Walker v R Coa

JurisdictionNew Zealand
JudgeGlazebrook J
Judgment Date09 November 2012
Neutral Citation[2012] NZCA 520
Docket NumberCA37/2012
CourtCourt of Appeal
Date09 November 2012
BETWEEN
Kevin Allan Walker
Appellant
and
The Queen
Respondent

[2012] NZCA 520

Court:

Glazebrook, Winkelmann and Rodney Hansen JJ

CA37/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

Appellant in person

B D Tantrum for Respondent

P E Dacre as Counsel assisting the Court

JUDGMENT OF THE COURT
  • A The appeal is allowed, the convictions are quashed and a retrial ordered.

  • B Order prohibiting publication of the judgment in news media or on the internet or any other publicly available database until final disposition of the new trial. Publication in law report or law digest is, however, permitted.

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

Introduction

[1]

Procedural history

[4]

Factual background

[9]

Summary

[9]

Location of alleged offending

[12]

Timing

[23]

Other inconsistencies

[33]

Judge's reasons

[35]

Issues on appeal

[44]

How counts should be framed

[46]

Submissions of counsel assisting the Court

[54]

Submissions of the Crown

[60]

Our assessment

[63]

Other issues

[76]

The proviso

[84]

Result

[88]

Introduction
1

Mr Walker was found guilty on 4 November 2011, after a trial by judge alone (Judge Wade), on two representative counts of performing indecent acts with a child under the age of 12. He was sentenced on 21 December 2011 to six months' home detention.

2

During the hearing of the appeal on 31 July 2012, the Court raised the issue of whether representative charges were appropriate in this case.

3

Mr Dacre was appointed to assist the Court on this issue. We have considered the written submissions from him and from the Crown filed after the oral hearing, as well as the earlier written and oral submissions. We thank Mr Dacre for his assistance.

Procedural history
4

Mr Walker was arrested and charged on 21 January 2011 under s 132(3) and s 2(1B) of the Crimes Act 1961. The indictment charged Mr Walker with four representative counts of indecent acts against a child under 12: 1

  • (a) inducing the complainant to rub Mr Walker's penis between 14 October 2009 and 31 May 2010;

  • (b) inducing the complainant to rub Mr Walker's penis between 1 June 2010 and 13 September 2010;

  • (c) touching the complainant's penis between 14 October 2009 and 31 May 2010; and

  • (d) touching the complainant's penis between 1 June 2010 and 13 September 2010.

5

Offending under s 132 is an offence to which s 86B of the Sentencing Act 2002 applies. Section 86B is part of the “three strikes” legislation and came into effect on 1 June 2010. 2 The time period charged was split before and after that date to ensure a warning was clearly able to be given should Mr Walker be found guilty.

6

The complainant was first interviewed by the police on 28 September 2010 (the first EVI). He was then seven years old. After that first EVI, an application was made under s 347 of the Crimes Act to dismiss the counts relating to Mr Walker touching the complainant's penis. It was alleged that, in the first EVI, the complainant did not give clear evidence that this had occurred.

7

To clarify that issue, another EVI was recorded on 30 June 2011 (the second EVI). The complainant was then eight years old. He gave evidence which expanded upon his first EVI, including clear allegations that Mr Walker had touched his penis. The s 347 application was not pursued.

8

At the trial the complainant's two EVIs were played and he gave oral evidence by CCTV. His mother and eldest brother also gave evidence, as did Mr Walker and Mr Walker's grandmother.

Factual background
Summary
9

Mr Walker boarded with the complainant's family from 1 November 2008 to 13 September 2010. The complainant disclosed the alleged offending to his mother on 13 September 2010. Mr Walker was then asked to leave the house, which he duly did.

10

It was alleged at trial that, on a number of occasions before 13 September 2010, Mr Walker touched the complainant's penis and induced the complainant to do the same to him. This would continue for several minutes on each occasion. During the offending, Mr Walker insisted that the complainant wear boxer shorts under his trousers. Mr Walker also wore boxer shorts. The offending allegedly took place when Mr Walker and the complainant went on walks alone to various locations.

11

The complainant's EVIs allege that the offending occurred in four main locations: the local school, at the sports grounds, in a bushy area by a road situated about 1.4 km from the complainant's home (the road) and near the complainant's house (in a bush and under the house). Overall, the complainant alleged that the offending happened around 20 times.

Location of alleged offending
12

As regards the offending at the local school, the complainant said in the first EVI that he was asked to touch Mr Walker in the toilets next to his classroom.

13

In the second EVI, he said that Mr Walker made him engage in mutual touching over boxers in a bush at the school on three occasions. He also said that the same thing occurred five times in the school changing rooms. In that same interview, however, he said that the touching did not happen anywhere else in the school.

14

In his evidence in chief in Court, the complainant said the offending occurred at the school in the toilets, in the bush, and in the changing room. He pointed out the places on photographs.

15

During cross-examination, the complainant and Mr Walker's access to the swimming pool changing rooms at the complainant's school was questioned as photographs revealed that the gates were normally padlocked. The complainant in re-examination, and for the first time, said that the gate to the changing rooms was locked at the time of the alleged offending and that the pair had, with the assistance of two little yellow seats, climbed over the fence.

16

The defence submitted in closing that the venue at the school appeared to have changed from the toilets as originally alleged to the swimming pool changing room later, which was obviously locked.

17

In the first EVI, the complainant said that offending had occurred at the sports ground (where the rugby club is and where he did his cross country). But then said “I don't know, remember if we did it at the sports ground”. He said that Mr Walker had taken him to the tennis court (where they also play rugby and cricket) and alleged offending occurred in the bushes.

18

In the second EVI, at the beginning of the interview, the complainant said of the sports ground that “we didn't really do anything there”. He repeated this later in the interview but then, when asked: “[a]ny time you touched [Mr Walker's] dick when you were at the sports ground?” the complainant said “[w]ell there were [sic] probably happened once”. He said [Mr Walker] had probably touched his “dick” in a shed next to the tennis turf on the sports ground.

19

When his evidence was led in Court, the complainant said that on one day, touching may have occurred once in the shed on the sports ground and once in the bush behind the shed.

20

According to the complainant, most of the alleged offending occurred by the road. He said in the first EVI that this happened “in the bushes because people lived near”. The complainant elaborated on this in the second EVI saying that it happened up a steep bank in the bush on the road about “ 8 or 7 times” and at a little used motorbike track next to a river about twice. In his evidence in Court, the complainant confirmed that the offending had occurred seven or eight times in the bush by the road. The complainant also said that, possibly on the same occasions, offending had also occurred in the bush by a lake beyond the road.

21

Finally, in the second EVI, the complainant said that some offending happened in a bush near his home “once or twice” and four times under his house, which is built on a hill. He did not mention offending near his house in the first EVI. In Court the complainant confirmed that offending had occurred both in the bush near his house and in the storage space under the house.

22

It was put to the complainant in cross-examination that Mr Walker denied that he had ever been to the sports ground or under the house and that he had been to the school alone with the complainant only once and also that he had been to the bush near the road only once to check on some eel lines. The complainant disagreed with those statements.

Timing
23

The timing of the offending is difficult to pinpoint from the complainant's evidence, both in terms of the time frame in which it occurred, and the timing of specific incidents. The indictment set out that the offending occurred between the complainant's seventh birthday (14 October 2009) and when he told his mother about the offending (13 September 2010).

24

During the second EVI, the complainant said that the offending only happened in 2010 and he was seven at the time. Initially, he said that he could not recall when it occurred for the first time. When asked whether he could remember what term it happened in, he answered “term 3”, but almost immediately said that he was “just guessing … cause I can't remember”. The complainant then said that the “worst time” was when he was eight (which was impossible as he turned eight after he had disclosed the offending) and also that it was at the school. The complainant was not asked about the timing of the offending in the first EVI.

25

When cross-examined, the...

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