R v G (CA414/03) [2004] NZCA 429 (26 October 2004)

Last Updated: 30 December 2018

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL RETRIAL. THEREAFTER PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA414/03

THE QUEEN

v

G(CA414/03)

Hearing: 22 September 2004

Coram: Anderson P Baragwanath J Randerson J

Appearances: R M Lithgow for Appellant
S P France for Crown Judgment: 26 October 2004

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

Introduction

[1] The appellant appeals against his conviction after trial in the District Court before Judge Connell on one count of indecent assault against his daughter, a girl then aged under 12 years. He was subsequently sentenced to 18 months imprisonment and granted leave to apply for home detention.

R V G(CA414/03) CA CA414/03 [26 October 2004]

[2] Mr Lithgow advanced the following grounds in support of the appeal:

1. The verdict was unreasonable or cannot be supported having regard to the evidence;

2. The conduct of the prosecutor unfairly prejudiced the appellant and led to a miscarriage of justice;

100. There was a failure to disclose that the complainant was undergoing ongoing counselling, with an associated submission that the complainant lied under oath on that subject, leading to a miscarriage of justice.

[3] During the course of the hearing, we raised with counsel our concern that the Crown had led evidence about certain behaviour by the complainant which the Crown relied upon as supporting the complainant’s evidence. It appeared to us there was a real issue as to the admissibility of this evidence which was given without any assistance to the jury from a psychologist or other recognised expert on the subject of the sexual abuse of children.

[4] It transpired that this evidence was led by the Crown without objection from the senior and experienced counsel representing the appellant at trial. This was clearly part of a deliberate trial tactic adopted by the appellant’s counsel, hence Mr Lithgow’s understandable reluctance to rely upon it as a ground of appeal.

[5] Despite counsel’s diffidence in this respect, we have concluded that the admission of this evidence has led to a real risk of a miscarriage of justice. We now set out our reasons for that conclusion.

Background facts

[6] The complainant is the natural daughter of the appellant. She was born on 5 November 1991. In February 1998, the appellant and the complainant’s mother separated. The offending was alleged to have occurred between 1 June 1998 and
31 May 1999 when the complainant was aged between 6 and 7 years. During that period, the accused had access to the complainant and would stay overnight at his home. On occasions, the complainant’s younger sister would also stay with the appellant.

[7] During 1999, the complainant’s mother became concerned that the appellant might have been abusing their daughter. A diagnostic interview with the complainant was conducted by the Children & Young Persons Service in that year. Although no disclosures of sexual abuse were made at that stage, the appellant’s access to the children ceased around that time and did not resume until April 2000.

[8] The complainant’s mother gave evidence of incremental disclosures of sexual misconduct by the appellant towards the complainant during the years 2000 and 2001. It was not until 5 March 2002 that an evidential interview on video was conducted with the complainant. As a result, the appellant was interviewed by the Police on 13 June 2002. He denied any wrongdoing and stated by way of innocent explanation that he might have touched the complainant’s private parts while bathing her. During his interview, the appellant blamed the complainant’s mother and her maternal grandmother, suggesting that the complainant’s disclosures resulted from obsessive concern on their part.

[9] The appellant was nevertheless charged with three offences. The first was a charge of indecent assault arising from the complainant’s evidence that the appellant had lain on top of her and touched her vagina with his penis. On that charge, the jury convicted the appellant. On the other two charges, he was acquitted. These were first, another charge of indecent assault alleging the appellant touched the complainant’s vagina with his hand and secondly, an allegation that the appellant induced the complainant to do an indecent act, namely, to touch her younger sister about the vagina.

[10] The trial took a most unusual course. Instead of calling the complainant at the outset, the Crown called her mother first and then a series of witnesses, all of whom gave evidence of aspects of the complainant’s behaviour, including sexualised behaviour which the Crown relied upon strongly as supportive of the complainant’s
account that she was abused by her father. A paediatrician, Dr Elder, gave evidence of a clinical examination of the complainant on 21 May 2002. Nothing abnormal was found and it was accepted that her evidence in that respect was neutral in the sense that it neither confirmed nor denied the sexual offending. Then came the complainant’s video interview being played to the jury and her cross-examination and re-examination on closed circuit television. The final Crown witness was the detective who questioned the appellant. He produced the video record of the interview which was then shown to the jury. The only defence witness was a friend of the appellant who gave character evidence on his behalf.

The evidence of the complainant’s behaviour

[11] The complainant’s mother gave extensive evidence in examination-in-chief about unusual behaviour by the complainant. This had commenced when she was aged 2½ or 3 years, well before the separation of her parents. She gave evidence of nightmares, bed-wetting, the complainant pushing a pencil up a doll’s bottom, noticing that she was very red around her vagina, difficulty in sleeping, and anxiety. The mother said some of these symptoms subsided when she and the appellant separated.

[12] The mother went on to refer to the complainant’s anxiety about going to kindergarten and her later disruptive behaviour at school. She stated that once the appellant moved into his own home after the separation, overnight access started. Around that time the complainant became verbally abusive to her and started hitting and punching her sister. These concerns were such that the mother consulted the family doctor. The child’s nightmares returned and she was having difficulty sleeping again at night. In between access periods, she would calm down but her “out of control” behaviour would start again after access had been exercised.

[13] The mother also referred to incidents of sexualised behaviour by the complainant. These incidents began to occur after overnight access commenced. She gave evidence of the complainant trying to grab the penis of the grandmother’s partner while they were in a spa bath. She also gave evidence of a similar incident involving the complainant and her own partner. The mother also referred to drawings
by the complainant depicting large penises. She also spoke of another incident in which the complainant had rubbed her genital area as if masturbating with a long pointer described as a glitter wand. She said the complainant had never been exposed (even accidentally) to any sexual activity between herself and the appellant or her current partner.

[14] The mother went on to state that after viewing a video on child sexual abuse, she concluded that the appellant was abusing the complainant and, to use her own words, she “panicked” and, without explanation, stopped the appellant having access to the child. Thereafter, she consulted a lawyer and the Child Youth & Family Service around mid-1999. The diagnostic interview with the Child Youth & Family then followed. As well, the complainant was seen by a psychotherapist.

[15] The mother stated that the complainant’s behaviour improved greatly after access was stopped between the period June 1999 and April 2000. All the sexualised behaviour ceased, according to the mother. It was during this period that the complainant disclosed to her mother that the appellant was “smacking, yelling and hitting” her and doing “the other mean thing to me”. At that stage, the complainant did not reveal what this other activity was.

[16] After access resumed in April 2000, the mother said that the complainant’s behaviour deteriorated and she resumed the sexualised behaviour. This included pulling down her sister’s underwear and pushing her sister’s face onto her genitals. At that point, the mother approached the complainant’s teacher and arranged for him to provide letters describing the complainant’s behaviour at school. Access was again stopped after only two visits.

[17] During the year 2000, the complainant attended a programme for children who had seen or witnessed abuse. During the course of this programme, she prepared a booklet in which she made certain comments about particular types of touching. As well, during this period, she took part in a school programme “Keeping yourself safe”. A theme book was completed by the complainant under that programme as well. This was also produced to the jury. We pause here to note that we have serious reservations about the admissibility of some of the documentary material produced.
It may well be inadmissible as hearsay or as prior consistent statements. But again, there was no objection to its admission.

[18] During 2001, the mother encouraged the complainant to write down what was concerning her. She did so in April and September 2001. On the last occasion, she made allegations consistent with her later evidential video. Later, in January 2002, the mother said the complainant brought home another booklet from school in which she described the “scariest moment of my life” as “being sexually abused by my dad”.

[19] The complainant’s mother was vigorously cross-examined by defence counsel. It was put squarely to her that she and her mother had discussed the possibility of the appellant having sexually abused the complainant from a time when the complainant was about 3 years old. This suggestion was denied. The mother was extensively cross-examined on the evidence she had given about the complainant’s behaviour, including the alleged sexualised incidents. It was put to her that there could have been other explanations for the complainant’s behaviour, including the effect of the separation and the mother’s new partner. The mother’s response was to say she was unsure about whether the separation may have affected the child’s behaviour, but she did not think her relationship with her partner had affected the child. She agreed she was pleased to find after the diagnostic interview in 1999 that her fears about the appellant having sexually abused the complainant were unfounded. The cross-examination also canvassed the mother’s fears for the child’s safety, the programmes which the child had been subjected to, and the number of interviews with relevant experts.

[20] The mother’s partner was called to give evidence and corroborated the mother’s account of the complainant’s sexualised behaviour and her disruptive behaviour in general. The grandmother’s partner also gave evidence of similar incidents. The complainant’s school teacher spoke of the child’s behaviour at school and the programmes and booklets she had completed. He described her behaviour during the year 2000 as undergoing subtle changes. She was quiet and withdrawn and there were one or two specific incidents which gave him concern. He produced letters which he had written at the request of the child’s mother, describing the
changes he noticed. However, he accepted in cross-examination that at the beginning of the year, the child had presented as a normal 8 year old. It was later in that year, around May or June, that he wrote the first letter at the request of the child’s mother. He said that the child’s behaviour had gradually improved during the year.

[21] The Crown also called the complainant’s kindergarten teacher, who described the child as being rather difficult, manipulative, and controlling. At other times, however, she was “quite happy”. The child’s kindergarten attendance was well before the parties’ separation and long before any allegations of sexual abuse. Further evidence was called by the Crown from a friend of the complainant’s mother, who was also a relieving teacher at the primary school. She also described the child’s behaviour, saying she was withdrawn and that she also engaged in attention-seeking and tantrums. She described a particular incident in the year 2000 while she was a relieving teacher at the complainant’s school. The complainant straddled a chair and was rubbing her vagina on it. She considered this behaviour to be “inappropriate”.

[22] Yet another teacher was called to describe the complainant’s behaviour in the year 2002. She described her as a quiet student, very well behaved, hard-working and a well rounded pupil. It was during this year that the complainant had completed the booklet describing “the scariest moment of my life”.

[23] After the complainant’s video was played, she was cross-examined about the video and the documentary evidence. Essentially, she maintained her evidence on all three aspects of the sexual abuse alleged by the Crown although, in some respects, she was vague as to details. She was unable to recall any occasions when she had attempted to grab the penis of anyone.

Counsel’s addresses

[24] We were provided with written records of the closing addresses by both counsel.
[25] During his closing address, the Crown prosecutor relied heavily on the evidence of the complainant’s sexualised behaviour, describing it as “the most important part of the Crown case.” He went into the evidence on that subject in considerable detail and submitted to the jury that the evidence was “a sharp indicator of sexual knowledge by [the complainant] derived only from an adult.” The prosecutor canvassed and dismissed other possible sources of the complainant’s conduct, such as the child having been accidentally exposed to adult sexuality in the environment of the mother’s home. The prosecutor also emphasised the importance of the documentary evidence as supportive of the Crown case.

[26] For his part, defence counsel adopted the line in his closing address that the mother had behaved “in a quite horrifying way” and whether it was deliberate or accidental, “she sewed and she nurtured and she brought to flower a story which has seen [the appellant], the father of [the complainant] end up in this Court ...” He went on to describe the complainant as “a reluctant peddler of her mother’s obsession”.

Behaviour evidence – discussion

[27] The trial Judge was placed in a most difficult position. Both Crown and defence, for different reasons, wanted the evidence of the child’s behaviour to be admitted in evidence. The Crown sought to introduce it in order to support the truthfulness of the complainant’s account. On the other hand, the defence wished to have the evidence introduced to support the theory that the mother’s obsessive concern for the welfare of the child had led to the complainant making a false complaint of sexual abuse. To support that theory, it was helpful to the defence to have details of all the steps taken by the mother over a period of several years to pursue her concerns with her doctor, psychologists, and other specialists, the Children & Young Persons’ Service, the child’s teachers, the Family Court, and ultimately the Police. As well, it was helpful to the defence theory to have evidence of the programmes which the child had undergone and to have evidence in documentary form resulting from those programmes as well as other writings of the complainant.
[28] The problems which evidence of this kind presents to juries have been well documented. The admissibility at common law of expert evidence on this subject has been discussed on several occasions in decisions of this Court. In R v B [1987] 1 NZLR 362, this Court was asked to rule on the admissibility of a psychologist’s evidence of an interview with the complainant in a sexual case and the outcome of certain tests conducted by the psychologist.

[29] The evidence was ruled to be inadmissible, both because it was hearsay and because it involved a judgment by the psychologist on the complainant’s credibility which was regarded as a matter for the jury alone. At 368, McMullin J discussed the circumstances in which evidence as to the state of a complainant may be admitted as corroboration of the truth of her testimony. He observed that such evidence may be permissible in limited cases but added:

... such cases are the exception rather than the rule because to admit evidence of a complainant’s conduct would generally be to allow the complainant to corroborate herself: R v Poa [1979] 2 NZLR 378.

[30] McMullin J went on to observe:

As child psychology grows as a science it may be possible for experts in that field to demonstrate as matters of expert observation that persons subjected to sexual abuse demonstrate certain characteristics or act in peculiar ways which are so clear and unmistakable that they can be said to be the concomitants of sexual abuse.

[31] Then, in R v Accused [1989] 1 NZLR 714, the evidence of a psychologist on the consistency of a 14 year old complainant’s behaviour with an allegation of sexual abuse was ruled inadmissible. At 720, McMullin J repeated the need for the exhibited traits to “demonstrate in an unmistakable and compelling way and by reference to scientific material that the relevant characteristics are signs of child abuse.” The appeal was allowed because the expert evidence “amounted to a powerful and almost unchallenged corroboration of the complainant’s evidence, and went some distance towards usurping the jury’s function” (721).

[32] These decisions led to the introduction of s23G of the Evidence Act 1908, which provides:

23G Expert witnesses

(1) For the purposes of this section, a person is an expert witness if that person is—

(a) a medical practitioner whose scope of practice includes psychiatry, practising or having practised in the field of child psychiatry and with experience in the professional treatment of sexually abused children; or

(b) a psychologist practising or having practised in the field of child psychology and with experience in the professional treatment of sexually abused children.

(2) In any case to which this section applies, an expert witness may give evidence on the following matters:

(a) The intellectual attainment, mental capability, and emotional maturity of the complainant, the witness's assessment of the complainant being based on—

(i) Examination of the complainant before the complainant gives evidence; or

(ii) Observation of the complainant giving evidence, whether directly or on videotape:

(b) The general development level of children of the same age group as the complainant:

(c) The question whether any evidence given during the proceedings by any person (other than the expert witness) relating to the complainant's behaviour is, from the expert witness's professional experience or from his or her knowledge of the professional literature, consistent or inconsistent with the behaviour of sexually abused children of the same age group as the complainant.]

[33] The scope of expert evidence permissible under s23G is carefully constrained. In practice, difficulties have arisen in defining the precise scope of evidence permissible under the section. For example, in R v B [2003] 2 NZLR 777, this Court determined that the expert witness in question had gone too far. It was observed at paras 25 and 26 that:

[25] ... Section 23G(2)(c) then permits the expert to express an opinion whether evidence at the trial relating to the complainant's behaviour is consistent or not with the behaviour of sexually abused children of a like age. What the section does not allow is for the expert to comment directly or indirectly upon the credibility of the complainant's evidence, much less to express an opinion whether sexual abuse has occurred.

[26] In this instance it is plain that Dr Ratcliffe's evidence went much too far. Mr Pike responsibly accepted as much. Indirectly, if not directly, she gave evidence which was by way of endorsement of the complainant's

credibility. But more than that by the process of saying that 36% of adult survivors of childhood sexual abuse developed PTSD, that the complainant suffered from that disorder, and that in her opinion there was no evidence of a source of trauma other than the alleged sexual abuse to explain its onset, she purported to answer the ultimate question in the case. That was of course whether the appellant had abused the complainant. Thereby the expert called by the Crown assumed the function of the jury.

[34] It was found that the experts’ evidence had indirectly, if not directly, endorsed the complainant’s credibility and crossed the line of permissible evidence under the section. See also R v Jarden CA51/03, 4 August 2003, where this Court again remarked at para 30 on the difficulties of resorting to s23G and the potential for unfairness should the permissible scope of such evidence not be observed.

[35] In R v Crime Appeal CA 244/91, 20 December 1991 (a decision of this Court given after the enactment of s23G but decided on the basis of common law principles), Hardie Boys J warned at 19 that:

... in the anxiety to ensure justice by protecting the interests of child complainants, it is not to be overlooked that justice equally demands care for the interests of the accused. He must be protected against assumptions too readily made, and against generalisations too facilely applied to the particular case.

[36] The evidence of psychologists in that case was ruled inadmissible because it went too far and contained opinion as to the credibility of the complainant.

[37] When it comes to the admissibility of evidence from lay persons on the subject of a complainant in a sexual abuse case, we accept that public awareness that behavioural problems may be linked to sexual abuse of children is greater now than it may have been in earlier times (see the views expressed by Panckhurst J in R v White (High Court, Christchurch, T020463, 26 April 2002). But great care is still required in presenting such evidence to a jury. It is fundamental that the probative value of the evidence must exceed its prejudicial effect before lay evidence of this kind could be admissible: DPP v P [1991] 1 AC 447.

[38] In R v W CA473/97, 19 March 1998, this Court ruled that evidence from a child’s mother and grandmother of naughtiness by the child and evidence that she
became upset easily and had performed poorly at school was “simply inadmissible” in the circumstances of that case.

[39] We would not rule out the possibility of the admission in some circumstances of evidence of this type but its cogency in terms of time, place and circumstance must be clearly demonstrated. Where the nature of the behaviour is likely to be outside the ordinary experience of lay people, the assistance of expert evidence may be necessary to assist jury members in the proper inferences which may be drawn. Even so, expert evidence under s23G(2)(c) is limited to whether the behaviour “is consistent or inconsistent with the behaviour of sexually abused children of the same age group as the complainant.”

[40] As Panckhurst J observed in R v White, the language of “consistency” is used “since other causes may equally trigger the onset of the same behavioural signs ...” (para 34).

[41] There are a number of sound bases for the cautious approach adopted by the Courts to the admission of evidence of a complainant’s behaviour in sexual cases. First, as the material now before us demonstrates in this case, even experienced experts may differ about what particular forms of behaviour may indicate. In a ruling given on 20 October 2003 on an application by the appellant for a discharge under s347 of the Crimes Act, Judge Connell noted that a psychologist had stated the child’s symptoms were solely attributable to sexual abuse. Another expert, a paediatrician, had stated that the psychological symptoms observed in the complainant and the reported disclosures were “well within the range seen in clinical practice and as reported in medical literature in sexually abused children”, but did not exclude explanations other than sexual abuse for the complainant’s behaviour. A third expert (another clinical psychologist) did not rule out sexual abuse but indicated there could have been other explanations. None of this material was before the jury.

[42] In his ruling of 20 October 2003, the Judge expressed reservations about the opinion of the psychologist who concluded that sexual abuse was the sole cause of the complainant’s behaviour, saying it was rare for psychologists to reach that view.
The Judge was prepared to accept that, at least in March 2001 (when the complainant was seen by the second of the three experts before she had made disclosures of sexual abuse), the complainant was exhibiting behaviour which could have resulted from a condition known as separation anxiety.

[43] This brief discussion of the views of three experts on the subject of child abuse shows clearly the potential for different conclusions on this complex subject.

[44] Secondly, the proper inferences to be drawn from sexualised behaviour or other symptoms will often be outside the ordinary experience and knowledge of lay members of a jury. Thirdly, especially where unassisted by the evidence of experts, juries may easily, and quite understandably, be drawn into speculative and unsupportable inferences from material such as that presented to them in the present case. Fourthly, the existence of such evidence is likely to be seriously prejudicial to an accused.

[45] In the present case, we have no doubt that it was the duty of the Judge, notwithstanding the absence of objection by or on behalf of the appellant, to exclude the evidence of the complainant’s behaviour.

[46] The sheer volume and extent of the evidence must have been daunting to the jury. The evidence of the complainant’s behaviour tended to dominate the trial and to diminish the importance of the primary evidence which came from the complainant herself. The heavy preponderance of the behaviour evidence was emphasised by calling it first and leaving the complainant’s evidence to the end of the trial.

[47] The jury was not given any assistance from an expert witness and there was no comparative evidence of the behaviour of sexually abused children in the complainant’s same age group as envisaged by s23G(2)(c).

[48] The evidence covered a period of at least eight years from 1994 (when the complainant was aged 3) to 2002 (when she was aged 10). It included the period from the time she attended kindergarten and for several years into her primary schooling. As well, it covered the period both before and after the separation of her
parents in February 1998, and periods both before and after the alleged offending between June 1998 and May 1999. We observe there was evidence of unusual or difficult behaviour by the complainant well before the separation of the parties and well before the period of the alleged offending.

[49] The circumstances of the case were such that the jury could not safely have drawn any inference that the complainant’s behaviour was consistent or inconsistent with sexual abuse having occurred. There were a number of other potential explanations for her behaviour. It might have been accounted for by the separation of her parents, the commencement by them of new relationships, moving house, or other circumstances which might cause a child to demonstrate symptoms of stress and anxiety of the kind shown by this complainant. Her conduct may have been consistent with sexual abuse by the father, but it might not. The jury should not have been placed in the position where they were obliged to draw inferences from the mass of material presented and in a field beyond the expertise of most lay people. That was both unfair to the jury and was likely to cause serious prejudice to the appellant. Significantly, the Judge did not give any guidance to the jury in the summing up about how they might deal with this evidence.

[50] We conclude that, on this ground alone, there was a real risk of a miscarriage of justice.

Verdict unreasonable or unsupported by the evidence

[51] Mr Lithgow submitted for the appellant that the verdict of guilty on count 1 was unsafe because it was inconsistent with the acquittals on the other two counts. Counsel accepted that the appellant must show that the different verdicts cannot stand together in the sense that the different findings were not reasonably open to the jury: R v Irvine [1976] 1 NZLR 96, 99.

[52] In support of this ground of appeal, Mr Lithgow submitted there was no tenable explanation for the differing verdicts. In each case, the Crown relied on the evidence of the complainant. Mr Lithgow submitted there was nothing in the evidence which would allow a jury, acting reasonably, to accept the complainant’s
evidence that the appellant touched her vagina with his penis, yet not be satisfied to the same standard that he touched her with his hand, or made her touch her younger sister on the vagina. He submitted further that the Crown’s case was of a pattern of abuse over the same period of time and there was little to differentiate the evidence given by the complainant on each of the three counts. Mr Lithgow was inclined to accept that if there were only two counts, the jury may have given the appellant the benefit of the doubt on count 2, where the appellant admitted innocent touching of the complainant’s vagina during bathing. However, Mr Lithgow submitted that this explanation was difficult to accept where there were three counts.

[53] For the Crown, Mr France submitted it was open for the jury to reach different conclusions on the various counts. The Judge had correctly directed the jury to consider the evidence relating to each count separately. It was not to be assumed that the jury would ignore that direction. Mr France submitted it was entirely open to the jury to accept the appellant’s explanation of innocent touching during bathing in relation to count 2. On count 3, Mr France submitted there was very little detail in the complainant’s account on this incident while, in contrast, there was relatively more detail in relation to the offending alleged under count 1.

[54] Having reviewed the evidence we are not persuaded there is any necessary inconsistency in the verdicts. We accept that the verdict on count 2 is explicable on the footing advanced by the Crown and in relation to count 3, the evidence was indeed very sparse. The complainant said in her video interview that the appellant had made her touch her sister’s vagina “a few times”. She did not give any detail about the time, place, or circumstances in which this had occurred. When asked whether she could tell the interviewer when these things happened, she responded: “I don’t remember any times.” When cross-examined in Court she said she could not remember where her sister was when it happened. She thought her sister was standing up. She said that her sister had her clothes off and it happened in the old house in a particular street. Under further questioning on this incident, she confirmed she could not remember any times when this had happened although she said she did remember “I had to touch it”. She added she could not remember where she was or “anything like that.”
[55] In contrast, the evidence relating to count 1 was more specific. The complainant described the appellant lying on top of her at his house on the couch in the lounge at that address. She said the appellant had pulled down her pants, that she was lying on her back and the appellant was lying on top of her. He put his penis on her bottom by which she was referring to her vagina. She was cross-examined relatively briefly in relation to count 1, and confirmed that the incident happened on the sofa in the lounge at the appellant’s house. She also confirmed that her father had lain on top of her and that she felt his penis on her bottom.

[56] We accept the Crown’s submission that it is not to be assumed that juries will ignore the standard direction to consider separately the evidence on each count. Here, it was open for the jury to entertain a reasonable doubt on the two counts where the appellant secured acquittals. The jury was entitled to feel more confident about the complainant’s evidence on count 1 and to find guilt beyond reasonable doubt on that count. Juries are quite entitled to accept the evidence of a complainant on one count and not on others. That too follows from the standard direction that it is for juries to assess the credibility and reliability of witnesses and that they are free to accept some parts of the evidence of a witness while rejecting others.

[57] This ground of appeal must fail.

The prosecutor’s conduct

[58] Mr Lithgow submitted that, in his closing address, the Crown prosecutor had commented on the appellant’s failure to give evidence in breach of s366 of the Crimes Act which provides:

366 Comment on failure to give evidence

(1) Where a person charged with an offence refrains from giving evidence as a witness, no person other than the person charged or his counsel or the Judge shall comment on that fact.

(2) Where a person charged with an offence refrains from calling his wife or her husband, as the case may be, as a witness, no comment adverse to the person charged shall be made thereon.
[59] The Crown prosecutor’s statement to the jury was:

“Now I want to say something very briefly because that’s all I’m permitted to do, about the evidence of the accused. He’s under no obligation to give evidence at his own trial and he has not done so in this case.”

[60] In R v Ngatai [1999] 1 NZLR 446, this Court held that s366(1) absolutely prohibited any reference whatever by anyone other than the accused, his counsel, or the judge on the right of an accused to refrain from giving evidence at trial. It was further held that it did not matter if the comment was not apparently adverse. The prohibition applied notwithstanding. The Court left open the possibility that the proviso under s385 of the Crimes Act 1961 might be applied in certain circumstances where, despite a breach of s366(1), the Court was satisfied no miscarriage of justice had actually resulted. In Ngatai, the Court could not be satisfied that the breach of s366 had no impact on jury deliberations. The verdict of the jury was set aside and a new trial ordered.

[61] It may be appropriate in due course for the permanent Court to consider whether and, by what means, it might be possible to cure a breach of s366 by an appropriate judicial direction to the jury. It may also be desirable for it to consider whether and in what circumstances the proviso to s385 of the Crimes Act might be relied upon where a breach of s366 occurs. However, for present purposes, it is unnecessary for us to take that step because we are satisfied that there are, in any event, other grounds upon which this appeal must be allowed. It is sufficient to say that the Crown prosecutor’s comments in breach of s366 were simply one more unsatisfactory feature of this trial. The meaning and effect of s366 of the Crimes Act is abundantly clear and prosecutors who breach the section risk a new trial being ordered in consequence.

[62] We add that the Judge made two attempts in his summing up to deal with the issue of the appellant not giving evidence. The first attempt, at paras 17 and 18, rather compounded the issue because it was suggested, by way of analogy, that a child who says nothing when accused of stealing biscuits, may nevertheless give the impression that silence is an acknowledgement of guilt. The Judge went on to say that this process of reasoning should not be followed. But the example given was not an appropriate one because it clearly suggested that, in everyday circumstances,
silence in the face of an allegation of wrongdoing could be interpreted as an acknowledgement of guilt.

[63] Later in his summing up, the Judge returned to the issue and gave a very strong direction that the accused had the right not to give evidence, in an apparent effort to overcome the prosecutor’s comments to the jury. Whether, in some cases, a firm direction, coupled with criticism of the prosecutor’s conduct, might be sufficient to cure a breach of s366 is an issue for another day.

[64] The second aspect of the prosecutor’s conduct criticised by Mr Lithgow relates to the prosecutor’s very strong attack, expressed in emotive language, on the character of the appellant with particular reference to his video interview with the police. At various points during his closing address, the prosecutor made the following observations about the appellant:

His general approach to sexual abuse is a little warped and this reflects badly on him.

With reference to his video interview:

It was, you might think members of the jury, the sales pitch that he would muster as a salesman and I am going to make value judgment now and my friend will criticise me for it if he likes but I suggest to you that he was glib and he was garrulous and he was flippant.

And at a later point:

Members of the jury, the man in that interview wasn’t a father at all.

[65] This last comment was coupled by a submission that the interview gave the appellant ample opportunity for an innocent response, if one could be given and by the further submission that an explanation was due. The prosecutor continued this line by submitting to the jury:

He never invoked his good character as a father and a guardian of the child

... .

[66] We have reviewed the written transcript of the video interview and find it difficult to see any evidential basis for some of the prosecutor’s comments. While we accept that the appellant had, from the beginning, made a strong attack on the
complainant’s mother, the comment about the appellant not being “a father at all”, does not appear to have any evidential foundation in the video interview and was therefore gratuitous and unwarranted. This unfortunate comment was compounded by the submission that an explanation for the allegations was due and that the appellant had not invoked his good character as a father. This submission was also unjustified. If an accused person denies sexual offending ever took place, he cannot do more than make that denial. He is not bound to give an explanation (although here he did give an innocent explanation for the touching in the bath) and none was “due” in the circumstances. To suggest otherwise was, in the circumstances of this case, improper.

[67] The standards of conduct expected of a Crown prosecutor are well established. This Court discussed the subject in R v Roulston [1976] 2 NZLR 644, 654. Recently, in R v Hodges CA435/02, 9 August 2003, the Court said at para 20:

Counsel is entitled, indeed expected, to be firm, even forceful. Counsel is not entitled to be emotive or inflammatory. The Crown should lay the facts dispassionately before the jury and present the case for the guilt of the accused clearly and analytically. Although different counsel will naturally and appropriately have different styles and different methods of addressing the jury, the Crown’s closing address should, at least at some stage, traverse the legal ingredients of the count or counts in the indictment, and call the jury’s attention to the evidence which the Crown says satisfies the onus and standard of proof in relation to each ingredient, and in particular those which are the subject of dispute. Crown counsel are important participants in the dispassionate administration of criminal justice. They are entitled to contend forcefully but fairly for a verdict of guilty but they must not strive for such a verdict at all costs.

[68] As this Court observed in Hodges, remarks of the kind expressed by the Crown prosecutor in the present case invite propensity or bad character reasoning in a wholly inappropriate way.

[69] Again, it is unnecessary for us to make any firm finding as to whether the prosecutor’s inappropriately prejudicial and inflammatory remarks may have improperly influenced the jury and led to a real risk of a miscarriage of justice. Nevertheless, the prosecutor’s conduct is yet another unsatisfactory feature of this trial. No effort was made by the Judge in his summing up to reproach the prosecutor or to suggest the jury ignore the prosecutor’s unjustified comments. Instead, at
para 60 of his summing up, the Judge effectively repeated the prosecutor’s remarks about the Police interview with the appellant.

Failure to disclose that the complainant was receiving further counselling prior to the trial

[70] The essence of Mr Lithgow’s submission in support of this ground of appeal was an alleged failure by the Crown to disclose that the complainant was continuing to have counselling over the period leading up to the trial. It was submitted that at trial, counsel for the appellant did not become aware of this until after the trial. Had proper disclosure been made prior to the trial, then, it was submitted, counsel could have demonstrated to the jury that the complainant was lying when, in cross- examination, she said she had not been going to a counsellor recently. The particular evidence on this subject was as follows during the cross-examination of the complainant:

Do you know what going to counselling means ... Sort of. Have you been going to a counsellor lately ... No.

Have you been talking to anyone about yourself and your feelings and how you feel ... No.

Are you sure [complainant] ... I think so.

Can you tell me the name of anyone who has counselled you ... I can’t remember.

Do you remember some people but you don’t remember names ... Yeah. How long ago would that have been [complainant] ... I’m not sure.

This year ... I don’t know.

[71] The matter came to light subsequent to trial and before sentencing. It transpired that a clinical psychologist had been seeing the complainant at intervals of approximately one week since January 2003.

[72] There is some uncertainty about whether counselling was disclosed prior to the hearing. The Crown did disclose that there had been ongoing counselling prior to Christmas 2002 but there is doubt as to whether a further report dated 23 March
2003 (provided for the purposes of an application under s23D of the Evidence Act) was given to trial counsel. The application under s23D was granted by consent in early May 2003 and it appears the Crown assumed trial counsel had been made aware that counselling had been occurring up to that point.

[73] We accept there may well have been a failure to disclose ongoing counselling after Christmas 2002, but we also accept that this did not occur deliberately. If there was a failure, it was entirely accidental.

[74] The real question is whether the disclosure of this information could have been material to the trial and whether the failure to disclose this material led to a miscarriage of justice.

[75] We are not persuaded there was any real risk of a miscarriage of justice in consequence of the failure to disclose the ongoing counselling. Counselling after Christmas 2002 was well after the date of the complainant’s video interview on 13 June 2002. It could not therefore have been a factor in any disclosures she made during the course of that interview which formed her evidence-in-chief at trial.

[76] Secondly, the answers she gave to trial counsel in cross-examination on this subject suggest a degree of uncertainty on the complainant’s part about the questions she was being asked. If the report had been disclosed to trial counsel and if the name of the counsellor had been put to the child directly, then it is likely she would have given an affirmative answer when reminded of the name of the counsellor and the circumstances. We do not consider that an incorrect answer on this issue (which was peripheral to the central issues of the trial) was likely to have affected the jury’s view of the complainant’s credibility.

Conclusions

[77] The evidence tendered at the appellant’s trial on the complainant’s behaviour was inadmissible. It cannot be regarded as having any probative value but its inducement to speculation was highly prejudicial. The sheer volume of the evidence, unaccompanied by any expert evidence which may have been admissible under s23G
of the Evidence Act, must have led to a real risk of a miscarriage of justice. The Crown was not entitled to rely on this material to support the complainant’s testimony. The proper inference to be drawn from conduct of this kind is a matter upon which psychologists in sexual abuse cases may legitimately disagree. We know, from evidence made available subsequent to the trial, that psychologists did in fact disagree in this case about the significance of the evidence. This demonstrates the difficult and unfair position in which the jury was placed.

[78] In addition, there were other unsatisfactory aspects to the trial, including a breach of s366 of the Crimes Act by the Crown prosecutor and the use of emotive and unwarranted language in his closing address. Those matters are regrettable.

[79] We have reached our conclusion in this case with considerable regret because the admission of the impugned evidence was encouraged by both the Crown and the defence. Where evidence is adduced without objection and as a deliberate trial strategy by defence counsel, this Court is normally reluctant to interfere. We are conscious too that a new trial will undoubtedly cause further trauma to the young complainant and her family. However, the admission of such evidence in the present case has led to a real risk of a miscarriage of justice and we have little choice other than to allow the appeal in those circumstances. We add that the trial Judge was also placed in a difficult position but, in the end, it was his responsibility to exclude the evidence despite the lack of any objection to its admission.

[80] The appeal is allowed and the conviction quashed. Mr Lithgow urged us not to order a re-trial. We order a re-trial but it is a matter for the Crown as to whether a new trial should occur.

Solicitors:

Mark Dobson, Palmerston North for Appellant Crown Law Office, Wellington