I v R
| Jurisdiction | New Zealand |
| Judge | Thomas J |
| Judgment Date | 09 December 2019 |
| Neutral Citation | [2019] NZCA 625 |
| Court | Court of Appeal |
| Docket Number | CA128/2018 |
| Date | 09 December 2019 |
[2019] NZCA 625
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Kos P, Venning and Thomas JJ
CA128/2018
P H Tomlinson for Appellant
J E L Carruthers for Respondent
Criminal — appeal against conviction for sexual offending — alleged trial counsel incompetence
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A The application for leave to appeal out of time is granted.
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B The appeal is dismissed.
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C The appellant's identity, and the identities of his wife, mother and brother, are suppressed.
(Given by Thomas J)
Para No
| Introduction | [1] |
| Background | [3] |
| The charges and verdicts | [3] |
| The Crown case | [11] |
| The defence case | [22] |
| Alleged trial counsel error | [29] |
| The principles | [29] |
| Alleged errors | [33] |
| Further evidence | [35] |
| (a) Failure to cross-examine the complainants on required matters | [45] |
| Complainant L | [45] |
| Complainant H | [58] |
| Complainant K | [67] |
| Complainant V | [69] |
| (b) Failure to provide disclosure to the appellant, take instructions and properly prepare for trial | [70] |
| (c) Failure to advise the appellant on his election, prepare him to give evidence, and engage a communications assistant | [94] |
| Failure to advise and prepare appellant | [94] |
| The appellant's evidence at trial | [107] |
| (d) Failure to call defence witnesses | [128] |
| Conclusion | [131] |
| Prosecutor's closing address | [132] |
| Result | [139] |
The appellant appeals his 13 convictions for sexual offending against four girls, all of whom were related to him and aged at the time of the offending between five and 11 years. His appeal is on the grounds of trial counsel incompetence, while also alleging that the prosecutor's closing address to the jury contained an unfair submission that was not adequately corrected by the trial Judge.
The appeal was filed 37 days out of time. The appellant has filed an affidavit explaining the short delay, which was as a result of counsel unavailability. In the circumstances, and unopposed by the Crown, leave to appeal out of time is granted.
The appellant faced 19 charges involving the four complainants over the period from 2003 to 2015. V was his step-daughter, H and her younger sister L his nieces by marriage, and K his biological daughter.
The appellant faced six charges involving V covering the period from 2003 to 2007. There were two charges of indecent assault on a girl under 12, one of doing an indecent act with a young person under 16 and three of sexual violation by unlawful sexual connection.
The appellant faced two charges involving H covering the period from 2006 to 2009. They were both representative charges of doing an indecent act on a child under 12.
The appellant faced six charges involving K covering the period from 2009 to 2013. There were three charges of doing an indecent act on a child under 12 (one of them representative) and three charges of sexual violation by unlawful sexual connection (one of them representative).
The appellant faced five charges involving L covering the period from 2008 to 2015. There were three charges (two of them representative) of doing an indecent act on a child under 12 and two of sexual violation by unlawful sexual connection (one of them representative).
At the conclusion of the Crown case, two of the charges involving V were dismissed because, on the evidence, it could not be proved that she was under 12 years old when the alleged offending took place. On the remainder of the charges involving V, the jury was hung on the three charges of sexual violation but found him guilty on the charge of doing an indecent act on a young person under 16.
The appellant was acquitted on one charge involving H (alleging he rubbed her genitalia) but convicted on the other (alleging he rubbed her breasts).
The appellant was convicted on all charges involving both K and L.
The Crown case was that the appellant started sexually offending against the four complainants when they were between five and 11 years old.
By way of background, K, the appellant's biological daughter, and his nieces L and H, lived with the appellant and his wife. The appellant's wife's daughter, V, stayed with them on weekends. The Crown alleged that, during these times, the appellant would find opportunities to be alone with the girls at his work, in their home and in his “man cave”, which was a shed at the back of the house. When alone with them, he would sexually offend against them in a variety of ways.
The offending against V was alleged to have begun in 2003, when she was 10 years old. It was alleged V accompanied the appellant at night when he worked as a tow-truck driver. V said he offended against her at the company's offices and when they were together in his tow-truck. When she was about 13, V told both her mother and her biological father that the appellant touched her. No action was taken.
The offending against H allegedly began in 2006, when she was about six years old and moved to live with the appellant and his wife. She said the appellant sexually offended against her when she was in bed at night.
The offending against K began in 2009, when she was around eight years old. She said the appellant sexually offended against her in the shed where he would show her pornographic magazines. 1 She said he also showed her pornography on his computer and then sexually offended against her and he behaved similarly when she was in the bath and in bed. She said the appellant repeatedly told her not to tell her mother and, if she did so, it would ruin the marriage.
The offending against L began in 2008 when she was five years old. It occurred when she was having a bath and in the “man cave” where on at least one occasion the appellant showed her a pornographic magazine which he had got from the shed. He told her not to tell anyone, that it was just between them, and to wait until she was 16 when they could have intercourse.
In mid-2015, K told her mother of the offending. She contacted Child, Youth and Family and an investigation ensued. V then formalised her earlier complaint. L's disclosures followed and H's were made following the appellant's arrest.
The Crown rejected the defence contention that the allegations were a result of the complainants colluding. At trial, the Crown prosecutor reminded the jury in closing that V first complained when she was around 13 years old, at which time the other complainants were very young, suggesting there could not have been collusion at that time. He pointed out that V moved at some point to the South Island and, when in her teens, to Australia. He submitted it was a “fairly major coincidence” that a number of years later, K, the appellant's own daughter, independently accused him of sexual abuse.
The prosecutor stressed the similarities in the allegations — the use of pornography, both on the computer and in pornographic magazines kept in the shed, the appellant's particular style of offending (digitally penetrating the complainants and then putting his fingers in his mouth and that of the complainants, and what the appellant said to the complainants as he did so), that he told K and L repeatedly not to tell anybody, the evidence from the complainants of the sexually suggestive way
in which he spoke to them, and that the offending took place in similar locations: the bath, the shed and the “man cave”The prosecutor addressed the delayed complaints by noting the appellant's instruction to the complainants not to say anything, telling K it would ruin her parents' marriage, and evidence from L and V that they were too scared to say anything. H said she knew she should have told someone but was ashamed.
L, K and H's evidence-in-chief at trial was given by their pre-recorded evidential interviews. By the time of trial, V was 24 years old, L 14, K 16, and H 17.
The appellant denied all the allegations, saying they were fabrications.
Mr Johnston, the appellant's trial counsel, emphasised to the jury how difficult it was to defend historic allegations, particularly when they were not date specific. Mr Johnston described the evidence as disclosing that the appellant was a hardworking man, creating a stable life for him, his wife and their family. He noted some of the appellant's wife's relatives' lives were not so stable, involving drug and other issues, with the result that many children, including some of the complainants, came to stay with the appellant and his wife, who cared for them. He told the jury the girls were “quite tight” and set out the history of the complaints: K made the first complaint and told L about it; L's complaint, which he described as a “almost a poor copy” of that of K, followed; V had complained earlier but for good reason had not been believed; and then a year later, H complained.
In respect of V's allegations that the appellant offended against her at his workplace, the defence stressed the lack of opportunity to do so. Mr Johnston challenged her inconsistency about timing.
Mr Johnston challenged H about whether the offending occurred when she had broken her leg as she alleged (something both the appellant and his wife said in evidence they did not recall), and about a statement she had written about her allegations, which differed from what she said in her police interview.
L was closely cross-examined on her allegations that the appellant abused her in the “man cave” on the basis that what she described could not have occurred. For example, she said the appellant sexually violated her and, when her brother appeared, the appellant...
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