R v B (CA279/05) [2006] NZCA 389 (7 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

_CA279/05

THE QUEEN

v

_B(CA279/05)

Hearing: 14 February 2006

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

J M Jelas for Crown

Judgment: 7 March 2006

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS

_{(Given by Potter J)}

Introduction

[1] B was found guilty following trial in the District Court at Gisborne before

_{Judge Wilson QC and a jury, of two charges of indecent assault upon his daughter T}

R V B(CA279/05) CA CA 279/05 7 March 2006

who was aged 14 at the time of the offending in 1986 and 1987. He was sentenced to two years eight months imprisonment.

[2] B now appeals against the convictions.

Factual background

[3] The Crown case may be summarised as follows:

B lived alone with T in a bach at Leigh, north of Auckland, after his wife left and moved to Auckland. From the time T was aged 12 the appellant would expose his penis to her and fondle his penis in front of her. He would also watch T while she was in the bathroom in the bach at Leigh.

[4] After coming home drunk from the hotel the appellant would touch T between the legs with his hands when she was in bed. This offending occurred on a regular basis over a 12 months period between February 1986 and February 1987. On at least two occasions the appellant touched T’s genital area. These facts formed the basis of the first charge, a representative charge of indecent assault.

[5] On one occasion T ran crying to a neighbour’s address which resulted in the neighbour, P, confronting the appellant.

[6] When T was about 14 years old there was an incident which gave rise to count 2. T had been drinking and was asleep in her bed. She awoke to find the appellant performing oral sex on her. She kicked him and swore at him. Following that incident she moved out of the bach and went to Auckland to live with her mother.

[7] The appellant denied that the offending ever took place.

Grounds of appeal

[8] The grounds of appeal as presented in submissions, are:

(a) The Crown made submissions that the appellant was sexually frustrated, which were emotive, highly prejudicial, unsupported by the evidence and breached prosecutorial boundaries.

(b) The Crown’s approach was erroneously given legitimacy by the trial Judge when he repeated it in his summing up and did not refer to the defence criticism of the Crown’s submissions on this point.

(c) The Judge gave a standard direction about recent complaint evidence and did not identify or sufficiently identify inconsistencies in the evidence of the recent complaint witness P and the evidence of T at trial as to the complaint made and the events complained of. Consequently there was a risk that the jury would treat the recent complaint evidence as evidence of its truth rather than for the limited purpose of reinforcing T’s credibility.

[9] The Crown resists the appeal and submits that no miscarriage of justice occurred. In particular:

(a) The prosecutor’s submission to the jury that the appellant was a sexually frustrated man was a submission open to the prosecutor on the evidence of T and the appellant.

(b) There is nothing improper in a prosecutor suggesting a motive or explanation to the jury for the conduct alleged.

(c) The comments of themselves, in the overall context of an otherwise conventional Crown closing, would not have led to or put a jury at risk of improperly carrying out their task.

(d) There was no significant inconsistency between T’s evidence and that of P which would have warranted additional directions to the jury.

[10] Counsel for the Crown commenced his closing address to the jury:

This case is about a sexually frustrated man who tried to relieve his sexual frustrations by interfering with his teenage daughter.

[11] About one-third of the way through his closing address Crown counsel submitted to the jury:

... we have here a somewhat sexually frustrated man, a man whose wife has gone, gone and left him, I submit, with the daughter T – this precocious, you might think, daughter. And really the accused is home alone with the daughter ...

[12] Mr Sharp in his closing address for the defence said to the jury:

Now the Crown says that this was a case about sexual frustration. That was never put to Mr B. In the Court we are allowed to use your common-sense and look at issues, look at things. The fact that he didn’t have a girlfriend after his wife went to Auckland does not, in my submission, mean that he was sexually frustrated. He was never asked about that. If there is no evidence to base something on, it’s not proper to guess. In my submission that was an invitation to speculate over some motive he might have had. Well, really there was no evidence in which that could be properly based in my submission to you.

[13] Mr Sharp submitted to this Court that the Crown submission could only have been speculative, and was potentially prejudicial to the appellant. He submitted that a jury might reason that if somebody was sexually frustrated that could make them more likely to take advantage of a potential sexual partner, and therefore could supply a potential motive for the alleged offending. Mr Sharp also complained that the Judge in summing up did not confirm the submission he made to the jury; the Judge did not warn the jury not to speculate about the appellant’s motive, but instead reiterated the Crown’s submission when in summarising the Crown case, the Judge commenced:

Now, the case for the Crown, is this. The accused was a sexually frustrated man after his wife left. He was home alone. He turned to his daughter whom he indecently assaulted.

[14] In evidence in chief the appellant was asked:

Q. Were things hard for you at the time? A. Yes they were

Q. How were you feeling at that time?

A. It was a lonely time but I just had to take it.

[15] It was put to the appellant in cross-examination by the Crown:

Q. You must have felt quite lonely when Liz moved to Auckland? A. I did for a start but I had a lot of friends to help me.

Q. So when T was still in Leigh you didn’t have a girlfriend did you? A. No I did not.

[16] P, the recent complaint witness, was asked in evidence in chief:

17. What if anything did the accused say how his life had been at that point?

1. He said that his wife had left him very lonely, that life was very hard for him then.

[17] P also said that T told her on the night T ran crying to her house:

He thinks I’m his bloody wife, I wish he would leave me alone.

[18] T said in evidence that the appellant attempted to touch her not long after her mother left him. She also gave evidence of the appellant keeping dirty magazines, manuals for blow-up adult toys and a pair of her knickers in a cupboard and that she regularly saw her father masturbating himself.

Discussion

[19] There is no dispute that the Crown is entitled to make submissions about opportunity and motive for the alleged offending, although motive is not an element

of the offence charged. In this case the Crown advanced submissions as to opportunity (the appellant was left alone with T in the bach at Leigh following his wife’s departure) and motive (sexual frustration).

[20] While it may have been preferable that Crown counsel limited his submission on the first of these motives to the appellant being “lonely” following his wife’s departure, especially as the proposition that he was sexually frustrated was not put to the appellant, the submission that he was sexually frustrated was not without any evidential foundation. The extracts from the evidence quoted above provide an evidential basis for the submission such that it cannot be categorised as pure speculation.

[21] Further, in the overall context of the Crown’s closing address the submission was not so significant that it could be described as a theme or focus of the Crown case or as inappropriately emotive or inflammatory. The Crown’s closing address focused in considerable detail on the issue of the credibility and reliability of the witnesses which, counsel submitted, would assist the jury to determine:

... the real question ... whether or not these things actually occurred.

[22] The submission about sexual frustration occurred twice in an address which occupied approximately 17 pages of typed transcript, covered in considerable detail all the relevant evidence and concluded by urging the jury to stand back and consider the evidence as a whole. As this Court said in R v Hodges CA435/02 19 August

2003 at [7]:

We emphasise again that in the end it is the cumulative effect of the address as a whole and its likely impact on the jury that must be assessed.

[23] The Judge’s reference to the submission in contention was made at the start of his summary of the Crown case, in which he referred to the Crown’s submissions about the evidence as a whole. The Judge then summarised the defence case as put in closing by Mr Sharp. The Judge did not reiterate or emphasise defence counsel’s submission that there was no evidential basis for the Crown’s submission about sexual frustration. That may have been because the Judge considered that the submission was sufficiently founded in the evidence. In any event, the submission

did not form such a dominant part of the Crown case as put to the jury in closing, that there was a risk of unfairness to the appellant which needed to be addressed by a direction from the Judge by way of balancing.

[24] As Ms Jelas pointed out, in response to the Judge’s inquiry of counsel after the jury retired, whether there were any matters, the jury were brought back at the request of defence counsel to be reminded of the appellant’s denial when confronted by the Police with the allegations. Had the Crown submission about sexual frustration given rise to concerns by defence counsel of prosecutorial misconduct or stood out as requiring a balancing direction from the Judge, there was an obvious opportunity for this to be raised with the Judge in Chambers.

[25] We do not consider that the content or manner of this submission or the way in which it was dealt with in the Judge’s summing up provide a basis for criticism of Crown counsel or the Judge. The first and second grounds of appeal fail.

Directions about recent complaint evidence

[26] The Judge gave a standard direction as follows:

This is a case in which you heard the evidence of P about a complaint made by the complainant. I need to give you direction about ‘recent complaint’. If you accept the order of events that was given by T and P – then T has gone from a place where she alleges she’s been indecently assaulted to the neighbour’s house and there, there has been a meeting between them – to put it in neutral terms. It is for you to decide whether what transpired there, from all the evidence you hear, amounted to a complaint. Was a complaint actually made? And secondly, the fact that the complainant, if you find she did, told P of what she says happened, does not of course prove that it did happen. Obviously if she was wrong about it then she is still wrong about it. The relevance of the evidence is that it might show there is a consistency with what T said and did soon after the event and what she now says about it. That is of assistance, or maybe of assistance to you in assessing her credibility, i.e. whether you believe her or not. How much weight you give to it is a matter for you to decide.

Evidence

[27] T gave evidence that after her father had attempted to touch her late one night she fled from the bach and ran to a neighbour’s address. She said there was a party

going on at the neighbour’s home. She said that on arrival she “told [Big Jim] what had happened” and that he got P and her husband. T then said:

I told [P] and [Mr P] what [the appellant] was trying to do and [P] and

[Mr P] went down to confront him.

She was not asked about the details of what she told the neighbours.

[28] In answer to Mr Sharp in cross-examination T said:

I just told them that [the appellant] was trying to touch me, ... trying to touch me, trying to do things.

She agreed that she did not make a specific allegation of sexual abuse to P.

[29] P gave evidence that around March 1987, T arrived at her house late at night in a dishevelled and hysterical state. T looked as if she had just got straight out of bed. According to P, Big Jim was not in her house at the time, nor was there a party in progress. P said that:

[T] was saying things like; ‘he thinks I’m his bloody wife; I wish he’d leave me alone’.

And that:

... from what she was saying I gathered that it was her father that she was talking about.

P said:

She was saying that this was happening once or twice a week and generally when he’d been drinking.

[30] P said that T was crying and hysterical but calmed down after about half an hour or 45 minutes. After T had calmed down, P said she went to the appellant’s house and confronted him. She put it to him that he was abusing his daughter sexually. Asked what he said in response, she said:

... nothing much that evening, he was a bit dazed, he had been drinking. I’d apparently woken him up when I entered the home.

[31] P described how about a week later the appellant came to her house when her husband was at home and:

... he conveyed that he was very embarrassed about the situation, he apologised for his behaviour and he gave my husband and I a very large bag of scallops ... he thanked us for looking after his daughter that evening and for not taking the matter any further.

She stated that her husband said to the appellant, that if the abuse stopped now, he would not take the matter any further.

[32] In answer to cross-examination P confirmed that T made no direct allegation of sexual abuse to her:

... not in so many words, no.

Submissions

[33] Mr Sharp cited R v S [2004] 3 All ER 689 (CA) and the Court’s quotation at

[25] from R v Braye-Jones [1996] Qd R 295 (QCCA) at 297:

Clearly enough, evidence of statements made by the prosecutrix which did not bear any resemblance at all to her sworn evidence would not be admissible, for such evidence would be irrelevant. In my opinion, however, the matter is one of degree, and if the substance of the complaint can be identified as relating to the story told by the prosecutrix in evidence, and if it is such that a jury can reasonably regard it as constituting a complaint of a matter of a sexual nature, then I think that inconsistency as to detail is a matter for the jury to consider in their assessment of the credibility of the prosecutrix.

[34] Counsel submitted that in this case, while T in evidence in chief described the indecent assaults in detail, she also agreed that she did not make a complaint to P of sexual assault. Hence the complaint evidence “bordered on inadmissible”.

[35] Next, counsel emphasised that the only use of the consistency (if consistency can be found), is in showing that the complainant has been consistent in her allegation of sexual assault. He submitted that there seemed to have been little consistency between the complaint evidence of P and the evidence in chief given by T at trial such that additional directions from the Judge were required identifying the complaint evidence and identifying for the jury inconsistencies in the evidence of

T and the evidence of P, about what was said when the complaint was allegedly made.

[36] Ms Jelas submitted that while both T and P agreed that T did not specifically state to P that she was being sexually abused by the appellant, it could reasonably be inferred from the circumstances of the disclosure she made to P and from what she did disclose, that the touching T referred to was of an indecent and unwanted nature.

[37] She further submitted that the evidence given by the two witnesses T and P was largely consistent and that additional directions over and above the conventional recent complaint direction were not required.

[38] The Crown identified consistencies between the evidence of T and P as follows:

(a) The time of night the disclosure was made. P said that T arrived at her house at between one o’clock and two o’clock in the morning. This is consistent with T’s evidence that the offending would typically take place at night, after the appellant had come home from the pub.

(b) Prior to the attempted assault by the appellant, T had been in bed.

P gave evidence that T’s clothes looked like she had just got out of bed.

(c) T’s demeanour. P described T as being hysterical, extremely upset and crying. T did not describe her demeanour at the time but it was open to the jury to infer from her actions that she was upset.

(d) The limited nature of the disclosure. Both witnesses accepted that express reference to sexual abuse was not made.

(e) After the disclosure P and her husband confronted the appellant about sexually abusing T. Both T and P gave evidence that the appellant was confronted later that night.

(f) The frequency of the sexual advances. P said that T had said that “this was happening, once or twice a week and generally when he had been drinking”. T’s evidence was that the offending occurred approximately one or twice a week.

Discussion

[39] The purpose of admitting complaint evidence is solely to establish consistency, as has been repeatedly emphasised by this Court. The limited use that the jury may properly make of the complaint evidence must be made clear to them. Otherwise there is a risk that a jury may assume that the fact that the complainant has given a previous consistent statement is a permissible way of establishing the truth of her evidence: R v T [1998] 2 NZLR 257. Complaint evidence will bolster the evidence of the complainant in Court only if it is “sufficiently consistent” with that evidence, but a complaint supporting the credibility of the complainant need not disclose the ingredients of the offence: R v S [2004] 3 All ER 689 at [30].

Was there a sufficiently consistent complaint?

[40] In R v S at [30] Thomas LJ delivering the judgment of the English Court of

Appeal stated:

The decision in each case as to whether it is sufficiently consistent for it to be admissible must depend on the facts. It is not in our judgment necessary that the complaint discloses the ingredients of the offence; it will, however, usually be necessary that the complaint discloses evidence of material and relevant unlawful sexual conduct on the part of the defendant which could support the credibility of the complainant. It will not, therefore, usually be necessary that the complaint describes the full extent of the unlawful sexual conduct alleged by the complainant in the witness box, provided it is capable of supporting the credibility of the complainant’s evidence given at the trial.

[41] In R v S the Court was satisfied that evidence of recent complaint of indecent assaults was capable of supporting or enhancing the credibility of the complainant’s evidence in relation to more serious sexual conduct of digital penetration and rape.

[42] In reaching that conclusion the Court found helpful the reasoning of the Queensland Criminal Court of Appeal in Braye-Jones and also referred to R v Nazif [1987] 2 NZLR 122, where the complainant gave evidence of an indecent assault, whereas the evidence given of the complaint was of an assault. At [26] the Court quoted from Somers J in Nazif at 126:

The third question arises from the fact that the witness of the complaint, Miss Reidy, gave no evidence that the prosecutrix had told her that she had been indecently assaulted, merely that she had been assaulted. It was submitted that evidence of a complaint was not admissible unless the complaint made referred in some way to its indecent character. The submission has little logic to support it. The purpose of the admission of evidence of complaint being to show consistency of the conduct of the prosecutrix with the evidence she has given as to what occurred; a simple complaint of assault made by her proximately to the event must surely be capable of evidencing consistency. Whether it does so in fact will be a matter for the jury.

[43] In this case, when T went to P’s house in an upset state and spoke to P, she made no direct reference to the indecent character of the conduct she complained of. T’s evidence was that she told P:

... he was trying to touch me.

[44] P referred to T saying things like:

... he thinks I’m his bloody wife; I wish he’d leave me alone.

[45] Both T and P agreed that T made no mention of sexual abuse.

[46] It was for the jury to determine whether, by inference from all the circumstances, a complaint of indecent touching had been made which was supportive of T’s evidence at trial in relation to the indecent assaults. The jury heard the evidence of the circumstances and manner in which T made the disclosure to P, which evidence, if it was accepted, was relevant in determining the inferences to be drawn as to the nature of the disclosure made.

[47] T’s evidence in the witness box described indecent assaults of which she gave considerable detail. The disclosure of T to P in whatever form or words the jury accepted it was expressed, made promptly after an incident of indecent assault as described in evidence by T, was capable of evidencing consistency and supporting

the credibility of T as a witness. It was for the jury to decide whether in fact it did and what weight they attached to it.

[48] The Judge drew the jury’s attention to this issue, albeit without further explanation, by directing them:

It is for you to decide whether what transpired there, from all the evidence you heard, amounted to a complaint. Was a complaint actually made.

Were there obvious inconsistencies which required further direction by the

Judge?

[49] In R v S the Court stated at [34]:

It is ... important for the judge to direct the jury fully on the use the jury may make of the complaint ... In cases where there is obvious inconsistency, it will be very important for the judge to make clear to the jury the extent and significance of the inconsistency, as the trial judge did in R v Braye-Jones. He should also draw to the jury’s attention any reason given for the inconsistency and tell them that it is for them to take all these matters into account in deciding whether the complainant is telling the truth.

[50] The Court had previously observed at [31]:

Differences may be accounted for by a variety of matters, but it is for the jury to assess these. For example, in cases of alleged abuse (such as this) by a stepfather or other family member, it would be for the jury to consider whether the difference arises because, as is known to happen on some occasions, the complainant cannot bring herself to disclose the full extent of the conduct alleged against the defendant at the time of the contemporaneous complaint.

[51] The Court concluded at [36]:

In the circumstances of this case where the evidence of C was of real significance, the judge clearly should have drawn to the jury the specific differences between the evidence of S and that of C and made clear to them the limited consistency between the evidence of S as to what had happened and C’s evidence as to the complaint made to her. The direction given by the judge was plainly so inadequate that it amounted to a material misdirection to the jury.

[52] In the present case the Judge did not direct the jury as to inconsistencies in the evidence of T at trial and the evidence of P, as to the complaint made to her by T.

[53] There were undoubtedly differences in the two accounts. For example, T said in evidence that she told P that:

... he was trying to touch me, trying to do things.

P gave evidence of what T told her:

... she was saying things like, he thinks I’m his bloody wife, I wish he’d leave me alone.

... just kept reiterating that he was an arsehole, you know keeps treating me like his wife.

... she was saying this was happening once or twice a week and generally when he had been drinking.

[54] It would have been surprising if (absent collusion and there was no suggestion of this), there had been no inconsistencies, for the events in issue had occurred nearly 20 years previously. But as the Court observed in R v S, differences may be accounted for by a variety of matters, the passage of time being a matter relevant here. That may explain why both T and P were somewhat imprecise as to the actual words T used when she disclosed to P. Reasons for the differences are for the jury to assess.

[55] A difference on which Mr Sharp placed emphasis was P’s statement that:

She was saying that this was happening once or twice a week and generally when he had been drinking.

[56] Counsel noted that the Judge referred to this evidence in summarising the Crown case but that T in evidence made no reference to this as being part of her complaint. He submitted that therefore there was no basis for a claim of consistency.

[57] However, in evidence T said that these things would happen:

Often ... may be once or twice a week.

So while not mentioned by T as being part of her complaint, T’s evidence on this point was essentially consistent with what P said T told her. This was not a situation that called for a direction as to inconsistencies. Indeed, had the Judge attempted to

give such a direction, the jury could well have become confused, given T’s evidence at trial.

[58] There were remarkable consistencies between the evidence of T and the evidence of P as to the events of the night when T went to P’s house and P later confronted the appellant. These have been identified by the Crown as set out in [38]. This evidence, if accepted by the jury, was available to be factored into their assessment of T’s credibility as a witness and as to whether T’s complaint evidence supported her credibility as a witness.

[59] While there were inconsistencies in the evidence of P and T as to T’s complaint which the Judge could have drawn to the attention of the jury, we do not consider that they were of such significance that his omission to give specific directions over and above the standard directions which he gave, amounted in the circumstances of this case to a material misdirection to the jury so as to give rise to a miscarriage of justice. The Judge clearly directed the jury as to the limited purpose of the recent complaint evidence (if accepted by the jury): that it may be of assistance to them in assessing T’s credibility.

[60] The third ground of appeal is therefore dismissed.

Result

[61] The appeal is dismissed.

Solicitors:

Burnard Bull & Co, Gisborne for Appellant

Crown Law Office, Wellington