R v Palmer [2007] NZCA 113 (3 April 2007)

Last Updated: 12 February 2014

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_{REPORT OR LAW DIGEST PERMITTED.}

IN THE COURT OF APPEAL OF NEW ZEALAND

CA256/06 [2007] NZCA 113

THE QUEEN

v

_{PIKI PALMER}

Hearing: 21 February 2007

Court: William Young P, Randerson and Harrison JJ Counsel: W C Pyke for Appellant

K Raftery for Crown

Judgment: 3 April 2007 at 3 pm

_{JUDGMENT OF THE COURT}

A The appeal against convictions is allowed.

B The convictions are quashed under s 385(2) of the Crimes Act 1961. C A retrial is ordered.

R V PALMER CA CA256/06 3 April 2007

REASONS OF THE COURT

_{(Given by Harrison J)}

Introduction

[1] The appellant, Mr Piki Palmer, appeals against his conviction following trial in the District Court at Tauranga on counts of sexual violation by rape and by unlawful sexual connection. He does not appeal against his sentence of concurrent terms of imprisonment of eight years and three years respectively.

[2] Mr Palmer appeals on two discrete grounds: first, that his trial counsel erred in failing to advise him to give evidence at trial and, second, that the trial Judge erred when summing-up in his directions on the burden and standard of proof, admissibility and use of complaint evidence, and in a general lack of balance in favour of the Crown.

Crown Case

[3] The complainant lived at Mt Maunganui. Early on 24 October 2005 she and three others went to the beach there. During the morning they purchased a considerable amount of alcohol. The complainant herself drank two or three bottles of beer and seven or eight bottles of pre-mixed bourbon and cola, known as Codys.

[4] While near the beach, the complainant and her friends met up with Mr Palmer and three others. The complainant and Mr Palmer had known each other for about five years but had not encountered each other for at least a year. He drove her to a liquor outlet to buy additional alcohol. She continued drinking more Codys until she was by her own account ‘pretty drunk’. She then invited Mr Palmer and the others to her place to drink further.

[5] At trial the complainant said she remembered little about the drive home except going up the stairs and vomiting on the wall next to her bed and twice in the bathroom. She saw Mr Palmer standing in the hallway when she returned to her

bedroom and commented that she was ‘too wasted’. She fell asleep but awoke to a banging sound and observed that the bedroom door handle had been removed. She saw Mr Palmer walking towards the bed ‘and then I was out and then he was on top of me’ and ‘having sex with me’. She did not want or ask him to have sex and he did not seek her agreement. He stopped when she vomited. She did not attempt to leave the bed because ‘I was like comatose’.

[6] The complainant said that she awoke later to see Mr Palmer going through her drawers. He then came to her bedside wanting her to ‘suck his dick or something’. She recalls his penis in her face but cannot remember if it was in her mouth. She had not asked him for the sexual contact and he did not seek permission. She did not want it, and may have conveyed words to this effect. Again she was unable to move from her bed because she had drunk too much.

[7] The complainant said that Mr Palmer left the bedroom through a window. Later she got out of bed and called for somebody to open the door but had to climb out the window because there was no response. She complained shortly afterwards to one of her friends.

[8] The evidence of two other Crown witnesses is particularly material to Mr Palmer’s appeal. One is Ms A. She rented the house where the sexual activity occurred. The complainant and her daughter also lived there. Ms A was working on

24 October 2005 and arrived home at about 4.30 pm. The complainant and one of her friends, Ms R, returned at about 6.30 pm in a heavily intoxicated condition. Ms A said that the complainant went straight to the toilet and vomited; she needed Ms A’s help because she was very drunk. Ms A and two others carried the complainant to her bedroom.

[9] Ms A said the complainant’s top was covered with vomit. Ms A attempted unsuccessfully to remove the garment when placing her on the bed. She left her in the bedroom with the door wide open. After about 30 minutes three males, including Mr Palmer, arrived. Ms A saw Mr Palmer enter the complainant’s bedroom later. But he walked out when he saw Ms A and Ms R behind him. At that stage,

according to Ms A, the complainant was ‘coma-med’. The bedroom door was still wide open.

[10] Ms A left the bedroom area for a while. When she returned she assisted another woman in attempting to force open the complainant’s bedroom door. She then went to the front of the house where she saw Mr Palmer jumping out of the bedroom window. Ms A did not return again to the complainant’s bedroom. She and Ms R and two children then went to sleep in the lounge at about 9.00 pm.

[11] Ms R was another material Crown witness. But her evidence proved antagonistic to the prosecution case. She said that the complainant was ‘drinking all day’ with Mr Palmer and ‘... she just led him on the whole time ... she just wanted him to go back there’. In cross-examination Ms R referred to an occasion ‘where [the complainant] would put her arms around him and play around with him a bit’. She said she also saw the complainant feeling Mr Palmer’s groin area with her hand while they were at the beach.

[12] A detective interviewed Mr Palmer at Tauranga on 27 October 2005. His lawyer, Mr Craig Tuck, was present. The interview was not video recorded. Mr Palmer admitted sexual activity with the complainant but said it was consensual. He admitted removing the door handle for the purpose of ensuring the couple were not disturbed. He said the complainant gave him two love bites, known as hickeys, on the left side of his neck. He denied that the complainant had vomited and was vomiting while they had sexual intercourse. He said that when they met earlier in the day the complainant ‘was all over me, grabbing my balls, feeling me up’ and he was ‘trying to push her away from me because my girlfriend was there’.

[13] Another event, which was not the subject of evidence at trial, is also directly relevant. Mr Palmer pleaded guilty before trial to charges of theft of the complainant’s sunglasses and her baseball cap while he was in her bedroom. When giving instructions about these charges Mr Palmer admitted to Mr Tuck that the complainant was unconscious when he stole the items. The Crown did not lead evidence relating to Mr Palmer’s dishonesty offending at this trial.

[14] Before trial Mr Tuck signed an admission of sexual intercourse in his capacity as Mr Palmer’s counsel. Thus the issues for the jury’s determination were consent or whether or not there might be reasonable grounds for believing that the complainant was consenting, the Crown carrying the burden of negating both.

[15] At the end of the Crown case on 7 June 2006 Mr Palmer signed this handwritten document:

I have listened to the evidence. I am happy that with what has happened and do not want to call or give evidence. I realise I can if I so wish but instruct my lawyer that I do not wish to give or call evidence.

[Mr Palmer’s emphasis]

[16] Mr Tuck had prepared a 10-page brief of Mr Palmer’s evidence. In it he accepted most of Ms A’s statement (which was repeated in evidence-in-chief at trial) but said he had no recollection of any vomit or signs of it when he arrived at the house, and denied ever hearing Ms A attempting to force entry through the bedroom door later.

Decision

(1) Counsel error

[17] The primary ground of appeal advanced by Mr Warren Pyke, counsel in this Court for Mr Palmer, was that Mr Tuck erred in three separate respects when advising Mr Palmer against giving evidence in his own defence causing a miscarriage of justice. The threshold for success is high where an accused person has ‘acquiesced in his counsel’s advice not to go into the witness box himself...’: R v Pointon [1985] 1 NZLR 109 at 114 (CA). The threshold must be even higher where it is common ground that Mr Palmer himself made the decision after Mr Tuck had refrained from giving affirmative advice.

(i) Inadequate Advice on Charges

[18] First, Mr Pyke submits that Mr Tuck erred by failing to adequately advise Mr Palmer on all elements of the charges of sexual offending, particularly the distinction between consent and reasonable grounds for Mr Palmer’s belief in

consent. He relies upon an affidavit sworn by Mr Palmer in support of his appeal which largely confirmed the contents of his statement made to a police officer on

27 October 2005, and added that:

At no stage before or during the trial did Mr Tuck explain to me in clear terms that there were two issues relating to consent. First, that the jury had to decide whether or not the complainant was agreeing to the sex, and second whether or not, even they thought she was not agreeing, I believed she was.

[19] In an affidavit sworn in opposition Mr Tuck deposed to meeting with Mr Palmer at the close of the Crown case. The purpose was to confirm Mr Palmer’s existing instructions that he would give evidence and to review his perspective on the Crown case. Mr Tuck highlighted the strengths and weaknesses of the prosecution evidence and reminded Mr Palmer of the charges. He did not advise Mr Palmer against giving evidence, emphasising instead that the decision was Mr Palmer’s alone. He said Mr Palmer formed his own judgment that Ms R’s evidence appeared favourable to his defence.

[20] Mr Tuck said this:

I reminded [Mr Palmer] of the complainant’s evidence and in particular the way she presented. I asked if there was anything further which needs to be covered in his brief prior to him entering the witness box. At that stage I presumed he would still be giving evidence.

There was nothing he could think of to add to the brief or to what he had already said. He was of the view that Ms R had said much of what he could have said. He then advised that although he was prepared to give evidence he did not particularly want to be cross-examined about his behaviour at the house.

On that basis, and given his change of instructions, I then wrote on his already signed brief and he signed his new instructions. I carried out those instructions.

[21] In viva voce evidence in this Court Mr Tuck said that he uses a student version of Adams on Criminal Law as part of his ‘small library in any trial’. He follows a practice of copying relevant parts for provision to clients. He could not be certain but it was ‘quite likely’ that he followed his standard procedure in this case of paraphrasing or rephrasing in simple sentences for his client the concepts of consent and reasonable grounds for belief in consent using the text as a reference point.

Copies of the relevant sections were on Mr Palmer’s file, highlighted and notated by

Mr Tuck’s hand.

[22] In cross-examination in this Court by Mr Kieran Raftery for the Crown, Mr Palmer asserted that Mr Tuck ‘didn’t go too much into the law’. He denied that Mr Tuck discussed the relevant passages from Adams with him. Having heard both witnesses, we prefer Mr Tuck’s account.

[23] In any case, even if Mr Tuck had failed to explain the distinction between consent and reasonable grounds for belief in that state, the result would have been academic. The whole thrust of Mr Palmer’s statement to the police officer, confirmed in his affidavit sworn in this Court, was affirmatively that the complainant consented. While acknowledging that the Crown bears the burden of proving the absence of reasonable grounds for a belief in consent, Mr Pyke himself emphasised that the evidential foundation for Mr Palmer to raise this issue before the jury as a real platform for defending the charges was slim. He noted that the prosecution evidence had established that the complainant was in an advanced state of intoxication (variously described as comatose, legless, really drunk, and a dead weight); there was minimal, if any, discussion between the complainant and Mr Palmer about the question of sex; and the complainant had asserted that Mr Palmer stopped his sexual activities because she was vomiting.

[24] The evidential foundation for raising the existence of reasonable grounds for believing in consent was already before the jury through Ms R’s account of the complainant’s amorous advances towards Mr Palmer at the beach. His statement was to the same effect. He could not have countered Ms A’s evidence about the complainant’s condition on and following her arrival at the house because he was not present.

[25] At best Mr Palmer would have been able to deny the complainant’s claim that he stopped because she was vomiting. But doing so would have exposed him to the adverse risks of cross-examination which we will shortly discuss. Mr Tuck’s affirmative advice on the distinction between the two concepts of consent and

reasonable belief, assuming for these purposes it was not given, could not have led to a different result.

(ii) Inadequate Advice on Consequences

[26] Second, Mr Pyke submits that Mr Tuck erred in failing to advise Mr Palmer of the full consequences of declining to give evidence, particularly in relation to the jury’s assessment on consent issues. Mr Pyke relies on Mr Palmer’s affidavit evidence in support that:

At the time I made the decision not to give evidence I did not appreciate the importance of having additional information about the reasons for me believing she wanted to have sex with me before the jury. I did not understand the risk I was running in simply relying on the jury disbelieving her evidence; had this risk been explained to me by Mr Tuck I would not have taken that risk, and instead I would have insisted upon giving evidence. It is owing to my lack of understanding about the issues that I made the decision I did.

[27] In cross-examination Mr Pyke did not challenge Mr Tuck’s evidence that he specifically discussed with Mr Palmer the subject of the jury’s assessment of the complainant’s evidence. Mr Tuck was in no better position than Mr Palmer to forecast whether or not the jury would believe her. Mr Palmer formed his own judgment on this subject, well aware of the risks running both ways. He cannot now rely on an alleged lack of understanding of the issues, refined with the hindsight benefit of knowledge of the jury’s verdicts, to revisit his decision.

[28] In this case it was not just a question, contrary to Mr Pyke’s submission, of failing to advise on the full consequences of not giving evidence. There was another decisive dimension. Equally important were the consequences for Mr Palmer of giving evidence. He was himself aware of them; before signing his handwritten instructions Mr Palmer expressed his reluctance to Mr Pyke about being cross- examined on his behaviour at the complainant’s house.

[29] As noted, Mr Palmer had pleaded guilty to charges of stealing the complainant’s property while in her bedroom; and he had also instructed Mr Tuck that she was unconscious at the time. He would inevitably have been subject to cross-examination on his misconduct there. That evidence would have been relevant

to the complainant’s of lack of consent and of reasonable ground for belief in consent; it was consistent with the weight of the prosecution evidence that the complainant was so drunk that she was in no state to form the necessary consent or for Mr Palmer to believe she was consenting. Mr Palmer would have been exposed to prejudicial cross-examination in attempting to reconcile his primary assertion of her consent with his theft of her sunglasses and cap from beside her bed while she was in an unconscious state.

[30] Mr Palmer’s admission of dishonesty placed him in an invidious position. He had to choose between two evils. With full appreciation of the risks, he elected not to give evidence. That was his decision and he must accept the consequences.

(iii) Erroneous Assessment of Crown Case

[31] Third, Mr Pyke submits that Mr Tuck over-estimated Mr Palmer’s chances of success at the close of the Crown case were he not to give evidence. He submits that in the circumstances Mr Tuck was under a positive duty to advise Mr Palmer to give evidence. In support of this proposition Mr Pyke cites R v Clinton [1993] 2 All ER

998 (CA). However, the facts in that case were unusual and far removed from these.

[32] In cross-examination Mr Pyke focussed on an assertion that Mr Tuck failed to understand the strength and effect of the Crown case on the complainant’s state of intoxication, leading to a failure to advise Mr Palmer affirmatively to give an answer from the witness box. We accept Mr Tuck’s denial of that proposition. Also, Mr Pyke suggested that Mr Tuck was unduly coloured or influenced by his perception of Ms R’s favourable evidence. Mr Tuck acknowledged that his advice was influenced by this event. Plainly it was a factor to be taken into account, as it was by Mr Palmer when making his own decision.

[33] We accept Mr Tuck’s evidence, which was not challenged in cross- examination, that Mr Palmer took a keen interest throughout in the prosecution case and that the two met frequently to evaluate and review the position. We are not satisfied that Mr Tuck’s advice to Mr Palmer at the close of the Crown case, which did not include an affirmative recommendation against giving evidence, was flawed

or permeated by an unduly optimistic prognosis of Mr Palmer’s prospects of success if he did not give evidence.

[34] This was far from a case where ‘... the circumstances in their entirety [required] counsel to advise [Mr Palmer] that evidence should be given because otherwise conviction [was] inevitable ...’: R v Timmins CA250/02 23 June 2003 at [19]. We are satisfied that all the essential elements of Mr Palmer’s defence were clearly before the jury when the Crown case closed. Thereafter the decision on whether to give evidence was his, as faithfully recorded in his handwritten letter of instructions.

[35] For these reasons, we dismiss Mr Palmer’s first ground of appeal against conviction based upon trial counsel’s error.

(2) Summing up

(i) Inferences

[36] First, Mr Pyke submits that Judge Rollo gave an unbalanced example in his summing-up when directing on drawing inferences. The Judge used, as an illustration of inferential or deductive reasoning, the Crown’s case that the conclusion naturally to be drawn from Mr Palmer’s removal of the handle from the bedroom door was for the purpose of preventing people such as Ms A from entering and ‘stopping him taking advantage of the drunken, defenceless state of the complainant’: at [11]. But the Judge immediately balanced the ledger by giving an example from the defence case, based upon Mr Palmer’s statement to the police officer, that the existence of the love-bite provided a proper evidential basis for drawing an inference that the complainant ‘was a consenting partner to the sexual intercourse and sexual connection that took place’: at [12].

[37] We are not satisfied that there was any imbalance in these examples. To the contrary, we endorse the judicial practice of explaining the proper process of inferential or deductive reasoning by reference to the evidence in the trial rather than by using abstractions.

(ii) Burden and Standard of Proof

[38] Second, Mr Pyke submits that Judge Rollo erred in his directions on the burden and standard of proof. In summing up the Judge said this:

[16] I turn now to the burden and onus of proof and I repeat what I said in my earlier opening comments to you, the burden of proof is the most important matter in any trial. The onus of proving the charge rests on the Crown. As I have said, the Crown has brought these charges, the two counts in the indictment, against Mr Palmer and it is for the Crown to prove the charges against Mr Palmer.

[17] He has no onus to give evidence in his own defence or indeed to say anything and he has no obligation to prove his innocence. Quite the contrary, it is for the Crown to prove his guilt.

...

[20] The standard of proof requires the Crown to prove all the necessary elements of each count beyond reasonable doubt. As I said in my opening comments, proof beyond reasonable doubt simply means that you would need to be sure, you would need to be satisfied of guilt because, if you were sure or satisfied, then it would follow that you would not have a doubt that was reasonable. If you are sure, then it would be your duty to convict. If you are not sure or satisfied of guilt, then it would be your duty to acquit and of course you must make that decision in respect of each of the counts.

[21] An American Judge has put the test in these terms. He said:

‘Proof beyond reasonable doubt is proof that leaves you firmly convinced of guilt. There are few things in this world which we know with absolute certainty and in criminal cases, the law does not require proof that overcomes every possible doubt. If based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty. If on the other hand you think there is a reasonable possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.’

[39] Mr Pyke submits that the Judge’s direction contained two material errors. One was his statement that ‘you would not have a doubt that was reasonable’; the other was his reliance on a statement from an American Judge about overcoming

‘every possible doubt’ and referring to ‘reasonable possibility that he is not guilty’. Mr Pyke’s argument drew heavily upon passages from the concurring judgment of Glazebrook J in this Court in R v Wanhalla CA321/05 24 August 2006.

[40] We are satisfied that Mr Pyke’s challenge is unsustainable. The Judge’s reference to the jury ‘not hav[ing] a doubt that was reasonable’ was correct in the

context of pointing out the exclusionary consequence of being sure or satisfied beyond reasonable doubt. And his reference to the law not requiring ‘proof that overcomes every possible doubt’, and Mr Palmer’s entitlement to the benefit of the doubt following a conclusion that ‘there is a reasonable possibility that he is not guilty’, was also correct in context.

[41] We note that the Judge summed up on 8 June 2006, more than two months before delivery of the judgment in Wanhalla. Judges who do not adopt the model direction on the burden and standard of proof given in the plurality judgment in Wanhalla must be careful to ensure that their directions accord with the legal principles as explained in that decision.

(iii) Imbalance

[42] Third, Mr Pyke submits that Judge Rollo was guilty of a lack of balance in summing up, relying upon what he says was the Judge’s largely approving and supportive summary of the whole of the Crown case following his review of the respective addresses by counsel. Some of Mr Pyke’s arguments are without merit. But others have substance and, when considered in context, raise questions about the balance, accuracy and fairness of the summing-up as a whole.

[43] The summing-up was unusual. The first part followed an orthodox pattern. The Judge addressed all the necessary preliminary issues before directing on the elements of the charges. His summary of counsels’ closing addresses was, with respect, of unnecessary length and failed to identify for the jury the critical issues and areas of difference between the Crown and defence. But that omission is not of itself decisive. If the summing-up had concluded at that point, it would have been immune to challenge.

[44] However, the Judge then undertook a lengthy review of the evidence given by the complainant and other witnesses for the prosecution: at [87]-[106]. He started by repeating the complainant’s account of all relevant events: at [87]-[92], commenting that ‘her evidence was very clearly that she did not consent ...’: at [91]. Her evidence was central to the Crown case. We are satisfied that, read as a whole,

the terms of the Judge’s review invited acceptance of the complainant’s account. And the length of his summary would have had the effect of reinforcing the Crown case, especially as it omitted any reference to aspects of the complainant’s evidence which might have assisted the defence.

[45] The Judge followed with a reference to Ms A’s evidence, describing it as ‘... support[ing] in substantial part ...’ the complainant’s account: at [93]. He emphasised the evidence of Ms A’s sobriety, inviting the jury to ‘... assess ... her as being a very businesslike young woman who did not take any nonsense ...’ and who independently corroborated Ms R’s description of the complainant’s intoxication and vomiting. It would have been preferable if the Judge had refrained from a running commentary on Ms A’s presentation as a witness. But, more importantly, the thrust of his summary was to endorse her credibility and reliability, and thus the complainant’s account.

[46] The Judge discussed the evidence of Ms L, who was present at the house at the relevant time, referring to her independence and sobriety: at [94]-[96]. He said that her evidence about the presence of a love-bite on Mr Palmer’s neck raised “the issue about what Mr Palmer had said in the car, that he got a blow job from both women, that is oral sex”: at [97]-[99]. The Judge introduced the subject by saying

‘we do not know whether there was any oral sex with the other women [other than the complainant] who were present’. He spent some time excluding the three women who could have potentially fallen into the category of ‘the other women’.

[47] Mr Pyke submits that this passage was apparently intended to call Mr Palmer’s credit into question by suggesting that he had lied to the police officer about the person or persons with whom he had sexual contact that evening. We agree that the Judge’s references may be read as impugning Mr Palmer’s credit on a point that was of peripheral if any relevance.

[48] The Judge then discussed the evidence of Ms K, who was Mr Palmer’s live- in partner: at [100]-[103]. After noting that she had been called by the Crown, the Judge said this, at [100]:

... that does not necessarily prevent her from having a vested interest and it does not require much thought to think that a partner of an accused person might wish to give evidence that is favourable to the accused.

[49] The Judge explained in detail that the Crown was required as a matter of justice to call all who were present and who could give relevant evidence, explaining away any evidence that supported Mr Palmer’s defence. He focused on apparent inconsistencies in her statements to a police officer on 27 October 2005, three days after the alleged offending, and in Court about the timing of the two love-bites or hickeys on Mr Palmer’s neck. However, after being declared hostile, Ms K concluded with a critical concession to the prosecutor, confirming what she told the detective, that she was responsible for the only two hickeys on Mr Palmer’s neck which she saw. Immediately afterwards, in contradiction, she agreed with a leading question from Mr Tuck that he did have a hickey at that time which she had not given (but this answer was given on the premise that Mr Palmer had love-bites from other women which he kept hidden from her, and thus she could not have seen or known of them).

[50] In these circumstances the Judge was wrong to direct the jury to choose between the accuracy of Ms K’s statements in Court and to the police officer. It is settled that a statement made out of Court is not evidence of the truth of its contents unless expressly adopted by the witness in front of the jury: R v C (2003) 20 CRNZ

775 at [16] (CA). In any event there was no apparent inconsistency, given the witness’ concluding concession in cross-examination by the prosecutor. If the Judge considered it necessary to comment on Ms K’s evidence he should have confined himself to the fact that she had accepted in Court that her statement to the police officer was correct.

[51] The Judge concluded his review by saying that he ‘just wanted to caution you

... again [on Ms R’s] evidence about what is alleged to have happened down at the park’: at [104]. He referred to her answer to a question about whether she saw the complainant kiss or attempt to kiss Mr Palmer on at least one occasion, when she said that while the complainant was flirting with him a lot it might have happened but she did not see her kiss him. The Judge described her answer as ‘unusual’

requiring careful assessment in the context of whether her evidence was reliable ‘in its totality’: at [106].

[52] However, Ms R had said that she did not see the complainant kiss Mr Palmer; she simply allowed for the prospect that he may have, but could go no further. Her answer was neutral, and as Mr Pyke says, it was a straightforward and unchallenged piece of evidence which did not call for a special caution in the form of an adverse comment. The Judge’s comments are open to construction as an invitation to doubt the evidence of a Crown witness which was favourable to Mr Palmer.

[53] A Judge is entitled to sum up adversely to the defence. But his directions must not lack balance: R v Wade CA237/05 8 December 2005 at [29]. Unfortunately the concluding part of the Judge’s summing-up evolved into a lengthy repetition of the evidence of the material prosecution witnesses, particularly of the complainant, in terms favourable to the Crown but omitting or explaining away any references to evidence supporting the defence. The strength of the Crown case did not justify an approach which by virtue of its relentless nature became unbalanced in effect. Accordingly, we accept Mr Pyke’s submission that the summing-up was unfair.

(iv) Recent Complaint

[54] Fourth, Mr Pyke submits that the Judge erred when directing on the use of complaint evidence. In evidence-in-chief Ms R said that when they spoke to the complainant the following morning the complainant said ‘... [Mr Palmer] took advantage of her but that was after the fact that she had gone to see Mr Z [her boyfriend] and he had threatened to leave her’. In summing up the Judge directed the jury that this evidence, which was recorded in the transcript, was hearsay, inadmissible, and should not have been part of the evidence at trial. Mr Pyke submits that the evidence was relevant to the complainant’s credibility as constituting an inconsistency on her part as to the reasons for complaining. The Judge directed them to disregard it because the maker of the statement, Mr Z, had not appeared: at [22]-[25]. This decision was not apparently the subject of argument from counsel or a request for a ruling at any prior stage.

[55] Mr Pyke submits that having excluded this evidence the Judge should have ruled all evidence of the complaint to Mr Z inadmissible. He says the ruling introduced an element of unreality. The Judge allowed the first part of the answer

‘she pretty much said that he took advantage of her’ to constitute evidence of a recent complaint, coupled with a succeeding question from the prosecutor ‘don’t worry about what [Mr Z] said, [the complainant] tells you he’s taken advantage of her?’, and her answer ‘hmm mmm’, which the Judge told the jury indicated an affirmative answer. Accordingly, Mr Pyke submits the ruling artificially enhanced the complainant’s credibility without allowing evidence that her boyfriend had threatened to leave her.

[56] The justification for admitting recent complaint evidence, and the rule’s strict confines, was most recently reviewed by this Court in R v M (2000) 18 CRNZ 368 at [22]:

... Evidence of a recent complaint is evidence of a second-hand account. It is admitted as an exception to the rule prohibiting evidence of prior consistent statements. It is admitted not to prove the truth of what the complaint witness says she heard from the complainant but to show consistency on the part of the complainant and to dispel any thought that the jury may have that the charge was manufactured long after the time of the alleged offending. The evidence therefore goes to the complainant’s credibility. Giving such evidence is likely to involve an element of prejudice to the accused, because the complainant’s story may appear to the jury to be reinforced by the second-hand account of it given by the complaint witness. That risk is considered acceptable, provided there is proper direction by the Judge on the use which may be made of the evidence. However, once consistency was established by the first complaint, it is hard to see that there was any good reason for admitting the mother’s evidence of the second complaint about the same matter. It was made on an occasion remote in time from the first complaint and lacking any connection with it... It did not add significant detail to the first complaint and so it was not evidence of a naturally developing disclosure... It therefore had little or no probative value.

[57] We are satisfied that the Judge confused the nature and relevance of the recent complaint evidence. He first identified Ms R as the recipient of the complaint. He said that ‘... she was the person whom the complainant first told about this ...’, and recounted a passage from the evidence: at [22]. He then recited Ms R’s subsequent evidence about giving the complainant ‘a bit of support’ later and that

‘[the complainant] pretty much said that he took advantage of her but that was after the fact that she had gone to see [Mr Z] and he had threatened to leave her’: at [23].

He explained to the jury that the last words were hearsay and should be disregarded: at [24], [25] and [26]. It is unnecessary for these purposes to determine whether that direction was correct.

[58] The Judge then said this:

[30] In fairness to the evidence which you have heard, you also had the complainant similarly say that soon after that, [Mr Z] turned up at her place and she took him, as you recall, down to the bedroom and told him what had happened to her. You may recall her words saying she didn’t think twice about telling him that she’d been taken advantage of by the accused when she was drunk.

[31] Now the significance of that evidence, if you accept it, is that she has told [Ms R] what had happened and she has then told the man who is her boyfriend, without a second thought, she said, what has happened. You have got to see whether that assists you in your assessment of her credibility in the sense of consistency with what she has said to [Ms R] and what she said in Court.

[Emphasis added]

[59] This passage effectively introduced a second recent complaint witness to the jury. We agree with Mr Pyke that evidence of what the complainant told her boyfriend is inadmissible for two reasons. First, the evidence was unconnected to the first complaint and did not add any significant detail to it. Second, even if it did amount to a recent complaint, the Crown should have called the boyfriend to give evidence of it; what the complainant said to Mr Z was not admissible on any other basis: R v Kincaid [1991] 2 NZLR 1 at 8-9 (CA). The Judge’s misdirection was material.

Result

[60] Mr Raftery for the Crown did not argue that the proviso should apply in this case, and we agree. Having regard to the cumulative effect of the imbalance in the Judge’s summing-up and his material misdirection to the jury on recent complaint evidence, we are satisfied that the trial was unfair and that a miscarriage of justice has resulted. We have reached this conclusion reluctantly given the inherent strength of the Crown case and because the complainant will have to give her evidence again. But we are satisfied that the interests of justice require a retrial.

[61] Mr Palmer’s appeal against convictions is allowed. The convictions are quashed under s 385(2) of the Crimes Act 1961. A retrial is ordered.

Solicitors:

Meredith Connell, Auckland