R v M (CA132/97) [1997] NZCA 82; (1997) 15 CRNZ 26 (26 June 1997)

Last Updated: 3 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND C.A. 132/97

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF

APPELLANT OR COMPLAINANTS THE QUEEN

PROHIBITED BY S.139 CRIMINAL

_{JUSTICE ACT 1985}

v

_{M (CA132/97)}

Coram: Keith J Blanchard J Cartwright J

Hearing: 17 June 1997

Counsel: P E Dacre for Appellant

M A Woolford for the Crown

_{Judgment: 26 June 1997}

_{JUDGMENT OF THE COURT DELIVERED BY CARTWRIGHT J}

The appellant has been charged with eight counts of indecent assault against his daughter between 11 May 1976 and 1 October 1987. Of those eight counts, four are representative charges.

In the District Court on 18 February 1997 an application made pursuant to s 344A of the Crimes Act 1961 as to the admissibility of evidence of “recent complaint” was dismissed. It is against that ruling that the present appeal is brought.

Factual background

The complainant is the adoptive daughter of the appellant. It would be her evidence at trial that from the age of about seven until she was 17 or 18 years of age, the

appellant committed a very large number of sexual assaults on her. The first seven counts in the indictment relate to a period during which the appellant, the complainant and her mother and brother lived together as a family at various addresses. According to the evidence at the preliminary hearing, the appellant and his wife (the complainant’s mother) separated about one week before the complainant’s 15th birthday in May 1984 and the appellant left the family home.

Although it is difficult to isolate precisely when a conversation took place with the complainant’s friend X, on the construction that is most favourable for the appellant the two 15 year olds were discussing matters of a sexual nature approximately five to seven months after the separation had occurred. It appears that at school that day a number of the students had been discussing sperm. Later as they walked away from school the complainant and her friend revived the discussion, with X speculating as to what sperm tasted like. In her evidence-in-chief X said:

Q: So you were actually outside the school grounds at the time, carry on? .....

And I think we were discussing sexual matters and I think we were talking about sperm and how it tasted and [the complainant] said it tasted salty. And I asked her how she knew and she was somewhat evasive and I asked her if it was her father and she was uncomfortable but agreed that that was where she knew it to be like that.

Q: What happened then? ..... She didn’t want to discuss this in any detail but

I said that I would be there for her if she wanted to talk about this.

Q: When you were talking about what you told us how did she appear? .....

Distressed. Uncomfortable.

Q: Was there any more said? ..... I asked her about her brother and she that it was just her, he was ok. I also asked her if it had happened more than once. And she said yes.

Q: What else did you say? ..... I can’t recollect.

Q: How did the conversation end on that topic? ..... I asked her if she wanted some help or counselling or wanted to tell anybody and she asked me if I wouldn’t tell anybody, keep quiet, and I promised her I would.

Q: After that time did you tell, did you talk to her about it again? ..... We may have discussed it briefly at several other times but I can’t remember what was said.

Q: Was the time that you told us about the first time that you had spoken to her in that way? ..... Yes that’s correct.

In cross-examination X conceded that she had introduced the appellant’s name and the probability of abuse.

The complainant herself, during cross-examination, said:

Q: Well what did she say to you and what did she respond outside the car dealer? ..... How do you know that sperm is salty and who’s doing what to you.

Q: And what was your response? ..... I told her that I was being abused by

[the appellant].

Q: In so far as you can do you know can you use the words that you used?

..... No.

Q: So are you saying that you told her that you were being abused by [the appellant]? ..... Yes.

Q: But not in those words? ..... I don’t know.

Q: Did you go on to describe as to how he was abusing you? ..... I wouldn’t have in detail no.

After this conversation the complainant told her mother of the abuse during 1991, but did not formally complain to the police until 1993 or 1994.

The grounds of the appeal

Counsel for the appellant submits that in admitting the evidence of X the Judge was in error and that the evidence as to the complaint by the complainant and as to her knowledge of the taste of sperm ought to be excluded. There were three grounds advanced in support of the appeal.

The onus and standard of proof

In his ruling the Judge said:

Having considered that this was a conversation between two school girls and given the nature and extent of the questions, I am not satisfied that I should rule that evidence inadmissible.

It is for the Crown to satisfy the Court that on the balance of probabilities that complaint evidence is admissible (see R v Duncan [1992] 1 NZLR 528, 534). While the utility of what is commonly called “recent complaint” evidence has come under scrutiny in recent years (see R v Accused (CA289/95) (1996) 14 CRNZ 399, 410, Thomas J), it is evidence which it is normal for the Crown to seek to adduce in support of its case as an exception to the hearsay rule and the Crown therefore has the burden of persuading the Court to admit it. In the present case the trial Judge made no direct reference either to the burden or standard of proof in making his ruling. It is, of course, unnecessary for these matters to be recited in order to give the ruling validity. It is apparent from the Judge’s ruling that he assessed the evidence which the Crown sought to adduce with some care. He is an experienced Judge and as such is well aware of the test that must be applied before recent complaint evidence can be admitted at trial. There is no apparent error in his approach and we would not allow the appeal on this ground.

_{The complaint was not made at the first reasonable opportunity}

_said:

Ten years ago in the leading case of R v Nazif [1987] 2 NZLR 122, 125, this Court

It is a prerequisite of the admission of evidence of a complaint that it is made at the first reasonable opportunity after the commission of the offence. It is for the Judge to determine whether the evidence meets this threshold test, see eg, R v Cummings [1948] 1 All ER 551, and for the jury to decide what credence they give to the evidence if admitted. There are no hard and fast rules as to the time within which a complaint must be made in order to be admissible. Matters to be taken to account will include the age, nature, and personality of the prosecutrix, her relations with those to whom she might be expected to complain, the reasons for delay in complaint and all other circumstances the Judge regards as relevant.

As cases involving sexual assaults within the family are increasingly tried in the Courts, a better understanding of the dynamic of family relationships has emerged. In R v S (1990) 5 CRNZ 668, 670 (CA), Casey J said:

There may be factors relevant to young children not normally present with more mature complainants which call for special understanding in deciding whether there has been undue delay. Here we think the Judge could properly admit this evidence. This child had received threats, and there had been previous separations

and reconciliations between her mother and the applicant. After their final parting in July 1977, her evidence suggests there were shifts to temporary accommodation where she may not have felt secure enough in their relationship to confide in her mother. This did not happen until they had finally settled down in their new home.

Indeed where young children are involved, such evidence will often emerge during conversations with family members or friends and could not be characterised as a complaint at all, in the ordinary sense of that word. In the present instance, although of an age when it can be assumed that the complainant was aware that she was making serious allegations against her father, again the “complaint” arose during a conversation between two friends. It was not so much a complaint as the giving of a confidence.

As is now well accepted, a complaint in the sense of creating a hue and cry immediately after a shocking incident is simply not relevant to most instances of intra- family sexual assault. In this instance the first allegation made against the appellant was at a time when the complainant was seven. Counsel for the appellant was hard pressed to point to a time when it would first have been reasonable for her to complain or to confide in some other trusted person. In short, it seems not unreasonable that she would wait until her father had left the home and the incidents had ceased, at least for the time being, to disclose allegations of his offending . In a family setting it is in fact less rather than more likely that a child will make such allegations; even at the age of 15 she might still have been in a relationship of emotional and financial dependency, concerned about the impact on her mother and brother of such allegations, beset by feelings of guilt or shame, or unwilling to talk about such intimate matters. The whole question of reasonableness in relation to opportunity takes on a different meaning in this context.

The real question is whether evidence of her confiding in her friend ought to be admitted to demonstrate consistency of conduct or to rebut any suggestion that she is wrongly constructing a story against her father. The discussion between the two school friends occurred in a relatively natural way, given the subject matter, and well before the complainant demonstrated any intention of laying criminal charges against her father. There seems at that time to have been no suggestion of malice towards her father which might lend weight to a submission of fabrication of a false allegation. The manner in which the conversation took place, on the face of the deposition evidence, is consistent with an

inference that although unready to make a complaint against her father, the complainant was making an allegation which was consistent with those made formally six or seven years later to the police. The ground that the complainant did not disclose her allegations of sexual offending at the earliest reasonable opportunity accordingly fails.

The complaint was the result of suggestion

Counsel for the appellant submits lastly that the evidence of the conversation between the complainant and her friend ought not be admitted because there is an unacceptable risk that the substance of the complainant’s response concerning the “complaint” might be the result of suggestion to her through the manner of questioning. In R v Duncan McGechan J said (p 533):

However, evidence and practice must move with new thinking and social needs. Certainly, in recent years there has been a heightened awareness and community concern over sexual abuse matters. Parents, and indeed others, now more regularly ask children questions as to such matters than in former times. Children, particularly girls, may well respond more freely and accurately to intimate inquiries than once was the case.

...

Given such developing realities, there is an artificial and indeed undesirable aspect to any firm practice under which direct reference by a parent to a child naming the accused, or specifying the act suspected, generally should be taken as disqualifying. The ‘natural questions which a person in charge will be likely to put’ have extended since Osborne in 1905 [R v Osborne [1905] 1 KB 551, 556]. The better approach, more in tune with current needs, is to return to the original fundamentals. In a particular case, in all its circumstances so far as known to the trial Judge, and in the light of his experience, is there an unacceptable risk that the substance of the complainant’s responses, which the Crown wishes to lead in evidence, may be the result of suggestion to her through the manner of questioning?

Counsel for the complainant submits that when the friend asked the complainant “if it was her father?” she was suggesting the perpetrator of a sexual assault. There is therefore, in counsel’s submission, a real risk that the complainant’s answer was tainted by the leading nature of the question.

In the course of his ruling the Judge said:

In the normal circumstances one could have raised some eyebrows concerning that form of questioning ... .

Having considered that this was a conversation between two school girls and given the nature and extent of the questions, I am not satisfied that I should rule that evidence inadmissible. I am aware that at no stage has the complainant alleged that the accused ejaculated in her mouth, in which case Mr Dacre submits that the salty taste of his sperm may be a wild speculation, but at the end of the day it will be for the jury to consider the complainant’s consistency and credibility and what weight it is prepared to give to the evidence of the complaint.

This is not an instance where a person with some authority over the complainant has asked questions she has felt obliged to answer, nor is there any indication from the deposition evidence that X was putting pressure on her friend to disclose a confidence. It is a conversation which appears to have developed quite spontaneously to a point where it was natural for a 15 year old girl to ask how her friend, as yet a young teenager, knew of a particular sexual practice. The conversation took place between two friends who apparently supported and trusted each other. There is no hint of one girl using power and authority or coercion over the other. Indeed, conceding that it was from her father that she had learned of the matters under discussion was likely to be a far more difficult disclosure to make than to fob her friend off with an innocuous response.

The conversation between the two girls appears to have resulted in the giving of a confidence at a time when the complainant did not expect to make her allegations publicly. The conversation appears to have arisen naturally and the disclosure was not made with any pressure being exerted by X. It cannot therefore be characterised in the traditional sense as a leading question or one which was suggestive of the answer. There is a world of difference between that setting and one in which a person in authority, such as a parent or teacher, might put the same question. Although counsel for the appellant pointed to discrepancies in the evidence given at the preliminary hearing between the complainant and her friend X, they appeared to us to be two different accounts of the same conversation. In any event, this is a matter for a jury to determine.

We are satisfied that the Judge correctly ruled that the evidence of X be admitted at trial. We would not therefore grant the application for leave to appeal.

Suppression

The name of the appellant and any particulars which might lead to his identification, and therefore that of his daughter, are suppressed pending trial.

Solicitors

S McDonald, Auckland, for the Appellant

Crown Solicitor, Auckland, for the Crown