R v P (CA338/05) [2006] NZCA 385 (2 March 2006)

Last Updated: 24 January 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [23]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA338/05

THE QUEEN

v

_{P (CA338/05)}

Hearing: 23 February 2006

Court: William Young P, Williams and Gendall JJ Counsel: A Markham for Crown

J K W Blathwayt for Respondent

Judgment: 2 March 2006

_{JUDGMENT OF THE COURT}

_{A Leave to appeal is granted and the appeal is allowed.}

R V P (CA338/05) CA CA338/05 2 March 2006

B Severance orders quashed and counts in indictment to be tried as presented.

C Order prohibiting publication of the judgment and any part of the proceedings (except the result as set out in [23]) in news media or on internet or other publicly available database until final disposition of

_{trial. Publication in Law Report or Law Digest permitted.}

REASONS

(Given by Gendall J)

[1] The respondent faced an indictment containing 14 counts alleging sexual crimes, and one count of assaulting a female. The counts involve seven female complainants all of whom are related to the respondent. He applied for severance of the counts in the indictment, seeking four separate trials. The District Court on

31 August 2005 directed severance of some counts so as to require two trials in respect of separate individual complainants, and a further trial of counts involving the remaining complainants.

[2] The Solicitor-General seeks leave to appeal against that ruling contending that all counts should be retained in one indictment and be heard in a single trial.

[3] Of the seven complainants five are granddaughters of the respondent, one is a daughter-in-law (and the mother of one of the granddaughter complainants), and one is an adopted daughter of the respondent. Generally, the ages of the granddaughter complainants and the adopted daughter (in relation to the sexual allegations) were between the ages of 8 - 15 years. The daughter-in-law complainant was aged

25 years. The charges allege indecent assault of all complainants, inducing indecent acts in respect of two complainants, rape of one complainant, and a separate charge of alleged assault by a punch to the face of the adopted daughter.

[4] The counts and particulars of counts are summarised in diagrammatic form as follows:

COUNT TIME COMPLAINANT AGE RELATIONSHIP TO RESPONDENT

CHARGE

1 1981-1984 RW 8-11 Adopted daughter - Indecent Assault Touching genitals (Representative)

2. 1985-1987 RW 12 Adopted daughter - Laying on top, kissing in bedroom

3 1990-1993 RW 17-19 Adopted daughter Assault

_{- punch to face}

4 1991 V 25 Daughter-in-law

Mother of H

Indecent Assault

- Tongue in mouth
- kissing
_{(Representative)}

5 1991 V 25 Daughter-in-law

_{Mother of H}

Indecent Assault
_{Cuddling in bed}

6 2002-2004 H 8-9 Granddaughter Indecent Assault
- Tongue in mouth
- Kissing
_{(Representative)}

7. 2002-2004 H 8-9 Granddaughter Inducing indecent act – touching penis (Representative)

8 2002-2004 H 8-9 Granddaughter Rape

_{(Representative)}

9 2002-2004 RM 8-9 Granddaughter Indecent Assault
- tongue in mouth
- kissing
_{(Representative)}

10 2002-2003 RM 8-9 Granddaughter Inducing indecent act –

_{hand on penis}

11, 12, 13 2004 A 13 Granddaughter Indecent Assault –

tongue in mouth
- kissing
_{(3 separate occasions)}

14 2001-2004 S 13-15 Granddaughter Indecent Assault
- tongue in mouth
- kissing
(Representative)

COUNT TIME COMPLAINANT AGE RELATIONSHIP TO RESPONDENT

CHARGE

15 2002-2004 B 10-11 Granddaughter Indecent Assault
- tongue in mouth
- kissing
_{(Representative)}

[5] A feature in this case is that, in 1982 the respondent had been convicted of incest with a daughter, P, which offending came to light after a child was born to her. P died in 1997. The Crown wishes to adduce evidence from, at least, RW that she was a witness to the sexual intercourse – she contends it was without P’s consent - of the respondent with P in 1982.

[6] The Judge ordered that the counts in the indictment be severed in the following ways:

(a) The counts in respect of V, the 25 year old daughter-in-law, were to be severed from all other counts so a separate trial in respect of the V allegations be held.

(b) The counts in respect of H involving rape, indecent assault and inducing an indecent act were also to be severed from all other counts and a separate trial held in respect of those.

(c) The remaining counts involving the adopted daughter RW and the four other granddaughters RM, A, S and B were to be the subject of a third trial.

[7] The Judge also ruled that the evidence of the adopted daughter RW, as to her observations of the respondent having sexual intercourse with P in 1982, was admissible in respect of the trial of the count of rape alleged by the granddaughter H. But he ruled that it was not admissible at the trials in respect of any other counts involving the other four granddaughters and the adopted daughter RW herself, or of the V allegations.

[8] One of the effects of those rulings is that the adopted daughter RW would have to give evidence on two occasions. First, at the rape trial involving the granddaughter H, she could give evidence as to her observations of the sexual intercourse with P in 1982, but could not tell of the alleged sexual acts upon her between 1981 and 1987. Conversely, when giving her evidence about what she alleged happened to her at the severed trial of the counts involving her and the other four granddaughters, she could not give evidence of observing the acknowledged sexual crimes of the respondent with P.

[9] The Crown’s case is that the respondent now aged 72 was the head of a large family, in which female family members aged between nine to 16 years (with the exception of the daughter-in-law V, aged 25 years) were sexually abused over a

24 year period. The Crown says all allegations reflect an exploitation of the head of the family to prey upon young female family members in whom he had a prurient interest.

[10] It is said that the complaints came to light in about Easter 2004 following a series of family meetings after which a complaint was made to the police by, or on behalf of, all complainants. Obviously, the question may well arise as to why there was delay in complaining, particularly in respect of the adopted daughter RW whose allegations of sexual abuse span 1981 - 1987, and in relation to V whose allegations relate to 1991.

[11] The respondent, although making some very limited acknowledgement, denied most of the offending and contended the complainants were colluding and inventing the allegations. The defence theory or stance is not yet known. Some cross-examination at the preliminary hearing pointed towards one defence plank that certain family members were of the view that the respondent had not been sufficiently punished for his acknowledged actions in respect of P in 1982.

[12] The Court has a discretion under s 340(3) to sever counts, although joined in the same indictment, if it is conducive to the ends of justice to do so. Obviously, if the evidence in relation to one complainant is admissible on the trial of other complainants then those counts should be dealt with at one trial. Such evidence may

have a prejudicial effect and evidence of mere propensity is not permissible. But the test is whether the evidence is sufficiently supportive, relevant and probative of the prosecution’s case to admit it notwithstanding the prejudicial effect it might have. As this Court observed in R v W [1995] 1 NZLR 548, 555 (CA):

The general principle is that counts arising from incidents unrelated in time or circumstance are not to be tried together unless evidence as to one is relevant to another, to an extent that its probative value outweighs its prejudicial effect. That may be so in a variety of circumstances, of which similarity of the facts is one.

[13] The Judge based his approach solely on the question of orthodox “similar fact” considerations. But similarity of facts is not the only situation where severance is refused. It seems that the Judge severed the counts in respect of the complainant V on the basis that they were not similar in many aspects to other allegations by complainants because V was aged 25 and the timeframe was 1991. In respect of the complainant H the Judge proceeded first by ruling that the evidence of the sexual intercourse with P was admissible in respect of that rape count, but not in respect of the counts involving the four other granddaughter complainants and RW, or of the counts concerning V. He therefore reached the conclusion that as the Crown wished to lead such evidence of sexual acts against P then the counts involving H should be heard separately.

[14] It is important to bear in mind that the probative force of evidence may arise in a variety of ways and for different reasons. Examples include because it describes a similar conduct or pattern; it may be relevant to assist the jury in determining the type of relationship an accused might have with a family member; it might tend to provide an explanation why delay has occurred in a complaint being made. From the defence point of view it might be probative, relevant and necessary to assist it in pursuing the proposition that some family members might have improper motives for making false complaints, (such as, in this case because of a perceived leniency extended years before to the respondent). If evidence of the previous sexual acts involving P could not be given, as the Judge has ruled in relation to the trial of all complainants other than that of H, then the defence might face a dilemma in respect of cross-examination as to reasons for the delayed complaints, of the adult

complainants RW in the joint trial with the granddaughters RM, A, S and B (or for that matter in the presently severed trial of the adult V).

[15] It is correct that it does not automatically follow that whenever members of a family make allegations of sexual abuse against the same individual within the family all counts should be heard together. But as was said in R v W (at 555):

Nevertheless, where as here the allegations are interwoven or interconnected the desirability of presenting the case on a realistic rather than an artificial basis will usually point against severance.

Further:

C’s [the daughter] evidence would cast light on and assist the jury to assess the possibility that the relationship between the appellant and his grand- daughters was a normal and innocent one and that it was out of the question that events such as alleged by J and B (grand-daughters and nieces of C) could have happened. In other words, it is relevant to the credibility of J and B. In those respects the evidence is admissible as similar fact.

[16] These remarks are pertinent in relation to the evidence of V as to the allegation that the respondent indecently assaulted her by inserting his tongue into her mouth. She was then she says an adult aged 25. Her evidence, the Crown says, is capable of not only supporting the five granddaughter complainants, but rebutting any contention or suggestion that the young girls misinterpreted or were confused over what was simply an innocent expression of affection by their grandfather.

[17] As we have indicated the issue will surely arise in this case why disclosure to the police in respect of all complainants were not made until 2004. Inevitably the question will be asked was it family collusion? Or did some consider the respondent had been leniently treated in 1982? Or because a number of complainants simply “went along” with what others were suggesting? As the counts relating to the adult complainant RW have not been severed from the counts relating to the granddaughters, apart from H, RW could explain why she delayed in complaining, but could not refer to the most serious allegation of rape by H. As matters stand now the counts involving the daughter-in-law V, being severed from all other counts, mean that she would not be able to refer to the fact that allegations were made in

2004 by five granddaughters, including her own daughter H, so as to explain why it

was not until then that she laid a complaint. It would be possible for V to be criticised by the defence for the delay of 13 years in complaining to the police (and indeed the jury might well wonder why). She ought to be entitled to give her explanation.

[18] The remarks of the Court of Appeal in R v W (above) at 555 are apt:

We agree that in relation to the counts involving C the Crown is entitled to place before the jury the fact of the complaints made many years later by the two grand-daughters as explaining what might otherwise seem the inexplicable decision on C’s part to raise her own complaints after such a lapse of time. This has nothing to do with similar fact.

[19] The Crown contend that the Judge erred in principle by focusing on the differences in respect of each of the counts or complaints rather than on similarities and thereby ignored the specific probative value of the evidence. We think there is force in that submission. The similarities are obvious, namely the evidence that the respondent took the opportunity to insert his tongue into the mouths of young female relatives, in the pretext of affectionate greetings at family gatherings; inducing H and RM to touch the respondent’s penis is alleged over the same period; some of the alleged offending took place when grandchildren were lying in bed. The evidence relating to the offending against P was relevant not only to the charge of rape in respect of H, but also probative in respect of the evidence of the adopted daughter RW whose evidence was that after P departed from the home the respondent’s attentions were turned towards her and indecent assaults occurred up to 1987.

[20] We are satisfied that the allegations are closely interwoven, with probative evidence being relevant to more than one complainant in a number of different ways. Just because some of the proposed evidence may be admissible only in respect of some of a number of counts, but not all, is not by itself sufficient ground for severance. The emphasis that giving the jury the full picture must mean the “full legitimate picture” (R v Anderson CA144/01 1 August 2001) is correct, but it is needlessly artificial to deny the jury in a case such as this of the advantage of the full picture so as to understand the dynamics alleged by the Crown to exist in this family where seven family members are said to be victims of generally similar sexual actions over an extended period.

[21] If there were to be severance a number of witnesses would have to give evidence at more than one of the severed trials, including independent recent complaint witnesses. Trial Judge and counsel – both prosecution and defence

- would be placed in an invidious, if not impossible position at some trials. For example, V would give evidence at the separate trial of her complaints but could not refer to her daughter H’s allegations. At the trial involving the count of rape of her daughter, V may be a recent complaint witness, yet could not refer to her own complaints of events in 1991. So, too, the unhappy position would arise in respect of the complainant RW. She would have to give evidence of her own complaint but could not speak of the respondent’s intercourse with P at that trial. Yet she would give such evidence as to those very events at the trial of H; but on that occasion not be able to refer to the allegations that she made of abuse upon her. Simply to state those permutations highlights the unrealistic situation that would arise if the order for severance was upheld and three separate trials took place.

[22] Whilst a Judge has a discretion in severance matters, we are satisfied that the Judge erred in his exercise of it and did not fully appreciate some of the compelling factors that exist which pointed squarely against severance. The ends of justice, rather than being conducive to there being three separate trials, requires that there be no severance of counts in the indictment. As is always the case the Judge can clearly emphasise to the jury the approach they must take in dealing with the separate evidence and complaints, and recent experience has shown that juries are quite able to understand and adhere to such directions.

[23] Leave to appeal is granted and the appeal is allowed and the orders for severance quashed. There will be a trial of all counts in one indictment.

Solicitors:

Crown Law Office, Wellington

Wollerman Cooke & McClure, Carterton for Respondent