R v M CA199/00 [2000] NZCA 443; (2000) 18 CRNZ 368 (11 September 2000)

Last Updated: 25 April 2019

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IN THE COURT OF APPEAL OF NEW ZEALAND CA199/00


THE QUEEN



V



R E M


Hearing: 31 August 2000 (at Auckland)

Coram: Blanchard J
McGrath J Young J

Appearances: P J Morgan for Appellant K B F Hastie for Crown

Judgment: 31 August 2000

Reasons for Judgment: 11 September 2000

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Appeal allowed

[1] At the conclusion of the hearing we allowed the appeal and made an order quashing the convictions and ordering a retrial. We now give our reasons for doing so.

Facts

[2] Mr M was convicted after a jury trial in the High Court at Hamilton on nine counts involving sexual violations and indecent assaults on the young daughter of his former partner. She was born in 1990 and was aged five to eight during the period of the alleged offending and 10 at the time of the trial.

[3] The offending is said to have begun when the appellant was living at [P] Road, Hamilton in the same building as the complainant and her mother but in separate premises. After a relationship formed between the mother and the appellant, all three of them lived for a period at [W]. Offending was charged in respect of both places.

[4] The Crown’s evidence at trial was principally from the complainant (evidence in chief by video taped interview), the mother, a complaint witness, Ms Harris, and a medical practitioner, Dr Allen. The child’s evidence described, inter alia, sexual intercourse performed on her by the appellant. The medical evidence was that her vagina had been injured by a blunt penetrating object.

[5] The appellant has at all times denied any offending. He gave an entirely exculpatory video interview to the police. A detective gave evidence to that effect. The video was not shown to the jury.

[6] Mr M was the only defence witness. In cross-examination he was strenuously challenged by the Crown prosecutor to provide some explanation why the child might have made her complaints against him. He said he was unable to do so.

The appeal

[7] There were five grounds of appeal:

[a] Failure of the trial Judge to give the jury a direction about the appellant’s failure to give an explanation for the complaints;

[b] Calling of inadmissible complaint evidence from the mother;

[c] Erroneous ruling by the trial Judge refusing leave under s23A of the Evidence Act 1908 to cross-examine the complainant about her sexual experience with a person other than the accused;

[d] Failure of trial counsel to call certain witnesses (the baby-sitters); and

[e] Failure of trial counsel to put the defence adequately and to call certain other evidence.

[8] The appeal was supported by affidavits from the appellant, his parents, the baby-sitters and two other persons. Trial counsel, who was not Mr Morgan, made a very responsible and candid affidavit in which he said, in essence, that he considered that he had been thrown off balance by the adverse s23A ruling, which he had not expected, and that, in hindsight, he felt he had erred in not calling available defence witnesses.

[9] The position very properly taken by Ms Hastie, for the Crown, was that there should have been a direction to the jury concerning the appellant’s inability to explain the complaints (R v T [1998] 2 NZLR 257, also reported as R v Tennant (1998) 15 CRNZ 536). It was also accepted that the complaint evidence of the mother should not have been led. But Ms Hastie submitted that these two matters had not given rise to any miscarriage of justice. She also contended that the Judge’s ruling under s23A was correct. However, the Crown conceded that the failure to call certain witnesses seriously disadvantaged Mr M.

[10] Overall, the Crown’s position was that it was difficult to resist a conclusion that there may have been a miscarriage of justice. We found ourselves in agreement with this view and needed to hear oral argument only on the s23A ruling question.
But an expression of our views on all matters may assist the retrial and we now proceed to consider these matters.

No explanation for complaints

[11] It is common for a prosecutor to ask an accused in a case of this nature if he knows of any reason why the complainant would say he has sexually abused her if that were not true. It is a natural question and one which jury members are probably already asking themselves. If the inquiry is made briefly and in a low-key way and the point is not made a special feature of the Crown’s closing address, no direction to the jury on the issue will usually be necessary. The Judge will of course give the standard directions on onus of proof and the proper approach to the evidence of an accused, as he did in this case.

[12] In this case, however, having received a positive answer to questions about whether the appellant “got on alright” with the complainant and liked her, the prosecutor proceeded to ask eleven consecutive questions about whether the appellant could explain why the complainant was making her accusations against him. They were the last questions the prosecutor asked and the subject occupied about 20% of the cross-examination in terms of the transcript. The prosecutor returned to the subject in his closing address. The summing up records him as having asked the jury whether there was any reason for the complainant to lie, suggesting a negative answer, and then commenting that, according to the appellant, he and the child got on well together. The prosecutor emphasised that the appellant had been unable to put forward any reason why the complainant would want to lie.

[13] The appellant’s inability to give a reason is something to which we will return in later sections of this judgment – he was handicapped by advice given by his counsel as to what he could say in the witness box in the absence of certain defence evidence – but for the moment we are concerned with the need for the Judge to have intervened to bring such questioning to an end and to have given appropriate directions relating to it.
[14] The summing up did not contain any directions upon that questioning. We consider this to have been serious omission in the circumstances of this case. The proper approach is discussed in the judgment of this Court in R v Tennant (at pp263- 7; 542-5) delivered by Eichelbaum CJ. The Chief Justice described the views of members of the High Court of Australia in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1; (1998) 72 ALJR 254. The majority in Palmer held that such a line of cross- examination should not even have been permitted. McHugh J, dissenting, saw the question of a motivation on the part of a complainant to fabricate as one of the first inquiries most people would make. He distinguished asking such a question from inviting speculation about how inaccuracy by the complainant might have occurred. Both he and Kirby J saw the preferable approach as allowing the prosecution to pursue the issue of absence of motive to lie, but subject to appropriate judicial reinforcement on the burden of proof. (Kirby J in fact felt constrained by earlier Australian authority and did not join McHugh J in dissent.)

[15] This Court in Tennant favoured the view taken by McHugh J which appealed to it as a commonsense approach recognising that the jury would inevitably be asking whether there was a motive to lie. Eichelbaum CJ said that New Zealand practice allowed the accused to be asked whether he knew of any reason for the complainant to fabricate her account and for the prosecutor to use the absence of any credible reason as a closing argument in favour of the complainant’s credibility. But the question should not be presented in a way which would deflect the jury from the central issue, which is whether the Crown had proved the charge and each element of the charge beyond reasonable doubt. Nor should any suggestion be allowed that there was an onus of proof on the accused to advance a credible answer. The Chief Justice continued:

Generally, the trial Judge would be required to intervene firmly if these principles were infringed. And without wishing to burden Judges with yet another topic which must be covered in summing up, in any case where the prosecution had sought to bolster the complainant’s credibility by reference to the absence of a motive to lie, the charge to the jury needs to be clear that regardless of the absence of evidence of motive, the onus of proof remains on the Crown throughout. (p265-6; 544)
[16] The Chief Justice added:

We also accept the distinction between questions relating to facts on the one hand and opinion on the other, and that absence of evidence of motive should not be equated to absence of motive. There is a danger of descending into mere semantics, but in trials the situation where a slight rephrasing is sufficient to overcome a proper objection is commonplace. The question: “Why should she lie?” must be interpreted as and confined to the eliciting of facts known to the accused, not speculation as to possible motives. Likewise, any submissions by the prosecutor have to be couched in a way that observes the distinction. (p266; 544)

[17] In the present case we consider that the prosecutor should not have persisted with his questions after the appellant had already clearly stated that he could give no explanation. He should not have invited the appellant to speculate upon what reason the complainant might have for attributing her sexual knowledge to him, doing so even after the appellant had said that he was “not prepared to extend on something I know nothing about”. This response should have been enough to remind the prosecutor of the line drawn in Tennant, which is admittedly a difficult one to observe in the heat of cross-examination, thus requiring careful judicial supervision.

[18] Given the “dead-batting” of the questions by the appellant, the excesses of the prosecution would not perhaps have given rise to concern if the Judge had countered them with a strong direction to the jury pointing out that the burden of proof to the requisite standard lay upon the Crown, that it was not incumbent on the accused to provide an explanation and that it was possible that someone could be falsely accused without knowing why that was occurring. The Judge did not do this.

Inadmissible complaint evidence

[19] The first complaint was made to the witness Ms Harris “over the school holidays 98/99 period” which we take to be a reference to the Xmas/New Year holidays. (Later, however, she said it was mid 1999 but the mother’s evidence suggests this cannot be right.) This was well over a year after the appellant says he had moved out of the house at [W]. No objection was taken to this evidence, either on the basis that the complaint was not recent or otherwise. Nor did we hear
argument directed to it. We therefore make no comment about whether the Harris evidence was in the circumstances sufficiently recent.

[20] However, the complainant’s mother was asked about an incident which she said occurred at the beginning of 1999, after the school year had begun (she mentions a school picnic) and therefore some days or even weeks after the time of which Ms Harris had spoken. As a result of seeing her daughter exhibit certain inappropriate sexual conduct, the mother “asked her who taught her how to be rude like that”. The child was at first reluctant to say anything. She said that she had already told Ms Harris so she did not have to tell her mother. Gradually her mother’s persistence produced a complaint by the child against the appellant.

[21] The appeal point taken by Mr Morgan was, as we understand it, directed not so much to the gap between the last of the incidents complained of and the making of this complaint, although Mr Morgan commented that it was “not recent”, but primarily to the fact that it was a second complaint. It is this latter aspect which we address. Miss Hastie accepted that the evidence of the complaint to the mother should not have been led by the Crown; that the proper complaint witness was Ms Harris. But, she submitted, this has not led to a miscarriage.

[22] We agree that the evidence was inadmissible. Evidence of a recent complaint is evidence of a second-hand account. It is admitted as an exception to the rule prohibiting evidence of prior consistent statements. It is admitted not to prove the truth of what the complaint witness says she heard from the complainant but to show consistency on the part of the complainant and to dispel any thought that the jury may have that the charge was manufactured long after the time of the alleged offending. The evidence therefore goes to the complainant’s credibility. Giving such evidence is likely to involve an element of prejudice to the accused, because the complainant’s story may appear to the jury to be reinforced by the second-hand account of it given by the complaint witness. That risk is considered acceptable, provided there is proper direction by the Judge on the use which may be made of the evidence. However, once consistency was established by the first complaint, it is hard to see that there was any good reason for admitting the mother’s evidence of the second complaint about the same matter. It was made on an occasion remote in time
from the first complaint and lacking any connection with it (R v N [1994] 3 NZLR 641, 646). It did not add significant detail to the first complaint and so it was not evidence of a naturally developing disclosure (R v B CA211/98 unreported, judgment 3 August 1998). It therefore had little or no probative value.

The s23A ruling

[23] Section 23A(2) of the Evidence Act 1908 provides that in any case of a sexual nature (which this was in terms of the definition in subs(1))

...no evidence shall be given, and no question shall be put to a witness, relating directly or indirectly to-

(a) The sexual experience of the complainant with any person other than the accused; or

(b) The reputation of the complainant in sexual matters,- except by leave of the Judge.
[24] Subsection (3) directs that:

(3) The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to-

(a) Facts in issue in the proceeding; or

(b) The issue of the appropriate sentence,-

as the case may require, that to exclude it would be contrary to the interests of justice:

Provided that any such evidence or question shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.

[25] These provisions did not require leave of the Court for questioning of the complainant about the knowledge she may have acquired about sexual matters from being exposed to her mother’s conversations or from seeing other persons (her mother and the appellant) engaged in sexual activity. But s23A did require that leave be obtained from the Judge before she could be asked whether she had been
sexually molested by anyone other than the appellant. It also required leave before any other witness could be asked about that matter.

[26] Section 23A is intended to prevent the harassment and embarrassment of complainants (of both sexes) by their being asked about their sexual experience with persons other than the accused. It prevents a defendant from bringing before the jury events unrelated to an incident complained of and using them to attack the character of the complainant by portraying her as a person of loose morals who was therefore likely to have consented to sexual activity with the accused, contrary to the complaint. Such a line of questioning, relating to the element of consent, is seen as demeaning of the complainant and unfair. It also demeans the legal process by lowering it in the eyes of the public; the woman, rather than the accused, is seen as being on trial.

[27] It does not seem, however, that when enacting s23A Parliament had in mind the very different situation when a man is charged with sexual offending against a young child. The Parliamentary Debates did not refer to it. There is no possibility that a young child will be able to be portrayed by defence counsel as having loose morals and therefore consenting to sexual activity. But defence counsel may need to ask the child if she has been molested by another person. There may be a legitimate basis for inquiring how the child came to have knowledge of sexual matters. Questioning may be intended to be directed to whether the source was something seen or overheard rather than personally experienced. In some cases, like the present, it may appear from the medical evidence that the child must have been sexually violated. As well, there are sometimes, if rarely, cases in which a young child who has actually been abused makes the accusation against a person who was not the abuser. In such cases, the accused may accept that the child has been molested by someone but will deny that he was the perpetrator. It is obvious that this is a defence which will often be very difficult to run if, although deemed innocent until convicted, the accused is barred from asking the complainant whether she has been abused by another person. Yet in asking this question there is no danger of portraying the child as having truly consented to any sexual activity.
[28] In cases involving young children s23A has a valuable protective function. It protects the child complainant against questions being put concerning his or her prior sexual experience without it first being demonstrated to the Court that there is some tenable evidential basis suggesting that such experience may exist. But if the defence is able to show a basis for the proposed questioning which is more than speculative and that abuse by another person is relevant and accordingly “in issue in the proceeding”, the interests of justice may well require that some questioning of the complainant be permitted. There may be no other way in which the defence can adequately be advanced.

[29] This Court recognised the problem facing an accused in such circumstances in R v M (CA268/93) (unreported, judgment 9 July 1993) where the complainant’s grandfather, M, was charged with offending against her in 1990-1991. The complainant appears to have been about 11 at the time of the case. An application for leave pursuant to s23A was made on the basis that one T had pleaded guilty to indecently assaulting the complainant in 1989. Defence counsel for M wished to question the complainant and two family members about the incidents involving T, expecting to show thereby that the complainant was familiar with the concept of improper touching and the language involved, and knew that any incident of that kind should be promptly reported, in contrast to her delay in complaining about M. Allowing an appeal from refusal of leave and expressing regret that even limited questioning might be detrimental to the complainant, the Court said:

If the appellant's denial that the events occurred was to gain acceptance by the jury, or at least raise a reasonable doubt, it follows that the complainant's evidence must have been made up. In that situation a jury inevitably would ask itself twin questions: how the complainant came to be familiar with the concepts and language of sexual abuse, and what motivation she might have to raise a false complaint against a member of her family. In both respects, the background of the previous abuse and the events which followed, already detailed, supply significant information which might lend credibility to the theory of the defence case: as to the first, in providing a possible source of the complainant's knowledge; as to the second, in suggesting that the complainant might have sought again to obtain her mother's sympathy and attention. Absent knowledge of the previous events, the jury would be proceeding on a misapprehension. It is contrary to the interests of justice to keep such knowledge from
the jury in a case where to succeed the defence must raise at least a reasonable possibility that the child fabricated her complaint.

[30] In R v G (CA62/98) (unreported, judgment 23 April 1998) the complainant was aged 10. Her father had been charged with sexual offending against her in 1997. Some five years earlier she had disclosed incidents in which a psychiatric patient had committed indecencies on her while she was visiting a halfway house where her mother, who also had a mental disorder, was then residing. She had also described what appeared to be sexual violations. That matter had been reported to the police who had not taken it further because of the patient’s mental state.

[31] An application under s23A had been made on three grounds. The first was that as the jury might regard the knowledge of sexual matters disclosed by the complainant on the current occasion as information not normally within the knowledge of a 10 year old girl, the previous experience became directly relevant. The argument was that in the eyes of a jury the fact that a girl of that age had such knowledge might seem a powerful point in favour of her credibility unless there was shown to be some other credible source of such knowledge. Secondly, it was being suggested that consciously or otherwise the complainant may have transferred the experience of the previous sexual assault over to another person. Thirdly, there was said to be evidence indicating that at the time of the disclosure relating to the father the complainant was in a stressful situation because of custody and access disputes relating to her and her sister. The complaint might be a means of bettering her present living arrangements.

[32] The application in G was dismissed in the lower Court but in this Court the view was expressed that in the case of the first and third points there were tenable theories of defence and that to exclude the evidence which the defence wished to elicit would be contrary to the interests of justice.

[33] In the present case the first matter put forward was that the evidence of three intended defence witnesses was to the effect that on several occasions the child’s mother had said to them that she believed a man called Dooley had been touching the complainant and her older sister. The mother was speaking of a time before she and the complainant came to live at [P] Road. One of those witnesses also has
described in an affidavit filed in this Court how on another occasion the mother had confided that she suspected another man, an uncle of the complainant, of “doing something” with the two girls when babysitting them.

[34] The second matter is more significant. One of the “babysitter witnesses,” Mandy Workman, has said in an affidavit that prior to March 1995, and therefore before the period covered by any of the charges, she heard the complainant say concerning her younger brother’s “willy” that if she played with it, it would get fat and he would be happy. Ms Workman mentioned this at the time to the mother but did not take it any further because, she said, the mother had been outspoken about sexual matters in the hearing of the complainant. When asked about this incident during the trial the mother denied that Mandy Workman had ever expressed a concern about the complainant’s inappropriate words.

[35] In R v M and R v G the applicants were able to point to strong evidence of prior abuse of the child complainants. There is no equivalent evidence in this case. However, the material to which the defence was able to point – at least as it has now been developed in affidavits filed in this Court – does show a degree of support for the suggestion that abuse by another person may have occurred and that the complainant’s mother was motivated to encourage the making of accusations against the appellant. There was available defence evidence from four people that the mother had made threats to the appellant saying she would use the complainant against him. We think that taking into account all these circumstances there was in their combination a sufficient basis for the appellant’s s23A application and that some limited questioning of the complainant about her sexual experience other than with the accused should have been permitted, but under careful supervision by the trial Judge. It seems to us that the defence was unfairly hamstrung by an inability without leave to ask such questions of the complainant and by an inability to further explore the matter by the questioning of other witnesses.

The evidence of the babysitters

[36] The complainant gave evidence of having been abused by the appellant in Hamilton when she was being babysat by a person called Debbie whom she thought
was the appellant’s sister. She said the appellant took her away from Debbie to another place and did things to her before returning her to the babysitter. Questioned about this allegation, the mother said that the only babysitter at that time was a friend called Donnella. She had no recollection of Debbie.

[37] Defence counsel had available at the trial a witness whose name was Debbie, a cousin of the appellant, who has deposed as to her recollection of babysitting the complainant at [P] Road. But she says that was on one occasion only and for a very short period during which the complainant remained with her. Defence counsel accepts that he erred in failing to call this evidence.

[38] Also available as a defence witness was Mandy Workman, part of whose proposed evidence has already mentioned. She could also have said that while she was babysitting the complainant was never out of her sight and care. But this evidence is of no real value as she appears to have been speaking of a time prior to the first of the charges.

Failure of counsel to put defence case and call evidence

[39] Defence counsel also had available to him the evidence about the mother’s vengeful statements concerning what she could do to the appellant by making use of the complainant. There are statements from witnesses that the mother demanded money from the appellant. Also available was evidence of the complainant’s exposure to conversation about child abuse. Witnesses, if called, would have been able to say that the mother had in the presence of the complainant spoken frequently and explicitly of how she herself had been abused as a child.

[40] Although it was the defence theory that the mother had influenced the complainant to make the complaint, as she is said to have threatened to do, and although intending defence witnesses attended at the Court during the trial, defence counsel elected not to call any of them. He did not cross-examine the mother about the threats. Nor was she cross-examined about what she may have said in front of her daughter about her own abuse as a child. In the absence of evidence relating to what the mother is alleged to have said and done in these respects, the appellant was
seriously disadvantaged when he gave his evidence, particularly when questioned by the prosecutor about the complainant’s reasons for accusing him. And, defence counsel was consequently limited in what he could say in his closing address.

[41] The argument for the appellant, which Crown counsel accepted, was that these decisions, in combination with the failure to call the babysitting witnesses, amounted to radical error in terms of R v Pointon [1984] NZCA 72; [1985] 1 NZLR 109, 114 and gave rise to a miscarriage of justice. Trial counsel himself has expressed his concern about the decisions he made in these respects, though of course he saw himself as being in some difficulty because of the s23A ruling.

[42] It is enough for us to say that we agree that the witnesses could and should have been called and that the appellant’s defence was prejudiced because this did not occur. These were more than mere tactical errors, notwithstanding the ruling, which did not prevent any questioning other than about the complainant’s sexual experience with someone other than the appellant.

Solicitors

Paul Clark & Co, Hamilton for Appellant Crown Law Office, Wellington