R v P CA 361/97 [1998] NZCA 266 (18 February 1998)

Last Updated: 29 December 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA 361/97


PUBLICATION OF THE NAME OR
IDENTIFYING PARTICULARS OF
THE COMPLAINANT PROHIBITED
BY S 139 CRIMINAL JUSTICE ACT 1985.

HIGH COURT ORDER PROHIBITING
PUBLICATION OF THE APPELLANT’S NAME
OR IDENTIFYING PARTICULARS
REMAINS IN FORCE

THE QUEEN

v

P.

Coram Eichelbaum CJ
Thomas J
Blanchard J

Hearing 18 February 1998 (at Auckland)

Counsel P Dacre for Appellant

D J Boldt for Crown

Judgment 18 February 1998

_______________________________________________________________________

JUDGMENT OF THE COURT DELIVERED BY EICHELBAUM CJ

_______________________________________________________________________


On trial before a jury in the High Court the appellant was convicted on a number of counts of sexual abuse and now appeals his convictions on the grounds to be discussed.

The charges on which the appellant was found guilty were 2 of sexual violation by rape, 1 of inducing a girl under the age of 12 to do an indecent act, 3, again representative, of inducing a girl under 12 to do an indecent act and 3 representative charges of sexual violation by unlawful sexual connection (digital penetration). The offences were alleged to have occurred between February 1993 and February 1996, during which period the complainant (the appellant’s stepdaughter) was between the ages of 9 and 12 years.

The appellant lived with the complainant's mother from the time the complainant was 3. The complainant gave evidence that initially, the abuse consisted of the appellant taking her into either his bedroom or her own, removing her pants and touching her in the genital area, the touching being both inside and outside her vagina. She said this occurred about twice a week until she was 12. On other occasions over the same period, the appellant would make the complainant masturbate him, often to ejaculation. The complainant deposed to specific occasions, when she was aged between 9 and 12, where the appellant raped her. She also recounted one time when the appellant took her to the local Kohanga Reo and forced her to masturbate him. When the complainant was 12, she told her mother about the abuse. Thereafter, she lived with other members of her family.

The complainant was examined by a doctor, Dr Ward. The examination revealed nothing abnormal apart from the fact that the complainant was suffering from genital warts. The complainant's hymen was intact and there was no evidence of injury to the genital area. At the time of the trial Dr Ward was overseas but by consent another doctor, Dr Percival was allowed to give evidence in a form where she read to the jury the salient parts of Dr Ward’s report, to which she added her own explanations and comments. In regard to penetration she said that the findings were inconclusive. As to the warts she said these were often associated with sexual contact but not necessarily so. Dr Percival had not examined the complainant herself.

The complainant's grandmother was called to establish the complainant's age. During a cross-examination about family relationships she made a remark about time the appellant had spent in prison. Appellant’s trial counsel (not Mr Dacre) applied for a mistrial but in reliance on R v Gray CA361/96, 20 February 1997, the trial Judge directed the jury to disregard the remark and continued with the hearing. The officer in charge of the case confirmed that the appellant had no previous convictions of a sexual nature. The appellant gave evidence denying the allegations.

We turn to the grounds of appeal.

Fresh evidence

The appellant has applied for the admission of fresh evidence. Mrs P, the mother of the complainant and wife of the appellant, has filed an affidavit stating that she did not believe the incidents took place, but considered the complainant was pressured to give the evidence she did. She stated that after a complaint had been made to the police the complainant had told her she did not wish to proceed with it. Mrs P suggested that the complainant may have felt compelled to give evidence because the police told her that if she did not do so Mrs P would go to prison.

In her affidavit Mrs P also stated (and this is the critical point of the new evidence) that at a time when there were difficulties between the appellant and herself she discussed with a cousin, Ms B how she could get the appellant out of her life. She said that one of the possibilities discussed was alleging that he had interfered with the complainant, who was present during this discussion. The implication seems to be that this conversation may have prompted the complainant, or Ms B, to make up a false complaint.

Subsequently the deponent made a trip to Auckland leaving the complainant with a friend in Te Awamutu. On her return she found that Ms B had taken the complainant to stay with her. Ms B told her that she had contacted the police to make a complaint against the appellant.

On the day of the trial, or the previous day, Mrs P spoke to trial counsel about her evidence. She deposed that he wanted her to give evidence to the effect that her mother’s bad relationship with the appellant was the cause of the complaint. This was not Mrs P’s view and she did not believe that bringing it up at the trial would be helpful to the appellant. Accordingly, considering that any evidence she gave would not be helpful, she did not attend Court.

The Crown filed three affidavits in response. The officer in charge of the case, Detective Shadbolt, deposed that to the best of his knowledge the police never told the complainant that if she did not give evidence her mother would go to jail. Apart from the original complaint, which was taken by another officer, he was the only officer who had any contact with the complainant. She was always co-operative and did not display any reluctance about giving evidence. Mrs P had a history of hostility and obstruction in regard to the prosecution. She refused to speak to the police when they were investigating the complaint, or to cooperate with the Children and Young Persons Service when they attempted to arrange counselling. On a previous occasion when the case was set down for hearing the trial could not proceed because on the morning of the fixture a friend of Mrs P’s uplifted the complainant from school and took her to an unknown address. When the officer asked Mrs P where the complainant was she replied she was “safe with a friend”. After the trial had been adjourned he warned Mrs P that she risked being arrested for attempting to pervert the course of justice if she obstructed the trial again. On the occasion of the second fixture he made special arrangements for the complainant’s custody, to ensure that she was available. We interpolate that Mrs P denied any part in preventing the complainant from attending court.

The second affidavit was from Ms B. As to the alleged discussion about a false complaint against the appellant, she stated this was completely untrue. She deposed that she first heard of the alleged abuse through an acquaintance who in turn had learned about it from Mrs P. Later she overheard Mrs P shouting at the complainant to stop telling lies about the appellant. The complainant stayed with her for a few days during which time she told Ms B about the allegations. Subsequently, when she attempted to intervene in an argument between the complainant and her mother Mrs P started threatening her and Ms B decided to inform the police. She said that throughout Mrs P was completely hostile to what the complainant was saying about the appellant.

Trial counsel has also supplied an affidavit. At the time of the aborted trial he learned that Mrs P might be able to give evidence useful to the defence. His junior obtained a brief from her. The notes, which were exhibited to the affidavit, contained reference to a disagreement between Mrs P’s mother and the appellant, and as to her mother belittling the appellant. They also made reference to a deterioration in the complainant’s behaviour, at a time which might correspond to the commencement of abuse. They also referred to a conversation with the complainant when she denied the appellant was abusing her, at a time when, according to her evidence at trial, the abuse had commenced. This conversation was also mentioned in Mrs P’s affidavit.

Trial counsel said that he spoke to Mrs P on the day prior to the commencement of the trial, and again on the morning of the trial itself. He confirmed the evidence she would give, and cross-examined on the basis that she would be called. He discussed her evidence with her again at his chambers at the end of the first day of the trial. At her request he provided her with a copy of the complainant’s disclosure interview. She left a telephone number where she could be contacted.

The next day Mrs P did not appear. Counsel tried to contact her at the number given but was unable to do so. Counsel emphatically rejected Mrs P’s suggestion that he had told her to give evidence about a disagreement between her mother and the appellant. To the contrary, Mrs P volunteered this information and confirmed it subsequently. Mrs P did not suggest any other motivation for the complainant to make a false complaint and did not mention Ms B.

Mrs P, Ms B and Detective Shadbolt were cross-examined before us. Mrs P was obliged to say that much of the evidence of the other three witnesses was wrong, or lies. In particular, she and Ms B disagreed on virtually all matters where they had or were alleged to have interacted. Mrs P claimed that she did not realise that her discussions with trial counsel were with a view to her giving evidence, but was faced with statements in her own affidavit which indicated the contrary. Her assertions that she thought the lawyers were just telling her about the case are incapable of belief. The claim that trial counsel tried to shape her evidence along the lines that it was her mother’s hostility to the appellant that had brought about a false complaint, contrary to her own belief, is disproved by the notes taken by junior counsel, showing that this was part of the information she gave him. In the end she accepted that she had never told her husband or his lawyers of the critical conversation with Ms B, although she thought she may have told Social Welfare about it. Mrs P struck us as an astute person who would have recognised the possible significance of such a conversation to the defence, and not kept it to herself. We find it impossible to believe that in four separate conversations with trial counsel, in the course of which counsel were trying to elicit evidence from her, she would not have mentioned it. She accepted that she was supposed to be at court on the second day of the trial and did not turn up. The explanation she gave in her affidavit was discredited and none other was offered.

The principles regarding the admission of fresh evidence on appeal are well established. The interests of justice are the overriding consideration, but normally the Court will require that the evidence must be new or fresh in the sense that it was not reasonably available at the trial, it must be capable of belief, and must be cogent in the sense that it might reasonably have led the jury to return a different verdict at the trial. For the reasons given we are unable to attach any credence to Mrs P’s evidence. We do not regard it as capable of belief, or cogent in the sense required. Accordingly the application to adduce further evidence is declined.

Reference to Previous Convictions

The appellant submitted that the Judge should have discharged the jury following the complainant's grandmother’s disclosure that the appellant had spent time in prison. The disclosure arose in cross-examination:

“Did M call Murry Dad... Yes she did

Do you remember an incident about Xmas time 1992 up north with you the family, the Ps were to visit and Murry P growled at his daughter M because she had just beaten up her brother. Do you remember something like that...wrong date, wrong year, it is 1994, my husband was very ill and in hospital. My husband died that year. I remember very strongly it was 1994. I reprimanded Murry for his stance to my granddaughter and I reminded him that she was not his child. I went further to say that he hadn’t been a true father to my granddaughter, M or his children as most of his time was spent in prison.”

Having dismissed the application for a mistrial, the trial Judge gave this direction to the jury:

Normally a jury does not hear about an accused person having been in jail. Mrs H when cross-examined made some mention of the accused being in prison. You must not assume that an accused person is guilty or that he or she is not telling the truth because he may have been in jail at some point in his life. Any conviction he may have is entirely irrelevant to him having committed the present offence. In short, as you would do with anything you have read or heard of the case previously, put that entirely to one side and ignore it completely.

The general principles that apply in such a situation are set out in R v Gray. The test is whether there is a danger, or reasonable suspicion, that the accused was or might have been prejudiced by what took place. Mr Dacre submitted that in the context of the trial, such a danger was present. The case turned on credibility, there being no independent evidence to support the allegations, and there was a risk that the reference to previous convictions would have diminished the appellant’s credibility in the minds of the jury.

For the respondent Mr Boldt in his written case argued that the witness’s reference to time spent in prison was unlikely to have caused any real prejudice. He pointed out that immediately upon return to Court the jury was told to disregard the reference and that it was entirely irrelevant to the jury’s task, a direction repeated in the summing up. Mr Boldt submitted that the potential for prejudice was further diminished by the officer in charge of the case being allowed to tell the jury, by agreement, that the appellant had no convictions of a sexual nature, evidence which ordinarily the jury would not have heard.

In our view, the Judge dealt with this incident appropriately. It was made clear to the jury that whatever may have accounted for the appellant’s time in prison it had nothing to do with matters of the kind before the Court. This aspect together with the Judge’s firm direction, removed any risk of prejudice.

Medical Evidence

The appellant submitted that the medical evidence was presented in a clumsy and confusing way. The extracts from Dr Ward’s report were read by Dr Percival and Dr Percival was then asked to comment on Dr Ward’s findings. Mr Dacre submitted that it would have been more appropriate to have read the medical evidence of Dr Ward separately and then, if appropriate, have had Dr Percival called as an expert witness. It is apparent that the course followed was with the consent of trial counsel, who was given an adjournment to consider the position. No doubt there were other ways in which the problem caused by Dr Ward’s absence could have been addressed, but we do not see anything prejudicial to the appellant in the course actually followed. In cross-examination the points which could have been put to Dr Ward were taken up with Dr Percival. We see nothing to support any fear of a miscarriage of justice.

Additionally, counsel submitted that little of Dr Ward’s report should in fact have been allowed to be adduced, whichever process was followed. Evidence, he submitted, should not have been placed before the jury about the proportion of cases where, notwithstanding proof of penetration, no physical signs were evident. Likewise, the jury should not have been told that the most common cause of genital warts on children of the complainant’s age was sexual contact.

We are unable to accept these submissions. In both respects, the evidence was clearly admissible. Its limitations were well brought out in cross-examination.

All the grounds raised having failed the appeal is dismissed. In the High Court, because of other proceedings, and the need to ensure the anonymity of the complainant, there was a permanent order prohibiting publication of the appellant’s name and any identifying details. Since that order has not been appealed it remains in force.





Solicitors
Stephen McDonald, Auckland for appellant
Crown Law Office, Wellington