PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985 IN THE COURT OF APPEAL OF NEW ZEALAND

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1 PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985 IN THE COURT OF APPEAL OF NEW ZEALAND CA33/01 THE QUEEN V PAUL MORRIS Hearing: 17 September 2001 Coram: Appearances: Elias CJ Anderson J Robertson J RA Harrison for Appellant JC Pike for Crown Judgment: 18 September 2001 JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ [1] The appellant was convicted after being found guilty by a jury of 4 representative counts of indecent assault and sexual violation. He was sentenced to 5 years imprisonment. The charges covered a period from 1993 to The complainant is the daughter of the appellant. [2] The appellant appeals conviction only and applies under s389 of the Crimes Act 1961 to adduce additional evidence. At the hearing of the appeal it was convenient to receive the affidavits comprising the additional evidence to enable the appeal to be fully argued. The cogency of the new evidence was central to the

2 appeal. That course was adopted however without acceptance that the evidence was fresh evidence which could not have been adduced at trial. Background [3] The complainant is the appellant s daughter from his first marriage. The parents separated when the complainant was young. When the complainant was aged approximately 9 years old she went to live with the complainant and his second wife. She remained there for approximately 18 months. The first two counts of the indictment, of indecent assault on a girl under 12 and inducing or permitting an indecent act, date from this time. During it the appellant and his family, which included two children born to him and his second wife, lived at an address at Pitoitoi Street, Paraparaumu. [4] Particulars of the indecent assault in the first representative charge were massaging her, touching her breasts and touching her vagina. The particulars of inducing or permitting an indecent act in the second charge were massaging [the appellant s] buttocks and massaging his penis. In her evidence, the complainant described the use of Aloe Vera moisturiser in the massaging. [5] After the complainant returned to live with her natural mother she continued to visit the appellant and his family, staying overnight regularly. The third count, sexual violation by unlawful sexual connection consisting of digital penetration of the genitalia of the complainant by the appellant, was a representative one spanning the period from 1993 to December During this period the appellant moved from Pitoitoi Street to a house at Moana Street. [6] The final charge was one of indecency with a girl between 12 and 16 and was also a representative charge, the particulars of which were touching her on her legs and genital area with the use of moisturiser. This charge related to events at Moana Street. [7] The appellant denied any improper touching and the specific incidents which were the subject of charges. He did however acknowledge that he often stayed up late at night with his daughter when the rest of the family members were asleep and 2

3 that from about the time she was 14 years old he would supply her and her friends with alcohol. [8] The complainant had described a pornographic video entitled Shameless which she said had been shown to her by the appellant at Pitoitoi Street. She described that it depicted oral sex and masturbation in her evidential interview. Such a video was found during a police search. The appellant acknowledged that it was his but denied that he had shown it to the complainant. He surmised that she must have found it and watched it by herself. [9] The complainant s evidence, the evidence in chief of which comprised an evidential video made in December 1999 when the complainant was 15, described that the indecencies had stopped at some stage but resumed this year or last year when the complainant was about 14. She was then regularly visiting the appellant s family overnight at Moana Street. The complainant said that at that time the appellant would enter her room at night and touch her legs and genital area. She described how she would try to avoid such contact by going into the bed of her sister or by going to the toilet and locking the door. She described waking up and smelling something that smelt like moisturiser which was on her legs and on her underpants. Her underpants felt wet. The smell of the moisturiser was like peaches. This happened at Moana Street and the complainant described that it often followed her having a few beers with her father. These incidents were the subject of the fourth representative count. The Crown case was that the appellant gave the complainant alcohol to facilitate indecent assaults on her. In her evidential video the complainant indicated where the video was to be found in her father s current home in Moana Street, Paraparaumu, in the locked drawer of a cabinet. [10] During the police search of the appellant s property at Moana Street, Aloe Vera moisturising lotion, of the type described by the complainant as having been used when the appellant massaged her and caused her to massage him at Pitoitoi Street, was found. So too was a moisturiser with a peach smell called Kiss My Face Peaches and Cream ( Peaches and Cream ). The search also produced a copy of the video Shameless. 3

4 [11] At trial the appellant admitted supplying his daughter with alcohol. That was also confirmed by the complainant s cousins and a friend who stayed frequently with her. They confirmed that the drinking occurred after the appellant s wife had gone to bed. [12] The appellant also accepted, as he had in his initial police interview, that on one occasion while affected by alcohol he had climbed naked into his daughter s bed. He passed it off as a drunken mistaken. [13] The defence was that the events the subject of the charges did not occur and that the complaint was caused by the behavioural difficulties which had led the complainant to steal and lie on other occasions. The complainant did not deny such behaviour. Her evidence was clear and unshaken by cross-examination. It was supported by recent complaints made to her twin cousins in respect of the Pitoitoi Street offending. [14] The appellant and his wife gave instructions relating to the history of the events to the appellant s counsel. The trial had been set for September 2000 but was postponed when the appellant s wife suffered a relapse of cancer and sadly died towards the end of August. The trial was postponed to 6 November. One of the grounds of appeal is that the appellant was in such a state due to the illness and subsequent death of his wife that he was not in a condition to be properly engaged in his defence. [15] The first ground of appeal is that trial counsel made a number of mistakes in the conduct of the trial which had resulted in a miscarriage of justice. [16] At the trial the Crown produced as exhibits a bottle of Aloe Vera Health Basics moisturiser and a bottle of Peaches and Cream moisturiser both found at the appellant s house. Two of the complaints sought to be raised on the appeal are that if trial counsel had investigated the history of the Aloe Vera Health Basics moisturiser it would have been ascertained that the bottle had not been manufactured until October 1999 and could not have been used in the massage episodes in 1993 or 4

5 [17] The complaints relating to the use of moisturiser which smelled like peaches were in respect of events in When first the complainant told her mother about the incidents in December 1999 she said that nothing had occurred for 5 months. If accurate that would place the last event involving the peach smelling moisturiser before July The appellant seeks to adduce the evidence of Ms Lagan who lived with the appellant and his wife in 1998 and 1999 and did not see any moisturiser called Peaches and Cream until July or early August Mrs McNeil, the appellant s wife s sister, has deposed that she gave the Peaches and Cream moisturiser to her sister for her birthday on 21 July [18] It is also submitted that trial counsel should have objected to the production of the video Shameless because of its prejudicial effect. The tape was not played to the jury and the appellant admitted possession of it. Since there is no issue as to what the tape contains it is said that the production of the tape did not assist the jury with the question whether or not it was the appellant who gave it to the complainant in 1993/1994. It is, rather, submitted that the production of the tape is highly prejudicial to the appellant because such tapes have a certain sleaze factor. For a jury sitting in deliberation in a jury room, there is a real risk that the presence of such a tape affected their view of the complainant. When the issue is very much one of credibility, such a risk is untenable. [19] In addition, new evidence is sought to be admitted from the appellant that he had sold his video recorder/player in 1993 and had no means of playing the video Shameless to the complainant when at Pitoitoi Street. The complainant says that the appellant showed her the videos at that address. [20] The further matter of complaint about the tactics of defence counsel related to the complainant s reference to locking herself in the toilet to avoid her father. Evidence sought to be adduced from two witnesses who owned the property at Pitoitoi Street is that at no stage did the toilet doors have locks on them. This is said to be an important fact which would have assisted in mounting an attack on the 5

6 credibility of the complainant. It gave the defence a basis for challenging the complainant s evidence. [21] Finally, criticism is made of trial counsel for not attempting to challenge the Complainant on the substance of her allegations. This ground of complaint rehearses the submissions about the Aloe Vera bottle and the Peaches and Cream moisturiser. It also refers to evidence sought to be adduced on behalf of the appellant that he had sold his video camera in It is submitted that because of the sale of the video camera there was not the means when the family was in Pitoitoi Street to play a video and the complainant could not have seen it when she said she did. [22] The second principal ground put forward as amounting to miscarriage of justice is the appellant s state of mind at the trial because of his wife s death. The submission is made that he did not succeed in preparing properly for the trial. How the appellant might have assisted had he been able to pay proper attention is not identified beyond suggestions that he would have been more alert to the matters of mistake relied upon in support of the first ground. Application to adduce further evidence [23] The evidence sought to be adduced on the appeal is: 1. Evidence of the appellant s mental state at trial and immediately before it. 2. Evidence that the appellant owned a cabinet with a locking drawer only from January (The significance of this is that in her evidential interview the complainant said that the pornographic video was at present kept by the appellant in a locked drawer in the cabinet). 3. Evidence of a gift of the Kiss My Face Peaches and Cream moisturiser in July Evidence of Monique Lagan that during the 2 years she lived with the appellant and his wife in 1998 and 1999 she did not see any Peaches and Cream moisturiser until July Evidence from Mr and Mrs Gates, the owners of 23 Pitoitoi Street, that there were no locks on the bathroom doors at that address. 6

7 6. Evidence that the Aloe Vera Health Basics bottle found in the appellant s house at Moana Street was not available for sale before 19 October Evidence from the appellant that there was no video recorder or player at Pitoitoi Street after he sold his video camera in March 1993 and evidence that he did not obtain the cabinet with the locked drawer until January [24] Further evidence initially the subject of application was not relied upon in support of the submissions of miscarriage of justice. [25] It is accepted by counsel for the appellant that all of this evidence was available at trial if appropriate enquiry had been made. The appellant argues that the fresh evidence should be admitted due to the incompetence of trial counsel in not calling it and the resultant miscarriage of justice. Approach [26] Discovery of fresh evidence may require an appeal to be allowed if its absence at trial may have led to a miscarriage of justice. The overriding test is the interests of justice but the Court will generally require the evidence to be credible and cogent before forming the conclusion that the jury might reasonably have been led by it to return a different verdict: R v Z (CA304/94, 11 August 1995). If a particular line of enquiry has not been undertaken and the evidence, though strictly speaking available at the time of trial, was not in fact available to the appellant the interests of justice may require the Court to allow the appeal if a test of cogency is satisfied: Cancian v R (CA444/98, 22 July 1999); R v Gilfoyle [1996] 3 All ER 889, 897. [27] Conduct of trial counsel may also support a conclusion of miscarriage of justice where serious mistakes are made. It is necessary that the Court be satisfied that the mistake could have significantly prejudiced the trial s outcome: R v Horsfall [1981] 1 NZLR

8 Decision [28] We are satisfied that the evidence sought to be adduced could not have affected the outcome of the trial. It is convenient to deal with each of the pieces of evidence in turn. (i) Aloe Vera moisturiser [29] It was not part of the Crown case and was not suggested in the Judge s summing-up that the bottle of Aloe Vera produced as exhibit 5 was the bottle used in the massaging episodes described by the complainant in the period The discovery of the bottle was some evidence of consistency because it indicated that the product was used in the home. Its probative value was not high. The suggestion that the history of the particular bottle would have been critical to a challenge to the complainant s veracity is misconceived. The complainant did not suggest that it was the bottle used years earlier. The evidence sought to be adduced, far from being credible or cogent, is irrelevant to the central issues and has no bearing on the credibility of the complainant. Defence counsel s failure to check on the provenance of the bottle and use it as the basis for possible challenge to the complainant s veracity cannot amount to a miscarriage of justice when the complainant did not give evidence which could be controverted by it. The submission on behalf of the appellant lacks foundation and is speculative. (ii) Peaches and Cream moisturiser [30] The complainant did not describe the product used by sight. Her evidence was that in the morning she could smell a peach-like smell. The complainant does not say the Peaches and Cream moisturiser was used by the appellant in the incidents she describes. Again the probative value of the bottle produced was slight. It indicates no more than that scented moisturisers were used in the house. It was perhaps unwise for the bottle to have been produced by the Crown, but in the complainant s own evidence it has no significance such as would provide a 8

9 foundation for a serious challenge to her credibility. Moreover, the evidence sought to be adduced is dependent upon an exactness of time estimate which it is not realistic to expect in the circumstances. [31] It was put to the complainant at trial that she had bolstered her evidence by reference to products she knew to be in the house at the time she made the complaint. The jury s verdict entails rejection of that submission. [32] In the circumstances we do not accept that trial counsel s omission to produce evidence as to when the Peaches and Cream moisturiser turned up in the house might have affected the jury s verdict. The complainant s evidence was not dependent upon that particular product having been used and the time estimates are not exact even if it was. The production of the exhibit was of very slight probative value and in the context of the whole evidence, including the damaging acknowledgements by the appellant as to alcohol, opportunity and the possession of the pornographic video and would have been seen as such by the jury. (iii) Shameless video [33] The complainant made specific reference to the name of the video and a scene depicted in it. It was directly relevant to her description of abuse. The video tape itself was not shown to the jury, presumably in an effort to minimise any possible prejudice. Instead, a police officer simply confirmed that a similar scene to that described by the complainant was on the video. In those circumstances the reference to the videotape was probative and properly admitted. No basis for its exclusion could have been put forward. There was no additional sleaze factor beyond the fact of the appellant s having the video, a fact he admitted. (iv) Possession of a video player [34] The advertisement for sale of a video camera in 1993, such as is deposed to by the appellant in his affidavit, does not demonstrate that there was no video player at Pitoitoi Street. Tellingly, neither the appellant nor his wife in the instructions 9

10 given to his counsel before Mrs Morris died or (in the case of the appellant) in evidence, suggested that the video could not have been played as the complainant said because of absence of a player. The evidence that a video recorder/player owned by the appellant was offered for sale in 1993, does not establish that no other means of playing the video was available. (v) Locks on the bathroom doors [35] In her video testimony the complainant s direct evidence about locking herself in the toilet to escape from the appellant relates to the later period of abuse when the appellant would molest her in bed. It is in relation to these later events that the complainant refers to locking herself in the toilet (p33 transcript of interview). The evidence supports the Crown s submission on the appeal that the locked toilet door was at Moana Street and not Pitoitoi Street. At best, there is some ambiguity in an earlier answer, not specific to the events at Pitoitoi Street. It is difficult to judge whether the answer is out of sequence with the questions. At the highest, the point may be one which defence counsel might have explored further. [36] It is the case that the recent complaint evidence given by her cousins suggests that the complainant described to them an incident when her father came drunk to her bed and she jumped out and locked herself in the bathroom. That appears from the time of the disclosure to have related to Pitoitoi Street. It is a matter that defence counsel could have explored. But there was no evidence given by the complainant which would undermine her credibility if it had been established there were no locks at Pitoitoi Street. Even if there had been such evidence, any possible error needs to be assessed in the context of the case. Whether there were locks on the door was not central to the credibility of the complainant. At best, it suggests a collateral line of challenge to her reliability. Whether there has been a miscarriage of justice turns on the context of the whole case. For reasons discussed below at paras [37-39], we are satisfied that the overall evidence against the appellant was compelling. The evidence as to the absence of locks at Pitoitoi Street is therefore not material. 10

11 (vi) Lack of questioning [37] The submissions on behalf of the appellant contend that there was no attempt by counsel to challenge the complainant on the substance of her allegations. It is suggested that she should have been questioned about: The age of the Aloe Vera bottle; The time of the arrival of the Peaches and Cream moisturiser; and The sale of the appellant s video camera in None of these grounds add to those already discussed. (vii) The cabinet with locked drawer [38] The affidavit of Ms Morris-McTainsh that she gave the cabinet to the appellant in January 1997 and the appellant s affidavit to the same effect, is not inconsistent with the evidence relating to video watching. The complainant in her evidentiary video does not say that the video was kept in the cabinet drawer at the time she was shown it but simply that the video was currently held in the drawer under the stereo. There is no inconsistency. Indeed, the complainant says she did not know where the video was kept at the time she was shown it by the appellant. (p20 notes of evidence). (viii) Conclusion on miscarriage of justice on basis of new evidence [39] We have considered whether in combination the different evidence sought to be adduced by the appellant could have affected the jury s assessment of the credibility of the complainant. We do not accept that even in combination they raise any suggestion of miscarriage of justice. Credibility of the complainant was crucial but, for the reasons indicated, none of the new evidence contradicted the complainant s evidence in any material respect. At most, they suggest a background for potential challenge should the complainant, on further questioning, have adopted 11

12 answers inconsistent with the new evidence. So, it would have been only if the complainant had identified the bottles of Aloe Vera and Peaches and Cream moisturiser as those used or had affirmed that she had locked herself in the toilet at Pitoitoi Street that those new matters of evidence would have had any relevance. That basis is contingent. [40] The complainant s evidence of seeing the video at Pitoitoi Street could only have been challenged if evidence had been accepted there was no means of playing the video at that time. The appellant s evidence lacks cogency on that point. It is raised very late in the day and cannot be described as new. It is built upon an inference to be drawn from the sale of a video recorder/player. [41] Moreover even if a foundation had been established through affirmative statements of the complainant in evidence, the challenges do not shake the essence of the complainant s evidence. It is notorious in such matters that sequencing of events is difficult for young complainants describing events some time later. [42] The appellant s evidence was compelling and unshaken in its essential particulars. They are substantiated by the acknowledged background of the appellant s habit of staying up late at night with the complainant when the rest of the family had gone to sleep and, in later years, giving her alcohol to drink. The complainant s story gains credence from the appellant s acknowledged drunken intervention into her bed and the evidence of recent complaints to her cousins in respect of the Piotoitoi Street offending. Even if the complainant was shown to be mistaken in one or more of these collateral matters raised on appeal, we cannot accept that they would have affected the verdict. The evidence on the essential matters was overwhelming. Appellant s state of mind [43] The trial of the appellant was adjourned in recognition of the stress placed upon him of the illness and death of his wife. The trial was held 11 weeks after Mrs Morris s death, on 13 November If an accused is under disability at trial, that 12

13 may give rise to a miscarriage of justice. The test is the ability to give coherent and rational instructions: R v Power (CA187/96, 22 October 1996). [44] The appellant s counsel at trial, Ms Summers, has sworn an affidavit. She initially interviewed the appellant and Mrs Morris in March. Mrs Morris in particular was able to give detailed assistance to counsel. Ms Summers deposes to the fact that the appellant was always vague, inconsistent and with poor memory for domestic details such as the family sleeping arrangements and the houses they occupied from time to time. That did not alter over the period and cannot be attributed to distress at his wife s illness and grief at her death. [45] In any event, the evidence sought to be adduced by the appellant from himself and from Mrs Kohu and Ms Morris-McTainsh, the appellant s sister, does not identify any matters of information or instruction which were omitted because of the appellant s state beyond those already dealt with as fresh evidence. [46] No plain and significant trial disability is identified on the evidence put forward. The police interview, and the appellant s evidence at trial, do not support any suggestion of disability. The affidavit from trial counsel makes it clear that no such disability existed. Moreover no consequence of disadvantage is pointed to beyond the matters of fresh evidence already dealt with. We are satisfied that no miscarriage of justice is shown. Conclusion [47] For the reasons given the appeal is dismissed. Solicitors: RA Harrison, Auckland for Appellant Crown Law Office, Wellington for Respondent 13