The Queen v Sanders [2000] NZCA 118; [2001] 1 NZLR 257; (2000) 18 CRNZ 393 (10 July 2000)

Last Updated: 8 December 2011

NOT FOR PUBLICATION IN NEWS MEDIA UNTIL CONCLUSION OF RETRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/00

THE QUEEN

V

GRAHAM JOHN SANDERS

Hearing:	28 June 2000 (at Auckland)
Coram:	Blanchard J Ellis J Anderson J
Appearances:	E J Tait for Appellant C B Cato and J A Farish for Crown
Judgment:	10 July 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] The appellant was convicted on six charges of indecent assault committed in 1985. He appeals the convictions and the three year sentence which has been imposed.
[2] The appellant worked as a pottery instructor at the Kingslea Centre in Christchurch. The two complainants were residents of the centre, which was a home and school for troubled or problem children. The complainants were aged about 14 at the time.
[3] Both complainants were interested in pottery and were befriended by the appellant. Each seems to have developed an infatuation for him. In each case indecencies took place in an area variously called the pottery room or the storeroom or the kiln room, which was said to be situated within the main pottery classroom.
[4] The first complainant, Stephanie, gave evidence of kissing and touching of her breasts and vagina, including one act of oral sex performed by the appellant on her. A few times she touched his penis. She said that these things all took place in the pottery room.
[5] The second complainant, Jennifer, said that the indecencies began with kissing in the kiln room. She also described one incident of kissing and touching of her breasts at night on a park bench somewhere in Christchurch after Mr Sanders had taken her to a lecture (she did not know where this was) and a final incident at the Otago Heads in a car when the appellant digitally penetrated her vagina. This was an occasion when she had gone to Dunedin where her parents lived and had met with Mr Sanders so that they could together arrange for her to be enrolled to attend the Dunedin School of Art the next year. She described travelling back to Christchurch afterwards by bus but being taken off the bus by the appellant at Ashburton and then driving with him to Christchurch in his car.
[6] As a result of being told something about the conduct of Mr Sanders towards her friend Stephanie (to which we will refer later), Jennifer told another girl that she was having a “relationship” with the appellant. (The exact detail of what she revealed is unclear from the evidence.) That other girl informed a part-time teacher and the matter then came to the notice of the principal, Miss Judge. She instituted an inquiry. A meeting took place at which the principal, other teachers, Jennifer, the appellant and his support person were present. However, except in one respect – the taking of Jennifer from the bus – her story was evidently not given credence (notwithstanding that the appellant denied the bus incident and admitted it only after Miss Judge made an inquiry of the bus driver). Mr Sanders kept his job. Soon afterwards both complainants left the centre.
[7] Although they had been friends at Kingslea it seems that the complainants have never subsequently had any contact with one another. There is no suggestion of collaboration between them.
[8] Three grounds of appeal have been advanced (a fourth ground not being pressed when the Court indicated that it appeared to have no substance):

• [a] Failure of the trial Judge to mention the result of the inquiry in his summing up;
• [b] Alleged misdirection on “similar fact” evidence; and
• [c] Failure of the Judge to balance the emphasis given to the prosecution evidence about the physical layout of the pottery classroom in 1985 with any reference to defence evidence on that subject.

[9] Another matter was raised with counsel by the Court during the hearing and will be referred to later.

The inquiry

[10] We consider there is nothing in this point. It was a short trial. The inquiry and its result would have been present in the minds of the members of the jury. But, in any event, it could not be probative of anything other than that, on the basis of the facts before the inquiry (and we do not know what those were) there was not at that time found to have been any misconduct justifying taking the matter further. If the Judge had mentioned the inquiry in his summing up the jury would have been reminded no doubt that the bus incident was admitted by the appellant after he had first denied it. It seems to us that the appellant was not deprived of any advantage because the trial Judge omitted to refer to the inquiry.

The “similar fact” directions

[11] The Crown was of course seeking to rely on the evidence of each complainant to support the charges relating to the other complainant. It was said that there were some twelve similarities in their stories. But some of these were far too basic (such as the fact that both the complainants were female) or were repetitive. Nevertheless, there were sufficient similarities to justify putting the respective allegations before the jury as being to an extent mutually supportive: the appellant was in 1985 the pottery teacher of both girls, both had formed an attraction for him and both alleged that indecencies began with his kissing them in the kiln room.
[12] In the circumstances, as the Judge recognised, it was necessary for him to give the jury certain cautions and to instruct them on how to approach the evidence. He began this portion of his summing up by telling the jury that they were required to consider each charge separately and to distinguish carefully between the evidence upon each. He pointed out that some of the evidence, in fact quite a lot of it, covered “everything”, but that there was specific evidence relating to each count and that the jury should consider that before it could come to a conclusion on each count. He then referred to the suggestion on the part of the Crown that there were a number of matters which were “strikingly similar” and he referred to some of the twelve points which had been mentioned by prosecuting counsel in closing and which had been suggested to them were remarkably similar. The Judge told the jury that they must decide whether they thought there were similarities and that they must also be satisfied that the two complainants had not collaborated to concoct false but matching allegations. (As we have said, it is not suggested that they have done so.)
[13] The Judge said that if the jury was satisfied about those matters, then it was open to them to conclude that the evidence of one complainant about what happened to her was so related to the evidence of the other about what happened to her that the evidence provided support for the other and vice-versa. “But if you are not satisfied as to that, that there is sufficient similarity between the two versions of the events to give this mutual support then you put that aside completely. You just disregard that and look at each one separately as I have already told you to do”.
[14] The Judge then referred to some of the twelve points and then repeated that if the jury did not find that the evidence was similar, then it could not be used to reinforce either of the accounts that they had heard about.
[15] Later, when summarising the Crown case the Judge said, in a manner which would have been taken by the jury to be an approval:

The Crown invites you if you find that one of the witnesses is credible and you believe her that you then use her evidence, if you think it is appropriate, to see whether if it is so strikingly similar that you find that it assists you in determining guilt or otherwise in respect of the other complainant.

[16] For the appellant, Mr Tait submitted that these directions were deficient because they did not contain any warning to the jury that propensity reasoning is impermissible and, secondly, that the jury was not as clearly informed as it might and should have been about the purpose of “similar fact” evidence and about how such evidence should be considered and used.
[17] At the outset of an instruction on "similar fact" evidence, it is desirable that the Judge should emphasise to the jury that:

1. They must separately consider each charge and bring in a separate verdict in respect of each; and
2. If they are satisfied the accused has committed a particular offence, it is an unsafe and improper process of reasoning to conclude that he must therefore be guilty of other offences with which he is charged. The fact that an accused person may have done something bad on one occasion does not of itself mean he has done something bad on another occasion, and in relation to a different complainant.

[18] But, the jury may be directed, experience and common sense tell us that if two (or more) complainants give sufficiently similar accounts of what the accused has done to them, and there is no reason to suspect collusion between them, the evidence of each may be taken as supporting the evidence of the other(s).
[19] The jury must however be cautioned about how they should approach the question of sufficient similarity. Before the evidence of one complainant can be treated as supporting the evidence of another complainant, there must be a similarity in the detail of the evidence of each which goes beyond the commonplace. There must be much more, for example, than the fact that the complainants are both women or girls and have been subject to an assault or assaults commonly found in sexual cases. There must be a discernible pattern in the detail of what each complainant says, which gives their individual accounts such a distinctive similarity as to reinforce what each says. The Judge should review the evidence of the alleged similarities and the submissions of the Crown and the defence in relation to them.
[20] The jury should be told that if they find the necessary distinctive similarity in the accounts of the complainants, they may use the evidence given by the other complainant(s) to help them in deciding whether the charge or charges against the accused in respect of the complainant whose case they are considering is established beyond reasonable doubt.
[21] It is equally important that the jury be specifically instructed that if they are not satisfied of the existence of the necessary distinctive similarity in the accounts of the complainants, they should not so use the evidence of the other complainant(s). In those circumstances the evidence of the other complainant(s) must be put entirely to one side in deciding on the changes relating to the complainant whose case they are considering.
[22] The jury’s attention ought to be directed to the possibility of collusion between complainants as an explanation for the similarity of their stories, where this has been suggested on behalf of the defence. Similarly, it may also be necessary for the jury to be told to consider whether there may be some other reason for discarding the evidence of a supporting “similar fact” witness, for example, whether, although there is no collusion, a witness may have her own purpose in giving supporting evidence.
[23] The above directions do not include anything on the believability or credibility of the evidence of or relating to each complainant when considered separately. There is a problem of circularity. The credibility of each may in large measure depend upon the support received from the evidence of the other(s) – the existence of the distinctive similarity in both or all cases. Each complainant individually might possibly not be believed but the jury could properly conclude on the basis of the pattern disclosed by the evidence as a whole that the prosecution has proved its case to the requisite standard. Hence it is best to concentrate on the ultimate issue, namely whether, with or without the evidence of the other complainant(s), the evidence of a particular complainant satisfies the jury beyond reasonable doubt that the offence she alleges has been committed. Finally, we think it important that a trial Judge, in dealing with issues of similar facts, should ensure that the directions are not expressed as merely abstract concepts but are given in terms of the evidence in the particular case.
[24] Approaching the matter in this way, the only cause for concern in the direction in this case is the lack of any express propensity direction (para [17](b) above). We think, however, that the correct approach was implicit in the directions taken as a whole, particularly when there was a direction that if the evidence of one complainant was not sufficiently similar to provide “mutual support” it was to be put aside and the matters looked at separately. It would have been preferable to have a warning against propensity reasoning but we are not persuaded that there is a danger that the jury in this case may have adopted such reasoning.

The layout of the pottery classroom

[25] Both complainants in their evidence described the layout in 1985 and said that there was a small room within the pottery room in a particular position. Their evidence as to its position seems to have roughly coincided. Stephanie said that it was about 6ft square “maybe” and called it a storeroom. Jennifer, when referred to photographs taken recently, said that the pottery room had changed since that time but there had been a “partition” or a “small room”. Miss Judge recollected that there had been at one point a partitioned off area where pottery was displayed but admitted that her memory was not necessarily accurate enough to say for certain. Mrs Butcher, who had been a full-time teacher at Kingslea in 1985 and who had taught in a room immediately above the pottery classroom described “storage shelving and a partition...alongside by the kiln”. It was “sort of like a storage room”. At another stage of her evidence she described the partition as being “like a wall to the ceiling”. She drew a line on one of the photographs which was produced as an exhibit to show her recollection of where the partition was situated.
[26] At the conclusion of Mrs Butcher’s evidence the Judge asked her whether the partition formed a room or was just a partition that ran out into the room and stopped. She replied that you could not call it a room. It was a partition but it was definitely a storage area. The Judge then asked:

Q. So what you say you don’t recall it forming into a room which was surrounded by walls.

A. I certainly remember going in there to collect pottery and it being a closed storage place.

[27] The only defence witness was a Mr Newberry who had worked at Kingslea for about seven or eight years overlapping the period to which the charges were related. He was a woodwork teacher working in the room next door to the pottery room with an inter-connecting door. It was his memory that the pottery room was an open plan room as shown by the current photographs. He said that he did not ever remember any extra walls or building work being done inside the pottery room. He had, the night prior to giving evidence, drawn a diagram of how he recollected the layout and this was given to the jury members as an exhibit. But, in cross-examination, after Crown counsel Ms Farish, had referred him to the photograph upon which Mrs Butcher had drawn the line showing the partition, Mr Newberry said that he did not recall any particular layout. He was asked if each individual teacher could set up their particular spaces as they wanted and agreed with that suggestion, and that there would be nothing to prevent a teacher moving shelves in such a way as to create a separate storage area.
[28] After the closing addresses of counsel there was evidently some controversy between them concerning the way in which Mr Tait had described Mrs Butcher’s evidence. In order to resolve this controversy, and with the agreement of counsel, the Judge adopted the unusual course of beginning his summing up by reading to the jury some passages of the evidence of Mrs Butcher relating to the question of the partition.
[29] The appellant’s present ground of appeal is that the summing up was unbalanced in that the Judge then omitted to make any reference to the evidence of Mr Newberry, having given particular emphasis to what Mrs Butcher had said on the same subject. We think there is some substance in this criticism on behalf of the appellant, although the force of it is diminished by the fact that the jury would only shortly before have heard for themselves the witnesses in question giving their evidence and also had available to them Mr Newberry’s diagram. Nevertheless, the nature and location of the room or partition (whichever it was assuming it existed) was of no little significance since the defence was suggesting the unlikelihood of sexual offending in a classroom to which there was ready access through two doors, which appear to have been unlocked most of the time, and especially since people passing outside the classroom could easily see into it through windows down the length of one side of the room. We have some concern that the Judge did not adequately put this aspect of the defence case before the jury in the summing up.

A question from the jury

[30] The members of the Court also raised with counsel a concern about a passage of evidence given by Jennifer which was the subject of a question from the jury and therefore obviously had assumed some importance for it.
[31] Jennifer was speaking of having told a friend, Sisifo, something about her experience “in relation to coming back from Dunedin”. She then added something which we understand Crown counsel had not expected:

There was something else that decided me to tell. A good friend in my house called me into her room and told me that Mr Sanders had felt her up in his car and I was quite shocked. I didn’t feel good about this.

[32] Mr Tait immediately objected on the ground that this was hearsay. But Jennifer was allowed to continue:

The person that told me about what Mr Sanders had done to her was Stephanie...

[33] During its retirement the jury asked several questions. One of these was:

What did Stephanie say to Jennifer about being assaulted in the car as per Jennifer’s account?

[34] In answering it the Judge simply read to the jury the two passages quoted above.
[35] It seems that the Judge had not been alerted to the fact that nowhere in Stephanie’s evidence had she said anything at all about being assaulted in a car. Indeed, she had actually said that the sexual activity had always occurred in the same place, namely the pottery room. Jennifer’s evidence was thus not only hearsay but also contradictory of Stephanie’s evidence. The only basis on which evidence of this nature could ever have been admitted would have been if Stephanie had given evidence of such an assault in a car. Jennifer’s evidence would then have been admissible as recent complaint evidence, to show consistency between what Stephanie said close to the time of the assault and what she said in evidence.
[36] It was quite wrong for Jennifer’s evidence on this point to be allowed to be given in the absence of anything from Stephanie. The Judge should, if it simply slipped out, have told the jury to ignore it as hearsay and should have pointed out that Stephanie had not given any such testimony. He did not do this, even when the matter became a focus for the jury. There is a real danger, in our view, that because the jury had been told by Jennifer of an incident in a car which occurred to her, they may have seen significance in a second-hand report of an assault on Stephanie in a car by the appellant.

Result

[37] We have come to the conclusion that the verdict cannot be regarded as safe. We allow the appeal, quash the conviction and order a new trial.

Solicitors
Malley & Co, Christchurch for Appellant
Crown Solicitor, Christchurch