R v Tereva CA82/06 [2006] NZCA 419 (16 June 2006)

Last Updated: 26 January 2014

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

₁₉₈₅

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA82/06

THE QUEEN

v

_{JEREMY TEREVA}

Hearing: 1 June 2006

Court: William Young P, Chambers and Arnold JJ Counsel: S D Cassidy for Appellant

G J Burston for Crown

Judgment: 16 June 2006

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS

_{(Given by Arnold J)}

R V TEREVA CA CA82/06 16 June 2006

Introduction

[1] Following trial before Judge Sharp and a jury in the District Court at Manukau, the appellant was found guilty of one count of sexual violation by unlawful sexual connection (s 125(1)(b) Crimes Act 1961), one count of kidnapping (s 209(1)(a) Crimes Act) and two counts of indecent assault (s 141(1)(a) Crimes Act). He was acquitted on one count of threatening to kill, and a further charge, anal intercourse with a severely subnormal person, was dismissed, on the basis that it was laid as an alternative to the sexual violation charge. The appellant was sentenced to a term of imprisonment of nine and a half years.

[2] The sole ground of appeal is that the Judge refused to grant the appellant leave, under s 23A of the Evidence Act 1908, to cross-examine the complainant, and the complainant’s mother, on the complainant’s previous sexual history. This, it is argued, resulted in unfairness to the appellant and a miscarriage of justice.

Background

[3] At the time of the offending, the complainant was 34 years old. He suffers from a severe intellectual disability. The psychological evidence was that he had, in some respects, the mental age of a child between the ages of two and eight.

[4] In February 2003, while the complainant was using a public toilet, sexual activity took place between him and the appellant, first at a urinal and subsequently in a toilet booth. The appellant said that the activity was consensual. The complainant said that it was not, and also said that the appellant had taken him by force to, and detained him in, the toilet booth.

[5] After the incident, the complainant went home and told his mother what had occurred. His mother then contacted the police, who commenced an investigation, which ultimately led to the charges before the Court.

[6] The complainant’s mother made a statement to the police. In the course of that statement she said:

About 6-7 years ago [the complainant] had gone into Auckland on the train because he was going to meet me for dinner. He was by himself. He had come from working at Otahuhu after work.

He needed to go to the toilet so went to the one at the train station which goes down some stairs.

[The complainant] told me that a well shaven Chinese man gave oral sex to [the complainant] and made him ejaculate. [The complainant] did nothing to the Chinese man that I can remember.

[The complainant] met me in Downtown Auckland and told me what happened so I took him to Downtown Police Station and from there we went to Auckland Central Police Station and made a complaint.

About 3-4 years ago, [the complainant] was coming from Otahuhu to meet me in Henderson but had to go via Auckland to catch the bus.

[The complainant] didn’t like using the toilets at the bus stop so walked to Downtown Shopping Centre to use theirs but they were closed for cleaning so he ended up going to the toilets just around the corner from Queen Street. It was on the left if you come down Queen Street.

[The complainant] went down the stairs and saw some guys by the urinal so went into the cubicle and locked the door. A guy from the adjacent cubicle jumped the wall and once again gave oral sex to [the complainant]. He also took $25 that [the complainant] had on him.

[The complainant] did nothing in return that I can recall. I do remember him saying that either this one or the other incident that he made him touch the other man’s penis.

[The complainant] left the toilets after the same guys that had been in the toilets.

[The complainant] caught a taxi to where I was and we walked to Henderson Police Station, and they advised us to go to Central to make a statement. So while the complaint was made at Henderson, it was passed on to Auckland.

[7] Counsel for the appellant asked the police to disclose any information they held in relation to the two previous complaints referred to in the statement. The Police advised that they had no record of the complaints. As a consequence counsel applied for leave under s 23A to cross-examine the complainant and his mother on these previous incidents. Judge Sharp refused the application.

Discussion

[8] Section 23A provides:

23A Evidence of complainant in cases involving sexual violation

(1) For the purposes of this section, cases of a sexual nature means proceedings in which a person is charged with, or is to be sentenced for, any of the following offences:

(a) Any offence against any of the provisions of sections 128 to 142A

of the Crimes Act 1961;

....

(2) In any case of a sexual nature, no evidence shall be given, and no question shall be put to a witness, relating directly or indirectly to -

(a) The sexual experience of the complainant with any person other than the accused; or

(b) The reputation of the complainant in sexual matters, - except by leave of the Judge.

(3) The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to –

(a) Facts in issue in the proceeding; or

(b) The issue of the appropriate sentence, -

as the case may require, that to exclude it would be contrary to the interests of justice.

Provided that any such evidence or question shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.

[9] Mr Cassidy, for the appellant, argued that leave should have been granted under s 23A. As he put it in his written submissions:

The circumstances of the previous complaints and the circumstances of the complaints currently before the Court are remarkably similar. In all three incidents the complainant has visited public toilets. Whilst using the facilities he has been sexually assaulted. The alleged sexual assaults were followed by immediate complaints to the complainant’s mother and immediate reporting to the Police.

It is respectfully submitted that the fact that the Police have no record of the two previous complaints of sexual assault made by the complainant (in the company of his mother) demonstrates that the Police did not pursue or investigate these complaints. The fact that complaints of sexual assault were made and yet not investigated might then reasonably lead one to suspect that the reason for this lack of investigation was because the Police did not believe the complainant’s allegations, or that they were inherently suspect.

The appellant’s position is that the previous allegations of sexual assault are false as are the present allegations. It is submitted that the prior allegations might reasonably be regarded as inherently suspect. It would be an odd and unfortunate coincidence that the complainant should be the subject of three sexual assaults in strikingly similar circumstances. The incredulity flows from the fact that complaints were made to authorities and yet not investigated.

[10] However, at the outset of his oral submissions, Mr Cassidy acknowledged that there were “any number of reasons” why the police had no record of the complaints, or had carried out no investigation. Mr Cassidy acknowledged that the relevant records may have been lost, or that the police may have had insufficient information about the perpetrators to commence investigations. While he said that another possible explanation was that the complaints were thought to be false, Mr Cassidy accepted that there was no evidence of that.

[11] In a recent judgment, R v MacDonald CA166/04, 8 April 2005 this Court addressed the question of the application of s 23A to allegedly false complaints. In that case the appellant had been found guilty of having sexual intercourse with a girl aged between 12 and 16 years, contrary to s 134 of the Crimes Act. The appellant’s defence was that no sexual activity had occurred. At trial he wished to cross- examine the complainant on the basis that she had previously made a false allegation of a sexual nature against another male.

[12] In dealing with this issue at [30] – [38], the Court noted that the New Zealand and English authorities appear to have taken a different approach to the matter. In R v Duncan [1992] 1 NZLR 528 at 535, this Court said that questions as to the making of false sexual complaints relate, indirectly, to the sexual experience of the complainant, and are thus within s 23A(2)(a). By contrast, in R v T [2002] 1 All ER 683 the English Court of Appeal said that normally questions or evidence concerning a complainant’s false statements about sexual assaults in the past do not fall within the language of the equivalent United Kingdom provision, s 41(1) of the Youth Justice and Criminal Evidence Act 1999. Having noted the difference, the Court in MacDonald concluded, however:

[37] We doubt whether there was a significant practical significance in the differing approaches taken in Duncan and Tait. The English Court of Appeal in R v T at [41] made clear that “in any case the defence must have a

proper evidential basis for asserting that any such previous statement was (a) made, and (b) untrue.” In this way, the Court sought to balance the conflicting considerations we have referred to. In Duncan the Court sought to achieve the necessary balance in another way; by treating s 23A as applying but adopting a liberal approach to the granting of leave on the basis that questions addressed to false complaints are not within the mischief addressed by s 23A. In most cases the apparently different approaches will produce the same outcome.

[13] Two difficulties confront the appellant in the present case.

[14] First, as was held by the Judge below, the appellant has not established a proper evidential foundation for the proposition that the previous complaints were false – indeed, he is not able to point to any evidence that they were false. Yet the proposition that the complaints were false, and were made by the complainant because he was unable to handle his feelings of guilt following consensual sexual activity, was what the appellant wanted to draw from the incidents to support his contention that this was what had happened in the present case. In the absence of a proper evidential foundation, any cross-examination on the prior incidents could fairly be described as “fishing”. Similarly, if, as seems likely in the absence of additional material, cross-examination did not advance matters, any conclusion which the appellant might seek to draw from the incidents could fairly be described as “speculative”.

[15] Second, whereas in MacDonald the defence was that no sexual activity had taken place, and the prior complaint was said to be an example of the same type of unfounded allegation, the defence in the present case was that sexual conduct had occurred but was consensual. The appellant wished to cross-examine on the earlier complaints on the basis that they were examples of the same type of consensual sexual conduct, later misrepresented as non-consensual. The existence of the underlying sexual conduct in the present case engages s 23A more directly than was the case in MacDonald. It creates the risk that the cross-examination will become little more than a general challenge to the complainant’s moral character or prior sexual history, which is the mischief that s 23A was intended to prevent. For this reason it is important that the appellant in the present case identifies a proper evidential foundation for the allegation that the prior complaints were false in order to obtain leave under s 23A. This he has been unable to do.

Result

[16] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington