Ashley Dwayne Guy v R

• Jurisdiction: New Zealand
• Judge: Elias CJ,Glazebrook J
• Judgment Date: 19 November 2014
• Neutral Citation: [2014] NZSC 165
• Docket Number: SC 67/2012
• Court: Supreme Court
• Date: 19 November 2014

BETWEEN

Ashley Dwayne Guy

Appellant

and

The Queen

Respondent

[2014] NZSC 165

Court:

Elias CJ, McGrath, William Young, Glazebrook and O'Regan JJ

SC 67/2012

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction on a charge of sexual violation by unlawful sexual connection — jury had in the jury room been provided with two documents which had not been introduced in evidence — the fact that the documents were in the jury room was not known to the Judge or to counsel — first document was a transcript of an interview conducted by police with the appellant — appellant had objected to its introduction into evidenceon the grounds that the police officer conducting the interview had continued to put the complainant&s allegations to the appellant after he had indicatedthat he did not wish to make a statement — second document was the transcript of a statement made to the police by the complainant which wasinadmissible under s35(1) Evidence Act 2006 (Previous consistent statements rule) — whether the provision of the transcripts to the jury was a miscarriage of justice under 385(1)(c) Crimes Act 1961 (Determination of appeals in ordinary cases).

Counsel:

R M Lithgow QC, A J D Bamford and N Levy for the Appellant

A Markham for the Respondent

The appeal is allowed, the conviction is quashed, and a new trial is ordered.

JUDGMENT OF THE COURT

REASONS

Para No
Elias CJ and Glazebrook J	[1]
McGrath and William Young JJ	[66]
O'Regan J	[82]

Elias CJ AND Glazebrook J

(Delivered by Elias CJ)

1 After the appellant had been found guilty by a jury of a charge of sexual violation by unlawful sexual connection, it was discovered that, by error, the jury had been provided in the jury room with two documents which had not been introduced in evidence. The fact that the documents were in the jury room was not known to the Judge or to counsel. Both documents, stamped with exhibit numbers, were in plastic sleeves within an envelope and were included with the exhibits produced at the trial when placed in the jury room by the court taker. When they were discovered, the two documents had been taken out of the envelope but were within the plastic sleeves. It is not known whether they were looked at by members of the jury but it has been common ground that it is necessary to consider the appeal on the basis that the documents were read by the jury.

2 The first document was a 16-page transcript of an interview conducted by police with the appellant and recorded by video. The appellant's counsel had objected to admission of the video interview as evidence at the trial because the police officer conducting it had continued to put the complainant's allegations to the appellant after he had indicated at the outset that he did not wish to make a statement. Because of the objection, Crown counsel did not seek to produce the video interview or the transcript of it at trial but instead, without objection, led short evidence from the interviewing officer that the appellant had been spoken to but had said he was not in a position to “make an honest clear statement” because he did not remember what had happened. Evidence was however also given without objection of an earlier statement made by the appellant to another police officer and recorded in summary in his notebook by the officer. In that brief statement, the appellant said that he had been asleep on a couch in the television lounge of the backpacker's hostel where the incident occurred and had been woken up by a “smack in the head” from the complainant, who was “going nuts at [him]”.

3 The second document in the jury room by error was the transcript of a statement made to the police by the complainant. Crown counsel had not attempted to put the statement in evidence at the trial. It was inadmissible under s 35(1) of the Evidence Act 2006 as a previousconsistent statement unless it was necessary to respond to a challenge to the complainant's veracity or accuracy based on a previous inconsistent statement or claim of recent invention 1 or it would provide the court with information that the complainant was unable to recall. 2 Neither reason was identified at the trial to justify admission of the statement. The transcript of the

interview with the complainant was approximately 17 pages long. It did not differ in substance from the evidence given by the complainant at trial. In both, she said she had gone to sleep alone on a couch in the television lounge, where others were also present, and had woken to feel “something moving inside”, in her vagina. She was not sure what it was and said in evidence that it “could be his fingers or […] his penis”. The complainant discovered the appellant lying behind her and said he was “pulling his pants [on]”. She got up, slapped the appellant, and shouted at him

4 The Court of Appeal dismissed the appellant's appeal against conviction on the basis that there was no miscarriage of justice to justify setting aside the conviction under s 385(1)(c) of the Crimes Act 1961, 3 whether the errors in inclusion of each of the documents were considered separately or together. 4 The Court accepted that the provision of the transcripts to the jury raised a “powerful argument” that the trial had miscarried, 5 but concluded that, in the unusual circumstances of the trial as a whole, there was no risk of a miscarriage of justice. 6 The appellant appeals with leave to this Court. 7

5 In disagreement with the view taken in the Court of Appeal and for the reasons given in what follows, we consider that the error in providing the statements to the jury in the circumstances constituted a miscarriage of justice under s 385(1)(c) of the Crimes Act becaus it undermined the fairness of the trial and its integrity since it provided to the jury significant material which was directly relevant to the issues fortrial without notice to the Judge or counsel and without production in the public hearing. Because the material bore on the critical issues in the case, itconstituted fundamental breach of the principles of natural justice. That in itself was a miscarriage of justice.

Background

6 The appellant and the complainant had become acquainted during the months the complainant, who was visiting New Zealand on a working holiday, had been living at the backpacker's hostel in Nelson. The appellant, a New Zealander, had been living there also, on and off.

7 The long-stay group at the hostel had held a “pimps and prostitutes” Valentine's Day party at the hostel on the night of the incident which led to the charges. In keeping with the theme, most at the party were clad in underwear and skimpy clothing (as was confirmed by photographs taken of the party which were produced in evidence). Most, including the complainant and the appellant, had been drinking. The complainant said that she had drunk a bottle of wine and two beers.

8 Two witnesses who had been at the party gave evidence. Witness N described seeing the appellant and the complainant dancing together and said that the appellant touched the complainant intimately and simulated sexual activity (as others were doing, in keeping with the theme of the party) without apparent objection by her. (His evidence on this point was denied by the complainant.)

9 At about 4 am, the complainant went to sleep on a couch in the television lounge of the hostel, with others present. She often slept in the television lounge, preferring it to the dormitory room in which she was staying.

10 In his first statement to the police, the appellant said that he had put a flag over the complainant as a covering and had curled up beside her on the couch. He said he had gone to sleep and had woken, shortly afterwards, when hit by the complainant who was very upset, shouting at him.

11 Witness L, who was in the television lounge at the time, described seeing the complainant asleep on the couch and said that the appellant had come in and sat next to her. She saw that the complainant's legs were touching the appellant (the witness variously described the appellant as sitting between the complainant's legs or the complainant's legs as being over the appellant's legs). The witness described the appellant as having been awake, but stated that she did not see his hands and could not tell if he was doing anything with them. She then said that the complainant jumped up and accused the appellant of trying to rape her and that the appellant had responded that “he didn't do anything” and had said something to the effect that he had not done anything the complainant had not wanted.

12 Witness N, who was also in the television lounge at the time, described seeing the appellant “crouching” at the foot of the couch while the complainant was sleeping. The witness said that when the appellant was crouched over the complainant he was making “rubbing […] movements” with his arm on the complainant's legs. The witness said he had dropped off to sleep and that when he woke he saw that the appellant was still crouched over the complainant. The witness said that “at some point I saw his hand […] making movements, like coming and going in her crutch area”. The witness said that he “could see that at least one finger was inside of her”. The complainant then woke up and started screaming, “[y]ou're raping me”. Witness N acknowledged in cross-examination that in the statement he made to the police he had not mentioned the hand movements between the complainant's legs and had said that a blanket was covering the complainant's legs.

13 The two witnesses who gave evidence described the complainant as being “very upset” and “crying and screaming” when she woke. The state the complainant was in was also confirmed by CCTV footage when she went through to the reception room of the...