R v MMNA CA136/03 [2003] NZCA 353 (24 July 2003)

Last Updated: 29 November 2018

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT AND COMPLAINANT UNTIL FINAL DISPOSITION OF TRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 136/03

THE QUEEN

v

[MMNA]

Hearing: 21 July 2003

Coram: Gault P Baragwanath J Panckhurst J

Appearances: S B Manning for Appellant

L M B Lamprati for Crown Judgment: 24 July 2003

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1] The appellant was convicted by a jury in the District Court at Gisborne on one count of rape of his wife for which he was sentenced to eight years imprisonment. He applies for leave to appeal out of time and for the admission of three affidavits. One is by the appellant explaining the delay in appealing and two contain new evidence from medical experts, Dr Carolyn Shand, an experienced forensic sexual abuse examiner, and Dr Kenneth Thomson, a highly qualified and

R V [MMNA] CA 136/03 [24 July 2003]

experienced pathologist, concerning evidence led by the Crown at the trial from the Police doctor who examined the complainant.

[2] The grounds of appeal were

1. i) wrongful admission of evidence of previous violence said to have been used by the appellant against the complainant;

2. alternatively, error by the trial judge in failing to direct the jury as to the legitimate use of that evidence;

2. i) wrongful admission of opinion evidence from the police doctor;

2. alternatively, error in failure to direct the jury in respect of that evidence;

100. Radical error by defence counsel (not Mr Manning) in

1. not objecting to the admission of evidence of previous violence;

2. introducing prejudicial evidence in cross-examination; and

3. failing to instruct an independent medical expert.

[3] The appellant and the complainant are medical doctors who are nationals of [Country] where they met and later married in January 2001. They came to New Zealand in August 2001. The appellant had obtained his medical qualifications in [Another Country] and was required to complete further examinations to secure New Zealand registration. At the time of the alleged offending he was working at [city] Hospital as an observer. The complainant holds Australian medical qualifications that are recognised in New Zealand and was working at the hospital as a house surgeon. While the complainant is a fluent English speaker the appellant (a user of the [language/dialect] ), who was examined and cross-examined

in English, was said to be not wholly fluent and to use some expressions in an idiosyncratic or stilted manner.

[4] Since we have decided that there must be a new trial, we limit the discussion of the facts to their essence. The alleged rape was described by the complainant as occurring on the morning of 3 November 2001 when she returned to the bedroom after a shower to get dressed. She said that the appellant had assailed her from behind, caused injury with his fingernails to her private parts and refused to comply with her demand that he stop.

[5] The appellant was interviewed by a police officer at the [city] Police Station but, for reasons that were not explained, without a video record. He was asked about his alleged physical abuse of the complainant, which he denied. The following questions and answers were noted

17. Why would she come to the police station and lie about you hitting her?

1. We agreed yesterday that she would come here and say these things because it was the only way to end the marriage.

Q. So you’re saying that you both made this up?

A. Yes I told her to come in and tell them I had been assaulting her.

[6] What appears to an English speaker a bizarre proposition was put by defence counsel to the complainant (p56) as expressing her client’s wish; before us it was explained by appellant’s counsel as due to his unfamiliarity with idiom, he intended to convey what was later stated in evidence in another unidiomatic phrase (p99), that this was a challenge not intended to be taken seriously.

[7] A major element of the complainant’s evidence in chief was of obsessive jealously and control of her by the appellant because, it seems, of his perception that she was flirting with other men. Over some 11 pages of the transcript she gave an account of a variety of forms of assault upon her and other misconduct said to have occurred in [Country] and in New Zealand, motivated by such jealous control.
[8] Defence counsel put to the forefront of her cross-examination of the complainant the appellant’s case that the sexual intercourse, which was not disputed, had occurred in the context of a fraught relationship during which the appellant had been violent to the complainant and she had been violent to him. The defence case included a reciprocal allegation that the complainant was obsessively jealous of the appellant and of his interest in other women. She put to the complainant that she thought the appellant had tried to poison her and to cause her to have a miscarriage, which elicited the response that he had, without her knowledge, administered to her a drug used in New Zealand for stomach complaints but in the USA and in [Country] as an abortifacient. The theme of the cross-examination was that the complainant was making unfounded allegations and was “just paranoid”.

[9] The evidence concerning miscarriage was emphasised in the re-examination of the complainant, by the officer in charge of the case and in the appellant’s cross-examination.

[10] Mr Manning submits that, in failing to object to the evidence of previous violence and indeed enlarging upon it and introducing the evidence of miscarriage in cross-examination, former defence counsel committed radical error.

[11] But former defence counsel deposed, following waiver of privilege, that she had advised against accusing the complainant of violence and emotional abuse, which might very well backfire. He however instructed her to run the defence that because of the violent relationship between himself and the complainant she had concocted the allegations against him to get him out of her life.

[12] So in accordance with her instructions the appellant’s counsel asked him in chief

17. Your wife described your relationship as a violent one, do you have any comment on that...?

A. It was a very violent one directed towards me.

Q. How was she violent towards you...

1. She punched me on the face and by physical to relieve what she call her pain and sometimes make marks on my face so that other women

wouldn’t look at me... the most serious one was an injury to my head, she was punching me for hours and hours to my left temple while we were in the car and for the same reason that I was supposed to have been looking at a woman on the street...

(page 85)

His account of the sexual intercourse the subject of the indictment was that it occurred in a violent fashion at the insistence of the complainant (page 95).

[13] The Judge in summing up said

[6] In this case a whole lot of evidence has been led which strictly has nothing to do with the events of the 3^rd of November. In fact, if you reduce the events on the 3^rd of November down to writing, as has happened, it covers only a few pages out of what is now a tonne of evidence. It is a bit unusual to have so much extraneous material thrown in to be heaped in upon you. The reason it has happened in this case is you are dealing with an allegation of rape within marriage. I’ll talk about that again soon. You will realise that it is desirable in our society that partners have sexual relations for the purpose of reproducing our species. We expect sexual intercourse to be going on within marriages and within partnerships, so the event itself by consent is quite a normal event, you expect it to occur. These two persons were married persons and so if you were presented with the bald facts of the 3^rd of November alone you might have no way of assessing whether it was really consensual or not. Accordingly you have had to listen to a whole lot of evidence about the relationship between these people, which is intended, it is hoped, to assist you in deciding whether the events of the 3^rd of November have been proved beyond reasonable doubt or not as rape.

...

[9] There may be another issue which has been on your minds. In some ways some of the allegations and counter allegations against each other, you might think, have a sort of quaintness about them, a sort of old-fashioned morality about them, a kind of closed society idea about them. For instance, the idea of looking at the image of a woman in a magazine or whether or not you are allowed to look at a person of the opposite sex across the road or meet them and shake hands in the absence of your spouse. Those kinds of things may be the product of the fact that these people lived in another kind of society, I do not know, these are things for you to take into account.

[10] So in determining these credibility issues you can consider where these people have lived as well, she at [Overseas City] and [Country], which I gather must be a place where people are Muslims, or at least some are, and he in [Country]and also he went to Medical School at, I think it was called [redacted].

[11] In considering the credibility of the allegations, cross ways by both, is there any issue that perhaps there is a cultural context to whether these things are seen to be terribly sinful or bad or not, and how does it affect either one of them? Take all of that into account.

In directing the jury as to the approach they should take towards their verdict he said

[17] In getting there you are not obliged to follow the same route. I will be telling you in just a moment that in determining whether he is guilty or not guilty you do not have to go through the process of all coming to the same conclusion about all of these events that we have heard about. It is just the rape we are talking about. Some of you might say, “well I don’t think that abortion business occurred” or “I do” or, it does not matter. You do not actually all have to agree on all of these things. You may come by a different route, but you must all have the same verdict.

He later directed

[38] Finally I covered the definition of rape or sexual violation. I think that in recapping on this part I will go through that again. The first thing I should say is that the matters which you must decide beyond reasonable doubt, you will remember, are; the question of whether a rape has been proved, not all of those other incidents. Those are, in a sense, by the way, it is material which you may reflect upon to help you determine this issue of what you believe about the incident on the 3^rd of November. You do not all have to have the same opinion about each of the events that occurred.

In directing as to consent he said

[40]... The complainant’s behaviour and attitude before or after the act itself may be relevant to that issue but is not decisive of it. The real point is whether there was true consent or a reasonably based belief in consent at the time of the act itself.

In summarising the Crown case he said

[44] First let me just say that the Crown case is that you can rely on the evidence of [the complainant] when she tells you that she was raped on this night by her husband, because it logically flows from the experience that she had been having in this union with him. That that event was rape and although she was not to complain about it for about 2-3 days that is a justifiable thing because of the nature of the hours of work, and the experience by her of the discharge which she suffered on two occasions, one of them at the Warehouse. Having got to the point of being brave enough to make a complaint she sought the assistance of the presence of somebody. It was arranged that the Women’s Refuge Victim Support person would come and that led to her saying to the policeman what had happened. But it was consistent with what she tells you now because she told the Women’s Refuge person that she was hurt during the event, even if she did not mention the discharge.

[45] Supporting what this woman says is the evidence of the doctor who examined her, who found the condition of her genital area was consistent with the kind of thing that she was complaining about.
[46] While it may be that it is difficult to understand why somebody endures domestic violence without going, leaving the scene of it, it is not unknown that spouses will stay with violent spouses for reasons which [Crown counsel] called the power, control cycle. It sounds like psychobabble but it is understood to be the sort of dependence relationship, which grows up in a union like that. You should remember that here were these two people from another society, alone in New Zealand without any support systems except those which related to her work. Of course that applies equally to him in terms of whether he can muster up the courage if the facts as he says they were.

[47] [Crown counsel] covered a number of the events of domestic altercation, which you have heard about, and said to you that his explanations for some of these events are plainly incredible, such as things as feet on steering wheels, specialists who put legs in plaster when there is nothing wrong, screaming, and you will remember all of the things.

(Emphasis added in para [45])

[14] Mr Manning submitted that the evidence of previous violence and bad character were not relevant to the issues to be determined namely

• whether the Crown had proved the complainant was not consenting; and

• whether the Crown had proved the appellant did not have reasonable grounds to believe in consent.

[15] He cited Gipp v R (1998) 194 CLR 106, 113 per Gaudron J

...the defence case may be conducted in such a way as to raise an issue to which prior abuse is relevant [if there are such] issues in the trial, evidence of general sexual abuse is relevant and admissible. But they can only be made issues by the way in which the defence case is conducted.

and challenged the view of the Court of Appeal in R v Underwood [1999] Crim LR 227, a case of domestic violence, that

[There is] no reason why evidence of other assaults should not be admitted. It goes to intent and it rebuts any defence of accident... Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury will be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.

He cited the editorial comment that

...the disputed evidence will usually implicate the accused in some discreditable behaviour likely to incline the jury against him. In the present case the other incidents of violence would have been crimes... but not the evidence that you prevailed on the victim to have an abortion. All three allegations would, however, have been within the province of the rule [DPP v P [1991] 2 AC 447]. In saying that it is admissible, the Court must, it seems, have performed the balancing act required by Lord MacKay, but no specific account is given of the factors making it just to admit the evidence beyond saying that it went to rebut the defence of accident. This seems unlikely to be true of the evidence relating to the abortion, which did not seem to be particularly closely linked, in time or circumstance, with any of the acts on the indictment. It might have been true of the other acts of violence, on the basis that genuine accidents are unlikely to occur in the context of an oppressive relationship of this sort, but put like that the argument sounds rather thin and it would be helpful to know what the court thought the justification was.

It is submitted that the Court muddies the water rather by agreeing with prosecuting counsel’s submission that the evidence was also admissible as forming part of the “background” to the case. Cases such as Pettman (Unreported, May 2, 1985) acknowledge that it may be necessary to give the jury a certain amount of background evidence “without the totality of which the account placed before the jury would be incomplete or incomprehensible”. Where this is the case the mere fact that the evidence includes the commission of other offences (or presumably other discreditable information) does not render it inadmissible. The interesting aspect of the cases of which Pettman is one is that it does not appear that the balancing test required by P comes into play.

The evidence must be relevant, but beyond that there is no requirement except that it be necessary to, as it were, put the jury in the picture. In the present case defence counsel (surely rightly) objected that there was nothing necessary about the discreditable revelations. The Court, though apparently in sympathy with the argument... nevertheless goes on to hold the evidence “part... of the essential background to the relationship between the parties”. It is a bit hard to see how something can be essential and not necessary at the same time. The particular difficulty in cases such as this is that identified by the Law Commission in their Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), which is that labels such as “background evidence” may be vehicles for smuggling in otherwise inadmissible evidence for less than adequate reasons. Necessity is a good reason, but the line should be drawn pretty firmly under cases which fall in this category.

[16] But the submission, prepared before receipt of counsel’s affidavit, overlooks the appellant’s clear instruction to advance the case that the complainant had been violent and to run the risk of backfire. By email of 10 June 2002 he informed counsel that he wished her to advance the proposition, expressed in bold type, that

the complainant was actuated by “obsessive or morbid jealousy”. It is clear from counsel’s response of 12 June

...It is doubtful whether we will even be allowed to explore her previous behaviour, though we will try...I will try to get in your evidence of her past treatment of you, but as I say, that may be difficult”

that the defence were set on raising the topic of violence between the parties. If such election had become known to Crown counsel it is hardly surprising that, when leading the evidence of the complainant in chief, it was extended to meet the attack. Given the appellant’s instructions it was inevitable that, in response to the appellant’s challenge to the complainant that she had been violent to him, she would reciprocate in the course of her cross-examination. Such course would fall squarely within the principle stated by Gaudron J: the defence election had made relevant the topic of violence in the relationship.

[17] Having elected that course at trial the defence will not be permitted on appeal to try the opposite tack. Submissions as to what counsel or the Court might have done to limit the extent of evidence of prior bad conduct are beside the point when the party has demanded that it come in. There is no basis for alleging error, radical or not, on the part of experienced defence counsel in complying with instructions to adopt a course against which she had warned.

[18] But there remains under the first ground the fact that there was no direction to the jury as to how they should use the evidence of prior misconduct.

[19] While the evil of battering women is itself a serious offence it is not necessarily synonymous, on a particular occasion, with absence of consent to intercourse. The direction as to consent, viewed by itself, was appropriate. But the Judge did not explain to the jury that the evidence that the appellant had abused the complainant could be used only to provide the context in which the rape was alleged to have occurred with a view to bolstering her credibility; it could not be used as tending to prove that on this occasion she did not consent. The distinction may at first sight seem subtle and even irritating. But reflection brings home the appreciation that it is crucial, marking the difference between one crime and another. It has been the Courts’ experience that, given adequate direction, juries will apply it

fairly and conscientiously. There is no reason to believe that would not have occurred here.

[20] That factor might be thought of itself sufficient to constitute a miscarriage of justice. But that point does not require decision in view of the further difficulty with this case raised by the second ground of appeal.

[21] The Police doctor gave an account of tenderness and abrasion. We reproduce with emphasis part of his evidence. He was asked in chief

How were you able to ascertain there was tenderness and abrasion ... The abrasions is by inspection the tenderness is by feel and touch.

So when you say by feel or touch, can you explain how it is that you ascertained that the area is sore or tender ... There was a slight local swelling and I asked if it was tender there and she said “yes’.

So you were able to feel the swelling ... Yes.

Now, you mentioned before that there was this thickish pink brown discharged with traumatised tissue, the court has heard evidence that on least one occasion that [the complainant] found the tissue had been discharged from her vagina, and that that tissue was about the size of a fingernail, can you give some expert opinion about that evidence ... Not really, I wasn’t quite certain as to what this traumatised tissue was so I referred her on to see a gynaecologist the next morning.

When did you refer her to the gynaecologist ... The following morning, the same day.

Can you say what you think could have caused the injuries that you observed

... The most likely cause would be forced sexual intercourse.

And is forced sexual intercourse possible cause of the discharge[d] tissue which we have heard about which occurred after some two or so days after the alleged event ... That is possible.

That’s possible ... Yes.

Cross-examined at page 70 he was asked

Did you notice any scratches ... No I did not except the abrasion on the genitalia as mentioned.

In terms of the bruises to the thigh that you noted, are you able to judge the age of those with any accuracy ... No I am not.

So it’s possible that they were inflicted at a date earlier than the 3^rd of November ... Yes it’s possible.
And similarly the bruise you say on the back of the forearm ... Yes.

...

In terms of the abrasion to the genital area, could you describe to us what you mean by an abrasion ... A superficial tear of the skin.

The skin in this area is very delicate isn’t it ... It is. And easily damaged would you agree ... Yes.

You said earlier that I believe the most likely cause of the injuries to the genital area, would be forced sexual intercourse is that correct ... That’s correct.

Would you agree that equally a cause could be forceful sexual intercourse ... Yes, that’s correct.

So in fact it’s I suppose the roughness with which intercourse takes place that can cause tenderness in this area ... True.

And that can occur through consensual sexual intercourse can’t it ... It’s possible.

His re-examination was as follows

Do you recall during cross-examination you said that the injuries to the complainant’s genitalia were possibly consistent with vigorous but consensual sex ... Yes, not consistent but possible.

How long have you been a police doctor ... For the past 27 years.

Drawing on your experience and expertise could you say whether the injuries sustained by the complainant to her genitalia are more likely to have been caused by consensual or non-consensual sex ... In my experience I would say this is non-consensual sex.

[22] The doctor was therefore twice permitted to express his opinion on what was an essential issue for the jury – whether the sexual intercourse was consensual, even though in between he acknowledged that “equally a cause could be forceful sexual intercourse...”

[23] The Courts will ordinarily exclude expert opinion on an ultimate issue such as consent in a rape trial. The point was stated in R v Eade CA 89/02, 23 May 2002 para 19

[19] The reasons for the traditional reluctance of courts to allow expert opinion evidence going to the central issue(s) in a case still hold good: a jury might (even with appropriate directions) forgo independent analysis and bow
too readily to “the expert view”. And secondly, more often than not, there is no need to expose the jury to that risk, for it is unnecessary to do so – the jury is quite capable of making its own connections and evaluations. That said, there is today no absolute rule against evidence from an expert witness which goes to the ultimate issue. But it must be necessary for the proper determination of issues before the jury (see R v Makoare [2000] NZCA 333; [2001] 1 NZLR 318 (CA) and R v Parrott (2001) 150 CCC (3d) 449 (SCC)). Sometimes this may occur where it is artificial to separate out facts and opinions into water tight categories; or where what is to be said is a way of conveying relevant facts as perceived by the expert; or where the defence would be unduly hampered if the defence could not put the issue in a direct way.

[24] In the present case there was no need for assistance to the jury on the issue of consent with which juries are customarily left to deal without such assistance.

[25] Moreover as stated in Makoare

[23] ...before admitting evidence of this kind the Court requires to be satisfied not only that the witness is properly qualified as an expert in the area in respect of which he or she will testify but also that the subject-matter of the testimony is supported by a body of knowledge or experience which is sufficiently organised or recognised to be accepted as reliable...

(citations omitted)

[26] The defence had no reason to expect that the Crown would, impermissibly, lead evidence of the doctor’s opinion on the issue of consent. There was thus no occasion to be prepared to challenge the evidence actually given that

In my experience I would say this is non-consensual sex.

and accordingly no error of trial counsel in that respect.

[27] Dr Shand expressed the following opinion which is not challenged by the Crown

49. In this case the non-genital injuries are either subjective (tenderness) or non-specific (areas of bruising on right leg and right lower arm) and the documented genital injures minor so there could be no basis for such a conclusion.

50. In my view, and the accepted view of DSAC, doctors should be very wary of giving such an opinion even with the most severe injuries because “there are no specific findings that indicate consent per se.” (DSAC Manual 5^th Edition, Section 4 page 16).

51. If a Doctor finds evidence of significant injury it might be appropriate to say that the presence of such injuries is more

consistent with non-consensual sex than consensual, but be prepared to admit that it is a matter of the force used. In this case whilst there were areas of tenderness and a small abrasion documented, these are non-specific findings and are not diagnostic of injury.

52. In summary, the medical evidence as documented is neutral and can neither confirm nor refute the history. In my opinion the Doctor is not entitled to draw the conclusions that he does. They are unwarranted.

[28] Dr Thomson expressed the opinion

28. The conclusion made in the later depositions that the genital injuries could have been caused by forceful intercourse is reasonable. The assumption that the poorly described bruises on the leg, thigh, wrist and the areas of tenderness without demonstrated bruising on the neck are consistent with an assault, is in my view unsustainable.

29. The introduction of the evidence relating to the piece of tissue in the later depositions does not appear to relate to anything seen by Dr Nanayakara and in my view it is inappropriate for him to include that material along with the records of his own examination.

[29] We are satisfied that in the light of the evidence and the concessions elicited from the Police doctor in cross-examination, his expression of opinion on the central issue in the trial was accorded a prominence which was unjustified and unfair.

[30] It may well be that an appropriately firm and clear summing up would have saved the trial from miscarriage. In respect of the evidence of prior conduct the Judge went some distance towards down-playing it by describing it as “strictly having nothing to do with the events relating to the alleged rape” but as

material which you may reflect upon to determine the issue of what you believe about the incident of the 3^rd of November

But without further direction the safety of the verdict was put at risk.

[31] In relation to the Police doctor’s evidence by way of opinion, which the expert evidence shows was in fact unjustified, the verdict might have been rescued by an emphatic direction that the doctor’s opinion as to consent ought not to have been given. But in summing up the Judge first echoed, without comment the Crown submission that the evidence of the doctor supported what the complainant said (para [44] reproduced at para [12] above) and later did no more than read to the jury

the whole of the doctor’s evidence. The result was that the jury was left with the impression that it was entitled to approach the case on the basis that the doctor was entitled to provide the opinion, expressed in the final sentence read to them

In my experience I would say that this is non-consensual sex.

This error coupled with the first makes the verdict unsafe.

[32] There being no submission directed against the application for leave to appeal out of time we give leave to appeal. We admit the passages in the evidence of Drs Shand and Thomson to which we have referred.

[33] For the foregoing reasons the appeal is allowed and the conviction quashed. We direct a re-trial.

Solicitors:

Crown Law Office, Wellington