W v R
| Jurisdiction | New Zealand |
| Judge | Mallon J |
| Judgment Date | 16 December 2016 |
| Neutral Citation | [2016] NZCA 615 |
| Docket Number | CA157/2016 |
| Court | Court of Appeal |
| Date | 16 December 2016 |
[2016] NZCA 615
Asher, Mallon and Whata JJ
CA157/2016
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against a conviction for sexual offending and the Minimum Period of Imprisonment (“MPI”) imposed — the appellant was convicted on representative charges of sexual violation by unlawful sexual connection, sexual violation by rape and sexual conduct with a person under 16 years — the offending was against his step-daughter when she was aged between 12 and 16 — he was convicted on all charges and sentenced to 13 and a half years imprisonment with a 50 per cent MPI — the appellant was out of time and also sought extension of time for his appeal — the appeal was based on alleged prosecutorial misconduct and trial counsel error — whether pursuant to s13 Criminal Disclosure Act 2013 (full disclosure) the Crown was obliged to disclose Facebook messages between the complainant and her mother (relating to credibility of the complainant and pressuring by the mother to withdraw her complaint) once the complainant had shown them to the police officer — alleged trial error related to the appellantÂ's lawyer failing to make inquires about the messages or address the appellantÂ's claims of flirting — whether there had been prosecutorial misconduct or trial counsel error — whether the MPI was manifestly excessive
J Farmer QC and B A Davies for applicant
K J Scott for respondent
-
A The application to extend the time to appeal is granted.
-
B The appeal against conviction is dismissed.
-
C The appeal against sentence is dismissed.
-
D Order prohibiting publication of name, address, occupation or identifying particulars of appellant pursuant to s 200 of the Criminal Procedure Act 2011.
REASONS OF THE COURT
(Given by Mallon J)
The appellant was convicted, following trial in the Napier District Court before Judge Mackintosh and a jury, on charges of sexual offending against his stepdaughter, J, when she was aged between 12 and 16. He was sentenced to 13 and a half years imprisonment with a 50 per cent minimum period of imprisonment (MPI). 1 He appeals against conviction. He also appeals against the MPI. His appeal is out of time and he therefore seeks an extension of time for his appeal.
The appellant faced three representative charges of sexual violation by unlawful sexual connection, 2 two representative charges of sexual violation by rape 3 and four representative charges of sexual conduct with a person under 16 years. 4 He was convicted on all charges.
J gave evidence at trial about this offending. The appellant began a relationship with J's mother in 2007 when she was 11. The appellant began acting inappropriately towards her when they were alone, initially by touching her breasts, buttocks and genital area. The offending progressed to digital penetration of J's vagina and having J masturbate him to ejaculation. J alleged the appellant began to have sexual intercourse with her around July 2009 when she was 13. This happened regularly, as did other forms of sexual activity. She was about 15 when the appellant began to have oral sex with her.
J said she told her mother about a month or two after the touching first began that the appellant had put his hand down her pants. J thought there were angry words exchanged between her mother and the appellant but it was never spoken of again. She said the situation was confusing because she was not sure whether to see the appellant as a father, a boyfriend or a lover. He acted like a father when everyone else was around, but when they were alone she would have to kiss him like he was her boyfriend.
After the first time she told her mother about the abuse, she did not think there was much point telling her mother again. However her mother did find out later on. The appellant had sexual intercourse with her and then she had taken a shower. She was standing in her towel in her room, the appellant was in her doorway and they were arguing. Her mother came home and saw them. Her mother stormed out yelling and crying. The appellant followed J's mother and tried to tell her they were arguing because J had a long shower.
In 2012, when J was 16, she left home and lived with her grandmother for around six months. Later that same year J moved to Australia with the appellant, her mother and siblings. J wanted to go to Australia because she wanted to be with her mother and she would miss her siblings. However the sexual relationship with the appellant recommenced in Australia.
In 2014 J finished school and left home. In April 2014 J returned to New Zealand to visit her godmother. She did not return to Australia. While in New Zealand she visited a doctor, attended counselling and then disclosed the abuse to her godmother. Her godmother took her to the police. This led to the charges against the appellant. The police spoke to the appellant when he and J's mother returned to New Zealand in August 2014. He gave a DVD interview in which he denied the offending. J's mother told the police that she did not believe her daughter.
The appellant's defence at trial was that the offending had not occurred. J was said to have been a different and difficult child who was mentally unstable at the time she returned to New Zealand and made the allegations. The appellant and J's mother both gave evidence at trial.
The appellant denied having any sexual activity with J. He said he may have had accidental contact with J's private parts. He remembered an occasion when they were watching a movie and J was on his lap. He went to tickle her but his hand accidentally went inside J's t-shirt and touched her breast. There was another occasion when he went to say goodnight to her in her bedroom. The room was very dark. He found her leg and ran his hand up. She was wearing very baggy pyjama boxer pants and his hand got caught in them. He discussed this with J's mother and they agreed that from then on he would stand in the doorway with the lights on to say goodnight to her. The appellant was asked in cross-examination about the incident when J was wearing only a towel. He said J's mother was uncomfortable with the way J flirted with him and at times felt like she was competing with her daughter.
J's mother said she had been sexually abused by her own father and as a result did not trust males easily. She never saw anything happen between J and the appellant which caused her concern. J's mother said the first time J had said anything was when J told her that the appellant had put his hands down her pants. J's mother confronted the appellant about this. He said his hand got caught in J's boxer shorts accidentally when he was saying goodnight to her. She also recalled the occasion when the appellant was talking to J and she was wearing only a towel. She agreed she was upset about this. This was because J was always flirting with the appellant, touching him on the shoulder or upper arm, getting his phone for him if it rang, and giving him juice at dinner.
The appellant and J's mother denied there being any opportunity for the offending to have taken place as J had described. Essentially they said J's mother would have been present, or close by, when the offending at their family property was alleged to have occurred. In relation to offending alleged to have taken place in a tent on a family holiday, it was said the tent was the hub of activity for the families they holidayed with. A third defence witness, a friend of the appellants who holidayed with the family, gave evidence that there was no privacy in the tent at all.
The conviction appeal concerns both alleged prosecutorial misconduct and trial counsel error. The misconduct or errors relate to evidence of pressure from J's mother to J to drop the case in messages sent to J prior to the trial; emotive and prejudicial evidence adduced from J's grandmother; a suggestion put to the appellant that he had “so much to lose”; a suggestion put to the appellant that he was making up on the spot that J's mother believed J flirted with him; and cross-examination of J about her disclosing the offending to her mother.
The appellant contends there was improper conduct by the Crown and errors by his trial counsel arising out of evidence of Facebook and text messages between J and her mother prior to trial. The appellant says the Crown wrongly failed to disclose these messages to the defence. The appellant also says his trial counsel (Mr Krebs) erred in his cross-examination of J and in calling J's mother to give evidence in light of these messages.
This issue arose in this way. In evidence-in-chief J said it was difficult deciding not to return to Australia because she knew she would not get to see her mother and siblings and she had not seen them since. She was asked about how she felt about that lack of contact. She said she hated this. She was asked if she had much contact with her mother. She replied “I've talked to her over Facebook a few times, but most of the time she has tried to convince me to drop the case, because it's hurting her.” Following an intervention from the Judge, the prosecutor told J not to say what her mother had said only whether J had much communication with her. J said she had a “slight bit” of contact with her.
In cross-examination of J the following exchange took place on this topic:
-
Q Well your mum will give evidence to say that that has never, ever occurred, that she's never told you to drop the case and that you're not telling the truth about that.
-
A Well she hasn't...
To continue reading
Request your trial