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Court of Appeal of New ZealandLast Updated: 6 February 2014
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT
PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
NOTE: DISTRICT COURT ORDER FOR INTERIM SUPPRESSION OF THE NAME OF THE APPELLANT.
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA308/06 [2007] NZCA 234
THE QUEEN
v
E (CA308/06)
Hearing: 20 November 2006
Court: Glazebrook, John Hansen and Harrison JJ Counsel: G W Calver for Appellant
M A Corlett for Crown
Judgment: 21 November 2006
Reasons for Judgment: 12 June 2007 at
4pm
R V E (CA308/06) CA CA308/06 21 November 2006
JUDGMENT OF THE COURT
A The appeal is allowed.
B The application to recall our judgment of 21 November
2006 to withdraw the order for a retrial is to be set down
for a further
hearing.
C Order prohibiting publication of the judgment and any part of the proceedings in news media or on internet or other publicly available database until final disposition of trial. Publication in Law Report or
Law Digest
permitted.
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
A trial gone wrong [1]
The charges [6]
Should the period of the representative charges have been
more restricted? [8]
Did the Judge’s direction on the July school holidays in 2005
save the situation? [13]
The complainant’s evidence [15]
Should the complainant’s videotaped interview have been used
as her evidence-in-chief? [16]
Were any parts of the complainant’s evidence inadmissible? [32]
Should the complainant’s mother have been permitted to act as
support person in the CCTV room? [38]
Should the videotape of the complainant’s evidence have been
shown again to the jury? [46]
The conduct of the prosecution [49]
Was the prosecutor’s questioning of Mr E on possible motives
for the complainant and S to lie inappropriate? [50]
Did the Crown improperly labour the submission that the
complainant and S had no motive to lie? [56] Did the prosecutor invite speculation on the part of the jury? [58] Was prosecutor’s questioning on opportunity to commit the
offences appropriate? [61]
Did the Crown improperly lead the complainant’s evidence? [65] Was the proper scope of re-examination exceeded? [69] Was it proper for the Crown to make submissions as to the
complainant’s naivety? [76]
Was it appropriate to suggest Mr E’s mother was tailoring
her evidence to protect her son? [81]
Should the Crown have called the complainant’s mother? [84] Should the evidence as to Mr E’s arrest have been led? [85] Did the prosecutor exceed the proper bounds in his
closing address? [93]
Should the prosecutor have encouraged the jury to ask for
the complainant’s videotape to be replayed? [97]
The course of the trial [99]
Should Mr E’s mother been allowed to give evidence on any
changes in the complainant’s behaviour? [100]
Did the Judge put unwarranted restrictions on the scope
of character evidence called by the defence? [103]
Should the defence have put allegations of “coaching” to
the complainant? [109]
Should the defence have speculated on the complainant’s
sources of knowledge of sexual acts? [112]
The summing up [115]
Were the Judge’s directions on assessing a child’s evidence
appropriate? [116]
Should the Judge have dealt with so many matters in his
summing up before the onus and standard of proof? [121]
Should the Judge have given a direction that it was not up to
Mr E to prove motive? [125]
Did the Judge give appropriate directions on the medical
evidence? [131]
Was the summing up unbalanced? [139]
Did the Judge misrepresent Mr Calver’s argument in
closing as to what the jury had to decide? [140]
Should the Judge have warned the jury that they could not
convict on the basis of suspicion?
[143] Should we reconsider our order for a retrial?
[145] Result and timetable for further submissions
[148]
A trial gone wrong
[1] Mr E (then aged 18) was tried on two representative counts of sexual violation by rape in the Napier District Court before Judge Watson and a jury. The complainant was a young girl aged seven years old at the time of the trial and the offences allegedly took place while Mr E’s mother was babysitting her. On 28 July
2006, Mr E was found guilty on the second count (covering the period 20 May
2005 to 13 August 2005) but the jury were unable to agree
on the first count.
He was convicted on the second count and, on 29 August 2006, sentenced to a term
of five years imprisonment.
[2] On 21 November 2006, we allowed Mr E’s appeal against
conviction and ordered a retrial – see R v E (CA308/06) CA308/06 21
November 2006. The Court had, in the course of the hearing, pointed to a number
of problems with the trial which were
not raised by Mr E’s counsel in his
points or submissions on appeal. The Crown conceded at the end of the hearing
that a number
of the problems we raised, even if each was taken separately, led
inexorably to the appeal being allowed. Mr Corlett, for the Crown,
however,
asked for extra time to file further submissions on some of the matters that had
been raised by the Court. This was granted.
We also called for further
material to be typed up from the District Court record. Subsequently, a
minute was sent out
asking for yet more material to be transcribed from the
record and for comment from the parties on a number of other matters that
had
arisen as a result of the Court’s deliberations.
[3] Having now received the extra material and all of the
further written submissions from Mr E and the Crown, we
are in a position to
give the reasons for judgment. (We understand that the delay arose because it
was some months before the Crown
received a report on the trial from the
prosecutor, Mr J Krebs).
[4] We have divided up the grounds of appeal and the matters raised by
the Court into the following topics:
(a) The charges;
(b) The complainant’s evidence;
(c) The conduct of the prosecution; (d) The course of the trial; and
(e) The summing up.
[5] Mr Calver, for Mr E, in his further submissions filed after the
hearing, asked the Court to reconsider its order to grant
a retrial and instead
to enter an acquittal. The Crown’s position is that the order for a
retrial was appropriate. We deal
with that issue last.
The charges
[6] There were two counts, both representative charges of sexual
violation by rape. The first covered the period of 31 October
2004 to 19 May
2005 and the second covered the period 20 May 2005 and 13 August 2005. The
issues are:
(a) Should the period of the representative charges have been more
restricted?
(b) Did the Judge’s direction on the July school holidays in 2005 save
the situation?
Should the period of the representative charges have been more
restricted?
[7] The use of representative charges is well established in New Zealand and they are often used in sexual cases where a course of conduct is alleged. Such charges must, however, comply with s 329(4) of the Crimes Act 1961. This provides that every count must contain as much detail of the alleged offence as is sufficient to give the accused reasonable information concerning the allegations. To comply with this provision, each count must be as specific as to time, place and circumstance as is reasonably possible in the circumstances – see R v Accused (CA160/92) [1993]
1 NZLR 385 at 390 – 391 (CA) and R v P [1998] 3 NZLR 587 at 590
(CA).
[8] In her video interview, the complainant (insofar as she was able to put a date on the offending) said that it had started happening when Mr E and his family moved into their new house when she was still five. (The move to the new house, on Mr E’s mother’s evidence, appears to have been in April 2004 and the complainant
turned six in December 2004). The complainant said that the offences
happened “heaps” during all the school holidays
when her mother had
to work and Mr E’s mother looked after her. She thought that the July
2005 holidays were the last occasion
when Mr E allegedly “did all the
same things he did before”.
[9] In cross-examination at trial, the complainant said that her mother
or father picked her up from school in school time but
that she went to Mr
E’s mother’s house during the holidays “nearly every
day”. She said she thought that
the offences happened in about two of
the school holidays. She could not remember when those school holidays were.
The complainant’s
brother, S, also said in his evidence at trial that he
and the complainant were at Mr E’s house “mostly on
holidays”.
[10] Mr E’s mother’s evidence was that, when she worked for
an organisation providing day care, she had looked after
the complainant while
her mother worked, both in term time and in the holidays. During the period
covered by the charges, however,
her evidence was that she was only looking
after the complainant and her brother for a maximum of four or five days in some
of the
school holidays (but not the Christmas ones of 2004/2005). This was
undertaken no longer as a paid carer but as a friend.
[11] The complainant limited her allegations in the video interview to
the school holidays. Under the principles set out at [7],
there was thus no
justification for the lengthy periods covered by the charges. The opportunity
to commit the offences could and
should have been more fully investigated by the
police – for example by ascertaining the dates of the school holidays and
by
inquiries of the complainant’s mother as to the days the child was
looked after by Mr E’s mother in those holidays. The
charges should have
been restricted to the relevant days (insofar as these could be ascertained) in
the relevant school holidays,
which were the only periods covered by the
complainant’s evidence.
[12] In the period covered by the first charge we understand that the only school holidays (apart from the Christmas ones which started on 15 December 2004 and finished on 31 January 2005) were 24 to 29 March 2005 (Easter break) and 15 April
2005 to 1 May 2005. There is no explanation as to why the date of 31 October 2004
was chosen as the start of the period of the representative charge. For the
period covered by the second charge, the only school
holidays commenced on 8
July 2005 and finished on 25 July 2005.
Did the Judge’s direction on the July school holidays in 2005 save
the situation?
[13] The Judge, in his summing up, gave directions as to the
complainant’s age at the time of the charges and drew the jury’s
attention to the complainant’s evidence that the offending had stopped in
what appeared to be the last July school holidays.
He said “it certainly
seems from the evidence that [the complainant and her brother] had not been at
[Mr E’s] home in
any part of 2005, apart from that school holiday
period.”
[14] This direction went some way to ensuring that the jury were focused
in their deliberations on the correct period for the
second count.
Nevertheless, the framing of the charges so widely had the effect of inhibiting
the preparation of the defence (see
for example at [64]). There was also a risk
that it may have distracted the jury from concentrating, while the evidence was
being
given, on the actual periods of the allegations. The framing of the
charges in the manner they were, in our view, risked a miscarriage
of
justice.
The complainant’s evidence
[15] The next set of issues relates to the complainant’s
evidence:
(a) Should the complainant’s videotaped interview have been used as her
evidence-in-chief?
(b) Were any parts of the complainant’s evidence inadmissible?
(c) Should the complainant’s mother have been permitted to act as support person in the Closed Circuit Television (CCTV) room?
(d) Should the videotape of the complainant’s evidence have been shown
again to the jury?
Should the complainant’s videotaped interview have been
used as her evidence-in-chief?
[16] Mr Calver submitted that the complainant’s videotape should
not have been used as her evidence-in-chief because of
its partially leading
nature, concerns about “coaching” (including that the child was
allowed to see her parents part
way through the interview) and the fact that
there was no evidence that playing the videotape would markedly reduce the
stress for
the complainant.
[17] There is nothing in the last point submitted by Mr Calver. Given the complainant’s age, it is standard practice for evidence to be given by the playing of an evidential videotape. This obviously reduces the strain on a young child by minimising the need for the child to repeat her evidence. No further evidence of particular stress need be given. Using the videotape also provides evidence recorded shortly after the complaint, elicited by a trained child interviewer. This is likely to produce more reliable evidence – see R v Salt CA353/04 4 May 2005 at [17]. It would require special reason for a videotape not to be used as the evidence-in-chief of such a young girl. This will apply with even more force when the Evidence Act
2006 comes into force due to the addition of the need to have regard to the
recovery of the complainant – see s 107(4)b).
[18] In order to evaluate Mr Calver’s other submissions, it is
worth setting out in some detail the course of the interview.
It began with the
normal preliminaries to ensure the developmental level of the child and her
understanding of the concepts of truth,
lies and promises. The complainant
emerged as being bright and articulate. There was then a burst of disclosure at
the beginning
of the substantive interview:
Q. What is it that you’ve come to talk to me about today?
Q. Okay. When you say he does sex ...
A. I always ... I always try to say no, but then he always forces me
to do it.
Q. Mm Mm. So what do you mean when you say sex? A. Um (pauses) can’t remember.
Q. What ... what is it ... what is it that [Mr E] does? A. Um he puts his vagina near mine.
Q. He puts his vagina ...
A. Ahh not his vagina ... not his vagina, but his privates near mine. Q. Puts them near yours?
A. (nods).
Q. Okay. And are there any other things that he does?
A. Um (pauses) he sometimes puts his privates right into mine ... Q. Mm
A. ... and he gets me to touch his, but I never do.
Q. I’ll just write these down ... okay. When you say penis
... what does a penis do?
A. (inaudible) Um, I don’t even know.
Q. Like I wondered if ... if the penis ... you know like your eyes
see and your um your ears hear like that, so what does
a penis do?
A. (shrugs shoulders)
Q. Okay. So that’s what it is you ... you’ve come to
talk about those things?
A. (nods).
Q. About how ... um you know, how we talked about um few and heaps,
so would that sort of stuff have happened one time or
a few times or heaps of
times or what?
A. It happened heaps of times, it happened since he moved into um his
new house.
[19] The initial disclosure provides an evidential foundation for the charges. However, it was followed by an almost total inability (or unwillingness) to supply any further elaboration. For example, the interviewer asked the complainant to tell
her everything she remembered about the last time it happened. She was met
with the answer “he did all the same things he did
before”. The
interview continued:
Q. If we can just go back to ... because, I really would like to find
out more information about [Mr E] and I ... I’m
just wondering if you are
able to tell me about the last time, if you can remember that or not?
A. (shakes head) nothing at all.
Q. No, ahha. Would you remember the very first time that he did
something?
A. (shakes head) definitely not. Q. Okay. Well ...
A. I can’t remember any of the times.
[20] The interviewer tried again to get some more information
about what happened. The complainant did say that it
happened on Mr E’s
bed and that he was lying on the bed but could not remember what
position she was in, could
not remember whether their clothes remained on
or whether anything happened to their clothes. The complainant did agree with
leading
questions from the interviewer confirming the original allegations
but only volunteered one further bit of information
about her vagina
feeling sore. For example, she said:
Q. And I just need to check on ... you told me that [Mr E] put his
private in yours, is that right?
A. (nods).
Q. So is ... is ... when you said that is ... are you saying that he
put his penis in your ...
A. (nods).
Q. In your vagina ... A. (nods).
Q. ... is that right? A. (nods).
Q. How did your vagina feel, when that happened? A. Um sore.
[21] The complainant then said that she could not remember anything
happening to her vagina or anything different about it. She
said that she saw
Mr E’s penis but could not remember what it looked like or what happened
to it. She did remember Mr E had
made her promise not to tell and she agreed
with the interviewer that these things were difficult to talk about.
[22] Mr Calver raised three main concerns about the interview. The first
was the fact that, during a monitor break, the complainant
was allowed to go to
her parents. There was, however, no relevant communication between the child and
her parents and no relevant
disclosures occurred after that meeting. Thus,
while allowing the child to see her parents was unorthodox and should not have
occurred,
it did not affect the integrity of the interview.
[23] The second was the alleged leading nature of the interview. This
boiled down to a complaint about the word penis apparently
being supplied by the
interviewer – see at [18] above. According to the transcript, the child
had talked of Mr E’s “privates”
being inserted into her
vagina but the interviewer then asked questions about Mr E’s
“penis”. This is
of little moment. Either the interviewer
misheard what the child said or the word “privates” was
mis-transcribed.
The child had already made her allegations of sexual violation
before this occurred. At worst, the word “penis” just
gave a
different label to the allegation. It did not change its nature.
[24] It is true that the interviewer asked other leading questions – see the passage quoted at [20] above – but this was designed to give the girl a chance to retract, modify or embellish allegations already made and to correct any errors of understanding on the part of the interviewer. This is a perfectly proper interview technique. Strictly, leading questions are not allowable in examination-in-chief – see Cross on Evidence (looseleaf last updated March 2007) at [9.13]. We consider, however, that leading questions may not be objectionable in an evidential interview of a child if they merely repeat what the child has previously said in the interview, are not used to excess and are employed solely to permit the child to provide clarification, correction or elucidation. In the circumstances of this case, we do not consider that the questions in the evidential interview exceeded proper bounds.
[25] We are conscious that there are some cases and commentators which
suggest that leading questions may be allowable where young
children are
concerned – see R v Lewis [1991] 1 NZLR 409 at 411 (CA), R v
Guptill (1994) 11 CRNZ 299 (CA) and Casey, Garrow and Casey’s
Principles of the Law of Evidence (8ed 1996) at [26.4]. Given what is now
known about the importance of using open-ended questions when interviewing
children,
these authorities should be treated with caution. We note, in
any event, that under s 89 of the Evidence Act 2006, there is
no exception to
the prohibition of leading questions where a child is being questioned. For a
recent discussion on the appropriate
techniques for eliciting
children’s evidence and the reliability of children’s evidence, see
Davies and Westcott,
“Investigative Interviewing with Children: Progress
and Pitfalls” in Heaton- Armstrong et al (eds) Witness
Testimony: Psychological, Investigative and Evidential Perspectives
(2006) at 153 – 169 and Oates, “Problems and Prejudices for the
Sexually Abused Child” (2007) 81 ALJ 313. See also New Zealand Law
Commission Evidence Code and Commentary (NZLC R55(2) 1999) at C397 and
New Zealand Law Commission Evidence: Reform of the Law (NZLC R55(1) 1999)
at [488].
[26] The third issue raised by Mr Calver is that of possible
“coaching”. It is clear from the transcript of interview
that the
child knew why she was there and what she was to talk about. This topic had
not been raised by the interviewer before
the interview. She had only told the
complainant that children came to her to talk about matters that were troubling
them. What
the complainant had been told before the interview was not the
subject of questioning of the officer in charge, the complainant or
her brother
at trial. It was not able to be broached with the mother because she was not
called as a witness. (We note that the
mother, in her statement to the police,
said that she had told the complainant before the interview only that she was
going to talk
about Mr E.)
[27] The fact that there is an initial burst of disclosure followed by almost total memory lapse could suggest that the child might have been repeating something she had been told (or reminded of) in close proximity to the interview. It could also, of course, connote a child too traumatised to speak freely about what had happened. There are two passages in the interview that might be relevant to an assessment of
this issue. The complainant said at one stage in the interview that she was
trying to remember what she told her mother (which might
suggest that, if there
was any “coaching”, it came from someone else other than the
mother). She also asked the interviewer
whether other children came to talk
about similar things and whether she had marked the body diagrams in the same
place as others
did. This, however, could be no more than normal anxiety on the
part of a child not to be “different”.
[28] Also relevant to Mr Calver’s submission as to possible
“coaching” is the fact that both counsel in closing
and the Judge in
his summing up (see at [119] below) remarked that the complainant appeared to be
susceptible to accepting propositions
put to her. For example, the prosecutor
and the Judge referred to a passage at the end of Mr Calver’s
cross-examination where
the complainant conceded that she could not really
remember what happened to her. The exchange with Mr Calver went as
follows:
Q. There’s a lot you can’t remember isn’t there ... A. Yes.
Q. And do you think you may not be remembering what you say [Mr E]
did to you ...
A. Um I can (inaudible).
Q. Do you think you might have got it wrong a bit ... A. Um yeah.
Q. So you can’t really remember what happened can you ... A. No.
Q. Thank you.
[29] Possible susceptibility to suggestion on the part of the complainant
is clearly relevant to allegations of “coaching”.
It is true that
the defence case at trial was run on the basis that the complainant was mistaken
or was lying rather than on the
basis that she had been
“coached” (consciously or unconsciously). This does not,
however, stop “coaching”
being part of the defence case at any
retrial.
[30] There may be enough disturbing features of the interview and the complainant’s apparent susceptibility to suggestion at the first trial to justify some
further inquiry before any retrial (at a pre-trial hearing or on a voir dire)
as to what interaction the child had with the police,
her parents and perhaps
her brother before the evidential interview. We are not, however, to be taken
as suggesting that the complainant
herself should be questioned in any such
hearing or voir dire.
[31] If it turns out that the interview was compromised, the question may
be not merely whether the complainant should give her
evidence orally (which Mr
Calver submitted should have happened in the first trial) but whether any
retrial should proceed at all.
This is not a matter we can comment further on
at this stage.
Were any parts of the complainant’s evidence
inadmissible?
[32] In her video interview, the complainant was asked about the first
grown up she had told about the allegations. She said
that she had told her
mother. The interviewer then, to no avail, tried to get the complainant to say
what she had told her mother.
[33] As the mother was not to be called as a witness, evidence of the
complaint should not have been led – see R v Kincaid [1991] 2 NZLR
1 (CA) and White v R [1999] 1 AC 210 (PC).
[34] We also note the following exchange which took place during the
interview:
Q. ... I wonder if [Mr E’s] done anything like this to anybody else? A. No. Well I don’t think so.
Q. I’ve got some ...
A. But, I know he hasn’t do it to a baby boy that’s in
the house, it’s not [the Mr E’s mother’s],
it’s a little
... it’s another girl’s, she was a big teenager and ...
[35] While the first question was answered in the negative (although somewhat equivocally) by the complainant, the way that it was asked may have implied that the interviewer had knowledge of other sexual misconduct. This passage was also inadmissible.
[36] Mr Calver explained that it is his usual practice not to ask for the
editing of evidential interviews unless the passage
is clearly objectionable
because jurors may notice the jump in the clock, leading to speculation as to
what has been excised. He
considered the passage set out at [34] to be too
cryptic to be objectionable. By contrast, he regarded the evidence referred to
at [32] as helpful in that it highlighted the vagueness of the
complainant’s evidence.
[37] Counsel should not allow evidence to be led which is
inadmissible, particularly where it is potentially prejudicial.
The
inadmissible passages should have been excised. If there were concerns about
jurors speculating about excisions, this could
have been dealt with by an
appropriate direction. The passages were, however, sufficiently brief (and
obscure) that their presence
would not, in our view, have compromised the
trial.
Should the complainant’s mother have been permitted to act as support person in the
CCTV room?
[38] The complainant’s mother acted as support person in the CCTV
room while the complainant was giving evidence. Mr Calver
became aware of this
only after the videotape had been played and the prosecutor had asked the
complainant some further questions.
Mr Calver then raised the matter with the
Judge.
[39] The Judge accepted that Mr Calver had not been consulted on the
existence or identity of any support person. The Judge explained
the background
to the mother being the support person as follows:
[10] I indicated to Mr Calver there was some history to this matter as
before this trial started, at about 20 past 9, I had been
asked by [Mrs W] the
Jury Attendant, whether it would be possible for the complainant to have more
than one support person present.
[11] I was not sure of an answer to that question. In most instances in
my experience a complainant had only been supported
by the one person.
[12] I accordingly asked my Research Counsel to give me the definitive legal answer to this question.
[13] Prior to her returning with that answer I was advised by [Mrs W] that in fact the matter had been resolved and it was agreed that the mother would act as the support person.
[14] That was acceptable to me and I would have assumed, and still
assume, that the mother in a case such as this, is
the most
appropriate support person for a young person giving evidence of this
nature.
[15] [Mrs W] is clearly well aware of her duties and responsibilities
when she is in charge of a young person in the video room
and she volunteered to
me that she knew that she was not allowed even eye contact to pass between a
support person and the complainant
giving evidence.
[40] The Judge noted that the complainant’s mother was not to be a
witness. In his view, there would need to be very good
reason why a complainant
was not allowed to have a nominated support person. The Judge apologised for
the oversight in not consulting
Mr Calver but was not prepared to terminate the
trial or change the support person.
[41] Mr Calver submitted that this decision was plainly wrong.
Mr Calver’s concern was that the mother’s
mere presence in
the room might have had an inhibiting effect on the child, particularly as
the mother was the recipient
of the initial complaint. If the complaint was
false then, in his submission, the child was much less likely to recant with the
mother in the room with her. In addition, if there had been
“coaching” of the complainant, then the mother was the logical
person to have done so.
[42] We accept Mr Calver’s submission that the defence should be told of the identity of any support person and be given the opportunity to make submissions on suitability where the proposed support person has had any relevant prior involvement with the case. Section 375A(2)(h) of the Crimes Act provides that the choice of support person is for the complainant. However, a complainant’s choice must be seen as being subject to the interests of justice which may, in some circumstances, require a limit to be put on this choice. The complainant’s freedom to choose should, however, be limited as little as possible – see R v V (1988) 3 CRNZ 423 at
424 (HC). Nevertheless, we accept Mr Calver’s submission that there may be cases where it would be preferable for parents not to act as support persons in the CCTV room. For example, this may be the case where there might be allegations of coaching and where the parents are to give or have given evidence in the case or where they have had a significant involvement in the events, such as being the recipient of a complaint. The existence (or otherwise) of another suitable support
person or persons would be a significant factor in assessing where the
interests of justice might lie in such a case.
[43] We are conscious that this might be seen as inconsistent with R v
Smith CA298/03 4 March 2004. In that case, this Court held that, in the
absence of evidence of actual influence on the complainant’s
evidence,
the mere fact that a complainant’s mother acted as support person could
not support a submission that an accused
had been prejudiced at trial. In
Smith, the support person was a witness for the prosecution and had given
her evidence before the complainant’s evidence. It would
be difficult in
most cases to raise an evidential foundation for a concern that there might be
actual influence. It is, in our
view, inappropriate to make this a
prerequisite for objection to a particular support person, although it may well
be a prerequisite
for showing a miscarriage of justice – hence the
decision in Smith. We accept that mere presence can be inhibiting and
that this is a legitimate factor to be taken into account in assessing where
the
interests of justice lie.
[44] In this case, we do not think that the presence of the mother as
support person caused a miscarriage of justice, particularly
as the defence case
at trial was not put on the basis of the complainant having been coached.
However, we consider it may be preferable
if the complainant’s mother does
not act as support person in any retrial if the defence objection is maintained.
There were,
as noted earlier, some disturbing features of the
complainant’s interview and this is not a case where the mother is the
only
possible support person, given the original request for two support persons
– see at [39] above.
[45] If any retrial takes place after the coming into force of the
Evidence Act
2006, s 79 will be applicable. Under s 79(3) a Judge is given the express power to direct, in the interest of justice, that a particular person may not act as support person.
Should the videotape of the complainant’s evidence have been shown
again to the jury?
[46] This Court has held that a Judge has a discretion to allow the jury to see the whole or part of the videotape of the complainant’s evidence during their deliberations if they make such a request – see for example R v O [1996] 3 NZLR
295 at 298 – 300 (CA). However, it has always been recognised that replaying the videotape can give undue emphasis to the complainant’s evidence and that it must be balanced by reading the relevant portions of the cross-examination (or replaying that evidence if it has been recorded). It may also be necessary to read (or replay) parts of the defence evidence to achieve balance – see R v S (CA215/00) CA215/00
28 August 2000 at [12]. It is preferable also that the Judge give a warning
to the jury not to give disproportionate weight to the
complainant’s
evidence because of seeing it again some time after the rest of the evidence has
been completed – see T v R [2006] NZSC 27 at [4]. What is
necessary in the way of balancing will depend on the circumstances of the
particular case – see R v S at [12].
[47] In this case, the videotape was replayed but none of the
cross-examination or defence evidence was read or replayed. No
directions were
given by the judge. This was a major error and, by itself, would have led to
the appeal being allowed. It is true
that the jury had been provided with the
transcript of evidence given at the trial. As the videotape is treated as viva
voce evidence-in-chief,
this should have included the transcript of the
complainant’s video interview (and we are assuming it did). The mere fact
that the jury had access to the written record of the defence evidence and the
cross-examination of the complainant, however, does
not cure the lack of
balancing material after the replaying of the video interview, particularly as
the jury were not even reminded
to refer to any such balancing material after
seeing the complainant’s video interview again. It would, in any event,
rarely
be sufficient to achieve a proper balance merely to refer the jury to the
written transcript of the cross-examination.
[48] There might even be a question as to whether the jury should have been allowed to see the videotape again at all as they had in the jury room the written record of all of the evidence given at trial (presumably, as noted above, including the
transcript of the complainant’s evidential video). We do not,
however, consider it was improper for the Judge to allow the
replaying of the
evidential interview. There is a difference between seeing and hearing a
witness and reading the transcript of
the evidence on the cold page – see
for example the comments of Lord Sumner in Owners of Steamship Hontestroom
v Owners of Steamship Sagaporack, Owners of Steamship Hontestroom v Owners of
Steamship Durham Castle
[1927] AC 37 at 49 (HL). It will be a matter for
the discretion of individual judges, taking into account the particular
circumstances of the
case, whether a request to see the videotape again will be
granted. It will also be up to individual judges whether the possibility
of
seeing the videotape again is mentioned in the summing up. It is not a matter
counsel should comment on in their closing addresses
– see at [97] -
[98].
The conduct of the prosecution
[49] Issues also arise relating to the conduct of the
prosecution:
(a) Was the prosecutor’s questioning of Mr E on possible motives for
the complainant and S to lie inappropriate?
(b) Did the Crown improperly labour the submission that the complainant and S
had no motive to lie?
(c) Did the prosecutor invite speculation on the part of the
jury?
(d) Was the prosecutor’s questioning on opportunity to commit
the offences appropriate?
(e) Did the Crown improperly lead the complainant’s evidence? (f) Was the proper scope of re-examination exceeded?
(g) Was it proper for the Crown to make submissions as to the complainant’s naivety?
(h) Was it appropriate to suggest Mr E’s mother was tailoring her
evidence to protect her son?
(i) Should the Crown have called the complainant’s mother? (j) Should the evidence as to Mr E’s arrest have been led?
(k) Did the prosecutor exceed the proper bounds in his closing
address?
(l) Should the prosecutor have encouraged the jury to ask for the
complainant’s videotape to be replayed?
Was the prosecutor’s questioning of Mr E on possible motives for the
complainant and S to lie inappropriate?
[50] In Australia, prosecutors are not allowed to question the accused or
to make submissions on whether or not the complainant
had a motive to fabricate
the charges. The fact that an accused person has no knowledge of any fact from
which a motive to lie can
be inferred is generally considered irrelevant. This
is because the lack of ability to point to a motive means only that the
accused’s
evidence cannot assist in determining whether the complainant
had a motive to lie and, in any event, a complainant gains no legitimate
credibility from the absence of evidence of motive – see Palmer v R
[1998] HCA 2; (1998) 193 CLR 1 at [9] (HCA).
[51] The Australian approach has, however, been rejected in New Zealand. In R v T [1998] 2 NZLR 257 at 265, this Court noted that New Zealand trial practice allows the accused to be asked whether he or she knows of any reason for the complainant to fabricate his or her account and for the prosecutor to use the absence of any credible reason in closing as an argument in favour of the complainant’s credibility. However, the Court stressed (at 266) that the question of why the complainant should lie must be interpreted as and confined to the eliciting of facts known to the accused, not speculation as to possible motives. Any submissions by the prosecutor have to be couched in a way that observes that distinction. Further, absence of evidence of motive should not be equated to absence of motive.
[52] In addition, any questioning and comments by the prosecutor on
motive should not be presented in such a way as might
deflect the jury from the
central issue of whether the Crown has proved the charge beyond reasonable
doubt. Nor should any suggestion
be allowed that there was an onus on the
accused to advance a credible answer as to whether there was a motive to lie.
The greater
the repetition of any questions on motive to lie, the more likely it
is that the trial process will be improperly perverted. Prosecutors
should not
persist with their questions on motive after an accused has clearly stated that
he or she can give no explanation. See
R v M (2000) 18 CRNZ 368 at [11]
– [18] (CA).
[53] In this case, the prosecution questioning on motive covered
both the complainant and her brother, S. It went as
follows:
Q. [The complainant’s brother, S] says that there were
occasions when you took [the complainant] into the bedroom and
shut the door and
you just say that that’s simply not true ...
A. Yes it’s simply not true.
Q. [S] remembers it and he says it happened on a number of occasions.
He didn’t like it and you say he’s got that wrong. That evidence
is just not correct ...
A. Mm.
Q. Well I just want to explore a couple of things with you Mr [E]
please because if that’s not correct then either [S]
has just made this
awful mistake hasn’t he ...
A. Yes.
Q. Or he is telling lies. You can’t think of any other
alternative can you...
A. No.
Q. So either he is lying or he had made a mistake... A. Yes.
Q. Well do you think that remembering a number of occasions where his
sister has gone into some boy’s bedroom and the
door has been shut for a
while and it has made you cross, and that’s happened more than once, do
you think that that is something
that somebody would make a mistake about. Is
that something you think you would make a mistake about or not ...
A. Um I do not know.
Q. You see I just need to put it to you, I am going to tell the Jury
and I just want to give you an opportunity to comment
about this to be fair. I
am going to tell the Jury that it is absolutely ludicrous to suggest that a
person would make a mistake
about remembering something like that. You might
make a mistake about the colour of a car that you saw go past a few weeks ago
or
you might make a mistake about recognising somebody in the street, but you
don’t make a mistake about something happening
like that’s made you
cross lots of times. And if the Jury accepts that, that really only leaves the
possibility the [sic]
[S] is lying correct ...
A. Yes.
Q. Now you don’t have to come up with any answers and that is
clear because our law says you don’t have to answer
anything if you
don’t want to but so that you have got the opportunity can you think of
any reason why [S] would tell lies
about this ...
A. I have no idea.
Q. He’s a good boy isn’t he ... A. On occasions yes.
Q. You never did anything to hurt him ... A. No.
Q. Never nasty to him ...
A. I would tease him like a friend teases people but never anything like that.
Q. So other than but there’s nothing, there’s no reason is there why [S]
would come along and tell lies that you can think of ... A. No.
Q. Right. And [the complainant]. She is clear that you asked her to
do this. You heard that in the video interview didn’t
you ...
A. Sorry?
Q. You heard her say in her video that she asked you ... A. Yeah.
Q. To do what she says did and she said no. And you did it anyway and
you put your penis near her vagina ...
A. I did not do it.
Q. And you put it in and she said it hurt. You heard her say that
didn’t you ...
A. Yes I did.
Q. Now again and I just want to ask you this. There are
two possibilities aren’t there. Either she had
made a mistake about that
or she is telling lies ...
A. Yes.
Q. She says this happened on heaps of occasions and we don’t
know how many that was but she says it was heaps. This
is not the sort of thing
that a little girl would make a mistake about is it ...
A. No.
Q. So really she has to be lying doesn’t she ... A. Yes.
Q. As far as you could tell [the complainant] got on well with her mum
and her dad ...
A. Yes.
Q. Can you think of any reason at all why [the complainant] would want
to say these ...
A. I have no idea.
Q. Terrible things about you if they are not true ... A. No.
[54] This subject was returned to at the end of the cross-examination
with a comment on motive, preceded by a comment on
Mr E changing his evidence
(which in itself strikes us as an unfair characterisation of Mr E’s
evidence). The exchange went
as follows:
Q. So even though you’ve altered your story a couple of times, you want the jury to believe that you are telling the truth ...
A. Yes.
Q. That [the complainant] for reasons which you can’t understand, is telling lies about you ...
A. Yes.
Q. [S]’s telling lies about you ever being alone in the bedroom
with [the complainant] ...
A. Yes.
Q. With the door shut ... A. Yes.
[55] We consider that the tone and content of the cross-examination of Mr
E on whether the complainant and her brother,
S, were mistaken or
lying was inappropriate. While a prosecutor’s duty may require him or
her to mount a strong
and direct challenge to evidence, there can be no excuse
for bullying or intimidation or addressing a jury under the guise of a question
– see the comments of Lord Bingham of Cornwall on a prosecutor’s
duties in Randall v R [2002] 1 WLR 2237 at [10] (PC). Much of the
prosecutor’s questioning, set out above, strikes us as submission
rather
than cross-examination. It was put in emotive terms and the content
overstepped the bounds of prosecutorial questioning
on motive (see at
[51] - [52] above) straying, for example, into speculation on possible motives
and continuing after Mr E said
he knew of no motive. Despite Mr Calver’s
failure to object to this line of questioning, the Judge should have intervened
at an early stage to stop it. The Judge was ultimately responsible for
ensuring that the trial was conducted fairly.
Did the Crown improperly labour the submission that the complainant and S
had no motive to lie?
[56] In closing, the prosecutor posed two rhetorical questions, being
“what on earth” the complainant and her family
had to gain from
giving false evidence against Mr E and “what on earth” they had to
gain from putting the complainant
through the traumatic process of making the
complaint and giving evidence. In our view, the repetition of the phrase
“what
on earth” compounded the unacceptable level of emotion
which characterised the prosecutor’s address. The prosecutor
then
said:
If it’s not true, why do it, and why would [S] come along and say the things he did, and if he was lying, he could have gone so much further. He could have said a whole lot more stuff, mind you, so could [the complainant], but they didn’t. Their evidence has, as I keep saying, has this ring of truth, now why lie, why would they lie, that’s a rhetorical question, we don’t need to answer that, most importantly the accused doesn’t need to answer that, and I made it clear to him, remember when I asked him the question, can you think of any reason why they might lie, because there is no onus on the accused to prove anything in trials in our country, but I’ve got to say this, if there had been any reason why [Mr E] or his family might have thought that [the complainant] was lying or the parents had put her up to it or anything like that, you can bet your bottom dollar you would have heard about it, but there’s been nothing. [Emphasis added]
[57] Although the prosecutor in the above passage said that it was not
for Mr E to prove motive, he immediately undid any effect
that may have had. In
our view, the last sentence quite improperly suggests that the fact that the
defence did not show motive suggests
that the complainant’s evidence
should be believed. This is tantamount to placing an obligation on the defence
to prove motive
and, coupled with the inappropriate questioning referred to
above and the fact that there was no direction from the Judge on this
point (see
at [125] - [128] below), was of sufficient seriousness to create a real risk of
a miscarriage of justice. The appeal
would have been allowed on this
basis.
Did the prosecutor invite speculation on the part of the
jury?
[58] We are concerned that the prosecutor’s comment, in the second
sentence set out at [56] above, that both the complainant
and S “could
have said a whole lot more stuff, mind you” implied that the prosecutor
was aware that there was further
inculpatory evidence being held back by the
complainant and her brother. This could have led the jury into improper
speculation.
[59] This concern is compounded by another passage in the closing
address. The prosecutor noted that the complainant had been
very
“energetic, bubbly” in the first ten minutes of the video interview
when talking about her school and other matters
unrelated to the case but that
she was far more reticent when it got to “talking about the nasty
stuff”. He continued
with some comments about the complainant coming
across as a truthful witness, particularly given her age and the subject matter.
He then said:
There are a lot of things that she said she couldn’t remember. Whether
that was an unwillingness to talk further about things
that she didn’t
like or whether she truly did not remember, I guess could only be speculation
and you mustn’t speculate.
But I want you to think for a minute about
memory because we do tend, as human beings, to remember the things that really
stand
out. The intense experiences stick in our mind, not the peripheral
details.
[60] While there was nothing wrong with the last submission about memory, we consider that the prosecutor’s comment that the complainant’s reticence could be an unwillingness to give further details may have invited speculation as to evidence that
the complainant might have given. Despite the immediate exhortation not to
speculate, the prosecutor was effectively inviting the
jury to do just
that.
Was the prosecutor’s questioning on opportunity to
commit the offences appropriate?
[61] Part of the defence case was that there was limited opportunity for
Mr E to have committed the offences alleged and certainly
no opportunity to have
committed them “heaps” as alleged by the complainant. This was
because the complainant was at
Mr E’s house only in the school holidays
and even then only for some days. Further, Mr E worked in the holidays and this
reduced
even further (but, it was accepted, did not eliminate) the opportunity
to commit the offences.
[62] The prosecutor questioned Mr E as follows on the dates that he was
at work:
Q. Have you asked the people at [work] to provide you with wage
records or work records to establish these times ...
A. No I haven’t because we never really had a time frame as
such of where we could get the week because they do it weekly
pay cheques we
never really had.
Q. So there is [sic] no records you say at [work] of these times ... A. There probably would be.
Q. Mm but you didn’t ask for them ... A. No.
[63] The prosecutor returned to that theme in closing. He
said:
And the third effective defence he runs is that he was never alone in the
room with [the complainant]. Well as to the first
issue, was there
an opportunity, plainly there was and I think that has to be accepted even on
the defence evidence.
I’m sure between them [Mr E] and his mum could have gone through and prepared a list of hundreds and hundreds of times when [Mr E] and [the complainant] were not in the house at the same time and they could have run those through with you. They weren’t together here, they weren’t together there they weren’t together on this occasion but that’s not the point. The point is there were occasions when they were. [Mr E] admitted it. [Mr E’s] mum had to admit it.
So in terms of opportunity there might not have been hundreds of occasions as
[the complainant] in her six year old enthusiasm said
or heaps I think was the
word that she preferred but as long as you find that there was at least one
occasion in each period within
the charge sheet, within the Indictment, then
that’s sufficient.
So in terms of the defence of there being no opportunity, that plainly
can’t survive.
[64] We have some concern that the line of questioning and some
of the comments in closing suggested that it
was for the defence to
prove lack of opportunity. On the other hand, the prosecutor was entitled to
comment on the fact that,
even on the defence evidence, there were still
times when Mr E and the complainant were both in the house. The comment
on
the lack of wage records was, however, somewhat unfair as the defence was
only suggesting that this limited opportunity
and the prosecution did not
appear to have been suggesting that Mr E did not work in the holidays.
We also accept Mr
Calver’s submission that, producing wage records
would have been difficult and of little obvious utility, given the vague
nature
of the complainant’s evidence as to the dates of the offending, the
unacceptable length of the representative charges
(see at [11] above) and the
passage of time.
Did the Crown improperly lead the complainant’s
evidence?
[65] Crown Counsel, after the complainant’s video had been played,
asked the complainant the following questions:
A. Yes.
A. Yes.
A. Yes.
A. Yes.
Q. Did you vagina feel sore every time he did that ... A. Yes.
[66] Where a videotape of a child’s interview is played, that
becomes the child’s evidence-in-chief. It is certainly
acceptable to ask
the child if he or she confirms what was said in the interview, if he or she has
anything to add or change and
to ask supplementary questions on topics not
covered in the interview. It is not the occasion for a wholesale
repetition
of what was said in the interview and certainly not, as was done
here, elicited by leading questions.
[67] It is unacceptable to ask leading questions in
examination-in-chief or re-examination, except by consent or on
non-controversial
matters – see Cross on Evidence at [9.13] -
[9.15] and [9.73], Garrow & Casey’s Principles of the Law of
Evidence at [29.3] and at [24] - [25] above. These questions went to the
heart of the prosecution’s case and, what is more, must be
seen against
the background of an evidential video interview where the complainant was unable
to remember so many aspects of the
alleged incidents. The questions are in
quite a different category from the questions in the course of the interview.
The purpose
of the interview questions was to give the opportunity for
clarification. The purpose of the questions asked by the prosecutor was
simply
to provide a repetition of the child’s evidence.
[68] This would have been sufficient in itself in the circumstances of
this case for us to have allowed the appeal. The repetition
was unnecessary
and eliciting it through leading questions unacceptable, particularly in
light of the obvious difficulties
with the interview – see above at
[16] - [31]. Indeed, there may even be an issue as to whether the leading
questions themselves
must now be seen as having contaminated the child’s
evidence. This will be relevant to the retrial issue.
Was the proper scope of re-examination exceeded?
[69] As indicated above at [19], Mr Calver elicited at the end of his cross-examination that the complainant did not really remember what happened to
her. The following exchange between Mr Calver and the Judge took place
before re-examination:
Mr Calver – In re-examination I would very much appreciate it if my friend asks only open questions and no leading questions sir.
Judge – I am sure the Crown Prosecutor doesn’t need that reminder
Mr Calver.
Mr Calver – Well certainly sir some of his questions before were very
much leading questions.
[70] Unsurprisingly, given the leading questions in
examination-in-chief, the Judge’s confidence in the prosecutor
was
unwarranted. Leading questions appeared again in re-examination. The
prosecutor began his re-examination by asking what bits
the complainant had
wrong and what she had right. In answer to the question “what did Mr E
do to you”, she answered
“he put his penis near my
vagina” (emphasis added). The prosecutor went on to ask how many times
and how did that make her vagina feel, receiving
the answer “sore”.
There was then a further discussion about what she could or could not remember.
The following exchange
then took place:
Q. Are there bits and pieces that people have asked you about that
you can’t remember ...
A. (No audible answer)
Q. You are nodding but you will have to use words ok. Are there bits
and pieces that you can’t remember ...
A. Um there’s a few bits that I can’t remember.
Q. Ok. But the stuff you have told us about, about [Mr E’s]
penis going into your vagina and it being heaps of times and it really
hurting,
can you remember that clearly ...
A. Yeah.
Q. Right now Mr Calver also asked you some questions about how old
you were when these things happened. Do you remember
him asking you
that ...
A. Yeah.
Q. Sort of to do with that but I am going to ask it in a different way, after you had the interview with [Mrs B] that we have seen. You know the video tape. Remember that ...
A. (No audible answer)
Q. Did you ever go back and stay at [Mr E’s] house during the holidays
... A. No.
A. Um yes.
Q. And did stuff happen that time ...
A. Um yeah a few times then.
Q. Ok and when I say stuff you know what I mean eh ...
A. Yeah.
Q. About [Mr E] putting his penis in you ...
A. Yeah.
Q. But it only happened a few times that last holidays is that right ... A. Yeah.
Q. Do you know how old you were then or not ... A. Um I think I was 6 then.
[Emphasis added]
[71] The only thing that the complainant volunteered in re-examination
was that Mr E’s penis was “near” her
vagina and that it made
her vagina feel sore (but the evidence on her vagina feeling sore had itself
been led in examination-in-chief
– see at [65] above). The rest of the
complainant’s evidence in re-examination was in answer to leading
questions.
Further, some of the topics covered (such as her vagina being sore)
had not been covered in cross-examination – see Cross on Evidence
at [9.73]. The prosecutor thus exceeded the proper scope of re-examination
in any event.
[72] While the concession the complainant made in not being able to remember warranted clarification in re-examination, it was not the occasion for a re-run of her evidence and certainly not through leading questions. The primary purpose of re-examination is to allow counsel to clarify or explain areas of ambiguity or uncertainty which have emerged in answers in cross-examination – see Richardson Archbold Criminal Pleading, Evidence & Practice (2007) at [8-247]. It is not
meant to provide the Crown with an opportunity to restate its case or to plug
holes opened in cross-examination.
[73] The use of leading questions by the prosecutor in the circumstances
of this case created a miscarriage of justice. Ignoring
the leading questions,
the jury would have been left with what arguably amounted to an
effective recantation of the complainant’s
evidence at the end of
cross-examination (see at [28] above), with the evidence in re-examination not
being sufficient to sustain
the charges. That this is the case could have
significance in Mr Calver’s application for the withdrawal of the order
for
a retrial (see at [145] below).
[74] There is a final irony. The prosecutor in closing urged the jury to
discount some of the inconsistencies in the complainant’s
evidence and, in
particular, the final answers to Mr Calver’s cross-examination (see at
[28] above) on the basis that her answers
resulted from leading questions. He
said:
And if the witness is encouraged or pushed to an answer, you might find that
it’s given far less weight, than if they were asked
an open question and
they volunteer all the information themselves, and I’m going to give
you an example here: [The prosecutor
took the jury through passages in the
evidential interview dealing with whether the complainant’s mother was in
the house at
the time the offences were committed and referred the jury also to
the end of Mr Calver’s cross-examination set out at [28]
above.]
[75] Neither the prosecutor nor the Judge explained that leading
questions are permissible in cross-examination but not in examination-in-chief
or re-examination. We also note that Mr Calver’s last question in
cross-examination in fact almost repeated an answer
volunteered by the
complainant in her video-interview – see the passage set out at [19] above
where she said that she did not
remember any of the times Mr E had abused
her.
Was it proper for the Crown to make submissions as to the
complainant’s naivety?
[76] The prosecutor in closing said:
Why on earth would she [the complainant] come up with a penis going between her legs and into that part of her body [later referring to the vagina] when she’s six.
[77] Later he said, in the course of his submission on lack of motive to
lie:
I mentioned before the detail she gave and why would she talk about a penis
and vagina at the age of six, that’s more about
how could she know, if it
didn’t happen. How could she know the detail about a penis going into a
vagina ...
[78] The above passages were arguably a misrepresentation of the
complainant’s evidence. She was not able to explain the
vagina’s
function or describe the penis. She never identified the exact part of her
“privates” where the vagina
was situated. At one stage she used the
word “vagina” to refer to a male’s “privates” and
the word
penis may have been supplied to her by the interviewer. She never
mentioned Mr E’s privates/penis going between her legs.
She said Mr E was
lying on his bed but she did not remember what position she was in. She did not
remember where her clothes or
Mr E’s clothes were.
[79] More importantly, however, the prosecutor’s submission was
that the child was naïve and thus had no other means
of knowledge of the
sexual act than Mr E’s alleged abuse. This was not a proper submission
in the absence of an evidential
basis. This was not a case where a child had
given detailed evidence of every stage of a sexual act which might be thought
only
able to be given by a child who had experienced the act in question.
Indeed, any details given were incredibly sparse and, the
defence would no doubt
argue, may have been a symptom of her imperfectly understanding something she
had been told about but not
experienced. It was also not a case where unusual
sexual practices were described.
[80] Even had the child’s evidence been more detailed, it would not have been appropriate for the Crown to make a submission on the complainant’s naivety without having explored with her other possible sources of knowledge. This was not done. It is certainly not to be assumed that a child who is at school and who has a big brother could not have picked up some form of (at least) rudimentary sexual knowledge. Neither can it be assumed that parents do not provide some instruction in sexual matters, even to quite young children. There was nothing in the evidence, for example, to suggest that Mr E had used the word vagina in the complainant’s presence. She must have got the word from somewhere and that was never explored by the Crown. (In fact, it appears from the mother’s statement to the police that the
complainant’s mother always referred to parts of the body, like the
vagina and the penis, using their proper names but that
her father used the term
“privates”).
Was it appropriate to suggest Mr E’s mother was tailoring her
evidence to protect her son?
[81] The prosecutor, when questioning Mr E’s mother, suggested
strongly that she tailored her evidence to provide the most
favourable story for
her son. We consider that this went beyond robust testing of the evidence and
amounted to an allegation of
perjury. The questioning proceeded as
follows:
Q. Mr Calver has asked you a great list of questions which begin
with, do you remember any occasions which. [Mrs E], if there
had been occasions
when [Mr E] had been alone with [the complainant] with the door shut, you
wouldn’t have told us in a month of Sunday’s would you
...
A. I don’t believe there were any occasions.
Q. If there had been any occasions you wouldn’t have told us would you ...
A. Once again I don’t believe there was.
Q. If there had been any occasions [Mrs E], you wouldn’t have told us would you. [Mr E]’s your son, right ...
A. Yeah and I also tell the truth. I’ve sworn to tell the truth,
so.
Q. There were many, many days, many more days than you’ve
told us about, that [Mr E] was at home at the same time as
[the
complainant] and [S] weren’t there ...
A. Other holidays, other years, yes.
Q. There were a number of days in the July school holidays before these allegations came to light that’s July 2005 ...
A. There weren’t any other days that he was at home with them
no.
Q. No, there were a number of days where you looked after [the
complainant] and [S] during the July school holidays ...
A. About 4 or 5 yeah.
Q. Well it was 3 or 4 before, now it’s 4 or 5, how many was it ... A. It was most probably about 4.
Q. Most probably, you’ve got no idea [Mrs E] have you ...
A. Not specifically no, but I do know there were certain days.
Q. Lets not guess then shall we. There were quite a number of days during those school holidays when you were looking after [the complainant] and [S], correct ...
A. There were a few yes.
Q. And you could find that out from your records couldn’t you ... A. I don’t have any.
Q. Were you employed, were you paid to look after these children ... A. No.
Q. Were there records kept at the [day care organisation]
for you looking after these children ...
A. I’d finished [at the day care organisation] by then. Q. So you were simply a private babysitter ...
A. I was a friend of [the complainant’s mother] yes.
Q. And you weren’t paid at all for your services looking after these kids
...
A. No.
Q. You see it’s very easy for you [Mrs E] isn’t it, as [Mr E]’s Mum to with vagueness of memory and a lapse of time, to choose the position most favourable to [Mr E] in terms of your evidence isn’t it
...
A. I’m telling you exactly what I can remember and as honestly as I can remember it.
Q. And so it began as 3 or 4 times now it might be 4 or 5, now it
might be 4 times but you just can’t be sure can you
...
A. I can specifically remember 3 days, I don’t know if there were 4 days.
Q. So we are back to 3 again, right ...
A. Well I can specifically remember 3 days yes.
Q. And when you say you can’t remember any times between January and July that doesn’t mean there weren’t any does it ...
A. I would be pretty honest that there wasn’t any.
Q. Well let’s be totally honest shall we. Can you remember any days and can you say for certain that there were not ...
A. There weren’t any days. Q. You’re sure about that ... A. Yes.
Q. When did you become sure just now or when was that ... A. No I have been sure all the time.
Q. Well why didn’t you say that before ... A. Just the words I used.
Q. Right oh then. What was it that [S] what was it sorry that [Mr
E] used to say when he knew that these kids were coming
round ... I hope they
don’t come down to my room. I hope they’re not, if they’re
coming I hope they’re
not coming down to my bedroom ...
A. Mm.
Q. He used to say that every time did he ... A. Most of the time yeah.
Q. You’re just making that up ... A. No I’m not.
Q. That’s ludicrous [Mrs E] why would he say that ...
A. Because [Mr E] had the play station and the computer in his room
that the children liked using and [Mr E].
Q. He used to invite them in to use it ...
A. No he didn’t if they asked if he could sometimes
he said yes sometimes he said no.
Q. You’re just making that up [Mrs E] this comment if
they’re coming I hope they’re not coming down to my bedroom cos that
suits [Mr E]’s position
doesn’t it ...
A. Yeah okay from your point of view it does yes. But I’m also
telling the truth.
Q. Right oh. Now are you telling us that there were no occasions that
[Mr E] and [the complainant] you say were in [Mr E’s]
room by themselves
...
A. That’s right.
Q. None whatsoever ... A. No.
A. Okay well he obviously knows of sometime that I don’t.
[82] This line of questioning went too far. Its tone, content
and repetitive insinuations of dishonesty were intimidating,
bullying and
unfair. It was not appropriate for the prosecutor to suggest repeatedly and in
such strong terms that Mr E’s
mother was deliberately lying without some
foundation. In this case, far from there being any foundation for the
attack,
the complainant’s and Mr E’s mother’s evidence as
to opportunity to commit the offences (limited to the school
holidays) was in
fact largely in agreement – see at [8] and [10] above.
[83] Further, we see nothing ludicrous (a favourite word of the
prosecutor it appears – see also the passage at [53]
above) in a teenage
boy not wanting young children in his room except by invitation and, to a
degree, Mr E’s mother’s
evidence on this was confirmed by the
complainant’s brother, S. S said that at one point there was a rule that
he and the
complainant were not allowed in Mr E’s room but Mr E was always
inviting the complainant in. There was never any suggestion
that the mother
knew that Mr E spent time shut in his bedroom alone with the complainant (if he
did). If she had known, this might
suggest she had colluded in the offending or
turned a blind eye but this was by no means part of the Crown case. Again,
even though
Mr Calver did not object, the Judge should have intervened and
stopped this cross-examination at an early stage.
Should the Crown have called the complainant’s
mother?
[84] The Crown decided not to call the complainant’s mother, who could have given recent complaint evidence. We can understand this as there would have been a major question as to the extent to which that complaint evidence was admissible (for example it went much further than the complainant’s evidence in her video-taped evidential interview). Mr Calver did not request the Crown to call the mother. Nor
was there an application to this effect made under s 368(2) of the Crimes
Act. This was understandable as the case was not run on
the basis of
“coaching” by the mother. The situation may, of course, be different
in any retrial. For completeness,
we note that, if any retrial occurs after the
entry into force of the Evidence Act 2006, then, if the mother is called, the
content
of her evidence will need to be assessed in light of that
Act.
Should the evidence as to Mr E’s arrest have been
led?
[85] The officer in charge was questioned by the
prosecutor about the circumstances of Mr E’s arrest.
She said that
she had gone “moderately early in the morning” to arrest Mr E
about a week after the evidential
interview of the complainant. She was
asked whether there was any prior discussion with the family to advise them that
the arrest
was going to occur and she said that there had not been. She said
that, when she arrested Mr E, she gave him his rights under
the New Zealand
Bill of Rights Act 1990 and that they then went back to the police station at
Hastings. She was asked whether
she offered Mr E the opportunity to make
a statement and whether he declined “as was his right”. She
confirmed
that this was the case.
[86] Mr Calver seems to have been concerned that the jury might wonder
why Mr E had not expressed surprise at being arrested
and immediately
denied the allegations. Mr Calver thus, in cross-examination, asked the
officer in charge whether the
family were aware generally of a police
investigation. She answered that she believed that they were. She also
confirmed that
a few days before the arrest she had spoken to Mr Calver as the
lawyer acting for Mr E. She also recalled receiving a letter a
day later
which said that, in light of Mr E’s age and the fact there was no detailed
knowledge of the allegations against him,
Mr E had been given legal advice not
to make a statement at that stage. The letter also said that, if there was a
decision to lay
charges, Mr E would be quite happy to come into the police
station to be processed there. (The officer did not say why that offer
was not
taken up).
[87] In re-examination, the officer in charge was asked whether it was police practice to have police investigations dictated to by defence counsel and received the
answer that it was not. The question was gratuitous and a misrepresentation
of steps taken by Mr Calver which were in the circumstances
responsible and
reasonable. The officer also emphatically agreed in re-examination that it was
not customary police practice to
give a person who is going to be
interviewed information to consider in advance.
[88] It is not unusual for evidence of the arrest of an accused to be
led. While usually not strictly relevant, particularly
when the arrest occurs
some time after the alleged offence, it serves to explain to the jury the
process that has occurred before
the court proceedings. However, there must be
care in leading such evidence to ensure that it does not give rise to prejudice
to
the accused. In this case, there is a real risk that the evidence caused
prejudice to Mr E. The prosecutor was not content in this
case merely to lead
evidence of the fact of the arrest. He also asked whether Mr E had declined to
make a statement. While that
was qualified by the words “as was his
right” there is still a risk that the jury may draw an adverse inference
from
Mr E’s silence.
[89] While evidence of the arrest itself may be seen as background, the
evidence that no statement was made amounts to evidence
that there was no
relevant evidence and, as such, was of no utility whatsoever. Such evidence
should not be led unless there is
a good reason to do so. For example, there
may be cases where an accused wishes the evidence of the caution and subsequent
silence
to be led to explain why he or she did not make a statement at that
point. If such evidence is led, however, the Judge should give
an immediate
direction to the jury confirming an accused’s right to remain silent and a
direction not to draw any adverse conclusions
or inferences from the decision to
exercise the right.
[90] The prosecutor went even further in this case, however, and asked whether Mr E’s family was aware of the arrest. The jury were, in our view, likely to have wondered why Mr E and his family were not surprised at the arrest and why there had not been an immediate denial of the charges by Mr E if in fact, as was the impression left after the examination-in-chief, he and his family had known nothing whatsoever about the charges before the police arrived to arrest him. This impression was immediately corrected in cross-examination but the jury might still
have been left thinking, particularly after the re-examination of the officer
in charge, that the actions of Mr E and his counsel
with regard to the police
investigation were unreasonable and for that reason suspicious.
[91] The officer’s answers in re-examination were misleading in any
event. Not only is there a right under the Bill of
Rights Act s 23(4) and at
common law to remain silent, it is also necessary for an accused to be
acquainted with the charges faced
– see Bill of Rights Act s 24(a). This
involves the right to be provided with prompt and detailed information as to the
actual
charges faced and the acts allegedly giving rise to those charges,
including the place and date. The information must be sufficient
to prepare to
meet the Crown’s case. We also refer to s 23(1)(a) and the discussion in
Rishworth, Huscroft, Optican and Mahoney
The New Zealand Bill of Rights
(2003) at 552 – 562 and 603 - 605 and Butler and Butler The New
Zealand Bill of Rights Act: a commentary at [20.6.1] – [20.6.15] and
[22.2.11] – [22.2.12].
[92] The evidence of Mr E’s arrest and refusal to make a statement
(particularly in its embellished form) should not have
been led as there was a
real risk that the jury would have drawn an improper inference from that
evidence. The situation may have
been saved by a very strong direction from
the Judge given both at the time the evidence was led and in the summing up that
the jury
could infer nothing from Mr E’s decision to remain silent upon
his arrest but such a direction was not given.
Did the prosecutor exceed the proper bounds in his closing
address?
[93] The prosecutor, in his closing address, inappropriately corrected Mr
Calver’s formulation of the test for reasonable
doubt. He said:
Mr Calver suggested to you in his opening address that if you think [Mr E]
might be telling the truth then you’ve got to acquit
him. Well I’m
sure what my learned friend must have meant by that was that if anything [Mr E]
has said to you leaves you in
any reasonable doubt that he might be telling the
truth then you acquit, because might be is not good enough.
[94] We see no error in Mr Calver’s formulation. The prosecutor’s reformulation was unnecessary and confusing. Indeed, he appears to have it the wrong way round.
[95] In his closing address, the prosecutor also said:
[Mr E’s] evidence, unlike [the complainant’s] and [S’s] did
not have the ring of truth. [Mr E], as I said, appeared
very assertive, he
appeared to have an answer for everything and he went backwards on a number of
issues about which he had earlier
been quite certain and quite
confident.
Unlike [the complainant] and [S], [Mr E] has every reason to tell untruths
about what occurred because he has the reason for avoiding
a finding of guilt in
this case.
[96] We have already commented that the prosecutor’s portrayal of Mr E as having gone backwards on a number of issues was not an accurate portrayal of his evidence – see at [54] above. However, this pales into insignificance beside the remark about Mr E having a motive to lie to avoid a finding of guilt. It has been held that it is never legitimate for a judge to make such a suggestion and it is just as unacceptable (if not more so) for a prosecutor to do so. Making such a submission has the effect of suggesting that the evidence of an accused should be scrutinised more carefully than that of a complainant or other Crown witness simply because he or she is the accused. This is wrong and unfair - see Robinson v R (No 2) (1991) 180
CLR 531 at 535 (HCA), R v Bentley [2001] 1 Cr App R 307 at 326 (CA)
and R v Leef CA14/06 24 August 2006 at [18] – [32] and [57] –
[62]. The situation may have been saved by a very strong direction
by the
Judge but none was given.
Should the prosecutor have encouraged the jury to ask for the
complainant’s videotape to be replayed?
[97] The prosecutor, on a number of occasions, encouraged the jury to
look at the video again. For example, he said:
You are in something of a luxurious position in the sense that you can
re-watch the video if you want to. And it’s possibly
important that you
do because although it’s only been a short trial, there has been a
stop/start, there have been other witnesses
in between and if you want to have a
look at [the complainant’s] video interview again then I’m sure His
Honour will
allow you to do so during the course of your
deliberations.
[98] It is not for the prosecutor to encourage the jury to have parts of the evidence replayed, particularly in cases where the jury has the transcript of evidence. Whether any part of the evidence is replayed, and whether the Judge tells the jury before they retire that they can ask for a replay, is a matter for the Judge and not the prosecutor –
see at [48]. This would not, however, have led to the appeal being allowed,
had there been a proper balance and suitable directions
when the videotape was
replayed.
The course of the trial
[99] The following issues arose in the course of the trial:
(a) Should Mr E’s mother have been allowed to give evidence on changes
in the complainant’s behaviour?
(b) Did the Judge put unwarranted restrictions on the scope of character
evidence called by the defence?
(c) Should the defence have put allegations of
“coaching” to the complainant?
(d) Should the defence have speculated on the complainant’s sources of
knowledge of sexual acts?
Should Mr E’s mother been allowed to give evidence
on changes in the complainant’s behaviour?
[100] At the end of Mr Calver’s examination-in-chief of Mr
E’s mother, the following exchange took place:
A. Mm. How are you – Objection – [Crown].
Objection – [Crown].
Judge – That is even getting worse. It doesn’t improve
it.
[101] Mr E’s mother is not qualified as an expert to give an opinion on whether the complainant’s behaviour was consistent or otherwise with sexual abuse. However,
we do not apprehend that Mr Calver was attempting to elicit opinion evidence
from her. He was merely asking whether she
had noticed any changes
in the complainant’s behaviour since the alleged offending. This was a
factual question, asked
with the aim of eliciting Mr E’s mother’s
observations. The allegation was that Mr E had begun abusing the complainant
when Mr E’s family moved into their new house. Mr E’s mother had
looked after the complainant for some years before
that. She thus had plenty of
opportunity to observe the complainant both before and after the alleged
offending.
[102] There could be no proper objection to Mr E’s mother giving
evidence of her observations. By itself, the fact that Mr
Calver was stopped
from questioning her on this topic would not have led to the appeal being
allowed but it adds to the concerns
about the fairness of the trial.
Did the Judge put unwarranted restrictions on the scope of
character evidence called by the defence?
[103] At the end of the cross-examination of Mr E, the prosecutor
made an application to call rebuttal evidence from
a “teenage
girl”, who had been placed by the Child Youth and Family Services with Mr
E’s family, about an alleged
approach made to her by Mr E for sex some
three or so years before. The application was made because Mr E’s
character was
to be put in issue. The application was (in our view quite
rightly) rejected by the Judge. The Judge went on to say, however:
[21] Having said that, I want Mr Calver to be absolutely clear that when he
calls character evidence, that is confined specifically
to what people know, see
and have observed about the defendant. I do not want them going down the track
of, he is a man of integrity,
he is a person of high moral values. They can
certainly say that he is a good worker, that he is helpful and that his school
records
shows that he has done well, or indeed he has not been in any trouble
of a criminal nature. But for them to get in
to areas of
speculation covering issues of moral values and the like, goes too far in
respect to character evidence. And if they
stray from what they know then I
will interrupt at that point and exclude that evidence.
[22] So character evidence will be admitted along the lines that I have
indicated, but no more than that.
[104] Mr Calver took this as a ruling that his character witnesses could not attest that Mr E is a person of high moral values (even if they knew this from their
personal knowledge) but that they could only give evidence that he is a good
worker, has a good school record and has no criminal
record. He submitted that
the ruling incorrectly limited the proper scope of the character evidence
called on Mr E’s
behalf. Mr Corlett, for the Crown, submitted that
what the Judge said did not amount to a ruling and, in any event,
all the
Judge said was that the character witnesses were to give evidence only of what
they knew personally and that this is the
correct legal position.
[105] We are unable to accept the Crown submission. We would have interpreted the Judge’s remarks in exactly the way Mr Calver did as a ruling that Mr E’s character witnesses could not attest to his moral values even if they had personal knowledge on this subject. We also accept Mr Calver’s submission that this ruling was legally incorrect. Character witnesses can attest to a person’s moral standing if they have personal knowledge of this – see R v Ravindra [1997] 3 NZLR 242 at
252 – 3 (HC). The Judge therefore unduly restricted the scope of
character evidence able to be led. Given the importance in
this case of Mr
E’s character and credibility, this was a significant error.
[106] The mistake as to the scope of character evidence was compounded in
the summing up by the Judge saying that the prosecutor
had stressed the
restricted nature of the character evidence and thus its limited assistance in
assessing whether the charges were
proved. The Judge said:
[67] In so far as the character evidence is concerned, this relates only to
[Mr E’s] work ethic and the respect that he shows
to other, or indeed his
good school record and the like and he [the prosecutor] says that this obviously
would be of some limited
assistance to you in deciding whether you accept [the
complainant’s] evidence on the important points.
[107] The prosecutor had not in fact made such an explicit submission. He
had, however, referred to the limited assistance character
evidence of the type
given could provide when the real issue was whether the jury accepted the
complainant’s evidence.
[108] The improper restriction on the scope of character evidence and the denigration in the summing up of the character evidence that had been led would, in the circumstances of this case, have sufficed for us to allow the appeal.
Should the defence have put allegations of “coaching” to the
complainant?
[109] Mr Calver, in his closing address, suggested that the complainant had
been “coached” into making the allegations.
This attracted adverse
comment by the Judge in his summing up which Mr Calver submitted was unfair.
The Judge said:
[73] He [Mr Calver] further speculated with you about children living in
their fantasy worlds, that they live, as he said, between
reality and fiction
and 7 year olds perhaps still believe in the tooth fairy and Santa Claus. My
personal view is I think it would
be great for 7 year olds to still believe in
tooth fairies and Santa Claus, but perhaps that is not always the case.
...
[77] Counsel then asks “so why did she make up the allegations”
which is of course predicated on the fact that she did
make up these allegations
and then talks to you about ideas being implanted into a child’s head and
then simply reinforced
by repetition. This again is of course entirely
speculative and you should not speculate on that. We simply do not know
anything
of the original complaint by [the complainant] to her mother, but
apparently we do know there was a complaint by [the complainant]
to her mother
and what then transpired.
[78] What we do know from the evidence is that there was no discussion
between [the interviewer, Mrs B] and [the complainant]
before her
interview, that is the video interview with [the complainant], though
it appears [the complainant] knew the
reasons why she was there but that was not
discussed previously or before the video interview by [Mrs B].
[79] Likewise, the officer in charge, Detective Hill, was not asked about
the processes that are followed when she could well have
been, as she was of
course a witness and is the officer in charge of this case. So another area not
to speculate on.
[110] There were difficulties with the child’s interview and thus a
foundation for concerns about “coaching” (conscious
or unconscious)
or embellishment (again conscious or unconscious) or fantasy – see at [25]
- [29]. None of these matters
were, however, put to the complainant or, as the
Judge pointed out, to the officer in charge. The Judge’s comment was
therefore
justified.
[111] If Mr Calver had wanted to make such an allegation it should, at the least, have been put to the complainant. There must always be a proper foundation for any submission, whether to a Judge or jury. Mr Calver’s concern was that he did not want to question the child more than was necessary and appear to be harassing her. While it is important to question child witnesses in an age appropriate manner and no more than is necessary, it is nevertheless essential, as with any witness, to put all
matters that are to be relied upon to the witness and to risk adverse comment
for any failures to do so. There is no need for such
matters to be put
aggressively and they can be couched in child-friendly terms.
Should the defence have speculated on the complainant’s sources of
knowledge of sexual acts?
[112] Mr Calver, in his closing, speculated that the complainant may have
known about sexual acts through the television (seen late
at night on the way to
get a glass of water), through pornographic magazines seen at a friend’s
house, through conversations
at kindergarten or school or that she may have been
taught about the “birds and the bees” by her parents.
[113] The Judge in his summing up made the following comment:
[74] Indeed he suggested to you their sense or reality can be
further distorted by exposure to the sorts of explicit
material that
children get exposed to nowadays apparently, and he talked of TV on a Sunday
night, perhaps we hope children are
in bed by the time that occurs on a Sunday
night, DVD’s or possibly videos when mum and dads are not around. He
talks about
what kids are told at school by other kids, or what older kids might
have said in relation to particular issues.
[75] Well, as he said, we simply do not know if [the complainant] has been
taught anything about sex or about sexual matters.
There is simply no
evidence about this and in my view, there is no point in you speculating about
what may or may not have
been the case in so far as what [the complainant]
may or may not have known or what her parents may or may not have done with
her in regard to sex education. That is purely speculation.
[76] What we do know however, from the evidence that you have heard, is
that she at least knows what a vagina is, but you will recall
that she had
absolutely no idea what a penis was or what it did. You may conclude from that
evidence, which is evidence, is not
speculation, that she was in fact a
naïve 7 year old girl, who had not been exposed to the sorts of material
counsel suggested
may well be the case. But in the end it is going to be a
matter for you to determine, if you think it is appropriate for you to
do
so.
[114] While the suggestions from Mr Calver may have been speculative (and some certainly, such as the suggestion that she had seen pornography, should have been put to her), he was merely responding to the equally speculative suggestion from the Crown that her only source of knowledge of sexual matters was from Mr E – see at [79]. The Judge’s comments should have primarily been directed to the prosecutor.
It was unfair of the Judge to single out defence counsel in the manner he
did, while effectively endorsing the prosecution’s
improper submission on
the complainant’s naivety – see at [76] of his summing up, quoted at
[113] above.
The summing up
[115] The following issues arise in relation to the summing
up:
(a) Were the Judge’s directions on assessing a child’s evidence
appropriate?
(b) Should the Judge have dealt with so many matters in summing up before
the onus and standard of proof?
(c) Should the Judge have given a direction that it was not up to Mr E to
prove motive?
(d) Was it appropriate for the Judge to comment on
corroboration?
(e) Did the Judge give appropriate directions on the medical evidence? (f) Was the summing up unbalanced?
(g) Did the Judge misrepresent Mr Calver’s argument in closing as to
what the jury had to decide?
(h) Should the Judge have warned the jury that they could not convict on the
basis of suspicion?
Were the Judge’s directions on assessing a child’s evidence
appropriate?
[116] The Judge gave some directions on how the jury might go about
assessing the evidence of the complainant given her age and
level of maturity.
The Judge said:
[16] At the end of the day, she was still only 7 years old so do not regard her as an adult witness. Do not use your measure as to how you measure her. She still is only 7 and I do not think it is fair to compare say the evidence an articulate young man can give against the evidence of a 7 year
old because she is only 7. If she was older and more
mature then presumably she would have a driver’s licence and do all those
other things,
have a job, left school and the like. (Emphasis added)
[17] So you have got to bring your understanding as parents, possibly
grandparents and if you are not parents and not grandparents
you certainly have
been children at some point in time, to the way children think and act in
situations possibly such as this or
generally situations where they are
confronted with difficult issues. So I just think please bear in mind that we
are looking at
different things here and you are looking at a 7 year old who is
not going to give evidence in the same way an adult would. I am
not saying you
need to prefer her evidence. I am not saying that what she has said is correct.
I am not making that assertion at
all but I am just simply saying sometimes the
tendency is to look at them and say well they did not do it this way, did not do
it
that way – well perhaps they would not because they are only
7.
[117] We accept Mr Calver’s submission that it was inappropriate to
compare the evidence of the complainant and Mr E. While
the Judge made it clear
that he was not instructing the jury to prefer the evidence of the complainant,
there was a danger that this
was the effect of his instructions. He could have
been taken as suggesting that the complainant’s evidence be assessed
against
a standard different to Mr E’s evidence, thereby boosting the
complainant’s credibility at the expense of Mr E’s.
[118] Further, while there may be age-related issues with children’s
evidence that can occur particularly when they are questioned
in an age
inappropriate manner, in this case the difficulties with the complainant’s
evidence arose during an evidential interview
by a trained child interviewer.
This makes the Judge’s comments even more inappropriate. The jury should
have been left
to make their own assessment of the child’s reticence with
regard to the allegations, rather than have it effectively explained
away by the
Judge as a function of her age.
[119] The Judge also suggested later in his summing up that the
complainant’s suggestibility was a function of her age. This
was
inappropriate in our view, given the difficulties with the evidential interview
and what was arguably an effective recantation
of her allegations at the end of
Mr Calver’s cross-examination – see at [28] above. Again, the jury
should have been
left to make up their own minds. The Judge said:
[80] Counsel [Mr Calver] then addressed you on what he described as susceptibility and there can be no question that as a 6 or 7 year old she was susceptible to various propositions, but if we come back to issues such as
your common sense, your knowledge of dealing with 7 year old children or
young children, you may not find that unusual. It is simply
a matter for you to
determine but he certainly has put it [to] you that she was susceptible to
various propositions and of course,
you will be aware from the two questions
that he asked of her which he said demolished the Crown case, and likewise you
will be aware
of the answers that she then gave in response to later questions
asked of her by [the Crown prosecutor].
[81] So it is correct for him to say you need to be cautious about her
evidence, but in the final analysis, it is for you
to decide whether
that susceptibility, those changes affect your overall view of her evidence in
whether you accept her as a
credible witness in this trial.
[120] These misdirections on assessing the complainant’s evidence would
in themselves have caused the appeal to be allowed.
Should the Judge have dealt with so many matters in his summing up before
the onus and standard of proof?
[121] The Judge in his summing up covered a number of matters before
getting to the vital point of the onus and standard of proof.
He explained his
role as regulating the conduct of the trial and directing them on the law. He
described the jury’s role
as follows:
[3] Your role is quite different. It is for you to accept or
reject the evidence as you choose. You have got to
sort out the facts as to
what happened. It is for you to decide which of the witnesses you believe and
from that what you
believed happened, if anything, between
[the complainant] and the accused [Mr E].
[122] The last comment that it was for the jury to assess what
they believe happened is not, of course, strictly accurate.
It is for the jury
to assess whether the Crown has proved the offences were committed and to the
requisite standard and the usual
direction on how the jury should assess
witnesses makes this clear.
[123] The Judge went on to give standard directions with regard to the transcript of evidence that was to be provided to the jury and moved to the question of credibility of witnesses, giving some extended directions on how the jury might assess credibility. He then discussed the necessity for the jury to apply their common sense and gave the directions, referred to at [116], above on assessing the complainant’s evidence. Next, he discussed the need to exchange views in the jury room and to put
aside all feelings of sympathy or prejudice. He moved on to inferences
before finally reaching the effect of Mr E giving evidence
and the onus and
standard of proof.
[124] While most of the matters covered by the Judge before dealing with
the onus and standard of proof are standard matters, in
this case the
preliminary matters were dealt with in more detail than usual. This meant that
the time taken to get to the vital
directions on onus and standard of proof was
longer than usual. The early portion of the summing up also contained matters
which
were of concern in themselves – see at [116] and [121]. While the
directions on onus and standard of proof were orthodox and
detailed, this adds
to our concern about the trial process in this case.
Should the Judge have given a direction that it was not up to Mr E to
prove motive?
[125] In a case where the prosecution has sought to bolster the
complainant’s credibility by reference to the absence
of a motive to lie,
the summing up needs to be clear that, regardless of the absence of evidence of
motive, the onus of proof remains
on the Crown throughout. In particular, the
jury should be directed that it is not for an accused to prove motive –
see R v T [1998] 2 NZLR 257 at 265 – 6 (CA) and R v Adams
CA70/05 5 September 2005 at [71]. The absence of such a direction will not
always lead to an appeal being allowed. The critical
issue is whether there is
a risk that the jury may view the burden of proof as being shifted from the
Crown – see R v Hayman CA478/05 23 June 2006 at [32]. In R v M
it was held at [11] that, where the inquiry by the prosecutor as to motive
is made briefly and in a low key way and the point is not
made a special feature
of the Crown’s closing address, no specific directions to the jury (over
and above the normal directions
on onus and standard of proof) will be
necessary.
[126] In this case, the questioning by the prosecutor was anything but brief and the absence of a motive to lie was stressed in the closing address. The Judge, however, gave no specific direction that it was not for Mr E to prove motive. Instead, he repeated the Crown submission that there was no motive for the complainant or her brother to lie. He then said:
The Crown asks the somewhat rhetorical question “why would they
lie?” There is no one even in the accused’s family
that suggests any
possible reason for that and indeed it would appear from the evidence that up
until about a week before the complainant
made her original complaint to the
Police, her family and the accused’s family were good friends.
[127] Given the stress put by the prosecutor on lack of motive both in
questioning and closing, this was a case that called for
a strong direction from
the Judge that it was not for Mr E to prove motive and that the onus of proof
was on the Crown to prove the
charges. It may even have been appropriate to
direct that lack of evidence of motive does not equate to lack of motive –
see
the discussion at [57] above.
[128] Instead of giving an appropriate direction, the Judge repeated the
prosecutor’s submissions. The passage set out above
at [126] could even
have been taken as putting some onus on Mr E to show a motive for the
complainant and her brother to lie, an
obvious (and major)
misdirection.
Was it appropriate for the Judge to comment on
corroboration?
[129] In the course of commenting on Mr Calver’s address the Judge
said that there was no need for any corroboration of the
complainant’s
evidence. The jury could convict if satisfied about the truthfulness and
credibility of the complainant’s
evidence “supported as you may
think by her brother in a somewhat peripheral way”.
[130] Mr Calver had concentrated in closing on what he asserted were the dangers of convicting on the uncorroborated evidence of a seven year old. There is, of course, no need for corroboration of a complainant’s evidence – see s 23AB of the Evidence Act 1908 and s 121(2) of the Evidence Act 2006. See also Cross on Evidence at [9.38]. Nor is there any special caution to be applied in assessing a child’s evidence – see s 23(H) of the Evidence Act 1908 and s 125 of the Evidence Act 2006. See also Cross on Evidence at [8.11]. The submission was therefore a risky one, particularly as there was corroboration of an important part of the complainant’s evidence by her brother, S. Concentration on the lack of corroboration risked an adverse comment by the Judge (and the comment made by the Judge could legitimately have been stronger and more extensive).
Did the Judge give appropriate directions on the medical
evidence?
[131] The medical evidence in this case was introduced in an
unorthodox manner - by part of the medical report being read
into evidence by
the officer in charge. The report said that the examination of the
complainant’s hymen showed it to be normal.
It went on to say that this
is a neutral finding which neither confirms nor refutes the complainant’s
disclosure but is consistent
with it. The doctor then said that penetration
through the labia but not through the hymen is unlikely to cause any permanent
physical damage. However, there may be transient redness or soreness
to the area.
[132] Mr Calver, in his closing address, made the submission to the jury
that the complainant had given evidence of full penetrative
sex that had
happened “heaps of times”. He invited the jury to use their common
sense and infer that the child’s
hymen would have been damaged if that had
been the case. He also said:
... [T]he doctor said that the finding that the hymen was intact was a
neutral finding but she also said that this is a neutral finding
which neither
confirms nor refutes [the complainant’s] disclosure but is
consistent with her disclosure. Many
forms of sexual abuse
particularly fondling and penetration through the labia but not through the
hymen is unlikely
to cause any permanent physical damage, however there may be a
transient soreness or redness to the area. But you see it’s
not what
we’re talking about. We are talking about penetrative sex where it went
right in.
And she also said that it happened heaps of times. So that’s evidence
which I ask that you think very carefully about because
in my suggestion that
it’s not a neutral finding but a pretty powerful indicator of
innocence.
For a five-year-old to have repeated penetrative intercourse and still have
an intact hymen at the end of that, seems just astonishing.
...
[133] The Judge said in relation to Mr Calver’s submission that the
jury should look closely at what the doctor said. He
then repeated the
doctor’s evidence that the lack of damage to the hymen was consistent with
the child’s disclosure and
the doctor’s comment about penetration
through the labia. He continued:
[84] So when you have medical evidence such as this, you cannot speculate, you cannot use your common sense or your own knowledge as counsel said of your own experience of your own bodies or your own children’s bodies. That is because you have the doctors report on a medical examination which tells you as it is and you cannot speculate on other issues such as those were raised before you by Mr Calver.
[134] Not only did the Judge fail to give a standard direction on expert
evidence, he appears to be saying in this passage that
the jury were obliged to
accept the doctor’s evidence. While unchallenged expert evidence is not
to be arbitrarily put aside
by a jury to substitute an impression of their own
in cases outside of normal jury experience, the jury is not bound to adopt the
views of an expert. The expert evidence must be assessed in the context of the
evidence as a whole. See R v Smith (1995) 12 CRNZ 616 at 623 (CA), R
v Rotana (1995) 12 CRNZ 650 at 655 (CA) and Freckleton and Selby Expert
Evidence: Law, Practice, Procedure and Advocacy (2ed 2002) at 309 - 312.
The whole point of the standard direction on assessing expert’s evidence
is to make the above position
clear. What the Judge said in this case was a
major misdirection.
[135] Mr Calver was arguably not, in any event, asking the jury to
reject the doctor’s evidence. He was merely
submitting that the
explanation given by the doctor for lack of damage to the hymen (fondling and
penetration through the labia
but not the hymen) was not an explanation in this
case. There was certainly an evidential basis for the submission that the
complainant’s
evidence was of full penetrative sex. She said “he
sometimes puts his privates right into mine”. Having said this,
we
consider that Mr Calver should, if he wished to make the submission set out
above at [132], should have required the doctor’s
evidence to be given
orally. He should then have cross-examined the doctor on the submission he
wanted to make from a medical perspective.
Ideally, as Mr Calver now concedes,
he should have called medical evidence on Mr E’s behalf. What the jury
were left with
in this case was medical evidence that lack of damage to the
hymen was a neutral finding with no challenge to that assertion in
cross-examination
and no medical comment on Mr Calver’s submission. This
was unsatisfactory.
[136] Before we leave this topic, we note that the doctor’s report said that the fact that there was no damage to the hymen was “consistent with” there having been sexual violation. In ordinary English usage (as against medical/scientific usage) “consistent with” suggests that the presence of the factor points (at least in some measure) to sexual violation having taken place. We do not understand the medical evidence to be suggesting that this is the case. It is our understanding that what is really meant (in ordinary English usage) is that lack of damage to the hymen does
not exclude (or is not inconsistent with) there having been sexual violation,
particularly if it is minimally penetrative.
[137] We consider it better in future for medical professionals either to
give their evidence in words that accord with ordinary
English usage or for the
meaning of “consistent with” in medical usage to be explained
– see Doctors for Sexual
Abuse Care The Medical Management of Sexual
Abuse (5ed 2002) at [10.4.3]. They should also, in their evidence, point
(at least briefly) to the research (and/or individual or combined
clinical
experience) that provides the basis of their evidence – see R
v Carter (2005) 22 CRNZ 476 at [47] (CA). If this is not done then the jury
have no means of assessing the evidence. They are basically being asked to
accept
the evidence on trust just because it comes from an expert. The part of
the doctor’s report read into evidence did not meet
the standards set out
in Carter but, of course, that could well have been the result of the
unusual manner in which the doctor’s evidence came before the
Court.
[138] The doctor in this case also said that absence of damage to the hymen is a neutral factor. We question whether the absence of damage to the hymen is really neutral (apart from in cases of minimal penetration). Where there has been full penetrative sexual violation (particularly repetitive) of a very young girl, damage to the hymen (although even then not always present) must be more likely than in cases where there has been no sexual violation at all – see the discussion, for example, in David Wells, “Forensic Medicine: Issues in Causation” in Freckelton and Mendelson, Causation in Law and Medicine (2002) at 309, at 322 – 324. See also the discussion in the Medical Management of Sexual Abuse Section 6, C and D, at
34 – 38.
Was the summing up unbalanced?
[139] We accept Mr Calver’s submission that the summing up was unbalanced. The prosecutor’s address was summarised in detail with no adverse comment, even though such comment would have been warranted on a number of points, such as the Crown’s submission on the complainant’s naivety. By contrast, the Judge made adverse comments (some unwarranted) on just about every point Mr Calver made.
Further, some of the comments were on factual matters (and the usual
direction as to the jury being able to ignore those if they did
not agree with
them had not been given). The adverse comments by the Judge permeated the whole
of the discussion of the defence
case and thus served to obscure the discussion
of that case. This created a real risk of a miscarriage of
justice.
Did the Judge misrepresent Mr Calver’s argument in closing as to
what the jury had to decide?
[140] At the end of his summing up, the Judge suggested that Mr Calver had
said in closing that it was a straight contest between
what the complainant said
and Mr E’s evidence. He said:
[92] There are of course a number of other factors that you will have to
consider when you retire to consider the evidence at
this trial, but at the end
of the day counsel suggests to you that it is a straight contest. If you are
certain from [the complainant’s]
evidence that she was raped on multiple
occasions by the accused, then you would convict.
[93] However, that means in turn that you would have rejected [Mr
E’s] evidence and indeed that of his mother and his father
on the basis
they were telling lies. In fact he commends their evidence to you on the basis,
in his view, it has the very ring of
confidence.
[141] It is a misdirection to suggest that there is a straight contest
between the evidence of a complainant and an accused. There
is no onus on an
accused to prove anything. Where an accused gives evidence, he or she is
entitled to be acquitted if his or her
evidence raises a reasonable doubt. He
or she is even entitled to be acquitted if the jury disbelieves his or her
evidence but
the Crown has nevertheless not proved its case to the requisite
standard.
[142] What the Judge said was, in any event, a misrepresentation of Mr Calver’s submission in closing. Mr Calver had, in effect, repeated the standard tripartite direction. It is extremely unfortunate that the last impression left with the jury was that of a straight contest between the evidence of Mr E and that of the complainant and, what is more, to have that represented as a defence submission. This, by itself, might have led to the appeal being allowed, despite the Judge’s earlier orthodox directions on the onus and standard of proof and on assessing Mr E’s evidence.
Should the Judge have warned the jury that they could not convict on the
basis of suspicion?
[143] The danger in this case was that the jury might indulge in
erroneous speculation, taking the view, for example,
that the inability of the
complainant to discuss or remember the details of the alleged offending might
be explained by trauma
associated with the offending. It is also a case where
they could well have considered that something may have occurred between
the
complainant and Mr E (for example indecent assault or indecent exposure by Mr E
putting his penis “near” her vagina)
even if it did not amount to
being raped “heaps”.
[144] In our view, this was a case where the jury should ideally
have been specifically warned that they could
not convict on the basis
of suspicion and reminded that they could only take account of the evidence
actually before the Court
and that, in order to convict, that evidence must have
left them sure that the offence actually charged had been committed by Mr
E
and within the timeframe in the indictment. This is particularly the case
because the prosecutor effectively invited the
jury to speculate on further
evidence that could have been given by the complainant and her brother - see at
[58] - [60] above.
Should we reconsider our order for a retrial?
[145] As noted above at [5], Mr Calver has asked us to reconsider our order
for a retrial in this case. It seems to us that this
request must be treated as
an application for us to recall our judgment of 21 November 2006. Mr Calver
should, as soon as possible,
file a formal application to that
effect.
[146] That application should be set down for an oral hearing before us as soon as possible. The hearing will cover whether there is jurisdiction for such a recall, whether it should be exercised, the principles relating to when retrials should be ordered, whether we should withdraw the order for a retrial in this case and, if so, what should be substituted.
[147] It may be of relevance to the jurisdiction question that we do not
recollect having heard from the parties on 20 November
2006 in any detail on the
question of whether a retrial should be ordered. We also refer to our comments
at [68] and [73].
Result and timetable for further submissions
[148] For the above reasons, the appeal was allowed.
[149] The parties have leave to file any further submissions on the
application for recall of our judgment of 21 November 2006 to
deal with any
matters arising out of these reasons for judgment that are relevant to that
application.
[150] These further submissions should be filed and served in accordance
with the following timetable:
(a) Mr E’s submissions and his formal application for the recall of
our
21 November 2006 judgment must be filed and served on or before
20 June 2007;
(b) The Crown submissions must be filed and served on or before 27
June
2007.
Solicitors:
Crown Law Office, Wellington
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