Ashley Dwayne Guy v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Glazebrook J
Judgment Date19 November 2014
Neutral Citation[2014] NZSC 165
Docket NumberSC 67/2012
Date19 November 2014

[2014] NZSC 165



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

SC 67/2012

Ashley Dwayne Guy
The Queen

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

A Markham for the Respondent

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).

The issue was; whether the provision of the statements to the jury was a miscarriage of justice under 385(1)(c) CrA (Determination of appeals in ordinary cases).

Held (per Elias CJ and Glazebrook J): The error in providing the statements to the jury in the circumstances constituted a miscarriage of justice under s385(1)(c) CrA because 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 for trial without notice to the Judge or counsel and without production in the public hearing. Because thematerial bore on the critical issues in the case, it constituted fundamental breach of the principles of natural justice. That in itself was a miscarriageof justice.

Whether the proof of a previous consistent statement was “necessary”, in terms of s35(2) EA (admissible as necessary to respond to a challenge to the witness&s veracity or accuracy based on & claim of recent invention), to respond to a claim of recent invention required considerationof its logical connection to the claim of recent invention, assessed in context. The complaint of sexual violation was made immediately by the complainant, and the police were called straight away. Her subsequent confirmation of the complaint in the statement she made to the police added nothing which tended to rebut any suggestion of recent invention in that immediate complaint. It was not probative for the purposes of rebuttal, even if the attack on the immediate complaint and the complainant&s motive was properly characterised as one of “recent invention” (a point on which there MIGHT be room for doubt).

More importantly, the admissibility of the statement could be relevant to the question of miscarriage in issue here: the inadvertent (and unknown) provision of the previous consistent statement.

It seemed highly unlikely that the CA meant to suggest that, if the statement were legally admissible, such admissibility would cure the error in its having been left in the jury room without notice to counsel or the Judge and without the Judge having been asked to rule on admissibility. Indeed, if the statement had been admitted in evidence, it would have been with a direction as to the purpose for which it was relevant and admitted and a warning that itdid not provide independent corroboration of the complainant&s account.

Whether errors were so radical or fundamental as to undermine the integrity of the trial, so that the accused had been denied a fair trial, was a question of degree ( Driscoll v The Queen). In deciding whether defects are “so gross, or so persistent, or so prejudicial, or so irremediable” ( Randall v The Queen) as to amount to denial of fair trial, the critical question was not the strength of the prosecution evidence or the weakness of the defence, but the effect of the defect on trial fairness. In that assessment, important background to what constituted a fair trial was the statement of the “minimum standards of criminal procedure” recognised in s25 New Zealand Bill of Rights Act 1990 (NZBORA) and the “right to justice” contained in s27 of that Act.

The provision of the two interview transcript documents with the exhibits provided to the jury for the purpose of its deliberations was a serious errorin trial process. It was an essential principle of criminal justice that a criminal charge had to be established only on evidence produced at trial, as was implicit in the presumption of innocence affirmed by s25(c) NZBORA. For that reason, the judge was obliged in criminal trials to impress upon the jury that it could consider only the evidence before the court and nothing else. It had been said by the Supreme Court of the United States that the requirementto consider the guilt of the accused only on the evidence “goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury” ( Turner v State of Louisiana).

The inclusion of the two statements in the material available to the jury without the knowledge of the accused, counsel, or the Judge breached fundamental principles of natural justice and was inconsistent with the requirement that the jury had to consider only the evidence adduced at trial. It deprived the appellant of the ability to be heard by the Judge in relation to questions of exclusion and excision and in relation to any directions to be given to the jury. It also deprived the appellant of the opportunity to have his counsel address the jury in relation to any view adverse to the appellant able to be taken from the unauthorised material. And it precluded reconsideration of the conduct of the defence in the light of the information provided.

Where evidence was wrongly admitted by the judge at trial, an appellate court assessed the materiality of the error in the context of a process that had not miscarried except in the admission of the evidence. Where additional information was received by the jury without the knowledge of judge or counsel, assessing whether the error was capable of affecting the verdict entails the sort of speculation the rules of natural justice, affirmed by s27 NZBORA, were designed to preclude.

There might be cases where the provision of extraneous material to the jury was immaterial. That was not the case here. The statements wrongly providedto the jury were those of the two people who were central to the issues at trial and bore on the critical issues: what had occurred between the complainant and the appellant; whether it was consensual; and whether the appellant believed on reasonable grounds that the complainant consented to the sexual contact of which she complained.

The admissibility of both statements was contestable. The fact that the unauthorised provision of the statements was not known also deprived the appellant of the opportunity to be heard on the appropriate directions to be given to the jury. If the transcript of the interview with the appellant had been adduced in evidence, notwithstanding his objection, counsel for the appellant may well have sought a direction from the Judge as to the need for caution inconcluding from any impression adverse to the appellant taken from the transcript that the appellant was guilty of the charge.

The lack of knowledge of the provision of both statements deprived defence counsel of the opportunity to address the jury to counter any adverse inference that might be available from the unauthorised material.

The error in proper process was radical enough to deprive the appellant of a fair trial. A narrow inquiry as to whether, in substance, the jury obtained through the two statements any information adverse to the defence which was not already in evidence at the trial was inadequate to reflect the law&s long experience that observance of the rules of procedure and natural justice which were breached in the present case were essential to fair trial andjust outcomes.

If the error in trial process was such that the appellant was deprived of a fair trial, it was strictly speaking unnecessary to consider further whether the additional material provided to the jury was information capable of affecting the verdict. But, in addition, the inherent unfairness in the process in this case resulted in an unsafe verdict because the material provided was capable of affecting the verdict and its provision to the jury was itself a miscarriage of justice.

The evidence of the complainant at trial was critical to the case against the appellant. The potential risk which lay behind the rule of exclusion in s35(1) EA was not overcome by explicit directions to the jury (as would have been required if the evidence had been ruled admissible and admitted). In those circumstances, the provision of the complainant&s previous consistent statement with the exhibits was an error that had to be treated in the statutory context and in the context of the particular case as one capable of affecting the verdict. It gave rise to a miscarriage of justice.

There was a real risk that the lengthy transcript of the interview with the appellant could have given the jury the impression that he was evasive or prevaricating. No direction by the Judge countered the risk of unfair adverse inference, because the Judge had no knowledge that the transcript would be provided to the jury. Nor was it countered by evidence or submission from the defence. Given the importance in the context of the trial of the impression the jury had of the appellant from the evidence, any such impression adverse to the...

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