NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

In the Court Of Appeal of New Zealand
CA604/2009
[2010] NZCA 151

BETWEEN	PHILIP ALAN TIDEY
Appellant

AND	THE QUEEN
Respondent

Hearing:	12 April 2010

Court:	Hammond, Chisholm and Priestley JJ

Counsel:	A G V Rogers and J L Cagney for Appellant
J M Jelas for Respondent

Judgment:	27 April 2010 at 4.30 pm 

JUDGMENT OF THE COURT	

The appeal against conviction and sentence is dismissed.  

____________________________________________________________________ 

REASONS OF THE COURT

(Given by Hammond J)

Introduction
[1]	The victim in this case, X, was Mr Tidey’s long term partner.  The Crown alleged that he had committed a number of offences against X over a period of some fourteen years.
[2]	The indictment contained ten counts against Mr Tidey.  He pleaded guilty to one count of male assaults female.  He went to trial in relation to another nine counts including two counts of male assaults female plus one other representative count of the same character, one count of injuring with intent to injure, four counts of sexual violation by unlawful sexual connection, and one of rape.
[3]	Mr Tidey was convicted of one charge of injuring with intent to injure (count four), a representative charge of male assaults female (count five) and one charge of unlawful sexual connection (count nine).  The appellant was acquitted on the other six charges that went to trial.
[4]	The trial judge, Judge Field, imposed a sentence of three years’ imprisonment on the count of sexual violation and a cumulative sentence of nine months’ imprisonment on the count of injuring with intent to injure.  In all, a total sentence of three years nine months’ imprisonment.
The sexual violation count
[5]	The appeal against conviction is solely with respect to count nine, which alleged unlawful sexual connection by connection of Mr Tidey’s mouth with X’s genitalia on 4 June 2007.
[6]	X’s account was that she was in bed reading a book, dressed in a nightie with her knickers on when Mr Tidey came into the room.  He took his clothes off and jumped into bed next to her.  He wanted sex.  She said ‘no’. He would not take ‘no’ for an answer and he pulled her knickers off her.  He began to perform oral sex on her against her wishes.  While doing so he bit her clitoris, which caused her to scream out in pain.  In evidence X said “I thought he may have bitten it off”, implying the bite was deliberate, and consistent with behaviour in a scenario in which she was not consenting.  She said he was told to “get away” from her “and he wouldn’t and he then forced himself onto me and raped me”.
[7]	In evidence Mr Tidey said that he had just started having oral sex with X;  that she said “I am reading” and that she then “just flew up” and “just about took my head off” and jumped out of bed and started “acting like she had gone mental”.  Asked if he had deliberately bitten X on the clitoris he said: “Not at all”.
[8]	The Crown called medical evidence from Dr Anne Williamson, a general practitioner.  She is also an accredited forensic medical examiner who sees approximately twenty cases per year of sexual assault complainants.  She said that she examined X something like ten months after the incident in question. The examination revealed an “unusual” depression in the complainant’s clitoral area.  More specifically, a six millimetre depression in the tissue and signs consistent with scarring were observed.  She said: 
the six millimetre depression in the tissue adjacent to the clitoris with the deeper red skin overlaying it was an unusual finding and most likely represents some sort of scarring of the tissues from previous trauma.
[9]	During that examination, X mentioned to Dr Williamson that she had altered sensation in the genital area, but Dr Williamson said it would be “extremely difficult to make any formal assessment of this”.  
[10]	Another doctor, Maryanne Gane, gave evidence that in the course of another, prior, examination – on 10 March 2008 – X mentioned to her that she was concerned about numbness in the area of her clitoris and her vagina, which was impacting on a new sexual relationship that she had formed.
[11]	The appeal against conviction is mounted principally on the basis that Dr Williamson’s evidence was inadmissible because firstly, it was not relevant in terms of s 7 of the Evidence Act 2006; and secondly, because it is said not to have met the “substantial helpfulness” threshold required for expert opinion evidence under s 25 of the Evidence Act.
[12]	The submission is then that, without Dr Williamson’s evidence, the argument at trial reduced to a “he said – she said” contest.  This is said to be significant in a case in which the appellant was acquitted of the other counts of sexual violation – charges Mr Tidey denied.  What set count nine apart (apart from the differing defences) was the evidence external to the complainant’s and appellant’s respective accounts.  
[13]	Mr Rogers argued that if that external evidence was taken away, what was left was a credibility and reliability contest. Moreover, one in which the jury appeared to have preferred the appellant’s evidence on the other counts of sexual violation, at least to the extent that the jury thought there was reasonable doubt.  On that basis, Mr Tidey would have the Court find that the outcome of the trial would have been different, and that therefore there has been a miscarriage of justice.
[14]	The first issue is therefore whether Dr Williamson’s evidence was relevant at all.  The statutory provision is s 7 of the Evidence Act, which provides that all relevant evidence is admissible except to the extent that it is inadmissible or excluded by the Act.  Evidence is relevant in a proceeding “if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”.
[15]	For the appellant, it was said that: 
the medical evidence simply proved that she had probably suffered some sort of undefined trauma at an unknown time in the past to an area adjacent to her clitoris and no opinion was expressed as to the causation of that trauma.
[16]	Crown counsel supported the Judge’s view that this evidence was relevant.
[17]	The threshold under s 7 is low.  Evidence need only be of the slightest relevance to be admitted.  The question is whether the evidence has some, that is any, probative tendency, not whether it has sufficient probative tendency.  The latter is a question of the weight to be given to the evidence, and is a question for the jury.
[18]	This evidence did have a tendency to prove that the complainant suffered relevant trauma.  This was consistent with the Crown case as to cause.  The evidence did not need to elaborate as to when and where the trauma occurred to be relevant.  

[19]	The next question is whether Dr Williamson’s evidence was substantially helpful to the jury in ascertaining any fact of consequence at trial.  That is the threshold expert evidence must meet, under s 25(1) of the Evidence Act, in order to be admissible.
[20]	The evidence was that on examination there was some abnormality presenting in the area of the clitoris.  The doctor’s evidence did not conclusively establish cause.  But clearly it was open to the jury to draw an inference, if it considered it reasonable to do so, as to the alleged fact of the bite.  The substantial helpfulness rule essentially replaced the common law ultimate issue and common knowledge rules, and the now statutory formula is designed to prevent an expert usurping the fact-finding role of the jury.  In this case there was no danger of that:  Dr Williamson did not go beyond her general statement that the abnormality was likely the result of some traumatic injury.  There was no speculation on her part as to the precise cause or time of injury.
[21]	In summing up, the Judge repeated the limitations of Dr Williamson’s evidence as identified by the defence.  Still, the likelihood that the complainant had suffered an injury must have been substantially helpful to the jury in determining whether this appellant bit her.  And if the jury so found, it threw serious doubt on the defence of consent.  In our view Dr Williamson’s evidence met the statutory test and was properly before the jury.
[22]	In the event that this Court should hold, as it has, that the medical evidence was admissible, the appellant then complains that the Judge mis-described that evidence to the jury.  We accept that there was mis-description.   The Judge erred in summing up by describing the size of the injury as a six centimetre depression, when the injury was, as noted, a six millimetre depression.  Further, the Judge said that the injury was “in the area around and in the clitoris” when the doctor’s evidence was rather that the injury was to “tissue adjacent to the clitoris” (emphasis added).  
[23]	We are not, however, satisfied that these descriptions were significant errors.  The jury may well have noticed them, but as being minor errors.  If they were in any doubt on the matter this was a case in which they had the notes of evidence available to them.  Trial counsel did not pick up on these errors as being significant, and invite the Judge to say something further to the jury.  We are not satisfied that, whether singly or in combination with the other events at the trial, these points gave rise to a miscarriage of justice.
[24]	In his amended points on appeal Mr Rogers then suggested the jury verdict was unreasonable or could not be supported having regard to the evidence.  We are not persuaded that there is anything in this point.  The complainant gave her evidence in clear and unequivocal terms.  She was not shaken in cross-examination.  The appellant gave his account.  This is a situation in which the advantage to the jury of having seen and heard the witnesses has to be accorded overwhelming weight.  Further, the medical evidence to which we have already referred at least established that at some point the complainant had suffered a traumatic injury in the particular part of her anatomy, and that could have added weight to her testimony.
[25]	Mr Rogers suggested that it was very odd that, having found against the appellant on this count, the jury acquitted him on the rape charge.  But as the Judge correctly told the jury, each count stands alone and must be separately considered.  We cannot speculate as to the jury’s reasoning.  It is sufficient to say that there is nothing before us which would justify an appellate court in setting aside the jury’s verdict.
The appeal against sentence
[26]	If the conviction stood, Mr Rogers argued that imprisonment was not the appropriate sentencing avenue, and that the case could and should have been dealt with by way of a sentence of home imprisonment.  And even if imprisonment was the appropriate course to adopt, the term imposed was still too stiff a sentence.
[27]	Mr Rogers stressed two points.  He sought to persuade us that in the peculiar circumstances of this case the character of the offence was “violence” rather than a sexual offence. Secondly, the Judge had wrongly elevated the character of the injury suffered by the complainant.  
[28]	The attempted distinction does not square with the facts of this case.  It is plain that the appellant had sought sex with the complainant.  She declined and he forced himself upon her in the manner already described.  The offence clearly was sexual, and perhaps in some sense retaliatory for having refused sex.  It was open to the Judge to find that what in fact occurred had a lasting physical and psychological impact for X.  This against a background of violence over a period of time as disclosed by the representative charge of male assaults female.
[29]	There was no error of principle in the Judge’s approach to sentencing.  The sentence actually imposed, including the cumulative part of it, was within the range available to the sentencing Judge.
Conclusion
[30]	The appeal against conviction and sentence is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent