THE QUEEN v K (CA 449/99) [2000] NZCA 23 (23 February 2000)

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT

IN THE court of appeal of new zealand

ca 449/99

THE QUEEN

V

K (CA 449/99)

Hearing:	21 February 2000
Coram:	Tipping J Robertson J Baragwanath J
Appearances:	P Hall for Appellant D J Boldt for Crown
Judgment:	23 February 2000

judgment of the court DELIVERED BY ROBERTSON J

[1] Following a hearing in the High Court at Timaru in September 1999 a jury found the appellant guilty on three counts :

[a] Between 1^st day of March 1997 and the 1^st day of April 1998, at a defined place, he indecently assaulted RTW, a girl then aged between 12 and 16 years.

[b] Between the 1^st day of April 1998 and the 1^st day of September 1998, at a different defined location, he indecently assaulted RTW a girl then aged between 12 and 16 years.

[c] Between the 1^st day of April 1998 and the 1^st day of September 1998, in the bedroom of a defined dwelling house, he sexually violated RTW, by unlawful sexual connection by way of digital penetration of her genitalia.

[2] He appeals against each of the three convictions.

[3] A number of grounds of appeal were enumerated in the notice of appeal which was filed by the appellant in person but by the time of hearing two grounds only were advanced both under s 385(1) of the Crimes Act.The relevant provisions are in the following terms :

385. DETERMINATION OF APPEALS IN ORDINARY CASES--

(1) On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion--

(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

...

(c) That on any ground there was a miscarriage of justice;

[4] The appellant's argument was advanced under two broad heads.The first was that in all the circumstances of the case, while there was some evidence supporting each count, its quality was so dubious that a reasonable jury must have been sufficiently in doubt as to require an acquittal.

The second was that inadmissible evidence was led which may have adversely effected the result and that in all the circumstances the proviso should not be applied.

[5] There was a previous trial of this appellant on these charges.An appeal to this Court (R v K CA 128/99, 10 June 1999) resulted in the re-trial which is the subject of this appeal.

[6] At the re-trial evidence was called from four witnesses only.The complainant, (who at the time was 15 years of age), her mother (whose evidence was read by consent and related only to age), a police officer who spoke with the appellant and told of his strenuously denying the allegations, and called by the appellant, his partner of 11 years.The appellant did not give evidence.The Crown case was solely dependent on the evidence of the complainant who is a niece of the appellant.The allegation was of an ongoing course of conduct extending over many months mainly involving touching the complainant's breasts.

[7] Mr Hall contended that in considering this appeal regard must be had to a number of background factors.First, that there was no corroborative witness. He submitted this was particularly significant because the offending was alleged to have occurred over a period of some 18 months in two different 3 bedroom houses in which there were always living the complainant, the appellant, another adult and at least four other children aged between 7 and 13 and in addition at times two other teenagers.It was submitted that it could be expected that some or all of these people would have heard or seen something which was significant or suspicious but no evidence was called in that regard. In particular it was noted that the de facto partner in her evidence did not confirm an incident which the complainant said happened in her presence. Secondly, there was evidence that on a previous occasion the complainant had been interviewed by the Children and Young Persons Service about an allegation of inappropriate touching by a man.It was contended that she knew as a result of that experience that an allegation of sexual impropriety would be viewed seriously by the authorities and would assist in achievement of her desire of moving back to the North Island.Thirdly, it was submitted that the complainant had a motive to lie because of her plans made with the teenagers who were in the house from time to time to go to the North Island.Fourthly, the complainant gave evidence in an unusual manner.She was particularly slow and deliberative and her testimony included much hesitation, a factor which was noted by the trial Judge.Fifthly, in cross-examination the complainant agreed that she had told the appellant's de facto that he had forced her to perform oral sex on him although she had made no reference to this in her evidence in chief.Finally, there was evidence from the complainant about her lively imagination with regard to romantic stories and poems.

[8] As against that background it was submitted that there were serious inconsistencies in the complainant's evidence of such a nature that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the appellant (R v Ramage [1985] 1 NZLR 392).

[9] The particular inconsistencies complained of were identified as follows :

[a] In respect of the first incident relating to the representative first count, the complainant said she was wearing a dressing gown, knickers and a nightie.She said that the appellant touched her breasts under her nightwear and in cross-examination accepted the proposition that the appellant had put his hand down her nightie.Her evidence was that the appellant was in bed beside his partner.It was submitted that it would be physically impossible for this to have occurred unless the complainant had bent down or crouched for the appellant to have put his hand down her nightie and touched her breasts. There was no evidence that this had occurred and therefore the allegation was impossible.

[b] With regard to the second incident in count one, the complainant alleged that in the kitchen of the house the appellant in question had touched her breasts underneath her clothing.She said she thought she was wearing pyjamas and a dressing gown and that he had been eating toast and eggs before touching her.In part of her evidence she said that she was touched before she started eating.It was submitted that the sequence of events which she now alleged was contradictory.It was noted that the sequence given was different to that which she had provided at the first trial although it was accepted this was not put to the complainant in cross-examination at trial.

[c] The third incident arising under the first representative count occurred at the same residence and she said involved the appellant touching her breasts when he interrupted her making beds.She said that her mother and another were Christmas shopping at the time and the appellant had asked the complainant to retrieve his jersey from the bedroom.She said she had been pushed onto the bed and she thought he started touching her breasts.Counsel noted something different which had been said at the first trial was not put to her at the second trial.It is further noted that the de facto partner denied having gone shopping with the other woman as the complainant alleged.

[d] In the fourth incident, also relating to count one, the complainant spoke of a situation when the appellant had come home drunk.He woke the complainant asking for tea.The complainant said that the de facto partner was present and that the partner put Prozac in his tea.The partner's evidence on this aspect of the case was inconsistent with that of the complainant.

[e] A fifth incident encompassed within the first count related to an occasion when the complainant had said when she was woken up by the appellant who told her to go into the lounge and watch tv and there was inappropriate touching, although she could not remember whether it was inside or outside her clothes. It is submitted that no offence was disclosed on the evidence and that there were inconsistencies between testimony at the first trial and the second trial and even more so with what was contained in her deposition.It was submitted her story had changed significantly each time she told it.

[f] A sixth incident related to the second count when the complainant said that there had been improper touching under her top of her breasts while the de facto partner was out shopping but at least two other children were at the house.She said that she asked the children to go everywhere with her except the toilet which counsel submits was a serious demand and in any event the allegation is inherently incredible considering that what she was relating a sexual assault in broad daylight in view of a right-of-way and at the time when there were at least three other people in the vicinity.

[g] The seventh incident related to the third count.The complainant alleged that one night the appellant had come into her bedroom, got into her bed, touched her breasts and inserted his finger into her vagina.She alleged in the course of this the 13 year old child had woken up and merely turned over and the appellant had lain flat on the bed.Counsel submits that it is inherently unlikely that the appellant who is physically a large man could lie flat on a single bed beside another person and hide behind the complainant.

[h] The eighth incident alleged by the Crown related to count three.The complainant alleged one day when there were others at the house the appellant had come into her bedroom and touched outside her clothing.She was not able to remember what part of her body he had touched but said it was bad touching and the appellant had told her not to tell anyone.At depositions the complainant said the touching was outside her clothing on her breasts and bottom and counsel now contends that before the jury it would be difficult to conclude that this episode involved the essential elements of the charge.

[i] The final incident of unsatisfactory evidence raised also related to the third count when the complainant said that about 6 am one weekend day the appellant asked her to make tea and while she was in the kitchen he proceeded to touch her although she did not remember where or whether it was actually on her skin.She said that she told two people.One of them was not called and the partner who did give evidence about complaints having been made by the complainant against the appellant did not relate to this specific incident.It was noted that at deposition the allegation was of sexual violation by digital penetration but at the second trial the allegation was much less specific and counsel submits that what was put was not sufficient to justify an indecent assault.

[10] As against all that it is submitted on behalf of the appellant that the complainant's evidence was vague as to time, place and circumstance.It lacked credibility in many respects and was inherently improbable and unreliable.It is further submitted that in the total circumstances the jury must have been prejudiced against the appellant and his attitude and demeanour as no jury could properly have been persuaded of his guilt.

[11] In response the Crown said this was a not unusual case involving allegations of this sort in which the complainant was extensively cross-examined and challenged about discrepancies between her evidence at the second trial and the first trial.She was confronted with inconsistencies between her evidence at trial, her initial statements to the police, her deposition evidence and the account which she had given to the appellant's partner when she had first complained.She was specifically challenged on the point that she had a motive to concoct evidence as she hoped to get away from where she was living and that the various matters which were suggested by the appellant as important to the background were all in the minds of the jury.

[12] Similarly the difference between the evidence of the appellant's partner and that of the complainant was highlighted and that all the matters which are now raised as being of critical importance were issues at the hearing.

[13] Further it was submitted that the matters which are now complained of and identified as reasons to set aside the verdicts on the basis that they are unreasonable were relatively trivial and of a peripheral nature and do not in any substantial or significant way go to the heart of the dispute, namely, whether this man from time to time used his niece for his own sexual gratification by touching her in or around her breasts and on one occasion digitally penetrating her.

[14] Mr Hall drew to our attention various encapsulations of the requisite test in our Courts and in other jurisdictions.

[15] The position in New Zealand has been clear and unambiguous for almost a century.This Court in R v Allandale v Dennett (1906) 25 NZLR 507 noted:

Briefly put, I understand that principle to be that this Court cannot interfere with the verdict of a jury in a criminal case unless it is satisfied that the verdict is such as twelve reasonable men, giving due weight to the presumption of law in favour of the prisoner's innocence, could not properly have found. All questions of credibility of witnesses, and, within the above limits, of the weight to be attached to their evidence are for the determination of the jury, and must be held to have been determined by their verdict.

[16] The thrust was reiterated in R v Leitch (CA 389/99, 24 November 1999).

[17] We see no need for any further refinement or re-statement of the principles. We are persuaded that this case is no different from cases such as R v Dave (CA 157/96, 12 September 1996) where there was evidence from which the jury could be satisfied that the offences were established to the requisite standard and that the issues raised do no more than exemplify matters which required evaluation by the jury at the trial.

[18] Bearing in mind the nature of the relationship, the age of the complainant, the circumstances when she was describing what had happened, the challenges to which she was inevitably subjected as part of the process, her inability to recall or articulate specific details with precision, is unsurprising.

[19] In a nutshell the trial issue was first whether the jury was sure that the appellant's out of Court denial could not reasonably be true?The jury was left with a reasonable doubt on the basis of the evidence presented that they could not convict.Given Mr Hall's necessary concession that there was an evidential basis for conviction it would be unusual for this Court to intervene on the ground that any reasonable jury must have resolved the credibility issues against the Crown.This is not in our opinion such a case.The detail about whether the touching was on her clothes or directly on her skin was not critical.We are not persuaded that any of the evidence was inherently unbelievable, and the imprecision or uncertainty which existed did not go to the substance of the matter.

[20] There were times when the appellant's case was advanced on the basis that the evidence of the appellant's de facto was necessarily truthful and anything which was inconsistent with it was wrong,However that evidence (like the evidence of any witness called in any case) was available to be scrutinised, assessed, weighed and used in the way which the jury saw fit.

[21] It is to be noted that no complaint is made about the summing up, including the directions on onus or standard of proof, and we accordingly must accept the respondent's submission that the appellant's case is little more than a re-statement of the matters which defence counsel drew to the jury's attention at trial but notwithstanding which the jury convicted.

[22] The second aspect of the appeal had two points.First, that the complainant was permitted to give evidence of what she had said to third parties when there was no evidence from those third parties.It was contended this evidence was inadmissible in terms of R v Kincaid [1991] 2 NZLR 1. No objection was taken at the time.In the light of what the complainant said the evidence suggested she was fearful immediately after one of the incidents of abuse.It is possible to see the evidence as amounting obliquely to recent complaint, albeit it is not clear whether it was treated as such at the trial. The more realistic and immediate connotation of the evidence is that it was referring to a contemporaneous reaction of the complainant.In that event the recent complaint rules did not apply.Thus the absence of any confirming evidence from those to whom the complainant spoke went to weight, not admissibility.

[23] The other issue is that the appellant was deprived of the opportunity of cross-examining the complainant fully about her prior inconsistent statements because of the risk that she might make more serious allegations to the jury. We do not consider there is any substance in this point.This is inherent in any cross-examination exercise.The fact that a particular line of cross-examination may have risks attached in it is part of the process.We can see no basis for concluding that any miscarriage of justice would have occurred in the particular circumstances of this case.

[24] Despite the extensive and careful argument of Mr Hall we are not satisfied that there is a sufficient challenge to the availability of the jury's verdict has been demonstrated.

[25] The appeal against conviction is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington