Seekku Arachchige v R
| Jurisdiction | New Zealand |
| Judge | Williams J |
| Judgment Date | 23 May 2016 |
| Neutral Citation | [2016] NZCA 218 |
| Docket Number | CA613/2015 |
| Court | Court of Appeal |
| Date | 23 May 2016 |
[2016] NZCA 218
French, Asher and Williams JJ
CA613/2015
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against conviction in the District Court after jury trial on one count of male assaults female — appeal based on evidential grounds — the complainant said that the appellant had attempted to kiss her and pull her jersey up and had slapped her twice in the face when his advances were rejected — the jury found the appellant guilty on a male assaults female count but could not reach a verdict on the indecent assault charges — appellant said that the Judge had inappropriately described the case to the jury as a credibility contest between the complainant and the appellant — he further argued that evidence from the complainant's husband as to what she told him after the incident had wrongly been admitted — complainant had also given evidence of an earlier encounter that had taken place at her home — defence strategy was that the complainant was lying — whether the Judge had instructed the jury that the matter was a context of credibility and to choose between the narratives of the complainant and defendant — whether the complainant's evidence on the prior encounter was propensity evidence in terms of s40 Evidence Act 2006 (EA) (Propensity rule) — whether the complainant's husband's evidence transgressed the recent complaint rule in s35 EA (Previous consistent statements rule) — whether recent complaint statements were only admissible in sexual cases.
S J Zindel and A N Gulbransen for Appellant
P D Marshall for Respondent
The appeal is dismissed.
REASONS OF THE COURT
(Given by Williams J)
The appellant, Mr Seekku Arachchige, was convicted after trial before Judge Hobbs and a jury in the Nelson District Court on 18 December 2014 of one count of male assaults female. He was sentenced by Judge Ingram to 100 hours' community work and ordered to pay $1,000 in reparation to the victim. 1
He appeals against conviction.
The appellant and the complainant worked together at a Nelson supermarket. The Crown case was that the appellant became sexually attracted to the complainant and one evening at work when they were both alone he followed her into the women's changing room. He pushed the complainant up against her locker and:
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(a) attempted to kiss her face and mouth;
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(b) attempted to pull up the jersey she was wearing; and
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(c) slapped her twice in the face when his advances were rejected.
These allegations resulted in two charges of indecent assault and one of male assaults female. They were tried in December 2014 in the Nelson District Court before Judge Hobbs and a jury. The jury found the appellant guilty on the male assaults female count but could not reach a verdict on the indecent assault charges.
The appellant was then retried in October 2015 on the indecent assaults before Judge Ingram and a jury. Once again, the jury was unable to reach verdicts on either count. There being no prospect of a third trial, Judge Ingram discharged the appellant on those counts and sentenced him, as indicated, on the male assaults female count.
It is important to understand that the appellant's immigration status is precarious. This state of affairs is a primary driver in the appeal. He is liable for deportation for any criminal offending. 2 He was served with a deportation liability
Although not strictly relevant to this conviction appeal, we note by way of background that when the matter returned to Judge Ingram for sentencing, he declined to discharge the appellant without conviction under s 106 of the Sentencing Act 2002. 3 Following inquiry of Immigration officials, the Court was advised that the relevant statutory criterion for deportation was not whether a conviction had been entered but whether a criminal offence had been committed. A discharge under s 106 would not therefore, the Judge reasoned, achieve the objective sought by the appellant. 4 Such reasoning cannot be faulted.
Three grounds of appeal are advanced:
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(a) in his summing-up, Judge Hobbs inappropriately described the case to the jury as a credibility contest between the complainant and the appellant;
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(b) the Judge wrongly admitted evidence of a previous incident between the complainant and the appellant; and
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(c) the Judge wrongly admitted evidence of the complainant's recent complaint to her husband.
We turn now to deal with these grounds.
It is not permissible to direct that a jury must choose between the competing narratives of the complainant and the defendant in a straight contest of credibility. 5
To prove its case the Crown relies almost entirely on the evidence of [the complainant] for all three charges. To find [the appellant] guilty you will need to be sure that she is an honest and reliable witness who has told you the truth about what happened to her.
And later in the summing-up:
While this case has taken some time due to the language issues, can I suggest to you that it is not a particularly difficult or complex case. Try not to get bogged down or sidetracked by issues that are not relevant and will not help you. Essentially you need to be sure that [the complainant] is a reliable and credible witness who has told you the truth about what occurred.
Here the Judge did exactly what was required. He directed the jury that if they were sure the complainant was telling the truth about what happened then they should convict. These comments supplemented his orthodox directions on onus and standard of proof, including in circumstances where the defendant calls evidence, all of which was repeated and reflected in the terms of the question trail provided to the jury.
There is no reference in the Judge's summing-up to a credibility contest between the appellant and the complainant. This ground must fail.
At trial, the Crown led evidence of an incident that occurred nearly three months before the events at the supermarket. The complainant said the appellant visited her at home when she was alone. According to the complainant, he entered her house and while he was there, “he said lots of things which were very sexual” in nature.
The complainant said the appellant insisted he wanted to “be with” her. The complainant said she rejected all advances, explaining to the appellant why any such relationship was out of the question. The defence raised no objection to this evidence at trial.
This was understandable given that in his evidential video interview the appellant gave, unprompted, a different version of the same event. The appellant admitted he had been at the complainant's house on the day in question. He said he had simply jogged past her house and had seen her putting out the household rubbish bin at the front of the property. He had exchanged a few sentences with her on the way past. He said he...
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