Reti v R

• Jurisdiction: New Zealand
• Judge: Simon France J
• Judgment Date: 15 December 2017
• Neutral Citation: [2017] NZCA 602
• Docket Number: CA660/2014
• Court: Court of Appeal
• Date: 15 December 2017

Between

George Lawrence Walter Reti

Appellant

and

The Queen

Respondent

[2017] NZCA 602

Court:

Clifford, Simon France and Collins JJ

CA660/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

S N Hewson for Appellant

J C Pike QC for Respondent

The appeal against conviction is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1 Mr Reti was convicted following a jury trial in the District Court on charges of rape and unlawful sexual connection. Mr Reti was a taxi driver who in the early hours one morning picked up an 18 year old woman, unknown to him, as a fare. It is common ground sexual activity occurred during the journey. The trial issue was consent.

2 The complainant was walking into town at around 4.30 am. Mr Reti drove past her. There was already a male passenger in the car but he offered to take the complainant to where she was going after he dropped off the male passenger. Broadly that is what then happened, except there was a half hour delay immediately prior to the complainant being dropped home. It is common ground that Mr Reti had stopped his car in an area just past her home and in this half hour period the sexual activity occurred.

3 Taxis are fitted with cameras and the footage from Mr Reti's cab was played at trial. It shows a period of travelling around with both passengers before the male was dropped off. There is then just Mr Reti and the complainant. After a period the car stops. At this point, 5.06 am by the camera clock, a cloth is placed over the camera by Mr Reti. The next time images can be seen is at 5.35 am. The first appeal ground relates to the reliability of this footage and whether its use at trial has caused a miscarriage of justice.

4 The second appeal ground concerns evidence admitted under the previous consistent statements rule. The defence case was that the complainant's allegations were false and born of regret. This was put to her firmly in cross-examination. As such, s 35 of the Evidence Act 2006, was engaged. To rebut this allegation, the Crown led evidence from two sources of prior consistent statements made by the complainant. First, there was the woman to whom the complainant complained later that morning. Second, there were text messages sent by the complainant to various persons following the incident. The second appeal ground concerns the admissibility and fairness of text threads to two different recipients.

5 We address each ground in turn.

Reliability of car camera footage

6 The proposition that there was some difficulty with the video footage has only arisen on appeal. It is submitted that it is clear that there is a part of the footage missing. Its absence is unexplained and arises at an important time in the events. The miscarriage proposition is that the trial took place against a misunderstanding that the video was comprehensive.

7 Mr Reti is correct that the tape is incomplete. In terms of the extract shown at trial:

• (a) 4.26 am — the coverage begins with driver and occupants visible. This continues until 5.06 am.

• (b) 5.06 am — by now only Mr Reti and the complainant are in the car. The car is stopped, and a cloth is placed over the lens by Mr Reti at 5.06 am.

• (c) 5.28 am — this is the next screen image. There is not 22 minutes of blank running. Rather, the clock goes from 5.06 am straight to 5.28 am. At this point a blank image as would be produced by a camera with the lens covered appears and this continues for two minutes until 5.30 am. The next screen image is at 5.35 am and the two people are visible again.

• (d) 5.35 am — Mr Reti and the complainant remain visible until she leaves.

8 There was no trial evidence explaining this sequence. It seems inevitable that sometime in the missing period between 5.30 am and 5.35 am the cloth was removed. The whereabouts of those five minutes of footage is not known; nor of course is it known what they would show.

9 There is no appeal point in any of this. First, the sequence as just described was there to be seen during the trial. The times, and the clock leaping forward, is obvious. Those involved in the trial either did not notice the clock time jumping forward or did not consider it of significance. The latter possibility leads to the second point. What could be made of it? It is not known what would have been shown, nor is it known when the cloth came off. A jury would be directed not to speculate as to what might be on it. It is just missing footage.

10 That is sufficient to dispose of this ground. For completeness, however, we note that Mr Hewson for Mr Reti sought to link the missing footage to a trial issue. At some point after the sexual activity, Mr Reti asked the complainant for her phone number. She gave him an incorrect mobile number which he saved into his phone by ringing it. 1 The time of this call, as recorded by Mr Reti's phone, was 5.32 am.

11 There was a trial conflict as to when Mr Reti asked for the phone number. He said shortly after the sex. The complainant said about five to six minutes later when she was leaving the taxi. The defence took support for its position from the time of 5.32 am on his phone. If this was correct the request would clearly have been prior to her leaving the vehicle at 5.37 am according to the camera clock. The Crown responded by saying there was no evidence that the times on the two devices were synchronised.

12 It remains unclear to us why identifying a missing five minute sequence in the video (which overlaps with the 5.32 am call time on Mr Reti's phone) assists. The debate is still the same, and it is still not known what the camera might have shown — maybe him ringing, maybe not. Further, we are not at all convinced it was a debate with any substance. It did not matter at which time Mr Reti asked for the number. The alleged significance was the same:

• (a) for the defence, he...