R v Jeffries

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 20 December 2012
• Neutral Citation: [2012] NZCA 608
• Docket Number: CA728/2010
• Court: Court of Appeal
• Date: 20 December 2012

BETWEEN

The Queen

Appellant

and

Robert Keith Jeffries

Respondent

AND BETWEEN

Robert Keith Jeffries

Appellant

and

The Queen

Respondent

[2012] NZCA 608

Court:

Ellen France, Harrison and French JJ

CA728/2010

CA742/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction on counts of sexual violation by unlawful sexual connection, inducing an indecent act and indecent assault — appeal by Solicitor-General against sentence of five years' imprisonment — appellant had low intellectual functioning with an IQ between 61 and 68 — determination that appellant was fit to stand trial pursuant to Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIPA”) — historical offending — impact of absence of cross-examination on decision under s9 CPMIPA (Court must be satisfied of defendant's involvement in offence) — whether any process issues affected s14 CPMIPA (determining if defendant unfit to stand trial) decision — whether appropriate special arrangements or accommodations were made for appellant prior and during the trial — whether the sentencing Judge erred by not applying R v AM to offending after 1993 (when the maximum sentence for this offending increased).

Counsel:

M D Downs for Appellant in CA728/2010 and Respondent in CA742/2010

T Ellis, J K W Blathwayt and G K Edgeler for Respondent in CA728/2010 and Appellant in CA742/2010

• A Order made extending the time for filing the notice of appeal but the appeal against conviction is dismissed.

• B Leave to appeal against sentence is granted but the appeal is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No
Introduction	[1]
Background	[5]
Issues on the conviction appeal	[13]
The ss 9 and 14 procedures	[15]
Jurisdiction for Gendall J to determine s 9 issue	[28]
Cross-examination and reasons for s 9 decision	[31]
The law	[32]
Application of the principles to this case	[37]
Lawfulness of the s 14 process	[43]
Accommodations for the appellant	[49]
The position pre-trial	[50]
Accommodations during the course of the trial	[50]
The position pre-trial	[54]
Reasonableness of verdicts	[64]
Our analysis	[65]
The Solicitor-General's sentence appeal	[77]
Analysis	[86]
Result

Introduction

1 The appellant, Robert Jeffries, was charged with sexual offending against four young children. He also faced two charges of assault, one of which related to a fifth child. Issues were raised prior to trial about his fitness to stand trial. A hearing was held to determine these issues under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act). It was determined that Mr Jeffries, although of low Intelligence Quotient (IQ), was fit to stand trial 1

2 The matter proceeded to trial. By that point, Mr Jeffries had been discharged on a count of sexual violation 2 The day after the trial began, he was discharged on the two assault counts 3 Mr Jeffries was convicted after trial of seven counts of

sexual violation by unlawful sexual connection, two counts of inducing an indecent act, and two counts of indecent assault. He was acquitted of one count of sexual violation. The jury could not agree on two of the counts of sexual violation. Mr Jeffries was sentenced by the trial Judge, MacKenzie J, to a term of five years imprisonment 4

3 Mr Jeffries appeals against his conviction. The conviction appeal focuses on the approach taken in determining his fitness to stand trial and on the accommodations made for him during that process and during the course of the trial. The appellant also says the verdicts on some of the counts were unreasonable.

4 The Solicitor-General seeks leave to appeal against the sentence on the basis it is manifestly inadequate. The sentence appeal raises issues about the sentencing approach to historic offending. The first set of offending occurred on a single occasion between 1986 to 1988 and the second set over a period of more than two years from 1996 to 1998.

Background

5 At the time of trial, the appellant was 49 years of age. The reports prepared prior to trial to determine fitness to stand trial indicated he was of low intellectual functioning. His IQ falls within the range of 61 to 68, which puts him in the group of people considered to have what the report writers called “mild mental retardation” 5

6 The offending involved four complainants, who were aged between four and eight years old at the time of the offending. The first of the complainants was the daughter of a family friend. The other complainants were all relatives of the appellant.

[7] The offending against the first complainant, R, occurred between 1986 and 1988. What took place was described by the Judge in the sentencing remarks as follows:

[2] … The offending … involved a single incident when the victim and her parents had been visiting [Mr Jeffries'] parent's home. The victim wanted to go home. It was arranged that [Mr Jeffries] would take her home. When [Mr Jeffries] got to her house [he] sexually abused her by licking her vagina, making her lick [his] penis then making her masturbate [him] with her hand until [he] ejaculated.

This offending gave rise to counts 1 to 3 in the indictment, namely, sexual violation by unlawful sexual connection (counts 1 and 2) and inducing an indecent act (count 3).

8 The offending against the other, familial, complainants occurred, as we have noted, over an extended period of time. MacKenzie J described this offending in this way in his sentencing remarks:

[2] … The other three victims were all children [Mr Jeffries was] supposed to look after, after school or kindergarten although the evidence as to care arrangements was not entirely clear. There were two girls and one boy. This offending occurred over a considerable period of time, between 1996 and 1998. With the boy [Mr Jeffries] would make the victim put his mouth on [Mr Jeffries'] penis then pull [his] penis out of [the victim's] mouth before ejaculating. [Mr Jeffries] would also make him masturbate [Mr Jeffries] with his hand. [Mr Jeffries] also performed oral sex on the victim and masturbated him with [Mr Jeffries'] hand. With one of the girls [Mr Jeffries] would touch her and put [his] finger into her vagina. With the other girl [he] would also touch her vagina and insert [his] fingers into her vagina also touching her vagina with [his] tongue.

9 This offending was reflected in counts 5 to 8, 12 and 14 to 16 in the indictment 6 All these charges were representative charges. Counts 5 to 8 involved the boy, H, and comprised, respectively, two counts of sexual violation by unlawful sexual connection, one of inducing a boy under 12 to do an indecent act and an indecent assault. Count 12 was a charge of sexual violation by unlawful sexual connection involving a girl, J. Counts 14 to 16 involved another girl, B.

They comprised two counts of sexual violation by unlawful sexual connection (counts 14 and 16) and one count of indecent assault (count 15)

10 In addition to the complainants, the Crown called evidence from other family members. As we shall discuss, there was a significant focus in the evidence on the baby-sitting and other care arrangements for the complainants. The Crown also relied on evidence of what it said were two admissions by Mr Jeffries. The first of these was based on the evidence of R's mother. She said that R told her on the night of the offending what Mr Jeffries had done to her. R's mother went on to say that she told Mr Jeffries the next day that R had told her. She said that, “after a while” Mr Jeffries said “sorry”.

11 The second of the admissions relied on by the Crown is based on the evidence of Mr Jeffries' mother. She gave evidence of asking Mr Jeffries why he had done what he did. She said he responded by saying that “It happened a long time ago, [H and B] should get over it”.

12 The defence at trial was that none of the offending took place. The appellant's video interview with police in which he denied the offending was played. The appellant did not give evidence himself but he called evidence from his aunt about the child-care arrangements. The defence emphasised the discrepancies between the evidence of the three complainants, H, J and B, focusing particularly on H's evidence about when the offending occurred (weekdays after he was picked up from kindergarten) and the differing accounts as to the child-care arrangements for these three children.

Issues on the conviction appeal

13 We can conveniently deal with the issues on the conviction appeal under the following headings:

• (a) Did Gendall J have jurisdiction to decide the question of fitness to stand trial?

• (b) What was the impact of the absence of cross-examination on the s 9 decision?

• (c) Did any of the process issues affect the s 14 decision?

• (d) Were appropriate special arrangements or accommodations made for Mr Jeffries either prior to trial and during the trial?

• (e) Were the verdicts unreasonable?

14 We first give an overview of the process followed under ss 9 and 14 in this case, and then deal with each of the above issues in turn.

The ss 9 and 14 procedures

15 The majority of the issues on the conviction appeal relate to the decisions made under ss 9 and 14 of the Act. In terms of s 9, a court may not make a finding about fitness to stand trial unless satisfied on the balance of probabilities, “that the evidence against the defendant is sufficient to establish that the defendant caused the act … that forms the basis” of the relevant offence. Section 14, which we shall discuss in more detail later, sets out the steps to be taken in determining whether the defendant is...