Erkins v R Coa
| Jurisdiction | New Zealand |
| Judge | Asher J |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] NZCA 665 |
| Docket Number | CA273/2011 |
| Court | Court of Appeal |
| Date | 20 December 2011 |
[2011] NZCA 665
Ellen France, Miller and Asher JJ
CA273/2011
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against conviction for sexual violation by rape and assault with weapon — accused had pleaded guilty to other charges of assault against children and against complainant prior to trial — summarised in notice of admitted facts placed before jury by consent — Crown conceded some of evidence was propensity evidence but said it was led to inform jury of relationship between complainant and accused and not for purposes of coincidence reasoning — trial judge issued only a standard prejudice direction in respect of the evidence — whether an orthodox propensity warning instead of a general warning against prejudice was required.
F D Steedman for Appellant
A M Toohey for Respondent
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The appeal against conviction is dismissed.
REASONS OF THE COURT
(Given by Asher J)
The appellant Anselm Stephen Perkins appeals against his conviction following a jury trial on six counts of sexual violation by rape and five counts of assault with a weapon. The complainant was his former partner.
The central question on appeal was whether the directions of the trial judge, Judge Atkins, in relation to evidence not directly related to the alleged offending were adequate.
The complainant and Mr Perkins began a relationship in June 1996 when she was 25 and he 19. The complainant became pregnant with their first child after five months. There were three children of their relationship born in 1997, 2002 and 2004.
The complainant gave evidence that after the birth of their first child Mr Perkins became controlling and increasingly jealous. He suspected her of having affairs. He would, for instance, not let her go to the toilet without him, even when they were with friends. Mr Perkins started becoming violent towards her. She also gave evidence that Mr Perkins smoked cannabis, as did she, and cannabis oil. In the latter part of the relationship he was using methamphetamine and on occasion she also participated.
Mr Perkins faced a miscellany of assault with a weapon charges in respect of the early part of the relationship, between 1998 and 2007. These were specific episodes of violence and threatening behavior, on occasions witnessed by the children and by visitors to the house, and heard by neighbours.
On an occasion in 1998 Mr Perkins held a butcher's knife to the complainant's throat in the presence of their oldest child. On an occasion between 2002 and 2004 the complainant's nephew witnessed an assault in which Mr Perkins loaded a firearm and pressed it against the complainant's head while threatening that he would blow her head off. The complainant was terrified and wet herself. On an occasion in 2007 when the complainant was in bed with her children Mr Perkins came into the bedroom holding a spade. His pupils were dilated and she knew he had been on “P”. He threatened her with the spade in the presence of the children. On another occasion in 2007 Mr Perkins held a knife to the complainant's back in view of one of the children after she refused to write a letter so that he could claim the domestic purposes benefit.
The Police were called to their home a number of times either by neighbours or by the complainant herself. It is clear from a reading of the complainant's evidence that much of the violence towards her took place in the presence of the children.
The sexual violation charges related to alleged offending over a period of approximately two months in 2009 when Mr Perkins was using methamphetamine. The complainant's evidence was that she acquiesced to sex, often after being punched or hit by the appellant, because she feared further violence to herself or her children. The children were on occasions involved in the lead up to the alleged rape incidents. The complainant gave evidence, for example, that one morning Mr Perkins forcibly raped her when she wanted to go to the dairy to get coffee, and milk for the children's breakfast. After that she went down to the dairy to be followed by Mr Perkins with the children in the car whowere screaming. There was then an abusive scene in the presence of the children in which the complainant alleged that she was raped and Mr Perkins told her that she was a liar. In addition to this and five other alleged instances of rape there was also a further charge of assault with a weapon during the latter part of the relationship in which it was alleged Mr Perkins between 2007 and 2009 tried to stab the complainant's face a number of times with a pen, once connecting.
The children in their evidence confirmed seeing Mr Perkins use drugs. Mr Perkins himself confirmed in his evidence that their descriptions of his drug use were accurate.
Mr Perkins gave evidence. He denied the alleged rapes and the particular allegations of violence that he was defending. He maintained that the complainant was physically bigger than he was and that she was the aggressor and that he was scared of her.
Prior to the trial Mr Perkins pleaded guilty to five assault charges against the three children and two assault charges against the complainant. The subject matter of these charges was summarised in a notice of admitted facts. Mr Perkins admitted assaulting the complainant using a knife as a weapon and assaulting her by pushing her into a fence and hitting her, assaulting a child by hitting, kicking and pulling ears, assaulting another child by hitting with hands, kicking, pulling ears and hitting with wooden spoons and assaulting the child by hitting her with a wooden spoon after asking her to tidy up and assaulting a third child by hitting, kicking and pulling ears and assaulting her by hitting her on her legs after asking her to get cigarettes for him.
The written submissions on appeal were directed at whether propensity evidence was properly admitted at trial, and the correctness of the directions that were given in relation to that evidence. The focus was on three areas of propensity evidence.
The first was evidence of violence to the children. Because of Mr Perkins' guilty pleas there were in fact no charges alleging violence to the children before the jury. The jury was, however, aware of the charges and their particulars because they were summarised in the admitted facts placed before them by consent under s 9(2) of the Evidence Act 2006.
The second was evidence of the relationship being violent and violent incidents recounted by the complainant and witnesses that were not the subject of any particular charge.
The third was evidence of Mr Perkins' use of methamphetamine and cannabis.
It was initially submitted that this evidence was improperly admitted. However, during the course of oral submissions Mr Steedman, who appeared at the trial and before us, accepted that earlier objections to the evidence were ultimately withdrawn before trial. A hearing had been set down to determine the objections to the admission of the evidence, and on 6 December 2010 Judge Garland, who was to hear the application, delivered a Minute recording that the objections had been withdrawn. Mr Steedman fairly accepted that (albeit with personal concerns and reservations) heconsented to the evidence being adduced. (The evidence can be treated as having been admitted by consent under s 9 of the Evidence Act.)
In these circumstances the ground of appeal in which it was alleged that propensity evidence was improperly admitted was not pursued by Mr Steedman in oral submissions. Rather he focussed on what were submitted to be failings by the trial Judge, Judge Atkins QC, to adequately direct the jury in respect of propensity evidence. He argued that the Judge's directions in relation to the evidence of violence to the children, evidence of violence to the complainant not the subject of any particular charge and evidence of the use of methamphetamine and other drugs were inadequate.
While the Crown conceded certain of the evidence was propensity evidence in terms of s 40 of the Evidence Act, it submitted the evidence was not led for the purpose of coincidence reasoning, but rather to inform the jury of the nature of the relationship between Mr Perkins and the complainant. It also referred to a number of specific parts of the summing up which it submitted constituted adequate and fair directions.
The Supreme Court stated in Wi v R: 1
[40] We are of the view that in principle mandatory directions should be reserved for cases in which they are essential to ensure the defendant has a fair trial. It is generally better to leave the extent...
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