R v Daleszak CA145/06 [2006] NZCA 499 (27 November 2006)

Last Updated: 6 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA145/06

THE QUEEN

v

ROBERT ANTONI DALESZAK

Hearing: 26 October 2006

Court: Robertson, John Hansen and Goddard JJ Counsel: G J King for Appellant

K B F Hastie for Crown

Judgment: 27 November 2006 at 3 pm

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

_{B The conviction is quashed and a new trial is ordered.}

REASONS OF THE COURT

_{(Given by Robertson J)}

R V DALESZAK CA CA145/06 27 November 2006

Introduction

[1] Following a re-trial on a count of sexual violation by rape, Mr Daleszak was convicted and sentenced to seven years’ imprisonment. He appeals against conviction on the basis of a substantial miscarriage of justice resulting from:

(a) the improper admission of evidence as recent complaint;

(b) the jury hearing of past discreditable conduct by the appellant towards the complainant;

(c) an improper closing by Crown counsel on a motive to lie; and

(d) errors and inadequacies in the summing up which undermined the defence case.

[2] When first spoken to by a police constable and told the police wanted to talk about something serious, the appellant was asked if he understood what the constable was referring to, Mr Daleszak said “Yes, the other night”. When later spoken to by a detective he said: “I’m saying sex happened. That’s all I’ll say”. The appellant did not give evidence himself at trial, but called two witnesses.

[3] In conformity with his position, under s 369 of the Crimes Act 1961 there was a formal admission that on 5 October 2004 sexual intercourse took place between himself and the complainant.

[4] The sole issue at trial was whether the Crown proved beyond reasonable doubt that the complainant did not consent to the admitted intercourse and that the appellant did not believe on reasonable grounds that she had consented.

Facts

[5] The appellant and the complainant were neighbours who, about thirty years ago, had had a brief sexual relationship. About 9.30pm one evening, Mr Daleszak

walked into the complainant’s home uninvited. He said he had come to get two eggs, and asked the complainant to make a cup of tea which she did. He had obviously been drinking prior to arriving and was agitated. The complainant alleged that, without warning, Mr Daleszak grabbed her, dragged her off her chair, put one hand over her mouth, the other over her chest and dragged her through the kitchen to the hallway and into her bedroom telling her to “shut your fucking mouth”.

[6] The appellant threw the complainant on to the bed, stripped off her clothes and, whilst kneeling over her, sucked on her breasts and then raped her. In the course of this he asked if she wanted to watch and said to her “you don’t seem to mind”.

[7] At the conclusion of the episode, he threatened her and told her not to tell anyone, particularly his wife who was overseas at the time.

Recent complaint

[8] There was a pre-trial hearing which in part dealt with this issue. The appellant argued that no recent complaint evidence should have been led because no complaint was made at the first reasonable opportunity. At trial a number of the Crown witnesses gave complaint evidence of one sort or another.

[9] The complainant said that immediately after the incident she showered and then tried unsuccessfully to contact by telephone first her partner and then her sister. She had a lengthy telephone conversation with her daughter (who was living in Australia) and indicated to her that the appellant had been “harassing” her. During the course of this conversation, her partner rang in using ‘call waiting’. She spoke with him but did not tell him what had happened.

[10] Before she went to work the following morning, she again telephoned her sister and made contact. She began crying and said that she would not be around for lunch. The complainant was equivocal as to whether she had actually told her sister that she had been raped whereas her sister was clear that she did not use those words. When she got to work she told a colleague, Ms P,(to whom she was not particularly

close) that the appellant had raped her. This was in answer to a direct question as to what was wrong after she was seen to be distressed and crying with her whole body shaking.

[11] Shortly thereafter the complainant provided much greater detail to another work colleague, Ms A, (who was her cousin) to whom she was very close. This witness described in detail the complaint made to her.

[12] The next day the complainant went to the police station to obtain a trespass order against the appellant. She did not report the rape because she “did not like the idea of going to court” and was “hoping to forget about it”. Two days later she went to the police and made a complaint of rape.

[13] At trial, the Crown led evidence from the complainant’s sister and the two workmates. In addition the complainant spoke about what she had said to other people.

[14] In a pre-trial ruling, Judge Perkins had held that the evidence of the two people she spoke to at her work was admissible, but left open the question of the sister because of a conflict in the evidence as to what was said in the telephone conversation the following morning.

[15] Mr King attacked the matter on a number of fronts. First he argued that there should have been no evidence of complaint as none of it arose at the first reasonable opportunity. Secondly, if there was evidence of complaint it should not be multiple. Thirdly, evidence of distress should have been excluded because of the time factor.

Was there a complaint at the first reasonable opportunity?

[16] Previous consistent statements of a witness are generally inadmissible for the purposes of confirming the evidence given at trial. Such evidence, in the majority of cases, is only available to support credit by showing a consistency in the account which adds some probative value to the evidence in Court.

[17] Confirmatory evidence is admissible when it falls within a recognised exception. One of those exceptions is evidence of recent complaint. Such testimony is received only as evidence of the fact that the complaint was made and not of the truth of its contents.

[18] The current approach to recent complaint evidence is encapsulated in R v Nazif [1987] 2 NZLR 122 (CA). It requires that a Judge, in assessing admissibility, should determine whether, in all the circumstances, recent complaint evidence is made at the first reasonable opportunity after the commission of the offence. In making that determination the Judge may consider the complainant’s age, nature and personality, relationship with those to whom she might be expected to complain, reasons for delay, and other relevant circumstances.

[19] A complaint does not need to be made to the first person with whom the complainant comes into contact to satisfy the first reasonable opportunity test. The words “first reasonable opportunity” are plain and unambiguous and should not be interpreted with undue rigidity: R v Accused CA273/91 20 December 1991.

[20] In this case, the first actual contact with a person after the incident was the telephone conversation with her daughter. The complainant told her that Mr Daleszak had been “hassling” her. We accept (although it is not a matter which needed to be led before the jury and would only have become relevant if there was challenge about why that was all the complainant had said) that the complainant would not choose to be more explicit to her daughter, or to unburden herself fully to someone in a telephone conversation, especially someone who was overseas.

[21] Similarly, when her male companion telephoned, and she anticipated he might be coming to see her that evening, it is not difficult to understand why she did not say anything on the telephone to him.

[22] The conversation with her sister the next morning is within that same general framework. The complainant advised that they were not going to meet for lunch as had been planned. She was distressed and it was yet again a telephone conversation.

[23] The first time that the complainant actually made a clear and unequivocal assertion that the encounter with the appellant had been rape was in the contact with Ms P. She was the first individual the complainant met in person, and that disclosure must be viewed as being available as the first reasonable opportunity.

[24] We are satisfied that the complaint made to Ms P was the first complaint made. The statements made to the complainant’s daughter and sister were not complaints. No mention was made of rape or indeed of any form of sexual violation. This situation is analogous with the finding made by the Supreme Court in Sungsuwan v R [2006] 1 NZLR 730 at [96] where the majority affirmed a decision made in the District Court that a statement by a complainant that did not refer to sexual violation was not a complaint and therefore not admissible as recent complaint evidence.

[25] We are of the opinion that the complaint to Ms P was made at the first reasonable opportunity and was accordingly rightly admitted.

(ii) Multiple complaints

[26] The evidence from the complainant’s sister ought not to have been led by the Crown. The comments (which were not asserted as being evidence of complaint) were inadmissible because they were hearsay.

[27] It was argued that the evidence of complaint to Ms A (the second work colleague) was rightly admitted as evidence of a successive complaint. We disagree.

[28] It is well established that a second complaint may be admitted if it can be shown to be part of a developing incremental disclosure: R v N [1994] 3 NZLR 641 (CA). The second complaint must still be made at the first reasonable opportunity. In R v I [2002] 3 NZLR 477, this Court described this as being where there is “a single process of disclosure” or where the complaint “emerged by a close process of development”.

[29] The purpose of recent complaint evidence is to bolster the complainant’s credibility not to assert the truth of the statement. The basis of recent complaint evidence was usefully summarised in the judgment of this Court in R v T [1998]

2 NZLR 257 at 270:

It is trite law that evidence of recent complaint is not evidence of its truth or of any other fact than that it was made. ... Recent complaints are admitted only as showing consistency between the complainant’s conduct at the time and his or her evidence at the trial thereby supporting the credibility of the witness’s testimony.

[30] The issue of incremental disclosure has been considered by the Court on a number of occasions. In R v N and R v I, the Court was dealing with complaints from young children. However, the decision of this Court in R v McClean [2002]

3 NZLR 794 suggests that the application of this approach is not restricted in its application and there is no reason, as a matter of principle, why, because the complainant is a mature woman, there could not be an incremental situation. In R v D [2003] 1 NZLR 41 (CA) the complainant was a 19 year old

[31] While it is clear that a more detailed complaint was made to Ms A shortly after the complaint to Ms P this is not sufficient to establish a developing incremental disclosure. The complaint to Ms P was clear and unequivocal that the encounter with the appellant had been rape (non-consensual). Although she was more expansive and detailed in her discussions with the Ms A, that does not add to her consistency. It was the same point that she was asserting. It had no additional probative value. The fact that sex occurred or how it occurred was not in issue. The sole issue was consent. The situation may have been different had there been a challenge to the complainant as to why she had not spoken to others, or had the details of sexual violation been in issue.

[32] It is inappropriate to assume that any repetition or expansion of a complaint will necessarily be admissible. The fact that subsequent complaints which provide slightly more information about the details of the offending can be viewed as incremental disclosure is in error. The sole issue is whether the credibility of the complainant is bolstered by the consistency of her position at the first reasonably available opportunity.

[33] The complaint of rape to Ms P was complete. The complaints to Ms P and Ms A cannot sensibly be described as a “single process of disclosure”. The second was a repetition of the first and its introduction unnecessarily increases the potential that the jury will misapply this testimony.

[34] To avoid the danger of illegitimate prejudice, it would have been preferable if the Crown had limited evidence of complaint to the complaint to Ms P. Fairness and better practice in this case would have seen a more restrictive approach to evidence in chief of complaint.

[35] Just as it is an error to assume that in every sexual case there will be evidence of recent complaint, it is wrong to assume that every comment made by a complainant, even within a short time space after an alleged violation, will be admissible. There needs to be a sensible assessment of whether the proposed evidence is probative for the limited purpose for which this exceptional evidence is receivable.

(iii) Evidence of distress

[36] Evidence of the distress of the complainant in discussions with her sister and with Ms P the following morning was routine and in accordance with the test laid down in R v Moana [1979] 1 NZLR 181 (CA). It was part of the narrative and of relevance to the issue of whether the sexual connection had been consensual.

The previous discreditable conduct

[37] There were three matters which were specifically complained of by Mr King under this heading. First, that the complainant, in re-examination, said that Mr Daleszak had tried to hassle her and rape her in the past. Secondly, that the complainant’s partner at the time (who was called as a defence witness at this trial) said in cross-examination that the complainant had previously mentioned that the appellant had “hassled her” and that she was frightened of him. Finally, the complainant’s sister, when talking about her telephone conversation with the

complainant, reported that the complainant had said that she was hassled by Mr Daleszak and complained that “every time Robert is drunk he goes to [my] place and always wants sex”.

[38] Mr King said that these were infringements of the basic rule that a person is to be tried solely for the charge laid against him and that past discreditable dealings should be excluded on the basis that they are irrelevant or more prejudicial than probative. He noted that some of this material was in any event hearsay and should have been excluded on that basis.

[39] The Crown did not argue that any of this evidence was admissible as similar fact evidence. Ms Hastie did not seek to justify or excuse what had occurred but noted that no objection was taken at the time. She submitted that it could not have led to a miscarriage of justice – a point to which we will return. She argued that it was also not without significance that there was no challenge to admissibility at any point in the trial.

[40] No direction was given by the Judge as to the admissibility or use to be made of this evidence. A non-direction, that is the failure to give a direction which is required by law, will ordinarily be held to constitute a miscarriage of justice: R v MacDonald CA166/04 8 April 2005. The absence of complaint or objection by trial counsel does not necessarily alleviate such concerns.

The Crown’s approach in summing up

[41] Mr King complained that the prosecution had improperly emphasised the question of why would the complainant lie in their closing statement. Crown counsel, in his final address to the jury, said:

Why on Earth would she make this story up?

Why would she put herself through the ordeal of a trial discussing such disagreeable and intimate matters with complete strangers?

Why would she put herself through such an ordeal if it were not in fact something that had happened to her?

Why would a person like the complainant suddenly decide to have sex with a man, the worse for liquor, who appeared unexpectedly at her house at night?

[42] The last two of these examples were specifically taken up and repeated by the

Judge in his summing up when summarising the Crown case.

[43] This Court in R v M (2000) 18 CRNZ 368 recognised that it was common for this type of rhetorical questioning to occur. The Court saw it as a natural question and one which jury members were probably already asking themselves. Adopting the approach of R v T [1998] 2 NZLR 257 (CA), it was held that an accused could be asked whether he knew of any reason for the complainant to fabricate her account and for the prosecutor to use the absence of any credible reason as a closing argument in favour of the complainant’s credibility.

[44] The Court, however, placed an important limitation on such questioning in holding that the questions/comments should not be presented in such a way which would deflect the jury from the central issue of whether the Crown had proved the charge beyond reasonable doubt. Nor should any suggestion be allowed that there was an onus of proof on the accused to advance a credible answer. Eichelbaum CJ noted in R v T at 265-266:

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.

[45] The point was considered again in R v Hayman CA478/05 23 June 2006 at [32], where this Court held that the central issue is whether there is a risk that the jury may view the burden of proof as being shifted from the Crown. Where it is clear from the summing up as a whole that the onus of proof rests with the Crown, no direction in terms of R v T is required.

[46] Mr King’s complaint was that the use of the rhetorical question had been unduly repetitive (although not the eleven consecutive questions which had arisen in

R v M) and the Judge was insufficiently firm in the way in which he dealt with this area when he said at [37]:

Confronting the Crown’s rhetorical question, why would the complainant make this up? Well that is an explanation, if you accept it, that she would have been embarrassed to have had it said or understood that she had willingly taken advantage of her neighbour’s absence to have intercourse with her husband and therefore made a complaint of rape to disassociate herself from blame. But, in putting that theory to you, Defence Counsel reiterates for you the position that, as a matter of law, and it is so, that the accused does not have to give an explanation as to why she might have made such a story up. It is not for the accused to assume the role or the onus of giving an explanation of what might be bizarre behaviour.

[47] It is not to be overlooked that in some jurisdictions this type of questioning and submission is absolutely forbidden: Palmer v R [1998] HCA 2; (1998) 193 CLR 1 (HCA). There is a clear need for caution whenever this form of advocacy is adopted.

[48] Ms Hastie’s response was that the rhetorical question was a legitimate tactic and the Crown was entitled to comment on it. That, in our judgment, is to put the matter too high. The fundamental question is whether the summing up as a whole could have left the jury in any doubt that the critical issue in this case was whether the Crown had proved beyond reasonable doubt that the sexual contact had not been consensual and there were not reasonable grounds for the appellant believing that it was.

[49] When viewed as a whole, the summing up covered the fact that the burden of proof remained with the Crown and we would not have found this aspect of the appeal conclusive. However, it is the case that the greater the repetition of the “lies question”, the more likely it is that the trial process will be improperly perverted.

Errors and inadequacies in the summing up which undermined the defence case

[50] This was not an easy submission for Mr King to advance where his client had exercised his right to silence in large part both out of Court and in the trial, making only the comment noted above in [2]. We see nothing objectionable in the Judge querying whether this might have been a “strategic statement” when that comment is seen within context. The Judge said:

[38] The accused has admitted right from the start that he had a sexual encounter with the complainant. He told the Police Officer when she came to see him, “I’m saying sex happened and that’s all I’ll say.” Counsel says, well he said that to Detective Brownlie more or less at the outset and certainly before he had contacted the lawyer whose name and number he had given the officer and whom he indicated he wanted to speak to. So he came out with that straight away. Counsel says to you – is that the statement of a person who knows that he has raped somebody? Is he going to admit the sexual act straight away? Would he not say nothing or would he not deny that intercourse happened at all? Well, that is a matter for you, members of the jury, whether you think that is a strategic statement or simply an honest statement of his position. You may think that’s a statement that honestly tells you that he had nothing to hide.

[39] On the other hand you may feel that perhaps he might have felt that there might be some traces of what had happened that could bear forensic examination and things that couldn’t be denied might be better admitted. But, in all events, whatever you make of that, that is a matter for you. He has come out with that straight away before he has taken legal advice, and counsel for the defence suggests to you that that is redolent of honesty and a straight forward response.

[51] Complaint was also made about the fact that the Judge concluded his summing up by saying “You have to be sure and you have to be unanimous”. Mr King suggested that such a direction was inadequate in terms of the recent decision of this Court in R v Wanhalla CA321/05 CA324/05 24 August 2006. But again, when this comment is read within the overall structure of the summing up, we see nothing to cause concern.

Conclusion

[52] The jury in this trial heard evidence which was not properly admissible. The second more fulsome complaint to Ms A may have had the effect of illegitimately bolstering the complainant’s credibility. The “lies rhetorical question” was given particular prominence in the trial and the question is whether the Court can be satisfied that there was nonetheless no miscarriage of justice.

[53] The case depended upon the jury accepting the complainant as a credible and reliable witness. Her distress the next morning and the evidence of complaint to her work colleague goes to credibility, but does not add to the stock of available evidence on the critical consent issue. Evidence of opportunity was not additionally probative because of the fact that sexual intercourse was admitted.

[54] There is, in the narrative of events following the incident, and in the testimony in Court (both evidence in chief and cross-examination) no wavering by the complainant about the crucial factors.

[55] The jury reached its verdict in this case in about 15 minutes, but it was a retrial and on the first occasion a jury was unable to reach a unanimous verdict on this count.

[56] The Judge’s summing up contained an orthodox direction on complaint evidence. It was not particularly tailored to the unusual circumstances which had arisen, although it alerted the jury to the limited basis upon which such evidence can be used.

[57] When the inappropriately admitted material is stripped away, can we be confident that the jury would nevertheless have been sure that the there was not consent and that Mr Daleszak did not believe, on reasonable grounds, that there was? Our system provides that there is no onus on a person in the position of Mr Dalesak to say anything and he is able to put the Crown to proof.

[58] When the focus is placed on the safety of the verdict, we cannot conclude that, had the trial been free of the problems canvassed, the jury would inevitably have reached the same conclusion. Taken in concert the points raised are significant enough to force us to conclude that there is a real risk that they affected the outcome. Accordingly there must be concern as to the safety of the verdict and the proviso is not available.

Result

[59] The appeal is accordingly allowed, the conviction is quashed and a new trial is ordered.

Solicitors:

Crown Law Office, Wellington