R v ARIKI MANIHERA REIRI [2003] NZCA 257 (10 November 2003)

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA220/03

THE QUEEN

v

ARIKI MANIHERA REIRI

Hearing: 22 October 2003

Coram: Glazebrook J

Baragwanath J

Goddard J

Appearances: P V Paino for Appellant

G J Burston and M Weekes for Crown

Judgment: 10 November 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] Mr Reiri was convicted, after a trial by jury, of one count of sexual violation by rape and two counts of sexual violation by unlawful sexual connection.He appeals against that conviction.This was the second trial Mr Reiri faced on these matters.The jury in the first trial had failed to agree on a verdict and had been discharged.

Background

[2] On the afternoon of 6 January 2002 the complainant went to a tavern with her family.There she met a relative of Mr Reiri who invited her to a party at a house owned by Mr Reiri’s brother.She had been drinking both before going to the tavern and at the tavern and she continued to drink at the party.Her consequent loud and aggressive behaviour annoyed some of the partygoers and she was asked to leave.

[3] Her evidence was that, on her way home, she decided to take a short-cut through a park.Realising she was taking the wrong route she turned back, to be met by Mr Reiri blocking her exit to the park.He pulled his pants down to mid-thigh and demanded that she “suck my dick, bitch”.Fearing for her safety she complied.He then allegedly told her to go and lie down.She told him she was going to be sick and simulated vomiting over a fence.He grabbed her, forced her on her knees before raping her vaginally from behind.He then inserted his penis into her anus.The complainant asked him to stop but he would not.Finally she simulated an orgasm and he stopped soon after.

[4] The complainant and Mr Reiri then returned to the party.Mr Reiri went inside, leaving the complainant outside crying.Her evidence was that Mr Reiri’s young nephew asked her what was wrong.She began explaining and he took her to the garage where she continued her story.While she was explaining what had happened, Mr Stacey Reiri, another of Mr Reiri’s nephews, emerged from the party.He took her to a grassed area and, still crying, she also told him what had happened, whereupon he led her into the house, put her into a bedroom and said he would sort it out.The complainant ran out of the bedroom but Mr Stacey Reiri caught up with her.A struggled ensued.The complainant pulled away from him and flagged down a passing car.The driver, a security guard, drove her to a police station.He said in evidence that, on the way, she told him she had been raped.

[5] Once at the police station, the complainant was spoken to by police and examined by Doctor Middleton.She was noted to have a number of bruises and minor injuries on her arms, thighs, knees and back.Of particular relevance to this appeal, she was also noted to have three very large thrombosed tender haemorrhoids consistent with recent trauma.The complainant could not tolerate even an attempt to lift small particles of grass from them.A swab was taken from the anal area in between the haemorrhoids.Semen was found on the swab.A “bi manual” examination of the vagina was undertaken, which showed no tenderness within that area.

[6] On the following afternoon, Mr Reiri attended the police station and provided a voluntary statement.In his statement, Mr Reiri accepted much of the factual background alleged, but asserted that any sexual contact was consensual. He denied that there had been any kind of anal intercourse.

Submissions of the parties

[7] Mr Paino, for Mr Reiri, submitted first that the trial judge wrongly admitted the medical evidence of Dr Middleton.At the least, the trial judge should have informed the jury to disregard the following evidence given by her “well I suspect that it was the result of penetrative anal sex” and “my suspicion is that it would have happened through penetrative anal sex”.It is the use of the word “suspicion” that Mr Paino submitted is objectionable.

[8] Secondly he asserted that the doctor was not adequately cross-examined on the issue of whether vaginal drainage would have explained why semen would be on the anal swab.

[9] Mr Paino’s third submission was that trial counsel erred by not raising at trial the question of a possible rape of the complainant by Mr Stacey Reiri.Mr Paino accepted at the hearing that this criticism was difficult to sustain in the light of trial counsel’s affidavit.He was not, however, able to abandon the ground as he had no instructions to do so.

[10] Fourthly, Mr Paino submitted that a number of pieces of hearsay evidence were wrongly admitted.In his submission, the evidence of the complainant that she told the two Reiri nephews “what had happened” immediately after the attack should not have been admitted, either as recent complaint evidence (given the Reiri nephews were not called) or as part of the res gestae.At the least, reference should have been made to that evidence in the recent complaint direction or, if it were part of the res gestae, a proper direction should have been given in that regard, whether or not the maker of the statement was called.If the complaints to the Reiri nephews should properly be seen as recent complaints then Mr Paino submitted that the evidence from the security guard who subsequently drove the complainant to the police station, as to the complaint of rape made to him, was not admissible as recent complaint evidence.

[11] Mr Paino also submitted that evidence from a police officer as to the “very good description” of the house and park given by the complainant should not have been given as it undermined the evidence as to the complainant’s behaviour at the party, which suggested a high level of disorientation.As we understood him, Mr Paino’s objection was to the fact that evidence was given as to the quality of the description given by the complainant.He did not object to the police officer giving evidence that the complainant gave a description per se.

[12] Mr Burston, for the Crown, in relation to the first ground of appeal, submitted that the evidence of a medical examination of a person complaining of rape is plainly both relevant and admissible.The jury must be entitled to know the physical state of a complainant after such an allegation.The doctor, as an expert witness, is allowed to express opinions.She did so and the judge gave a model direction to the jury with regard to how to treat that evidence.

[13] In relation to the second ground Mr Burston pointed out that the doctor was in fact questioned on this issue but there was a difficulty in this line of cross-examination as, on all parties’ version of events, the period of time between when Mr Reiri ejaculated into the complainant, and when she assumed an upright position was a very short space of time.The doctor’s opinion in relation to vaginal drainage was that for semen to drain into the anal area, a woman would need to lie on her back for some time after ejaculation.Mr Reiri accepted in cross-examination that the whole incident was short and that the complainant stood up straight away.

[14] With respect to the third ground Mr Burston submitted that the reason there was no cross-examination on the issue of a possible rape by Mr Stacey Reiri is clear.To pursue that line of questioning would, in his submission, arguably have required leave under s23A of the Evidence Act.Also from the complainant’s account at trial Mr Stacey Reiri was drunk and, up to the time she managed to wave down and stop the security guard, he was physically trying to control her.She may well have thought Mr Stacey Reiri was trying to rape her, in her distress after being raped by the appellant.If cross-examined about that there was a risk she would say that.In the circumstances of this case this was by no means likely to damage her credibility and could well have bolstered it.

[15] On the final ground, with regard to the evidence of the police officer as to the description of the house and park given by the complainant, Mr Burston submitted that the evidence must be seen in context.The evidence was that the police, at around 7am, had driven the complainant around to try and locate the house and park.Despite driving around for about 40 minutes the complainant had been unable to point the officers to the house.She was taken out again at 11am as the officers, from the complainant’s description of the property, had thought they knew where the house was.It was in this context the remarks were made as to the quality of the complainant’s description.

[16] Turning to the “complaints” to the Reiri nephews the Crown submitted that these were part of the res gestae of the case, being part of the narrative of events happening contemporaneously with the alleged rape and necessary to explain the sequence of events which occurred.The Crown did not seek to use the evidence at trial in relation to what was said to either of the Reiri nephews as evidence of recent complaint and no evidence as to the content of what was said to either of them was given.The evidence of the security guard on the other hand was, in his submission, properly admissible as recent complaint evidence.

[17] The Crown accepted that there was a need to examine whether a direction should be given to the jury in relation to this evidence and that this Court in R v Accused (CA 17/97) (1997) 14 CRNZ 565, 568 had said that, where evidence is admitted of utterances made as part of the res gestae, a direction on the following lines should be given:

(a) That it is for them [the jury] to decide what was said;and

(b) That they must be satisfied that:

(i) There is no possibility of mistake;and

(ii) That the maker did not concoct or distort the statement and that she was not activated by malice or ill will.

[18] No such direction was given in this case.Mr Burston submitted that it is of significance that the directions mooted in R v Accused (CA 17/97) related to instances in which the maker of the statement could not be called.He submitted that, where the maker of the statement can be called, he or she may be cross-examined as to the words alleged to have been spoken and the key issue will be the maker’s reliability and credibility.In this case, the jury was carefully directed by the trial judge that it must be sure that the complainant was telling the truth.It was submitted, therefore, that no further direction was required.

Discussion

[19] The first ground of appeal advanced by Mr Paino must fail.The doctor’s evidence was clearly admissible; as an expert, she is entitled to express her opinion in areas where she is qualified to do so.The passages in her evidence Mr Paino complains of were expressions of opinion that met this criterion.There is nothing in her choice of words that detracts from this.It is not for the courts to place a linguistic straightjacket on such witnesses.

[20] The second ground which relies on criticism of trial counsel is in our view fully answered by trial counsel’s affidavit.Clearly the choice made by trial counsel not to cross-examine on this topic was a legitimate tactical decision.Trial counsel said:

I am aware that the appellant believes that further cross-examination or submissions may have been helpful in relation to vaginal drainage.I personally disagree for the fact that I did not want to draw unnecessary attention to either the prospect of anal intercourse, which was clearly denied by the appellant, nor did I want to allow any possible credibility to be given by the doctor for the fact that anal intercourse might have actually occurred.

Attempts had been made at the first trial to draw the inference that the haemorrhoids may have been aggravated by vaginal intercourse from the rear but this proved unsuccessful and in my view the doctor became more aggressively in favour of the complainant’s account than I would have liked.Cross-examination needed to be handled carefully at the second trial for that reason and it was thought more appropriate to emphasise the scientific evidence in the address to the jury rather than focus on cross-examination of the doctor.

The scientific evidence was clear and unequivocal.I had chosen not to have the scientist called at trial so that I could rely on the clear statement that vaginal drainage could have caused seminal swabs to be taken in the anal area.

[21] The third ground fails for similar reasons.Trial counsel made a legitimate tactical decision not to raise this issue.He said in his affidavit that he was concerned that the complainant may have maintained the allegation of an attempt at rape by Mr Stacey Reiri, thus compounding the abuse on her that was ultimately put before the jury, to the detriment of the appellant’s case.There is also the possibility, as suggested by the Crown, that, after her experience with the appellant, she mistook Mr Stacey Reiri’s intentions.We agree that, if she had said this in answer to questioning, this also was unlikely to have harmed her credibility.

[22] With regard to the fourth ground, we first deal with the police officer’s evidence.We accept the Crown submission that, in the context in which the evidence was given, Mr Reiri can have no complaint.The evidence was given as part of a description of the police investigation the following morning and would have been understood in that light by the jury.

[23] This leaves the complainant’s evidence that she told the two Reiri nephews what had happened.We mention first Mr Burston’s submission that this evidence was admissible as being part of the res gestae.Spontaneous exclamations made by a victim of an offence, or by a bystander, can come within what is often called the res gestae exception to the hearsay rule and can be relied on to prove the truth of the words used.Before such evidence can be led to prove the truth of the words spoken, the statement must be spontaneous and uttered in such circumstances that the possibility of concoction or distortion may be excluded – see R v Accused (CA 17/97) (1997) 14 CRNZ 565, 567.

[24] We do not need to decide whether the complainant’s evidence about telling the Reiri nephews what had happened meets those requirements.This is because we do not consider that the statements were led as evidence of their truth.There is no suggestion that the Crown was treating the statements as anything other than part of the complainant’s narrative, setting out her account of her actions after the incident.As we understand the position, the statements were not even referred to in the Crown’s closing address.No details of the statements made to the Reiri nephews were given by the complainant, except of course by implication in that the jury would have presumed, when the complainant said she told the nephews what had happened, that this bore some relationship to the events she had just described in evidence.

[25] In our view, the purpose of the leading of the evidence of the fact that statements were made to the Reiri nephews was to counter a defence that the complainant had returned to the house and continued to party and had only later concocted the rape allegation.The evidence was given for a legitimate purpose of countering the defence of concoction – see for example I v R CA410/01, 8 August 2002.If that is the purpose it is not necessary to call the persons to whom the statements have been made – see R v H, at p5.

[26] The complaint made to the security guard can be seen as coming into the same category and as admissible on the same grounds.Even if the evidence of the security guard were viewed as recent complaint evidence, and the complaints to the two Reiri nephews were also regarded in this fashion, we consider that all three were so closely connected in time and circumstance that they could all be regarded as a single complaint and thus evidence of all three would have been admissible – see eg R v D [2003] 1 NZLR 41, para [14].

[27] There remains the question of the directions that should have been given.As pointed out in I v R at para [33], where a previous consistent statement is admitted, the purpose is to disprove a concoction and not to prove the truth of a witness’s trial evidence.It thus goes to credibility in the same way as recent complaint evidence.It follows that a direction similar to that given in the case of recent complaint evidence is necessary.Such a direction was given with respect to the security guard’s evidence.A similar direction should have been given with regard to the complainant’s evidence of the fact that she told the Reiri nephews what had happened.

[28] In the circumstances, however, we do not consider the lack of a direction has led to a miscarriage of justice.The evidence was not relied upon in any way by the Crown in closing and it was given in passing in the context of a description of the complainant’s actions culminating in her complaint to the police.The jury was told how to treat the evidence of the security guard and was unlikely to have considered the evidence of statements to the Reiri nephews as being in a different category.Indeed, referring to the evidence of statements to the Reiri nephews could have served unduly to emphasise it in circumstances where the Crown did not rely upon it.

[29] The fourth ground of appeal also fails.

Result

[30] For the reasons given, the appeal is dismissed.

Solicitors:

Paino & Robinson, Upper Hutt for Appellant

Crown Solicitor’s Office, Wellington