R v Wade CA237/05 [2005] NZCA 404 (8 December 2005)

Last Updated: 22 January 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT FOR THE RESULT AS SET OUT IN [33]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA237/05

THE QUEEN

v

WILLIAM JAMES WADE

Hearing: 30 November 2005

Court: William Young, Potter and Ellen France JJ Counsel: J Haigh QC and J W Clearwater for Appellant

H D M Lawry for Crown

Judgment: 8 December 2005

_{JUDGMENT OF THE COURT}

A The appeal is allowed;

B The appellant’s convictions are quashed; and

_{C We direct a new trial.}

R V WADE CA CA237/05 8 December 2005

D Order prohibiting publication of the judgment and any part of the proceedings (except for the result as set out in [33]) in news media or on Internet or other publicly accessible database until final disposition of trial. Publication in Law Report or Law Digest permitted.

REASONS

(Given by William Young J)

Introduction

[1] In February this year the appellant stood trial in the District Court at Auckland on an indictment containing five counts. All related to alleged sexual offending involving a single complainant (“SN”) between 28 November 1995 and

27 November 2000. In the result, the appellant was found guilty on two counts of indecent assault of a girl under the age of 12 years and he was found not guilty on the remaining three counts.

Factual background

[2] The appellant was a friend of SN’s parents. During the period of the alleged offending the appellant sometimes stayed at her house with her family and on other occasions the complainant stayed at the appellant’s house. SN alleged that the appellant took the opportunities which such visits provided to indecently assault her from when she was around six or seven years until she was nearly 12 years.

[3] The jury found the appellant guilty on two of the three counts associated with alleged sexual offending which was said to have occurred at his house. He was acquitted on the third count associated with those premises (presumably because the evidence of the complainant as to this incident was inconsistent with that of another witness). The appellant was also acquitted on two counts alleging offending at SN’s family home (in relation to which the appellant advanced a defence of alibi).

[4] Of the two counts on which the appellant was found guilty it is only necessary to discuss one (count three) in any detail. This count related to an incident which, on the Crown case, occurred in the shower at the appellant’s house on the weekend of 20 - 22 September 1996. The complainant, then aged seven, and her younger brother had been left by their parents to stay the weekend at the appellant’s house. The Crown case was that the appellant undressed the complainant and her younger brother, placed them in the shower, showered the brother and dried him off, undressed himself, got into the shower with the complainant and indecently assaulted her.

[5] The appellant accepted that over this weekend he did shower the complainant and her brother but denies indecently assaulting her. He admitted getting into the shower with the children and washing them down but denied any indecent assault. He claimed that he had similarly showered with the children when staying at their parents’ property, evidence which was supported by his wife. The explanation which the appellant and his wife offered for this behaviour was the desirability of saving water (as there were water shortages where the complainant and her family lived).

[6] There are a number of aspects to the evidence associated with this charge to which it is necessary to refer:

(a) The last time the appellant had seen the complainant before this weekend was in April 1994 on the occasion of the appellant and his wife’s wedding.

(b) The appellant’s admission that he had showered with the complainant presumably produced some raised eyebrows amongst the jurors. On the other hand, the appellant’s evidence of having previously innocently showered with the complainant and her brother was supported by the evidence of his wife.

(c) The complainant did not raise with the appellant’s wife any complaint about what had happened in the shower when she returned to the house.

[7] There was evidence of the good character of the appellant as follows:

(a) The officer in charge of the case confirmed that the appellant’s only previous conviction was for a “minor matter” said by defence counsel to be referable to an incorrect declaration as to the value of a television set brought in from Australia some 25 years before the trial.

(b) Similar evidence was given direct by the appellant when he gave evidence.

(c) The appellant’s father in law provided his assessment of the appellant’s character in these terms:

I’ve got no criticism whatsoever of [the appellant’s] character and I

can’t believe those charges.

(d) The appellant’s sister in law, a 41 year old qualified pre-school teacher was asked if she had ever had any concerns about the appellant’s behaviour towards children and young people and responded:

No, I’ve never had the slightest concern – concerning his conduct, I would trust him with my children, I have found him to be of good character, I have never found him to be doing anything inappropriate that wouldn’t be appropriate.

[8] The only other aspect of the evidence which we need to mention is that when at the conclusion of the appellant’s evidence, there was this exchange between the Judge and him which is recorded in the transcript in this way:

Can you think of any reasons why [SN] would make up these stories – has there been any argument between you and her?

I have an opinion but I don’t think you would want me to say it in front of the jury.

All right thank you? It’s to do with drugs. No further questions

The grounds of appeal

[9] In arguing the case for the appellant, Mr Haigh QC challenged the summing up in four respects:

(a) The absence of a character direction;

(b) The absence of a R v T [1998] 2 NZLR 257 direction;

(c) A failure to put the defence in relation to count three; and

(d) A factual error in the summing up as to the time lapse between the events associated with count three and the immediately preceding occasion when the appellant and his wife and SN had met.

We will discuss each of these complaints in turn but, before we do so, it is appropriate to explain briefly the way in which the Judge summed up on the facts and set out the passages from his summing up which are relevant.

The Judge’s summing up on the facts

[10] The Judge dealt with the facts in part when he addressed the elements of the charges but, in large measure, by paraphrasing the closing addresses of counsel. His paraphrase of the prosecutor’s address was neutral. However his summary of defence counsel’s address included a number of comments in which he was critical of the points made by counsel. He then concluded this part of his summing up with a number of additional points each of which involved further criticism (actual or implied) of the arguments advanced by defence counsel. Overall, the summing up emphasised the strengths in the Crown case and the weaknesses in the defence case.

[11] When the Judge was discussing the legal elements of charges, he did, to some extent, review the evidence as to count three:

[95] Just concentrate on Count 3. Have the Crown proved beyond reasonable doubt that when they were showering in Scott Road around about

19 September 1996, did he touch and play with her genitalia?

...

[97] The Accused denies that that occurred. Emphatic denial, no, I did not touch her. It is a matter for you to decide.

[98] But he does acknowledge that he showered and washed [SN]. That incident allegedly occurred, and it seems common ground that he was in the shower with her or assisted with washing her while she was in the shower. That incident occurred 8 years ago. At the time the Accused would be almost 50, the Complainant was 7 going on for 8 years. She was about 2 months short of her eighth birthday. The Accused says that he could see nothing wrong in washing her while she was in the shower as he regarded [SN] of one of his own family because of the relationship that he had had with her father.

[99] Yet from the chronology of the evidence given by the Accused and his wife, they last saw [SN] in November 1993, which would be 3 years earlier. It is a matter for you to take into account, either to consider it is of significance or reject it, that there was a 3-year gap since he had apparently had any real contact with Sarah he gets into the shower and washes her when the alleged offending occurred.

[100] You see, because there is a criticism of [SN] that she did not complain to anyone about that until some time later. Particularly when she was staying with Mrs Wade, why did she not complaint [sic] to Mrs Wade? Well, she did not. She did not complain. But you have to put it in perspective and consider, well, at that time [SN] was 7 going on 8, 2 months short of her eighth birthday. She had not seen, according to the Defence evidence, Mrs Wade for almost 4 years. Would that create any difficulty for a 7 or 8-year-old child to go to a person whom she had not seen for 4 years to make a complaint about what the husband was doing to her? If, in fact, it did not occur.

[101] They are matters that you will have to think through and decide.

[12] When the Judge came to summarise the addresses of the prosecutor and defence counsel he observed:

[114] Mr Walsh also submitted to you there is no explanation from the

Accused as to why [SN] should make such false allegations.

[115] Mr Walsh [the prosecutor] also emphasised that in respect of Count

3, the large age difference between the Accused and [SN], and emphasised here is a girl that he, the Accused, had not seen for 3 years, do you think it strange that he would then be showering with her and washing her and

helping her shower when, even though he claims that they were very close, there had been that 3-year gap?

...

[126] There was a criticism by Mr Clearwater of [SN] failing to complain to Mrs Wade. You have got to remember how close was SN to Mrs Wade? She was only 7 or 8 at the time, she had not seen her for about 4 years. How well would she have known Mrs Wade? Would you have expected of a girl of that age after such a distance apart from Mrs Wade, to make such a complaint.

[13] Absent from the Judge’s summing up was any reference to the appellant’s good character and how that might be relevant to the issues which the jury were required to consider. Also missing from the summing up was the explicit direction along the lines discussed in R v T to the effect that, despite the absence of evidence of a motive for the complainant to lie, the onus of proof remains on the Crown.

The absence of a character direction

[14] The notes of defence counsel’s address suggest that he invoked the appellant’s good character when he addressed the jury albeit that the prosecutor’s notes of the defence address do not include any reference to the appellant’s character. It is clear that defence counsel did not complain to the Judge about the absence of a character direction. In this Court Mr Haigh QC (who did not appear at trial) submitted that counsel may have become distracted by a Crown request to the Judge to recall the jury to remind them of the lateness of the appellant’s notice of alibi, a request which the Judge did comply with.

[15] In this Court, Mr Haigh for the appellant relied on the approach taken by this

Court in R v Falealili [1996] 3 NZLR 664 at 666 - 667:

There is presently no established practice in New Zealand governing the directions to be given to a jury when good character evidence has been adduced. In England it is now mandatory to direct the jury as to the relevance of good character to credibility where a defendant has testified or made pretrial exculpatory answers or statements. In all cases where good character evidence is called a direction is required as to its relevance to the likelihood of the defendant having committed the offence charged. (R v Vye [1993] 1 WLR 471; R v Aziz [1996] 1 AC 41.) In Australia the propensity direction is an established practice (Attwood v R [1960] HCA 15; (1960) 102 CLR 353) and a credibility direction is also now well recognised. A further example is R v

Trimboli (1979) 21 SASR 577 where King CJ sitting in the Full Court laid down a series of propositions relating to jury directions, the first of which refers to the desirability in all cases where there has been evidence of good character of giving a direction as to the use to which the evidence can be put. In New Zealand the authorities were reviewed by the High Court in Gurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 in a general way but not in relation to appropriate jury directions. The need in England for definition of a firm practice arose as a result of what was described by Lord Taylor of Gosforth in Vye as a situation where the Court of Appeal was being inundated by appeals on the issue. The issue has surfaced in this Court recently in other appeals, and we think it is appropriate to articulate what should now be the standard practice in this country.

Three choices are open. The first is to say that a direction is never required. We do not regard that as acceptable. It would be contrary to the practice in other common law jurisdictions, and could lead to unfairness or injustice. The second is to leave a direction to the discretion of the trial Judge, to be exercised according to the circumstances of the case. That has its attractions, but could result in both uncertainty and inconsistency. A further problem would be the ensuing need to define or at least to identify the principles upon which a decision to direct is to be exercised. We have no confidence that a comprehensive set of guidelines could be formulated indicating when it would and when it would not be appropriate to give a direction, and think it likely there would be numerous appeals, as happened in England. On balance therefore we are of the view that the third alternative, namely that an appropriate direction should be given is preferable and that should now become the general practice when evidence of the good character of an accused has been adduced.

[16] In the same case the Court when on to discuss when such a direction is required (at 667):

It is necessary then to define what is evidence of good character in this particular context. In England the fact that an accused person has no previous convictions is regarded as being evidence of good character. This may well have led to some of the problems arising in that jurisdiction, still not entirely removed, as can be seen from the need recognised in Aziz to allow for an exception to the general rule where the result would be an affront to common sense. We think there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person’s good character. It may be a factor in assessing good character, but standing on its own it is generally neutral. A person of bad repute may well have no convictions. We do not think it necessary for directions to be given merely because absence of previous convictions has been elicited. The need will arise where evidence relating to character has been adduced which, if accepted by the jury, could properly be relevant or probative in determining whether guilt has been proved. That after all is the basis of its admissibility. The evidence, which must be of a general rather than a particular nature, may be expressly directed to either credibility or propensity or both. Whether the evidence in any given case is of that description will be for assessment by the trial Judge.

When such evidence is adduced, an appropriate direction should be given as to its use. Generally that will cover both limbs of credibility and propensity. No particular form of words is necessary, and because of the variety in the circumstances in which the need will arise, the direction will no doubt be tailored to meet those circumstances. In general such evidence may be used in the overall determination of whether guilt has been proved, and to that end it may assist in assessing the credibility of an accused’s pretrial exculpatory statements, evidence at trial, or both. It may also assist in diminishing the likelihood that the accused has committed the offence charged. As with any other evidence its weight will be a matter for the jury. The trial Judge may comment on the good character evidence (and any rebutting evidence) in a fair and balanced way, including its significance or lack of significance in the particular case.

[17] As is apparent from the passage which we have just cited from Falealili, this Court took an approach which in effect is the same as that taken in England and Wales. Of relevance therefore is the recent judgment of the Privy Coucil in Teeluck and Another v State [2005] UKPC 14 where the most recent authorities are reviewed.

[18] It is true that in Australia a less prescriptive approach has been taken, see for instance Melbourne v The Queen [1999] HCA 32; (1999) 73 ALJR 1097. We suspect, however, that any difference between the approaches taken by this Court in Falealili and by the High Court of Australia in Melbourne are more apparent than real. Running through the judgments delivered in Melbourne is a recognition that where character evidence is truly material either to propensity to commit the alleged offence or credibility, fairness will require the Judge to direct the jury accordingly.

[19] Mr Lawry contended that the evidence of character in issue here was of limited significance in the context of the case as a whole. The appellant’s prior record in itself did not call for a direction (as this Court recognised in Falealili). The evidence of the father in law and sister in law was broadly similar to the evidence which was in issue in Falealili where an incomplete direction was held not to have led to a miscarriage of justice. Counsel also suggested that the character evidence rules related to evidence of reputation and that the evidence adduced in this case was not, on this approach, strictly evidence of character.

[20] Mr Lawry was however, disposed to accept that the Judge should have referred to the appellant’s character when he summed up. We think that this concession was right. While it is possible to find elderly authorities which support

the view that the character evidence rules relate only to evidence of reputation, see for instance R v Rorton [1865] EngR 53; (1865) Le & Ca 520; 169 ER 1497, this is not consistent with current practice (as the High Court of Australia recognised in Melbourne). We think it clear that the appellant’s good character was material to both propensity and his credibility. It formed part of the defence case and ought to have been the subject of specific direction by the Judge to the jury.

The absence of a R v T direction

[21] In R v T, this Court held (and in doing so declined to follow Australian authority to the contrary) that it is legitimate for a prosecutor to run what is normally known as the “why should the complainant lie?” line of argument, ie to challenge a defendant to proffer a motive for the complainant lying and, in the absence of a proffered motive, to rely on this when addressing the jury. But, having held that, this Court went on (at 265 – 266):

... We accept that the proposition “Why would the complainant lie?” should not be presented in a way which would deflect or distract the jury from the central issue, whether the Crown had proved the charge and each element of the charge beyond reasonable doubt. Nor should any suggestion be allowed that there was an onus on the accused to advance a credible answer. Generally, the trial Judge would be required to intervene firmly if these principles were infringed. And without wishing to burden Judges with yet another topic which must be covered in summing up, in any case where the prosecution had sought to bolster the complainant’s credibility by reference to the absence of a motive to lie, the charge to the jury needs to be clear that regardless of the absence of evidence of motive, the onus of proof remains on the Crown throughout.

[22] It was the Judge who first raised the “why should the complainant lie?” issue. The response from the appellant was limited and undeveloped to the point that it could fairly be seen as involving an inability to point to a motive. That appears to be the way the prosecutor addressed the jury. As Mr Lawry reminded us, the Judge summed up to the jury in general terms as to the onus of proof being on the Crown and made it clear that the appellant, by calling evidence, had not undertaken any onus. But Mr Lawry accepted, as he had to, that it was unfortunate that the Judge did not go one to say explicitly that despite the inability of the appellant to point to a clear motive for the complainant to lie, the onus of proof remained on the Crown.

A failure to put the defence in relation to count three

[23] Mr Haigh also complained that when the Judge made comments as to the strangeness of the account given by the appellant (namely that he showered with and washed the complainant), he did not remind the jury of the evidence of the appellant and of his wife to the effect that they had previously both showered with the complainant and her brother for the purpose of saving water.

[24] Mr Lawry accepted that, in this respect, the Judge’s approach was not entirely satisfactory. We agree. For the Judge himself (and not merely by way of summary of the prosecution case) to highlight what might be thought to be the strongest of the circumstantial factors favouring SN’s account but without ever putting the defence explanation for that circumstance is not in accordance with the principles which apply to summing up.

A factual error in the summing up as to the time lapse between the events associated with count three and the immediately preceding occasion when the appellant and his wife and SN had met.

[25] Mr Haigh’s complaint is that the way the Judge summed up suggested that there were three and four year gaps between when the appellant and his wife had last seen the complainant and the conduct which was the subject of count three. He maintained that the evidence as a whole suggested that the time gap in each case was two and five months.

[26] Mr Lawry accepted that the Judge had overlooked the fact that the complainant had been at the wedding of the appellant and his wife in April 1994. But he said that this mistake was simply not material as the points which the Judge made to the jury were still cogent with a time lapse of two years and five months.

Evaluation

[27] An ideal summing up on the facts is along the lines described by Lord Devlin in Trial by Jury (1966) at 115 - 116:

All the material which gets into the ring that is kept by the rules of evidence is not of course of equal value, and the task of counsel and then of the judge is to select and arrange. In discharging this task counsel can be helpful but not disinterested and the jury must look chiefly to the judge for direction on the facts as well as the law. It is his duty to remind them of the evidence, marshal the facts and provide them, so to speak with the agenda for their discussions. By this process there emerges at the end of the case one or more broad questions – jury questions – which have to be decided in the light of common sense.

[28] The Judge summed up on the facts primarily by paraphrasing the closing addresses of counsel. This is a common approach but in a case of any complexity is far from satisfactory. The difficulties of this approach are illustrated by what happened here in that there was a failure to identify comprehensively the principal areas of controversy in the case and to assemble for the benefit of the jury the evidence and considerations which were relevant to each. The summing up thus fell well short of what Lord Devlin would regard as ideal.

[29] The Judges’ summing up, as a whole, was very adverse to the appellant. That in itself is not a legitimate ground of complaint. The Judge is entitled to have a view of the facts and share that view with the jury. But where a Judge does sum up in a way which is favourable to the Crown it is all the more important that the Judge fairly puts the defence case to the jury. In that context it is most unfortunate that relevant evidence and considerations which were not referred to by the Judge are those which favoured the appellant, his good character, the limited relevance of his inability to articulate a likely motive for the complainant to lie and the defence explanation for the appellant’s showering practices.

[30] In those circumstances we are satisfied that there was a miscarriage of justice.

[31] For the sake of completeness we add that we do not see the factual error made by the Judge (as to SN’s attendance at the appellant’s wedding) as being of any particular moment.

Disposition

[32] The appellant has served the prison sentence that was imposed and this is the sort of consideration which, in some cases, has warranted this Court not directing a

new trial. There are, however, broader considerations in this case which may have to be allowed for and these include the views of the complainant.

[33] In those circumstances, we think it appropriate to allow the appeal but to direct a new trial. Whether there is in fact such a new trial will depend, at least in the first instance, on the view taken by the prosecution authorities.

Solicitors:

Clearwater Associates, Takapuna for Appellant

Crown Law Office, Wellington