R v Russ [2007] NZCA 151 (24 April 2007)

Last Updated: 15 February 2014

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

CA394/06 [2007] NZCA 151

THE QUEEN

v

_{DAVID WALTER RUSS}

Hearing: 17 April 2007

Court: Glazebrook, Randerson and R Young JJ Counsel: P Dacre for Appellant

J M Jelas for Crown

Judgment: 24 April 2007 at 2pm

_{JUDGMENT OF THE COURT}

_{Appeal against conviction dismissed.}

REASONS OF THE COURT

_{(Given by Ronald Young J)}

R V RUSS CA CA394/06 24 April 2007

[1] This is an application for extension of time to appeal against conviction arising from a mid trial ruling by Judge Sharp. The appeal was filed eight weeks and three days late. No objection is taken by the Crown to leave being granted.

[2] The appellant was found guilty by a jury on eight counts alleging a variety of sexual assaults with respect to two sisters. The appeal originally related only to counts three to eight involving complainant ED. Shortly before hearing the appellant sought leave to also appeal against conviction with regard to counts one and two relating to the complainant VD.

[3] The issue at trial was the complainant’s credibility. The appellant says that the Judge wrongly refused to allow counsel for the appellant to cross-examine a police officer about a previous complaint of sexual assault made by the complainant ED. The result, the appellant submits, was a loss of opportunity to undermine the complainant’s credibility.

Background

[4] The Crown case at trial was that the appellant had, between April 2002 and October 2003, induced VD to do an indecent act upon him and sexually violated VD. With respect to the complainant ED there were charges of indecent assault (2), sexual violation by digital penetration (2), sexual violation by rape and inducing her to do an indecent act upon the appellant all during 2003 when she was 12 years of age. The events are alleged to have occurred when the appellant was living with the complainant’s mother.

[5] Prior to trial counsel for the appellant had sought an order pursuant to s 23A of the Evidence Act that he be allowed to cross-examine the complainant ED about a previous complaint she had made of sexual assault by another man CW. The matter came before Judge R L Kerr pre-trial who considered the trial Judge would be better placed to assess the application.

[6] At trial, Judge M E Sharp granted leave for counsel to cross-examine the complainant about the previous complaint of sexual assault by CW. In her decision the Judge said:

[4] The accused believes that quite possibly ED has made false complaints against both men. He wishes to cross-examine on that basis. Mr Levett is clear that he does not wish to cross-examine on the specifics of what she says that CW did to her, merely that she made a complaint against him of a similar type, that is of sexual offending which, whilst acted upon by the Police, never led to a prosecution.

[7] And in reaching her conclusion she said:

[6] The interests of justice require that an accused person is able to raise any appropriate defence that might be open to him provided that to do so would not contravene justice and rules of evidence. Provided that cross-examination is not specific as to what either occurred to [ED] or the specifics of what she complained occurred to her at the hands of [CW], I feel it is in the interests of justice to allow the cross-examination, challenging as it is to the credibility of both complaints.

. . .

[8] Thus I ask Mr Levett to be very cautious of and rather than stray into territory which might offend, to see me in chambers before he does so. I make it plain also that having read the Police report written about the [CW] matter, that I am concerned to allow the defence a little latitude in order to explore credibility because that report, which is to be found at tab (a) of defence counsel’s memorandum dated 5 December 2005, refers to [ED] being adopted from Russia when she was six years of age. It also refers to her having possibly been sexually abused in Russia and being diagnosed with foetal alcohol syndrome, being sexualised throughout her childhood as well as confirmed by her mother, at school to be a constant and a good liar.

[8] The police report referred to in [8] was dated 3 October 2002 and from a Constable Burgess addressed to the Detective Sergeant in charge of the Child Abuse Team at Takapuna. It recorded the constable’s investigation of a complaint by ED of a sexual assault by CW. The report identified the allegation by ED, the investigations undertaken by the constable and the constable’s conclusion that the matter should not go to Court. Under the heading “Difficulties” the report said:

[ED] has issues such as she was adopted from Russia when she was 6 years old. Her mother states she was sexually abused in Russia. [ED] has been diagnosed with Foetal Alcohol Syndrome and this has its own complications

and difficulties. [ED] has been very sexualised throughout her childhood and has written sexually explicit things in her journals. She has read books on sexual abuse at her school library. She is a constant liar, confirmed by her mother and [TW]. Her school teachers have also said she is a very good liar. With these things in mind it is very difficult to reach a satisfactory conclusion.

[9] And under the heading “Conclusions” the report said:

I have advised both parties that there is not sufficient evidence to take this matter to Court. I have advised both parties that this matter will be filed, but should any new evidence surface at a later date then the matter could be revisited.

[10] At trial the complainant was cross-examined about her complaint of sexual assault by CW. She maintained the complaint was truthful and confirmed that the complaint had not gone to Court.

[11] In evidence in chief Detective Attwood, the officer in charge of this case, was asked in a general sense why complaints of sexual assault might not result in charges before the Court. He said:

It happens quite a lot where you have a complainant who comes across as credible, you have an accused who comes across as credible, you don’t actually have any corroborating evidence, all you sort of have is one word against the other and you have sort of nothing else. In those cases, yeah, I don’t prosecute cos it’s – you’re not going to be able to prove it either way.

[12] When challenged in cross-examination about this evidence, given the contents of the police report ([8], [9]), the detective said he considered the CW complaint had not resulted in charges because the complainant and appellant were both credible and there was no corroborative evidence. He said he had spoken to the constable who had written the report to obtain fuller information as to why there had been no prosecution. A brief of evidence of the constable explaining that she had recommended not proceeding with the prosecution because both witnesses were credible and no corroboration existed was made available to trial counsel and the Judge at the s 23A hearing.

[13] Immediately after this evidence the jury were sent from the courtroom. The

Judge heard submissions from counsel and gave a decision as to the extent of

permissible cross-examination with respect to the police report. The Judge in her ruling said:

[2] Her opinion of why or who was credible and who was not and whether there was sufficient evidence to prosecute is irrelevant in this trial. I am sorry, I am not prepared to revisit my earlier finding.

[3] You can cross examine on the conclusions so that there is some evidence before the jury that the officer in charge felt that there was insufficient evidence and that there was [ED’s] word against [CW’s] only and that should any new evidence surface then the matter could be revisited, even if you want to, that when interviewing [CW] he came across as a respectable person and denied all allegations.

[4] I am not prepared to allow it to go any further than that. I am also not prepared to allow the Crown to re-examine on that statement dated 31st January 2004 as to the officer’s beliefs or opinions.

[14] When the jury returned, the detective was again referred to the report and asked if having read the section headed “Difficulties” he stood by his evidence that the prosecution had not proceeded because both ED and CW were “equally credible”. The detective said he stood by his previous evidence.

Submissions and decision

[15] To return, therefore, to the appellant’s appeal points. Mr Dacre (who was not trial counsel) submits that the trial Judge should have allowed trial counsel to cross-examine Detective Attwood and the complainant about:

(i) the complainant’s “disturbed” background; and

(ii) Constable Burgess’ observations in the police report.

[16] Counsel submitted that the complainant’s background was relevant to her credibility and reliability. He said that the defence had a proper evidential basis for asserting that the complainant had made a previous false allegation of sexual assault against another man CW. Counsel said the difficulty in the Judge’s ruling was that the police officer’s responses did not seem consistent with the police report.

Counsel submitted in any event the police report would have been admissible pursuant to s 3 Evidence Amendment Act 1980.

[17] There was nothing to prevent cross-examination of the complainant and her mother about the complainant’s “disturbed” background except for the s 23A prohibition of cross-examination of previous sexual experience. Counsel for the appellant did extensively cross-examine the complainant and her mother about the complainant’s background, her propensity to lie, her disturbed behaviour and the symptoms of foetal alcohol syndrome she suffered from.

[18] Counsel for the appellant was also permitted to ask, perhaps generously given the complainant had before the trial confirmed the allegation was true, the complainant about her allegation of sexual assault by CW. The complainant was also questioned about sexual references in her diary. And so extensive evidence relevant to the complainant’s credibility and reliability was before the jury.

[19] As to the police report it was both hearsay and, in part, opinion evidence and so would have been inadmissible. However, other than the suggestion by the complainant’s mother that ED had been sexually abused as an under six year old in Russia, all of the “difficulties” mentioned by the constable in the report were able to be raised by trial counsel. There could have been no basis upon which to allow the cross-examination of ED pursuant to s 23A regarding her mother’s suggestion that ED had been sexually assaulted in Russia some years earlier. There was no evidence ED had any recollection of the assault and in any event it had no relevance at all to any issue at trial.

[20] The appellant was therefore able to cross-examine witnesses at the trial on all relevant issues raised in the police report.

[21] It may have been preferable for counsel to have clearly identified before cross-examination of the complainant, her mother and the detective the precise extent of permissible questions relating to both the CW complaint and the police report. This would have avoided an interrupted cross-examination and given counsel for the appellant an opportunity for a more coherent cross-examination. However,

all admissible issues challenging the complainant’s credibility were put before the jury.

[22] Counsel for the appellant in written submissions suggested that the police report could have been a business record and thereby fully admissible in evidence. This argument was not pursued before us in oral submissions. In any event, there is no evidence of unavailability of the constable who wrote the report or any suggestion that she could not remember the content of the report (see s 3(1)(a) and (b) Evidence Amendment Act 1980). On the contrary, Detective Attwood gave evidence he spoke with the constable who had written the report and who clearly recalled the case.

[23] We are satisfied that the appellant had ample opportunity to explore all of the legitimate issues raised in the police report which might have affected the complainant’s credibility. All were before the jury and no doubt were factors they took into account in assessing the complainant’s credibility.

[24] No miscarriage of justice has been established. While the extension of time to appeal is granted, the appeal will be dismissed.

Solicitors:

Crown Law Office, Wellington