THE QUEEN v LAURENCE GARRY ROSE [2002] NZCA 18 (19 March 2002)

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

ca350/01

THE QUEEN

V

LAURENCE GARRY ROSE

Hearing:	11 March 2002
Coram:	Keith J Robertson J Gendall J
Appearances:	B Davidson for the appellant K G Stone for the Crown
Judgment:	19 March 2002

judgment of the court delivered by ROBERTSON j

[1] Laurence Garry Rose appeals against conviction only on four counts of a sexual nature against the daughter of his de facto partner which occurred between 20 December 1996 and 9 March 2001.

[2] The initial indictment presented contained a total of eleven counts.

[3] At the conclusion of the Crown case at trial the appellant was discharged under s347 of the Crimes Act 1961 in respect of four of the counts.

[4] The jury did not find three of the remaining seven counts to be proved.

[5] There were initially four grounds of appeal:

* failure by the Trial Judge to properly direct the jury on how to treat/approach defence evidence called to deny complainant's allegations of sexual contact;

* verdict on Count 1 cannot be supported having regard to the evidence;

* verdicts of guilty on Count 5, 6, 10 inconsistent with guilty verdicts on Counts 7, 8 and 9;

* all four verdicts cannot be supported by the evidence having regard particularly to the undermining of the complainant's credibility.

[6] There was a later application to present fresh evidence.

The factual background

[7] The complainant was born in March 1985 and in October 1995 her mother met the appellant and commenced a relationship.The first meeting between the appellant and the complainant was early in 1996 when she was about 11 years of age.

[8] From about the middle of 1996 there were visits by the complainant to the appellant's property for weekends and school holidays.There was a trip to Northland by the appellant, the complainant and her mother in the Christmas period 1996/1997 out of which the first two counts in the indictment arose.

[9] Shortly after the birth of a child to the complainant's mother and the appellant in May 1997, the complainant disclosed inappropriate sexual behaviour towards her by the appellant during the Northland holiday.The complaint was dealt with in the family.

[10] In October 1997 the complainant went to a boarding school in Nelson. While there she disclosed further abuse to a school counsellor.A formal interview was conducted in December 1997.A medical examination was carried out in March 1998.The police interviewed the appellant in August 1998 but subsequently advised him he would not be charged.

[11] In August 2000 the complainant went back to stay at the property at which her mother and the appellant were living with her stepsister.She remained there until March 2001.

[12] Towards the end of 2000 the appellant recorded a series of conversations between himself and the complainant (who was then about 15½ years old) in which she disclosed sexual contact with a number of other people.The appellant said in evidence that he recorded these conversations because he was concerned the persons named might be subject to allegations of sexual impropriety as he had been in 1997 and 1998.

[13] Apart from the first two counts which related to the family trip to Northland, all the other offences were alleged to have occurred at the Stokes Valley property, where the appellant lived with the complainant's mother, in the period prior to the complainant going away to boarding school, on holiday visits or after she returned to reside there.The offences included digital penetration, oral penile connection, inducing an indecent act, attempted anal penetration and contact between the appellant's tongue and the complainant's genitalia.

[14] It is the appellant's contention that although there was some unusual variants in the evidence it was essentially a one on one credibility case.The appellant at interview and in evidence at trial was adamant that no sexual impropriety of any sort had taken place between himself and the complainant. There was some evidence of complaint and distress and undoubtedly opportunity, but none of these provide any independent probative material.

[15] As well as the denial, the defence relied on what it contended were major dents in the credibility and reliability of the complainant, the inherent unlikelihood of aspects of her evidence and other independent matters which supported the position of the appellant.

[16] Prior to trial an application was made under s23A of the Evidence Act 1908 to cross-examine the complainant on her sexual experience with people other than the appellant on the basis of the taped conversations referred to earlier. Defence counsel argued that leave should be granted as, if the allegations she made were true, it would help to explain how a person of the complainant's age had the degree of knowledge about sexual matters which she clearly had or that if she acknowledged that the allegations in the tape-recorded conversation were false it would go to her credibility as being someone who had a propensity for making false sexual allegations.

[17] There was no opposition from the Crown and an order was made accordingly limited to the specific matters discussed on the tape-recording.

[18] At trial the complainant acknowledged that the female voice in the conversation was hers and maintained that as was recorded she had been in sexual contact with eleven other people.

[19] At trial leave was given to call rebuttal evidence from six of the people mentioned who denied the complainant's allegation of sexual contact with seven of the eleven named persons.The Judge concluded:

... that propensity for fabrication or making false accusations of a particular kind is, I think, directly relevant to the facts and issue here.

Although in accordance with the reasoning of this Court in R v McClintock [1986] 2 NZLR 99, the need for careful control was acknowledged.

First ground of appeal

[20] The first ground of appeal relates to the direction on rebutted sexual allegations.

[21] After the complainant confirmed the allegations which were recorded on the tape six people were called who were mentioned and one who had personal knowledge relating to another.

[22] The Judge directly or indirectly referred to this material on a number of occasions in the course of his summing up but the appellant now submits that there was a failure properly to assist the jury with the real nature of the task which they had in this area.

[23] Counsel agree that the substantive relevant comments were as follows:

[19] The defence in this case was allowed to cross-examine the complainant as to her sexual experience with persons other than the accused and referred to in the taped conversations.... [the complainant] was adamant in cross-examination that she had had the contact discussed with those persons and that it was not a fantasy or something made up by her.I also allowed six of those persons named to give evidence of their denial of the allegations about them.

[20] I allowed this evidence so that you could have a fuller picture, put a face on the denial so to speak and in the hope that it would assist you in the matter of credibility.The Crown says that the complainant is reliable and a trustworthy witness.The defence, on the other hand, says that the denials and the number of them could indicate a tendency or an inclination to fabricate her complaint.You have now seen those witnesses, you have had a chance to form some impression of them in much the same way as you have seen and heard the complainant.The evidence may help you, it may not and if you feel that it does not help you, then put it to one side and return to the consideration of evidence which does help you.Do not ever, please, lose sight of the main issue and that is whether all or any of the seven counts against the accused have been proved to the standard required, proved beyond reasonable doubt.You are not required to decide whether all or any of the allegations against the six witnesses have been established or not.Indeed, you have not really heard sufficient details, indeed any sufficient details from which such a determination could be made.So that evidence has been led for that limited purpose to help you with the assessment of credibility.If you find it does not help you, put that evidence to one side and concentrate on evidence which does assist you.

[24] Mr Davidson argues that particular assistance could be gained from the decision of this Court in R v Katipa [1986] 2 NZLR 121 and that there had been a failure resulting in a miscarriage of justice.

[25] Mr Stone on the other hand submitted that what had occurred was both adequate and appropriate and that there was no justification for the criticism which was made.

[26] We agree with the position of the Crown that in this commendably concise and clear summing up the Judge properly directed the jury on the salient matters about this unusual evidence.It is not to be forgotten that what occurred was exceptional.It required the order under s23A in the first place and then leave to call rebuttal evidence with regard to that material neither of which is commonplace.

[27] It was of fundamental importance that the jury fully understood that their task in the case was still to determine whether all or any of the Crown allegations against the appellant were made out.As is so often the situation in a one on one credibility case, the starting point might conveniently have been whether Mr Rose's consistent denials could reasonably be true.If that did not dispose of the case then the jury had to turn their attention to whether they found the evidence of the complainant thoroughly credible and reliable because without it conviction could not occur.

[28] The evidence of the tape recording, and the evidence of the six witnesses arising from it, went only to the credibility of the complainant.It had no other part to play in the case.In our judgment this was made abundantly clear to the jury in paragraph 20 (quoted above).Much was made of the use of the word "limited" in the second to last sentence of paragraph 20 but in our judgment it was an accurate description of what was occurring.

[29] We firmly reject any suggestion that, in the exceptional circumstances in which this matter arose, any assistance is to be had from a consideration of the rules and practice which have developed with regard to similar fact evidence called as part of a Crown case.We do not accept that what happened here is either the converse or the obverse of that phenomena.As the Judge properly directed the jury, its effect was whether the denials themselves, and the number of the allegations and denials, could indicate a tendency or an inclination to fabricate complaints.We find no substance in this ground of appeal.

Second ground of appeal

[30] The second issue was a contention that Count 1 could not be supported having regard to the evidence in respect of that charge.This ground cannot succeed either.

[31] The complainant had said in evidence:

Q. Well, did he ever do anything to you when you were in the sea swimming --

A. Yep.

Q. -- on that holiday?

A. Yep.

Q. All right.Well, you have to tell us in your own words - what did he do?

A. We were swimming together and, um, he played with me.

...

A. He played with my vagina.

Q. All right.What part of his body did he play with your vagina with in the sea?

A. His fingers.

Q.You might find my questions a bit silly, but what exactly did he do with his fingers?

A. Put them in between my vagina.

Q. All right.When he did that, did it hurt or not?

A. Yep.

Q. When he touched your vagina, was it on the outside or the inside?

A. The outside.

Q. And, where did his fingers go exactly?

A. Just between - like when your lips open, just between.

Q.And, when he had his fingers there, what could you feel?What did he do with them?

A. Tried to rub them up and down.

[32] The complainant was vigorously and carefully challenged about this by reference to what she had said about this matter in a deposition statement, what was recorded in a video of the particular swimming interlude and by reference to her vagueness.In none of it however was there any movement by the complainant from the central core of her allegation.In our judgment the issue was, and remained throughout, a jury issue.There was an evidential base upon which the count could be sustained and there is no basis for interfering with that verdict.

Third ground of appeal

[33] The third ground of appeal was inconsistent verdicts.This point can be quickly disposed of.The relevant test was recently reiterated by this Court in R v Sattler (CA143/01, 4 September 2001), namely that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion they did.

[34] As the Crown properly submitted, verdicts are not to be considered inconsistent merely because:

(i) A jury has decided to give the benefit of the doubt to the accused on one or more counts even though convicting on others; or

(ii) a jury has considered that one count (especially a representative count) may be sufficient, in the jury's view to establish the criminality of the accused, even though the Crown has charged more than one similar account; or

(iii) there has been an acquittal by the jury for no apparent reason on one [or] more counts.

[35] In the instant case all three acquittals, which are the subject of the inconsistency argument, were unlawful sexual connection of the same type over successive periods of time and two of the counts, upon which there were convictions, were of the same type but involving an earlier and a later period.

[36] This was a case where the alleged offending fell in to separate and distinct time periods.The three counts on which the jury acquitted were in the period 31 July 1998 to 31 August 2000 which was a time when, as the evidence emerged, there was some uncertainty as to where the complainant was living and what arrangements actually existed.In those circumstances it is understandable that the jury may have been left with some doubt and accordingly convictions could not be entered.

The application to introduce further evidence

[37] It is appropriate to consider this point prior to considering the fourth substantive ground of appeal.The issue emerged only in the days immediately prior to the appeal hearing.An application to admit further evidence was filed with two supporting affidavits.

[38] The evidence which it was argued should be admitted, was from one Katherine Mary Spooner who had met the appellant and served a term of imprisonment with the appellant's partner.Occasional contact commenced with the appellant initially by way of letters and then in person after Ms Spooner's release from prison.Her affidavit suggests that she saw the appellant on about ten occasions in the twelve-month period from April 2000 to March 2001. The salient part of her affidavit is:

At about the time of one of the visits to my house by Laurie and Pamela, I had heard rumours that there was sexual contact between Laurie and Pamela.On an occasion when Laurie, Pamela and I were in my living room having a cup of coffee I said to Pamela "What's going on with you and Laurie".Pamela replied "Nothing's happened between me and Laurie....yet".Pamela said the word "yet" as if she wanted something to happen between her and Laurie.

Laurie was in the room during this conversation between Pamela and I, but he was watching television and may not have heard the conversation.

[39] Mr Davidson submits that this is, in legal terms, "new evidence" which could have had a substantial affect on the outcome of the hearing.

[40] Mr Stone, while not strenuously disputing that in all the circumstances the evidence was new and that with reasonable diligence it could not have been found, submitted that it was neither credible nor cogent.

[41] The credibility is raised by reference to the fact that Ms Spooner has many previous convictions for dishonesty.As she deposed, her immediate contact with the relevant parties arose from a prison setting.We do not accept an immediate assumption that because a person has previous convictions their evidence should be totally ignored.It is a factor to be taken into account in determining whether it is credible but it is not a basis for a knee jerk exclusion.

[42] On the issue of cogency Mr Stone argued that the material was of no probative value.He placed particular emphasis on speculating as to what the word "yet" might mean at the end of the alleged admission.

[43] We are unable to agree with his assessment of the point.In the total circumstances of this case a comment by the complainant, at or about the time that she now alleges serious sexual offending was occurring, that there had been no offending is in our judgment a matter that could have a substantial impact on a jury.

[44] The proper test to be applied in the peculiar circumstances of this case is whether the appellate court can be confident that, had this evidence been before the jury, it could not have had a material effect upon its deliberation. We are far from persuaded that is the case.

The fourth ground of appeal

[45] In light of that we turn to the fourth ground, namely that the verdicts were unsupportable generally and particularly having regard to the undermining of the complainant's credibility at trial.

[46] We accept that throughout the case there were numerous instances where there were serious discrepancies between deposition assertions and evidence at trial.There was a significant degree of confusion and contradiction in the complainant's testimony.There was a moving of position when challenged or confronted with matters which did not otherwise jell.There was inconsistency between what the complainant had raised in the initial interviews in Nelson in 1997 and what she subsequently said to the police in her deposition statements or in her evidence in Court.

[47] An initial response is to say that all these factors were explored at the hearing and that they were merely jury issues and that there is no basis for an appellate court to now intervene.

[48] The circumstances in which the Court will intervene are limited because fundamentally these are jury issues.We must observe however that there were some powerful challenges to the complainant's evidence and when that is now coupled with the potential effect of the fresh evidence we are unable to be confident that the verdicts are necessarily safe.

[49] As both counsel told the jury, it was an important matter for the complainant, for the appellant and for the wider community.It is essential in all cases (and particular vigilance is needed in one on one credibility disputes) that the system has ensured integrity of process.By a fine margin, in light of the new material which has now emerged, we are of the view that the interests of justice demand a further inquiry into these issues.

[50] Accordingly the appeal is allowed.The convictions are quashed.A new trial is ordered on the four counts on which convictions were entered.

Solicitors

Greig Davidson Gallagher & Co. Wellington, for Appellant

Crown Solicitor, Wellington