FERREIRA v R [2016] NZCA 116

FERREIRA v R [2016] NZCA 116 [11 April 2016]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 ZEALANDCA177/2015[2016] NZCA 116BETWEEN YURI NEVES VERGARA FERREIRAAppellantAND THE QUEENRespondentHearing: 1 March 2016Court: Randerson, Peters and Collins JJCounsel: R A B Barnsdale for AppellantS K Barr for RespondentJudgment: 11 April 2016 at 4 pmJUDGMENT OF THE COURTA The application to adduce new evidence on appeal is declined.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Ferreira, appeals against his conviction on one charge of sexual violation by rape following a jury trial before Judge Ingram in the TaurangaDistrict Court in January 2015. Mr Ferreira was sentenced to five years and six months imprisonment.1Grounds of appeal[2] The grounds on which Mr Ferreira appeals his conviction are:(a) That there was a miscarriage of justice in that the trial was unfair. The unfairness is said to have arisen because Mr Ferreira is not a native English speaker and he required, but did not have, the assistance of an interpreter when he was interviewed by the police and when he gave evidence at trial. Mr Ferreira is also said to have believed that, when he gave evidence at trial, he was required to persist in the untruthful account he had given to the police in his interview.(b) The jury's verdict was unreasonable in that there was insufficientevidence on which the jury could be satisfied beyond reasonable doubt:(i) as to penetration; or(ii) that Mr Ferreira did not believe or did not have reasonable grounds to believe that G consented to penetration.[3] Mr Ferreira also seeks to adduce new evidence on appeal. The new evidence goes to the grounds of appeal in [2](a) and [2](b)(ii).Background[4] Mr Ferreira and the complainant, G, were flatmates. In May 2014, G saw photographs and a video of herself on Mr Ferreira's mobile phone, these having beentaken a month or so earlier. Both showed G asleep on a couch at the flat in various states of undress. The video showed G with her underwear removed and a man, said to be Mr Ferreira, penetrating her vagina with his penis.1 R v Ferreira [2015] NZDC 3546. Counsel for the appellant abandoned the appellant's appealagainst sentence at the hearing of the appeal.[5] G emailed the photographs and video to herself and provided them to the police. Some of the definition in the images was lost in the course of transmission.[6] When interviewed by the police, Mr Ferreira denied that he had ever had a sexual relationship with G. When shown the video, Mr Ferreira told the police that the man was not him but was wearing his underpants.[7] At trial G gave evidence that she had no memory of the offending and that, as she was an extremely heavy sleeper, it was not surprising that she had not woken up in the course of the events.2 G also gave evidence that Mr Ferreira had previously expressed interest in a sexual relationship with her but that she had declined.[8] Mr Ferreira gave evidence at trial. He denied taking the photographs or video, denied that he had deleted these from his mobile phone, denied that he wasthe man shown in the video, said that his penis was different to the perpetrator's, andproduced a video and photographs said to show this. Mr Ferreira agreed that G had never consented to him penetrating her at any time.[9] In closing, Mr Ferreira's then counsel, Mr W Nabney, emphasised to the jurythat they were required to be satisfied beyond reasonable doubt as to two matters in particular. The first was that Mr Ferreira was the man shown in the video. If satisfied on that matter, the jury had to be satisfied that there had been penetration ofG's genitalia.[10] In summing up the Judge distributed a question trail to the jury that identified the elements of the offence: penetration; a lack of consent by G; a lack of belief that G consented; and a lack of reasonable grounds on which to believe that G consented. The Judge also addressed the jury on each of these matters.[11] The jury raised one matter in the course of their deliberations, being whetherthey could "view the video evidence from the cellphone to decide on penetration".2 Other witnesses at trial corroborated this evidence.Proposed new evidence[12] The new evidence that Mr Barnsdale, Mr Ferreira's counsel on appeal, seeks to adduce comprises affidavits from Mr Ferreira, his brother, Allan Ferreira, and his father, Adão Ferreira.[13] The affidavits concern two matters. The first is the extent of Mr Ferreira'sEnglish language skills and the second is his (alleged) sexual relationship with G. As Mr Barnsdale acknowledged, evidence as to the latter is entirely contrary to Mr Ferreira's evidence at trial.[14] The gist of Mr Ferreira's affidavit is as follows. He has difficultyunderstanding and speaking English on specialised topics such as medicine and law and at the time of trial was unclear as to the meaning of "consent, charge and intercourse". He was confused when he told the police that he had never had sexualintercourse with G and was similarly confused when he repeated the denial to his trial counsel, Mr Nabney, believing that he could not change the account given to the police even though it was untruthful. Although Mr Ferreira understood what was put to him in cross-examination, he was not sure how he was supposed to answer. But for these matters, Mr Ferreira would have given a "very different" account of events and any new trial would be conducted on different lines "with an emphasis on the consent aspect".[15] As to his alleged sexual relationship with G, Mr Ferreira states that he and G commenced having sexual intercourse shortly after they met in 2012, this being about two years before the offending, and that they socialised as a couple with Mr Ferreira's brother and other friends. G is said to have become jealous whenMr Ferreira commenced a relationship with another woman and, being particularlyangry one evening, had said to Mr Ferreira words to the effect of "If you won't have me, you won't have anyone".[16] Nowhere in his affidavit, however, does Mr Ferreira admit that he was the man in the video or say that he believed that G consented to penetration.[17] Allan Ferreira's affidavit is to the effect that his brother and G gave theappearance of being a couple.[18] The affidavit of Adão Ferreira, formerly a senior member of the Brazilian police force, is that his son would not have been sufficiently proficient in English to understand and follow the trial process. He also says that he told his son that he should have disclosed his sexual relationship with G, an omission attributed to Mr Ferreira's wish to preserve G's reputation.Decision on application to adduce new evidence on appeal[19] As a general rule an appellant who wishes to adduce new evidence on appeal must demonstrate that the evidence is credible, fresh in the sense that it could not with reasonable diligence have been obtained for the original trial, and that it might reasonably have led the jury to return a verdict of not guilty. Credible evidence that is not fresh may nevertheless be admitted if to exclude it would risk a miscarriage of justice.3[20] Evidence that Mr Ferreira's comprehension was adversely affected by a lackof facility in English is not credible.[21] There is nothing on the face of the transcript of Mr Ferreira's interview with the police or of his evidence at trial to indicate that he had difficulty understanding or answering the questions put to him.[22] In addition, Crown counsel, Mr Barr, refers us to the affidavit that Mr Nabney has sworn for the purposes of the appeal, following Mr Ferreira's waiverof privilege. Mr Nabney states that he had no difficulty understanding Mr Ferreira and vice versa, and that he would have sought an interpreter had he any reason to be concerned.[23] At our request, the trial Judge has also provided us with a report. He confirms that the matter of an interpreter was not raised at any stage and that3 R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22]-[26]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].Mr Ferreira spoke "very good English". Before providing his report the Judge wentto the trouble of ensuring he was correct on this last point by reviewing the notes ofevidence and listening back to the recording of Mr Ferreira's evidence. The Judgesays:[6] Mr Ferreira handled the questions put to him by his own counsel, and the cross examination, as well, or better, than many native speakers of English. Mr Ferreira had no apparent difficulty in providing prompt, fluent and consistent responses to the questions put to him.[7] [8] I would describe Mr Ferreira's English language ability aspractical fluency, judging by the speed of his comprehension of the questions, and his ability to provide accurate and grammatically sensible replies to the issues raised in the questions. Whilst English was clearly MrFerreira's second language, his vocabulary was broad, his grasp of thegrammatical and syntactical structure of the language was good, though not quite perfect. In particular, he had no practical difficulty in accurately responding to the questions put to him, and explaining himself in detail in relation to the allegations made against him.[24] For these reasons the new evidence, insofar as it concerns Mr Ferreira'sEnglish language skills, is not credible and we decline to admit it.[25] The evidence of a sexual relationship between Mr Ferreira and G is neither fresh – plainly it could have been adduced at trial – nor credible. The evidence isentirely at odds with Mr Ferreira's previous denials of any sexual relationship withG. It is also contrary to Mr Ferreira's clear instructions to Mr Nabney at trial.Mr Nabney has produced two file notes recording his advice that the charge be defended on the ground of consent. These notes, which Mr Ferreira has signed,record Mr Ferreira's refusal and also record that he was "adamant" that he had nothad sexual intercourse with G at any time.[26] Moreover, for the evidence to be of any assistance to Mr Ferreira, he would at least need to acknowledge that he was the man in the video and say that he believed that G consented to penetration.[27] Accordingly, the application to adduce new evidence is declined.Unfair trial[28] Given the very clear evidence from Mr Nabney, the trial Judge's report andour own assessment of the transcript of evidence, we reject the submission that the trial was unfair on the grounds that Mr Ferreira did not properly understand English and that he ought to have had an interpreter.Verdict unreasonable[29] The second ground of appeal is that the verdict was unreasonable because there was insufficient evidence of penetration, or alternatively that there was insufficient evidence that Mr Ferreira did not believe, on reasonable grounds, that G consented.[30] G's evidence was that the original video, which she watched on Mr Ferreira'smobile phone before emailing it to herself, showed him penetrating her. G also said that she had not consented to Mr Ferreira doing so and that she had never indicated to Mr Ferreira that she was willing to have sexual intercourse with him.[31] On its own, G's evidence as to what she observed was evidence on which thejury could be satisfied as to penetration. The jury's request to watch the video again makes it clear that they knew they had to be satisfied as to penetration.[32] As we have said, the matter of consent was never put in issue by the defence. Despite that, the Crown and the Judge addressed the jury on the need for them to be satisfied beyond reasonable doubt that G did not consent to the connection, and that Mr Ferreira either did not believe that G consented or, if he did, that he did not have reasonable grounds on which to believe G consented.[33] The fact that G was asleep ruled out her consent. It was also evidence that counted against a belief in consent or reasonable grounds for such a belief. It was also part of the Crown case that the person, that is Mr Ferreira, knew G did not consent because the video showed that he was "slow, gentle and silent" throughout.[34] Accordingly, there was sufficient evidence on which the jury could besatisfied beyond reasonable doubt as to the "consent" elements of the offence.[35] Given these matters, the ground of appeal based on an unreasonable verdict cannot succeed.Conclusion[36] Mr Ferreira's appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent