R v T (CA455/05) [2006] NZCA 386 (2 March 2006)

Last Updated: 24 January 2014

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

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA455/05

THE QUEEN

v

_{T (CA455/05)}

Hearing: 15 February 2006

Court: William Young P, Potter and Rodney Hansen JJ Counsel: P J Davey for Appellant

A R Burns for Crown

Judgment: 2 March 2006

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS

_{(Given by Rodney Hansen J)}

R V T (CA455/05) CA CA455/05 2 March 2006

Introduction

[1] The appellant was convicted following trial by Judge AE Kiernan and a jury of permitting a girl under the age of 12 years to do an indecent act on him. He was sentenced to ten months imprisonment. He appeals against his conviction.

Factual background

[2] The appellant is aged 24. He is the maternal uncle of the complainant, K. He faced two charges. The second, of which he was found not guilty, was of inducing K to do an indecent act on him.

[3] The charge of permitting the complainant to do an indecent act arose out of an incident which occurred when she was five. The appellant was visiting the house in which she lived with her mother. The complainant said the appellant had a shower, then got dressed and got into his bed. She said she got into his bed as well. The appellant took his pants off and started masturbating and she also masturbated him.

[4] The second incident was said by the complainant to have occurred about six months later when the appellant was staying at her house. She said it also took place when she was in bed with the appellant and she was encouraged to masturbate him.

[5] After the alleged second incident, K’s father said she made limited disclosure to him. He spoke to her mother to whom K gave a more detailed account. She confronted the accused. She said he admitted showing K how to masturbate him and said he would face the consequences.

[6] The appellant gave evidence at trial. He said on two occasions K had seen him masturbating while he was in the shower. On the first occasion she also saw him naked in the bedroom while he was getting changed. On the second occasion she saw his penis when she jumped on his bed. He denied allowing or encouraging

K to masturbate him. He also denied telling his sister that he showed K how to masturbate him.

Grounds of appeal

[7] The appeal is brought on three grounds:

(a) The Judge erred in the direction she gave to the jury in relation to the complainant’s videotaped evidence-in-chief and in permitting the videotape to be replayed during the jury’s final deliberations without adequate warnings and directions.

(b) The Judge erred in refusing leave to cross-examine in relation to an incident which had occurred when K was two years old.

(c) The verdict was unreasonable or could not be supported by the evidence.

First ground of appeal – complainant’s videotape

Background

[8] In the course of her summing up, the Judge referred to K’s videotaped interview as an exhibit which could be replayed. She said:

[The evidence] also includes the exhibits which have been produced in the course of this trial and you have those exhibits with you in the Jury room. I think in this trial, the exhibits are the birth certificate, the videotaped interview with the complainant and the diagrams. Now you do not have, as you may have noticed, a video player in the jury room, but the videotaped interview is an exhibit and it is available to you if you want to look at it or any part of it. What happens is that you make the request and you are brought back into the Courtroom and it is played here in the Courtroom in the same way it was during the trial.

And a little later she said:

I stress again that the videotape itself is the exhibit and it is available to you if you wish to watch it or any part of it again, you just need to ask for that.”

[9] In the course of its deliberations, the jury asked to view all except the introductory section of the videotape. Overruling the objections of defence counsel, the Judge ruled the video could be played provided that the cross-examination and re-examination of K were also read to them. Before the tape was played, she referred to the jury’s request and made the following remarks:

Members of the Jury, as is normal practice when any Jury asks a question, I have discussed that matter with counsel. In a moment we are going to play that part of the video. I am also going to ask the Registrar to read to you the complainant’s evidence from the beginning of the cross-examination to the end of her evidence after re-examination. I am doing that as a matter of fairness.

You will remember that I directed you in the summing up, that you should look at all of a witness’ evidence, although the videotape interview is an exhibit and available to you, it is also her evidence in chief. As a matter of fairness, even though you have the transcript in the Jury room, I am going to have it read in Court, the rest of her evidence. That will take us members of the Jury, about 45 minutes and we will do that now.

One final matter, when you watched the video before you each had a transcript and therefore we are just handing out those so you can each have that with you. Can I remind you again that the evidence of course is what you see and hear on the tape, the transcript is there to assist you. If you think there is any difference between what you hear and what is on the transcript it is of course the video you should go by.

Appellant’s submissions

[10] Mr Davey submitted the Judge was wrong to refer to the videotaped interview as an exhibit. He referred to the observation of this Court in R v Thomas [1992] 9 CRNZ 113 at 114 that videotapes produced pursuant to the Evidence (Videotaping of Child Complainants) Regulations 1990 do not have the quality of usual documentary exhibits but amount to evidence-in-chief as if the testimony were given viva voce by the complainant. He submitted that the Judge made an error of law in directing the jury that the videotape was “a documentary exhibit” that was readily available to them to view if they wished.

[11] Mr Davey accepted that the Judge had a discretion whether to play the tape but maintained she should not have done so. He said that as the trial was relatively

short and the jury had a transcript of the complainant’s video interview and of other evidence, jurors were in a position to remind themselves of what each witness had said without the need for the videotaped interview to be played again. He submitted further that once the decision to replay the video was made, the Judge should have complied with the second of three requirements set out in a judgment of the English Court of Appeal in R v Rawlings [1995] 1 All ER 580 which (at 585) suggested the following approach when a jury asked for a complainant’s videotaped interview to be replayed:

Usually, if the jury simply wish to be reminded of what the witness said, it would be sufficient and most expeditious to remind them from his own note. If, however, the circumstances suggest or the jury indicate that how the words were spoken is of importance to them, the judge may in his discretion allow the video or the relevant part of it to be replayed. It would be prudent where the reason for the request is not stated or obvious for the judge to ask whether the jury wish to be reminded of something said which he may be able to give them from his note or whether they wish to be reminded of how the words were said.

If the judge does allow the video to be replayed, he should comply with the following three requirements:

(a) The replay should be in court with judge, counsel and defendant present.

(b) The judge should warn the jury that because they are hearing the evidence-in-chief of the complainant repeated a second time well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.

(c) To assist in maintaining a fair balance, he should, after the reply of the video, remind the jury of the cross-examination and re-examination of the complainant from his notes, whether the jury asked him to do so or not.

[12] In R v O [1996] 3 NZLR 295 at 300, this Court agreed with the approach suggested in Rawlings and with the three requirements while sounding a note of caution concerning the suggestion that the Judge should direct questions to the jury in response to their request. The Court said that if that course was seen as necessary, the Judge must be careful to ensure that it is done in a way that does not intrude on the confidentiality of the jury’s deliberation.

Discussion

[13] In our opinion, there was nothing wrong with the way the Judge dealt with the videotaped interview in her summing up or with her decision to allow the jury to watch most of the tape. The tape is technically an exhibit but, unlike other exhibits, it cannot be accessed by the jury in the course of its deliberations. It was proper for the Judge to tell the jury that the video could be watched again and how that could be effected. The jury having sought to avail itself of the opportunity, we see no reason for the Judge to have refused. Nor do we consider that in the circumstances of the case it was necessary for the Judge to enquire of the jury if there were particular passages jurors wished to view.

[14] As the jury had a transcript of the interview, it can be inferred that jurors were more concerned to assess the way in which the evidence was given. This is supported by remarks made by the Judge in summing up. She referred to both counsel making reference in their closing addresses to the gestures made by K on the videotape when she was demonstrating what the appellant was doing. Defence counsel also focused on the demeanour of K. The Judge put it this way in her summing up:

[Defence counsel] urged you to look at her demeanour, the way she behaved in that video interview and to compare what she said with other witnesses and to apply your common-sense and experience of life.

The videotaped interview having been put in issue in this way, it is understandable that jurors should want to see it again, and there could be no justification for refusing the request.

[15] We doubt whether it would have been practicable for the Judge to have sought to isolate passages of the complainant’s evidence. The separate incidents are revisited more than once in the course of the interview. The evidence is best understood if read as a whole. It would also have been extremely difficult to isolate the corresponding passages in cross-examination and re-examination if only selected portions of the video had been played.

[16] We are satisfied the Judge was entitled to accede to the jury’s request subject to reading all of the cross-examination and re-examination in accordance with the third requirement referred to in Rawlings.

[17] That takes us to Mr Davey’s second point, the Judge’s omission to give a further direction warning the jury against giving the complainant’s evidence disproportionate weight. We accept that such a direction will often be desirable as this Court acknowledged in R v O. However, in the circumstances of this case, we do not think the omission to do so rendered the trial unfair.

[18] This was a short trial – three days in all. The jury had heard the complainant’s evidence on the first day and defence evidence on the second day. The evidence of K and the appellant would have been fresh in the minds of jurors.

[19] The jury asked to see the video at an early stage of deliberations. Jurors had only just finished hearing the Judge’s summing up. She had given meticulous directions as to how the evidence should be approached. Her remarks included the invitation of defence counsel to focus on the way in which K gave evidence. In the circumstances, it is not to be assumed that a review of the complainant’s evidence would benefit the prosecution and disadvantage the defence.

[20] Against this background, we do not think there was a danger that the complainant’s evidence would be accorded disproportionate weight to the disadvantage of the defence. In the particular circumstances of this case a warning was not therefore required. In our view, the way in which the Judge dealt with the replaying of the video evidence was not unfair to the appellant.

Second ground of appeal – leave to cross-examine

Background

[21] Shortly before trial Mr Davey sought leave, pursuant to s 23A of the

Evidence Act 1908, to cross-examine K and her mother on matters relating to the

sexual experience of the complainant. Leave was sought in relation to three separate incidents.

[22] The first, which occurred when K was two years and three months old, involved K and her mother. K had been cuddling her mother on the bed. She was sitting astride her mother’s chest. She then moved up towards her mother’s head and when almost sitting on her face, K pointed to her genital area and said, “lick me there”.

[23] The second incident, which was reported by the mother to Child Youth and Family at the same time, occurred several weeks earlier. The mother said K had suddenly cried out and, on being asked why, said that her uncle had been naughty.

[24] The third proposed area of cross-examination arose directly from K’s evidential video and her mother’s statement to the police. K commented on seeing the penis of a playmate of her own age. Her mother told police she had seen the two touching each other sexually and had taken steps to ensure they were supervised when playing.

[25] The Judge had no hesitation in allowing cross-examination in relation to K’s experience with her playmate. She thought K’s reported statement about her uncle provided only the most tenuous basis for suggesting sexual experience with him but decided that in the interests of justice she could be asked about what happened. (She was asked and said nothing had ever happened.)

[26] However, the Judge refused to allow questioning in relation to the incident involving K and her mother. She said:

In relation to the third area, the complainant’s reported behaviour with her own mother some four years before the alleged events before trial, leave is declined. Although this reported behaviour of the complainant could be characterised as sexual experience with someone other than the accused, not only is there a substantial time gap but the nature of the complainant’s behaviour with her mother is totally different from the alleged behaviour with a male person, her uncle [T], which founds the allegations for trial. It cannot be said that there is a transference issue. It is unlikely that the young complainant at trial would recall the event. If her mother were to be asked questions about it the jury would be being invited to speculate that the complainant had acquired some sexual knowledge by observation or

experience at the age of two. This aspect I regard as a line of questioning which is neither relevant nor in the interests of justice. Accordingly leave is declined to question on that issue. Counsel have been unable to demonstrate a basis for that aspect of proposed questioning which is more than speculative.

Appellant’s submissions

[27] Mr Davey submitted that the Judge was wrong to treat the evidence of the first incident as requiring leave under s 23A because, he said, it did not relate directly or indirectly to the sexual experience of the complainant with any person other than the appellant. He said the Judge should have admitted the evidence as relevant to the jury’s assessment of K’s credibility. It could be seen as an instance of K engaging in sexually explicit behaviour without any prior relevant experience. This would support the defence contention that K’s allegations of touching were an invention prompted by what she had seen the appellant doing in the shower.

Discussion

[28] We incline to the view that the disputed evidence comes within s 23A and was properly dealt with on that basis by the trial Judge. Although the notion seems somewhat farfetched given K’s age at the time, her conduct with her mother was sexual in nature and could possibly have been suggestive of some prior sexual experience. On that basis the appellant was required, in terms of s 23A(3) to satisfy the Judge that the evidence was of such relevance to facts in issue in the proceeding that to exclude it would be contrary to the interests of justice.

[29] We think the Judge was plainly right to find that the evidence did not meet that test. It lacked any meaningful connection with the incidents complained of. As the Judge said, the complainant’s conduct on the earlier occasion was totally different from what she was complaining of. There could be no issue of transference. The incident with her mother had happened four years earlier. It is almost inconceivable K would have any recollection of it. K’s mother would no doubt have remembered the incident but, if asked about it, would have been unable

to explain what happened in a way which would have had relevance to the trial of the appellant.

[30] Whether assessed against the criteria in s 23A or against the conventional test of relevance, we are satisfied the evidence could not have assisted the appellant in his defence and the Judge was right to refuse leave to cross-examine on it.

Third ground of appeal – unreasonable verdict

[31] In support of his submission that the jury’s verdict of guilty was unreasonable and could not be supported by the evidence, Mr Davey relied on the following exchange which occurred in cross-examination of the complainant:

Or you didn’t touch his willy at all in bed did you with your hands? ... Um probably I did. I dunno.

He referred also to the following questions and answers in re-examination:

Can you tell us what happened? ... Okay, you know how I said on the video I had a try of going up and down. Well that’s the only time I touched his willy.

And what time was that [K]? ...I don’t really know, I’ve forgotten.

[32] Mr Davey argued that the Crown case was critically dependent on K’s evidence. He said no weight should have attached to her mother’s evidence of what the appellant said when challenged by her because his evidence showed that his response had been taken out of context and he had denied saying he would face the consequences of his actions. As we understand his argument, it follows that inconsistencies in K’s evidence were fatal to the Crown case.

[33] We are unable to accept this submission. Although K appears to have equivocated in the passage in cross-examination relied on, in answer to other questions she asserted that she did indeed touch the appellant’s penis. That includes the answer in re-examination quoted above and an earlier passage in cross- examination which contains the following questions and answers:

This first time, when you stayed at Uncle [T]’s place, he didn’t let you touch his willy did he? ... Um – he did.

You remember that or is that just something you’ve seen yourself say in the video before lunch? ... I remember that.

[34] The jury was at liberty to prefer the overall thrust of K’s evidence and to disregard the apparent contradiction in the single answer. Relevant to that assessment would have been her age and the time that had elapsed since the incidents occurred. K’s evidence was supported by the evidence of recent complaint and the appellant’s admissions to her mother. It was open to the jury to reject the appellant’s version of that conversation and to accept that he had indeed acknowledged misconduct.

[35] As Mr Burns said, the jury’s verdicts indicate a discerning approach to the issues. The evidence in relation to the second count of which the appellant was acquitted, was less persuasive than K’s account of the earlier incident, which provided a sufficient foundation for the guilty verdict.

Result

[36] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington