Charles Malcolm Gamble v The Queen

• Jurisdiction: New Zealand
• Judge: Wild J
• Judgment Date: 14 March 2012
• Neutral Citation: [2012] NZCA 91
• Docket Number: CA462/2011
• Court: Court of Appeal
• Date: 14 March 2012

BETWEEN

Charles Malcolm Gamble

Appellant

and

The Queen

Respondent

[2012] NZCA 91

Court:

Wild, Ronald Young and Andrews JJ

CA462/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

J H M Eaton for Appellant

D J Boldt for the Respondent

JUDGMENT OF THE COURT

• A The appeal is allowed. The convictions entered against the appellant on the first count and second count are quashed.

• B A new trial is ordered.

• C The result of this judgment as set out in A and B may be published. Order that publication (except in a law report or law digest) of the reasons for judgment is not to occur until final disposition of re-trial.

REASONS OF THE COURT

(Given by Wild J)

Introduction

1 This appeal against conviction raises the issue: was Mr Gamble deprived of a fair trial because he was indicted on representative charges?

2 Mr Gamble was convicted following a five day trial in the High Court before French J on an indictment containing these counts:

FIRST COUNT

… CHARLES MALCOLM GAMBLE between 1 January 1966 and 31 December 1971 21 December 1967 and 21 May 1971 at Oxford indecently assaulted [the complainant], a girl then under the age of 12 years aged between 12 and 16 years.

THIS IS A REPRESENTATIVE COUNT

SECOND COUNT

… CHARLES MALCOLM GAMBLE between 1 January 1966 and 31 December 1971 21 December 1967 and 21 May 1971 at Oxford raped [the complainant].

THIS IS A REPRESENTATIVE COUNT

The dates were amended twice during the trial. Those we have shown as struck out are the original dates. The other dates are those substituted on the third day of the trial, at the end of the Crown case. At the same time, the first count was further amended by altering the complainant's age at the time and altering also the offence (shown in the margin on the indictment) from one under s 133(1)(a) of the Crimes Act 1961, to an offence under s 134(2)(a).

3 By majority verdicts, the jury found Mr Gamble guilty on both counts.

Brief background

4 In December 1967 Mr Gamble and his wife purchased a small farm at Oxford. The complainant, then aged 12, began going with her family to stay on the farm. There was a close family relationship between the Gambles and the complainant's family. The complainant and her family continued to visit the farm until the Gambles sold it in May 1971. They visited most weekends at first, less frequently later.

5 The Crown case was that Mr Gamble repeatedly indecently assaulted and raped the complainant during these visits to the farm. As indicated by the indictment, the Crown alleged this offending spanned the three and a half years during which the Gambles owned the farm.

6 The complainant told the police of the offending in 2008. The previous year, 2007, Mr Gamble had pleaded guilty to charges of raping and indecently assaulting two close relatives.

7 When interviewed by the police, Mr Gamble angrily denied the complainant's allegations. He described the complainant as a “filthy little sod” and her allegations as “straight out lies”.

8 At trial the contest reduced to a straightforward question of credibility: was the complainant's evidence honest and reliable, or was it a malicious fabrication, as Mr Gamble contended? The Crown case was supported by propensity evidence of Mr Gamble's convictions for rape and indecent assault of two close relatives, and of the facts of that offending. The defence elected not to call evidence.

The complainant's evidence at trial

Evidence-in-chief

9 The complainant first described the family background and how the visits to the Gambles' farm came about. She said she was about 10 or 11 when the farm visits began. She described Mr Gamble starting by indecently assaulting her. At first this involved rubbing her breasts and tummy. The complainant said that this had sometimes happened in front of other people, including her parents. On those occasions the rubbing had been accompanied by Mr Gamble making lewd comments to the adults present such as “she'll have big ones when she grows up”. 1

10 The complainant said this rubbing advanced after a short time to Mr Gamble touching her genitals through her clothing, and then to his sliding his hand down her pants and putting his finger into her vagina. Asked if she could tell the Court how many times that occurred she answered “No I can't, it went on and on”. 2 The complainant said these indecent assaults stopped when the Gambles sold their farm and moved away. 3

11 Next, the complainant described in some detail the first time Mr Gamble raped her. She was walking down with Mr Gamble to get the cows for milking, when he said “come and have a look at the piglets”. He took her to the pig pens and showed her a newly born litter of piglets. 4 She described Mr Gamble boarding up the pen so the sow could not get back in, and her holding and playing with the piglets. The next minute Mr Gamble was lying her down on the straw, taking down her trousers, pushing up her jersey and raping her. She recalled aspects of this first rape in quite vivid detail, including the way in which Mr Gamble held her down, the way he smelt, the noises he made while having intercourse with her and even his clothing: 5

Q Do you remember what he was wearing?

A Corduroy trousers, green corduroy trousers and one of those check work shirts, flannelette work shirts. Always had the sleeves rolled up.

Q Why are you able to remember that?

A Cos I've never forgotten it.

She also described what happened afterwards: his helping her with her clothing, brushing the straw off her and carrying on “like nothing had happened”. 6 The complainant did not recall when in the weekend this first rape happened. She said

she and her parents normally went to the farm on Friday night and returned home after tea on Sunday night.

12 The complainant then described the second time she was raped, which was on the next weekend she and her parents went to the farm. Again, she was able to give quite a lot of detail, though perhaps less than for the first rape. She said this rape happened outside the milking shed. Mr Gamble took her out on to the grass beside a concrete pen, laid her on the grass and raped her there. She recalled that it was getting dark at the time. She said that Mr Gamble had again pulled her clothing down around her gumboots, and had pulled her jersey up. She could not remember whether he had said anything while having intercourse with her, but was again able to describe his clothing: 7

Same. They were either brown, might've been brown cords this time, but that's all he wore was brown or green cords and the same flannelette work shirts.

13 Again, she was able to recall how this had finished: 8

Same again. He ejaculated, helped me up, pulled my trousers up, pulled my jersey down, brushed me off, picked anything out of my hair that was there and carried on like nothing had happened.

14 The complainant could not remember how many times she was raped in the dairy shed. This was the relevant exchange: 9

Q What about at the dairy shed?

A I can't remember how many times it went on for. It just went on and on.

Q So it just went on and on?

A On and on.

15 Asked whether this sort of thing had happened anywhere else on the farm, the complainant described being raped in a gully where there was a lot of gorse. She

could not remember how many times she was raped there. This was her description: 10

He would lay me down, um, on the gorse or the grass, parts of it. It was very prickly and it was — I didn't wanna sit still because I was wriggling because it was hurting, the prickles, and, um, the same thing again. He raped me down there, lying down there. After he'd finished with his usual performance it was the same thing again, help me up, pull my trousers up, pull my jersey down, brush me off, and we'll go and get the cows.

16 The complainant told the Court that those were the main places on the farm at which she could remember being raped. She was then asked whether there were any other occasions when sexual intercourse had happened that really stood out in her memory. She answered “Yes”, and described an occasion on which she was helping make a pavlova at the farmhouse. She was sent down to the milking shed to get some cream to whip for the top of the pavlova. She described not wanting to go because of what might happen. She was able to describe this rape also in some detail. She recalled Mr Gamble telling her she would have to wait for the cream, then holding her very tightly against his body before taking her out onto the grass by the milking shed, laying her down on the grass where he: 11

… carried on as usual with the rape, then picked me up, carried on, showed me the cream, told me to go back.

17 Later in her evidence-in-chief the complainant was asked: 12

Q Was there anything constant or consistent about what he did?

A Yeah, it was virtually the same each time regardless of whether he was having full sex with me or whether he was using his finger in my vagina. It was the same every time.

Q And what was the same every time?

A His actions. Um, the noises he made.

Q By his actions, can you just tell us so that we're all clear on what you're talking about?

A Holding very tightly so that you couldn't get away, and when he lay down he lay on top of you so that you couldn't move.

Cross-examination

18 The complainant was cross-examined for some two hours. The questioning aimed to elicit detail from the complainant about the rapes and indecent assaults she alleged, and then to expose that detail as incorrect, and thus the complainant's evidence as untrue and unreliable. We give three examples....