a preliminary statement was taken from D at 12.17 am. She was advised that it would assist the investigation if she agreed to undergo a medical examination, but she declined. She said that she already felt violated, did not want anyone touching her, and wanted to go home (she had been working since 10 am the day before).[8] The police located Mr Nagpal's car using a partial registration number D had provided and CCTV footage. The footage showed the car driving past the bus stop, doing a U-turn and driving past again. Then it returned and pulled in next to the bus stop. It showed a person, believed to be D, approaching the car, and the car driving off. When interviewed nine days later, Mr Nagpal admitted to picking up a woman in his car, although he said he did not recall doing the U-turn after passing the bus stop.What was said at trial about D's refusal of a medical examination[9] The focus of this appeal is, as we have said, on D's refusal to undergo amedical examination and what was later said to the jury by the Crown prosecutor about that. The submission is that the way in which the refusal was put to the jury was unfair. To analyse that submission it is necessary first to review the evidence and the Crown closing.[10] During cross-examination D was asked by defence counsel about the conversation she had with police about undergoing a medical examination. She said:Yeah, but they also asked me to talk to a counsellor first because they weretelling me, "You know what, in order for you to make a really informed decision about this, we will let you talk to a counsellor." So I was talking toa counsellor from Help and I told her that I just really wanted to go home at that time because I felt so violated and I just really need to rest and take shower and he was telling me the pros and cons of making an medical exam because I told him I thought the medical exam will be intrusive because Iwas saw it in TV like rape case and all and I don't really want that at thatpoint and I was – I told her, I'm still thinking, if I really want to file a case because I don't really want to give a testimony in Court because I find itharder at that time. It's not really easy to decide that at that point.[11] Later, Detective MacDonald was asked about the issue:Q. Just briefly Sir. Detective, just in relation to a possible medical examination, what is it that you advise her? Do you tell her about the process itself?A. We don't tell them the full physical side of the exam because weleave that to the sexual assault doctors who are actually going toperform it and know better than us, but we do tell them it'll takequite a long period of time and that sort of thing, so yeah.[12] One question and answer later, the Judge intervened, asking:Q. Just briefly, on that point detective. What is involved in a medical?A. I don't know if I'm totally the best person to ask that, but it does, it can be quite invasive examination of either the vagina or the anus regions, depending on what the allegation is. Sometimes, yeah victims can kind of half consent to an examination, so they might consent initially and then start feeling uncomfortable and it's allvoluntary so they can stop at anytime and it takes three to four hours sometimes, so it is a long, lengthy and very tiring process.[13] The prosecutor subsequently began his closing address with the medical examination issue. He said:And Detective MacDonald told you that it had definitely been a long night for her. She was tired, she was drained, she was subdued. She had alreadyspent time with the other police officers and she'd told them what hadhappened. She had spoken to a counsellor for quite a period of time as well.And you know from Detective MacDonald that a medical examination – and he spoke to her about the pros and cons of a medical examination – could bequite an [in]vasive process. It takes three to four hours sometimes, so it's a long, lengthy and very tiring process is what he said. It wouldn't have beenfinished, if there had have been one, until at least 3 o'clock that morning.So, [D], you might think, could be forgiven for not wanting to undergo such an [in]vasive procedure at that time of the morning, after all she had been through already. She just wanted to go home. Just wanted to inform thepolice that there was a man out there doing these things, because she wasn't sure if he would do them again. She felt so violated already; just didn't wantanyone touching her at that time. She knew how intrusive a medical examination like this could be. Didn't want to go through that, "And I just really wanted to go home, I wanted to forget about it." She told the policeshe really just wanted to go home after giving that statement.And it was suggested to you, you might recall, by my learned friend, "Youdidn't undergo a medical examination because what you described never happened, these sexual allegations against this defendant." And I suggest to you that her answer to that question was candid, and it was honest. "Whywould I lie? I don't want a medical examination because at the time I reallyfelt that I was already violated. I don't really want to expose my body tomore humiliation and violation.(Emphasis added)The appeal: discussion[14] In essence, Mr Nisbet for Mr Nagpal submitted that:(a) this was very much a "he says, she says" case;(b) the absence of medical and forensic evidence formed the main plank of the defence — D's refusal to undergo the examination was reliedupon as a basis for inferring her complaint was false;(c) there was no evidence that D had been told how long an examination was likely to take; and(d) the prosecutor's incorporation in closing of the detective's evidencethat an examination took three to four hours as a reason why D might have refused the examination unfairly fortified the explanation she had given for her refusal, unfairly undermined the defence theory and should have been corrected by the Judge.2[15] We are unable to accept those submissions, for the reasons that follow.[16] First, we agree with Mr Ebersohn that this was not simply a "he says, she says" case. There was other evidence which went some way to corroborating D'saccount of the relevant events. In particular there was independent evidence:(a) which supported D's evidence that she had been picked up byMr Nagpal at the bus stop after he had circled back for that purpose and that she was later dropped off a short distance away; and2 In the appellant's written submissions it was also said that the detective's evidence about thetime a medical examination would have taken was wrong, because all that would have been required was to swab her face for saliva. But that was not a submission that was pursued orally before us, no doubt because there was no evidence that D was told that. On the contrary, the detective's evidence was that he did not know about the "saliva" possibility at the time he was speaking to D about the medical examination.(b) that D had been distressed and in an emotional state when the police arrived at the scene.[17] Secondly, and as far as D's refusal to undergo a medical examination is concerned, it is clear that:(a) prior to the Judge's question the detective had already said in evidencethat, although he did not tell D what was involved physically in the medical examination, it was usual to tell complainants that examinations take quite a long period of time. The question from the Judge was asked in that context as a point of clarification;(b) the prosecutor's reference to the examination taking three to fourhours in his closing address both reflected and expressly referencedthe detective's evidence, not D's;(c) the prosecutor's summary of D's reasons for refusing the examinationwas entirely accurate. He referred to the invasiveness of the procedure, how late it was, her desire to go home and her not wishing to be violated again;(d) the prosecutor also accurately referred to the defence theory of the case, namely that D had refused a medical examination because she was lying about what had happened to her; and(e) to the extent that there was nonetheless some possibility of the jury thinking that the length of time the examination would take was oneof D's reasons for refusing it (which we doubt) there can be nomaterial prejudice arising. Her wish to avoid a lengthy examination was largely a matter of common sense and consistent with some of the reasons that were given by D, namely that it was late at night, and that she just wanted to go home.[18] For all the above reasons we are unable to apprehend any possible prejudiceor unfairness arising from either the evidence about D's refusal to undergo a medical examination or from what the prosecutor said about it in his closing address. Accordingly, an extension of time to appeal is granted but the appeal is dismissed.Solicitors:Crown Law Office, Wellington, for Respondent