THE QUEEN v GERRARD JOSEPH KORA [2000] NZCA 47 (11 May 2000)

PUBLICATION OF NAMES IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE court of appeal of new zealand

ca489/99

THE QUEEN

V

GERRARD JOSEPH KORA

Hearing:	30 March 2000
Coram:	Elias CJ Gault J Fisher J
Appearances:	S J Lancefor Appellant S P France for Crown
Judgment:	11 May 2000

judgment of the court DELIVERED BY GAULT J

[1] This is an appeal against conviction after jury trial on two representative counts of sexual violation by unlawful sexual connection.The complainant in each was a girl who lived at times in the home of her sister and the appellant. One count alleged digital penetration of her anus the other penile penetration of her anus.The appeal is on the ground that hearsay evidence was wrongly admitted or, if admissible, was left with the jury without directions on how it might be used.

[2] The complainant who was 15 at the time of the trial gave evidence of sharing a bed with her older sister [J] and the appellant and of the frequent absence of her sister who worked at nights.She told the jury that in the period when she was between the ages of eight and 13 the appellant repeatedly penetrated her anus with his finger or his "dick".In the course of her evidence in chief she was asked if she spoke to anyone about it.She said she spoke to her mother (who lived elsewhere) and her sister at separate times.It is convenient to deal with the evidence relating to the conversation with her mother first.She said she spoke to her mother at her place, she thought when she was about 12.Her evidence was:

I just said mum I need to tell you something?I said to her that Gerry touched me and she said how and I told her well didn't actually tell her, it was hard to tell her ... Do you think she understood ... yes I think.What did she say to you ... she said don't tell your father or your brothers `cause they will kill him.

[3] The notes of evidence record the cross-examination as follows:

What did you actually say to your mother ... I just said to her that Gerry touched me and she goes where and it was kind of hard to explain but I told her and she just told me don't tell your father or your brothers `causethey will kill him and she talked to Gerry on the phone and asked him about it.

[4] The complainant's mother gave evidence.Her evidence on the point was:

Was there an occasion where [the complainant] came and spoke to you about Gerry ... um only once, she said she had a secret or Gerry and her had a secret but she never ever told me what it was, she just said it didn't matter ...How long ago was that ... a couple of years ago.Did she speak to you on any other occasion about Gerry ... only once, she came out of the shower or bath and told me that he had rubbed up against her when he came home one night.What was your response ... I just - I rang I told [the complainant] not to go to her father or her brothers 'cause they would probably kill him and um I rang my daughter [J] and mentioned it to her.Gerry rung me back and he told me he thought it was [J] and I believed him being [J's] bed I thought well its only natural he had come home and thought it was her.When [the complainant] spoke to you what exactly did she say ... she said that Gerry came home and rubbed up against her.She told Gerry to stop and he stopped straight away.Did she say anything else about the incident ... no, nothing.Is that your full understanding of what she said ... yes I just thought it was a mistake.

[5] The relevant cross-examination was:

Mrs [B] this conversation you say you had about [the complainant] referring to a secret ... yes.She wasn't or didn't appear to be upset at all when she told you about that ... no she wasn't.She gave evidence yesterday Mrs [B] she made no reference to telling you about a secret do you have any comment to make about that ... no I just thought it might be you know a child thing.When do you say it was she told you of this occasion when Gerry rubbed against her ... I'm not sure exactly.

This conversation you say you had with Gerry how long ago was that ... look I'm not sure now.Were you speaking to him face to face ... no I rung [J] and told her about it and got Gerry to ring back.You are saying he actually rung you on the telephone ... yeah I was talking to him on the phone.Is this months or years ago estimate if you can ... I'm just not sure how long ago aye, I didn't take any notice of it so.You took no notice of it ... well I didn't think. And you didn't make any notes of the conversation ... no I didn't.I suggest that he denied touching [the complainant] when he spoke to you ... yes he said he thought it was [J], he didn't know it was [the complainant], he denied touching [the complainant].

[6] The evidence of the complaint to the sister was entirely that of the complainant.The sister did not give evidence.The complainant gave evidence of the last occasion she was touched by the appellant.She said he touched her "butt" with his hand.On this occasion she told him to stop.She jumped out of the bed and went into the lounge.The notes record the following:

So what time of the day was it ... six o'clock in the morning.Do you remember the time ...yes 'cause I looked at the clock.But dad's gone off to work and you spoke to [J] ... what did you say to her ... I just said Gerry touched me. And what did she do ... she um, 'cause he came out of the room and she um said to him she asked him did you think Sweetie was me 'cause my nickname is Sweetie.Does [J] call you Sweetie ... Yes.[J] asked Gerry if he thought Sweetie was her is that what happened.Just tell me again what [J] said to Gerry ... did you think Sweetie was me and he just grunted, he didn't say anything.And what did he do ... nothing.Did you speak to [J] any more about the touching that had happened ... no.Why not ... 'cause I felt that she wouldn't believe me.

[7] The cross-examination is recorded as follows:

And do you say that you over heard [J] saying something to Gerry ... yes.Was Gerry still in the bedroom ... no.Had he come out ... yes.Where was he sitting ... he was standing up and she asked him did you think Sweetie was me ... she said, yes.Sorry, is it your evidence she said to Gerry did you think Sweetie was me ... yes 'cause Sweetie's my nickname.He just - he didn't say anything ... he just grunted and that's it.And [J] didn't do or say anything else ... no.

[8] The appellant did not give evidence but relied on a brief written statement he had given to the police denying that he had touched the complainant in any inappropriate way at all.

[9] In support of the appeal it was submitted that the evidence of the separate complaints to the mother and sister was recent complaint evidence which can be admitted as an exception to the hearsay rule only for the limited purpose of showing consistency of the complainant and the Judge declined to direct the jury on the manner in which it could be used.In that respect the transcript of the Judge's summing-up records at the end this comment to the jury:

I appreciate that in the course of his address Mr Temm made specific comment to you about, "For reasons which his Honour will explain, he will traverse the complaint made by [the complainant] to her mother".I am not doing so, I don't need to go into that.I am happy to see counsel as to the reason why not but, with that exception, do counsel have any other matter they would wish me to raise with the jury?

[10] Counsel did not see the Judge nor did they ascertain his reason.The Judge seems not to have recorded his reason at the time but subsequently sought to do so from memory after his retirement and we have not been assisted by that.

[11] It was further submitted that the complainant's evidence of what she heard her sister say to the appellant is hearsay and inadmissible.

[12] In the course of the trial defence counsel raised no objection to the recent complaint evidence but objected to the admissibility of the hearsay statement of what the sister said to the appellant.The Judge disallowed the objection and said he would give his reasons later. His subsequent recall was that he regarded the statement as part of the "res gestae".

[13] We do not consider the question said to have been put to the appellant by the complainant's sister and responded to with a grunt can be regarded as part of the resgestae.It might be that it could be admissible to show the fact that statement was made with a view to relating that to the explanation said to have been given by the appellant to the complainant's mother.On that basis it would not conflict with the hearsay rule at all.But that would have required a direction to the jury of its limited significance which was not given.

[14] We are satisfied, however, that the evidence was admissible in terms of the principle discussed in R v Duffy [1979] 2 NZLR 432 and the authorities there cited.The Court cited with approval this statement adopted with the addition of the emphasised words by the Privy Council in Parkes v The Queen [1976] 3 All ER 380, 383.

Now the whole admissibility of statements of this kind rests upon the consideration that if a charge is made against a person in that person's presence it is reasonable to expect that he or she will immediately deny it, and that the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge.Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charged to be true.

[15] In this case the evidence was that the appellant was in the room when the sister asked him "Did you think Sweetie was me?" and did not answer but grunted.That could well have constituted a circumstance which the jury could consider gave rise to the reasonable expectation of a response from the appellant if innocent indicating either that he did not understand what the question was about or that nothing happened.The lack of response could constitute a partial admission against interest - not an admission of any element of the offences charged but one tending to bolster the credibility of the complainant on a closely related matter.

[16] Turning to the recent complaint evidence, it is first important to identify just what evidence falls under that head.The complainant's evidence of her complaint to her sister is not to be regarded as "recent complaint" evidence in the absence of any evidence from the sister:R v Kincaid [1991] 2 NZLR 1, R v H (CA113/97) judgment 8 July 1997.That was simply evidence to give context to her evidence of the sister confronting the appellant which we have already dealt with.It is only the evidence of the complainant's mother of what she was told by her daughter that was hearsay of a nature that calls for consideration of the exception permitting evidence of recent complaint of sexual offending.The evidence of the complainant of what she said she told her mother, although it would ordinarily be inadmissible as merely of a prior consistent statement, was allowable in anticipation of the evidence the mother would give of the complaint.It is where evidence of complaint is given both by the complainant and the person to whom the complaint is made that there arises the need for the conventional warning to the jury.

[17] The need for direction to the jury of the limited purpose for which recent complaint evidence may be used is reviewed in R v T [1998] 2 NZLR 257, 268.It is to avoid use by the jury of the evidence of the person to whom the complaint is made as corroborative of the complainant's evidence.What another witness says the complainant told him or her cannot be taken as independent verification that the offence occurred.It adds nothing probative to the complainant's account.

[18] In the present case the Judge omitted to direct the jury in conventional terms that the mother's evidence of what her daughter told her was not independent evidence that the offending occurred bolstering the complainant's evidence but should be used only to assess the consistency of what the complainant said and her evidence.That left the possibility that what the mother said she was told was taken by the jury as evidence that what was said actually occurred.But even if that happened, there would have been no addition to the evidence on the essential elements of the offences charged.

[19] The mother's evidence was that her daughter told her only that the appellant had rubbed up against her when he came home one morning and that he stopped when told to.Even if accepted as having happened, that did not establish anal penetration for which the appellant was charged.From the evidence as a whole it appears that the particular incident the subject of complaint to the mother was the same incident that gave rise to the complaint to the sister and that was not an incident involving offending as charged.The misuse of the evidence the jury direction is designed to prevent would not have been prejudicial to the accused in the circumstances of the case.

[20] The jury could have treated the evidence of the mother as consistent with that of the complainant so that the complainant's credibility was bolstered by her mother's evidence.That effect would have been no different whether that consistency was seen as relating to the statements made or the facts complained of.Testing credibility is an entirely legitimate use of complaint evidence.

[21] In the circumstances, we have not been convinced there is any miscarriage of justice in the Judge's decision not to direct on the appropriate use of recent complaint evidence as he should have done.

[22] Accordingly, the appeal is dismissed.

Solicitors

Simon Lance, Rotorua, for Appellant

Crown Law Office, Wellington