R v Gibb CA475/03 [2004] NZCA 428 (31 May 2004)

Last Updated: 30 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA475/03

THE QUEEN

v

DAVID RONALD GIBB

Hearing: 26 May 2004

Coram: Hammond J Laurenson J Doogue J

Appearances: H E Juran for appellant
K Raftery for Crown Judgment: 31 May 2004

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1] David Ronald Gibb was convicted following trial in the High Court on 28 August 2003 on two representative counts of sexual violation by unlawful sexual connection, one representative count of rape and one representative count of doing an indecent act. On 19 November 2003 he was sentenced by the trial Judge to 11 years imprisonment. He now appeals against his conviction.

R V DAVID RONALD GIBB CA CA475/03 [31 May 2004]

[2] The appeal is brought upon the grounds, first that the verdict of the jury was unreasonable and against the weight of the evidence, and secondly Rodney Hansen J, the trial Judge, erred in his summing up.

Background

[3] In July 2002, the appellant moved into a caravan park in Auckland. He became closely involved with some of the children residing at the caravan park. The appellant would encourage the children to come to his cabin, or allow them to watch television. He would offer them items of confectionery.

[4] The complainant E, was seven years old at the time of the offending. The appellant befriended her mother and encouraged E to visit his cabin. She visited frequently over the period between 1 April 2002 and the end of October 2002.

[5] On a number of occasions, the appellant would get E to sit on a chair in the living room in the cabin and he would sit on the floor in front of her. He would then remove her pants and underwear and push his finger in and out of her genitals. She would tell him to stop what he was doing because he was hurting her, but the appellant did not stop. When E told him she would tell her mother he said she should not do that as she would get into trouble. Afterwards the appellant would give E sweets.

[6] On other occasions the appellant would take E into the bedroom area of his cabin and would sit her on the bottom of his bed. Again he would sit on the floor, this time at the bottom of the bed, remove her lower clothing and push his finger in and out of her genitals.

[7] On a number of occasions during the same period the appellant would sit E on a chair in the living room of his cabin. He would then remove her lower clothing and pull down his own trousers and underwear. The appellant would then open up E’s legs by pushing her knees apart and put his erect penis into her vagina and rape her. The appellant would ignore any requests for him to stop what he was doing.
[8] At other times the appellant would sit in front of E, remove his trousers and underwear and begin rubbing his penis. He would continue to masturbate himself in front of E until he ejaculated on the floor of the cabin.

[9] The last type of offending giving rise to the convictions were occasions when E would be lying on the floor of the appellant’s cabin watching the television. The appellant would approach E from behind and remove her lower clothing. The appellant would then lean over E and push his erect penis into her anus.

[10] At trial the evidence of E was given by a video interview and by way of closed circuit television. Evidence was also given by the interviewer, E’s mother, a witness to recent complaint, a doctor, a police constable and a detective who produced a video interview with the appellant.

Grounds of Appeal

[11] The first ground of appeal is that the verdict was against the weight of the evidence and relied solely on the unsupported evidence of the seven year old complainant, who was eight years old at the time of trial.

[12] The second ground of appeal is that while it is acknowledged the summing up is fair, in the particular circumstances, comments about children as witnesses and about the appellant’s video interview may well have given the wrong impression to the jury, especially when combined with an alleged lack of evidence that could have misled the jury.

Verdict against the weight of evidence

[13] It is submitted that a recent complaint witness had to have been influenced by the fact there were rumours amongst the inhabitants of the caravan park that the appellant liked very young girls. The complainant’s mother was aware of this. It is therefore submitted that the weight that could be given to the evidence of recent complaint had to be questionable. That submission is made because the recent
complaint witness acknowledged that the complainant’s complaints to her resulted from her asking E on a couple of occasions if the appellant had done anything to her. That followed the complainant herself bringing the appellant’s name into the conversation with the witness.

[14] The further submission of the appellant under this head is that the complainant, when interviewed, made statements of a somewhat contradictory nature and did not bring out the allegations of rape and sodomy until the very end of the interview. We were taken through extracts from the transcript of the complainant’s evidentiary video interview. They contained evidence from which the jury was entitled to convict if it believed them.

[15] It is further submitted that the complainant’s evidence was not supported by other Crown evidence and that some other evidence contradicted it. However, one of the examples given in support of this submission is the commonplace evidence that there was no medical signs of sexual abuse, but that was not inconsistent with abuse having occurred. Another example of even less significance was that the complainant gave evidence she stayed overnight three times at the appellant’s place, while both her mother and the appellant in his interview gave evidence it was only twice. A further example of alleged relevant contradictory evidence is that the complainant said the appellant masturbated himself onto the carpet, yet no semen was found on the carpet by the ESR.

[16] So far as the submissions in support of the first ground of appeal are concerned, we are satisfied they are without substance and there was evidence on which the jury were entitled to reach the verdicts which they did.

[17] The issue of the recent complainant witness’s evidence was explored before the jury and it was entirely a matter for the jury as to what weight they gave to it. There is no way of knowing how much weight the jury did give to it. There is nothing inherently unreliable about it. It was open to the jury if they thought fit to find the recent complaint evidence assisted the complainant’s credibility.
[18] The evidence of the complainant was consistent with what one would expect of a seven year old child. She slowly disclosed the events which gave rise to the Crown’s allegations. The disclosures were spontaneous and if it had been otherwise there would have been justifiable and genuine cause for complaint. A young complainant cannot be expected either to evaluate or articulate sexual matters of the kind complained of here in the same way as an adult.

[19] The critical issue at trial was one of credibility. There was clear evidence from the complainant that the offences alleged occurred, supported by the recent complaint evidence. The appellant admitted that the complainant frequently visited his cabin, although he denied any inappropriate contact. He chose not to give evidence.

[20] The jury acquitted the appellant in respect of two other complainants. It is clear the jury made a very careful assessment of credibility in each case.

[21] It is impossible for us to come to the conclusion on the submissions for the appellant, that he has come anywhere near establishing that the verdicts were against the weight of evidence. This was a quite unexceptionable case of its kind where there was ample evidence for the jury to find as it did. There was no evidence of any substance in conflict with that relied on by the Crown.

Second ground of appeal – misdirection

[22] The appellant’s submissions criticise the summing up under several different heads. It is simpler to deal with them under each head so the criticism can be seen in the context of the relevant portion of the summing up.

Comment on evidence of children

[23] The Judge directed the jury in respect of the evidence of children as follows:

[46] The evidence of children does not attract any special rules in law. Children are, for legal purposes, competent to give evidence. Their competence was established, although this will be ultimately a matter for

you, by the questions that they were asked which were designed to elicit from them that they understood what it means to tell the truth, to lie, and a promise to tell the truth.

[47] There are no special rules to be applied when considering the evidence of the children. It will be for you to decide, using your own experience of the world, whether or not their evidence is to be accepted as credible and reliable. You are, of course, entitled to bear in mind that children see things, experience things, remember things, describe things in different ways from adults and for that purpose you must draw on your own experience as children and with children when you come to evaluate their evidence.

[48] Obviously you do not judge a child’s evidence by the standards that you would apply to an adult witness. But that said, you just approach it in the normal kind of way that you would anybody else. I just wanted to remind you again of the special arrangements which the law requires us to make about the closed-circuit television and that the use of that is not to be taken in any way as reflecting on a need to protect the children from the accused.

[24] It is accepted for the appellant that the directions complied with ss 23AB(1) and 23H, Evidence Act 1908. It is however submitted that in the case of this complainant the Judge might well have thought it appropriate to make a comment about absence of corroboration of the complainant’s evidence of the more serious offences in terms of s 23AB(2). It was further submitted that although the Judge’s comments in paragraph 46 about the competence of child witnesses generally complied with the law, they may have misled. It was further submitted that it was open to the Judge to comment on specific matters in relation to the safety of the complainant’s evidence in terms of s 23H(d).

[25] There is nothing of substance in these submissions. The trial Judge gave an entirely proper direction to the jury on the law as it stands. Section 23H(c) Evidence Act 1908 specifically prohibits the Judge from instructing the jury on the need to scrutinise the evidence of young children generally with special care, or from suggestions to the jury that young children generally have tendencies to invention or distortion.

[26] The Judge’s direction in the present case could have left the jury in no doubt that it needed to be satisfied that the children’s evidence was reliable. The very fact that the jury acquitted the appellant in respect of certain of the charges makes it clear
that the jury had no difficulty in distinguishing between the evidence of various children.

[27] There could be no basis for determining that the Judge should have given directions as to lack of corroboration in relation to the serious offences. Section 23AB(1) Evidence Act 1908 specifically excuses sexual cases from requiring such direction and makes it a matter of judicial discretion. The Court has made clear in more than one case that the statute is to be upheld when it leaves it as a matter for discretion for the Judge. It would be particularly unusual in the case of multiple complainants and charges for a direction to be given about corroboration in respect of one complainant and specific charges, as it could well confuse the jury, rather than assist them. As the Judge made absolutely clear in another part of his summing up, the critical question in relation to the charges was whether the acts which the complainants described actually occurred. He spelt out to the jury this would turn largely on whether or not the jury found the evidence of the complainants both credible and reliable in the way the Judge had indicated.

[28] We see no justification for any criticism of the trial Judge’s summing up in respect of the evidence of children.

Caution required in respect of appellant’s video interview

[29] In respect of the video interview of the accused, the trial Judge said this in the summing up:

[64] The video interview of the accused with the police is, of course, not sworn testimony as it would be if it were given here in evidence in Court and nor is it tested in cross-examination in the way a witness’s evidence is in Court. But, subject to those caveats if you like, what the accused said in his video interview with the police is properly part of the material that you can take into account. What you make of its truthfulness, its accuracy, its reliability is entirely up to you. Just as with any other witness, you are free to accept parts of what he said and to reject other parts of what he said.

[65] There were a number of things which he said in the course of the video interview which mainly concerned I think, well, it exclusively concerned E did it not, but which were never put to either E or her mother. There was some comment on that, you might recall, by counsel in closing, both suggesting that the other should have put parts of the video evidence to the

other witness. I do not think it is for me to get into the rights and wrongs of this. But what I would suggest is this, that you should be cautious in relying on anything which the accused said in his video interview involving E or E’s mother which they were not given an opportunity to comment on. I do not say disregard it. I just say if you consider it, bear in mind that you never heard what they might have said about it.

[30] The appellant takes issue with the directions in paragraph [65]. It was submitted for the appellant that the warning to the jury to be cautious on anything the appellant said involving anything to do with E or her mother, which was not put to them, may well have made the jury put little value on the entire video interview relied upon by the appellant to explain what had occurred with this complainant.

[31] We do not know either what led to the particular direction or what it was directed at. The direction itself was cautious. It was not at all critical of either the appellant or his counsel. It is impossible to say it could have led to the jury either ignoring or putting little value on the content of the appellant’s video interview. It is again pertinent that the jury acquitted the appellant in respect of the charges relating to two other children.

[32] This criticism of the summing up like the earlier one has no substance and fails.

Conclusion

[33] The appeal against the appellant’s convictions is dismissed.

Solicitors:

Crown Solicitor, Wellington