R v Tanner [2007] NZCA 391 (6 September 2007)

Last Updated: 31 December 2014

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA82/07 [2007] NZCA 391

THE QUEEN

v

MALCOLM VINCENT TANNER

Hearing: 23 July 2007

Court: Wilson, Panckhurst and Venning JJ Appearances: N J Sainsbury for Appellant

D La Hood and J Murdoch for Crown

Judgment: 6 September 2007 at 10am

_{JUDGMENT OF THE COURT}

_{The appeal against conviction is dismissed.}

REASONS OF THE COURT

_{(Given by Panckhurst J)}

R V MALCOLM VINCENT TANNER CA CA82/07 6 September 2007

Indecency and unlawful sexual connection convictions

[1] Following trial the appellant was found guilty upon two charges of indecency with a child aged six, being acts of touching the child’s genitalia and vice versa, and one charge of sexual violation by connection between the appellant’s mouth and the child’s genitalia. A sentence of four years imprisonment resulted.

[2] This appeal against conviction is based on two discrete grounds. The first ground concerns the process by which child complainants promise to tell the truth, and in particular the practice of the trial Judge undertaking that inquiry in the presence of the jury. Counsel argued that the established practice of undertaking this inquiry in the presence of the jury was wrong because it caused prejudice to the accused. An ancillary argument was raised, that if the established practice was not wrong in principle, the manner in which the trial Judge conducted the inquiry in this instance, occasioned prejudice and a miscarriage of justice.

[3] The second ground of appeal is that Judge Gaskell erred in ruling pursuant to s 23A of the Evidence Act 1908 that the complainant could not be cross-examined concerning an event involving the complainant and another young boy which occurred while the appellant was the driver of a car in which they were travelling. It is contended that leave was not required and in any event the decision to disallow cross-examination was wrong.

A competence inquiry in the presence of the jury

The New Zealand approach

[4] In R v Accused (CA245/90) [1991] 2 NZLR 649 (CA) this Court held that it was the duty of the trial Judge to examine a child complainant in the presence of the jury as to his or her understanding of the obligation to tell the truth in the trial situation. The Court cautioned against a lengthy interrogation and against “seeking definitions of words or concepts” (at 653). It added that if, as the evidence unfolded, the complainant’s evidence was found to be unsatisfactory, then the Judge had statutory powers designed to meet that situation. Finally, the Court indicated that in summing up the Judge should tell the jury that children were not disqualified simply

by age alone and that there is no precise age which determines competency. Rather, this depended on the child’s capacity and intelligence, the child’s understanding of the difference between truth and falsehood, and of the duty to tell the truth. In the end, as with all witnesses, it is for the jury to assess the credibility of the child’s evidence.

[5] This approach has been followed in innumerable cases. We are not aware that it has occasioned difficulty. Nonetheless, Mr Sainsbury argued that the current New Zealand trial practice should be reviewed and to that end it may be appropriate for a Full Court to be convened.

[6] We decided it was appropriate to hear argument on the question which, unfortunately, did not extend to the position under the Evidence Act 2006. As we shall explain, the new Act effects far reaching change. This means that it is inappropriate to review existing trial practice, when the required approach from now on may be very different.

[7] In order to decide this appeal and in deference to Mr Sainsbury’s submissions we shall first consider the grounds of appeal and then return to the position under the new Act.

The English approach

[8] The practice in England, until comparatively recently, was similar to the established position in New Zealand. In R v Reynolds [1950] 1 All ER 335 the Court of Criminal Appeal found that it was “exceptional” for any evidence to be given otherwise than in the presence of a jury, so that a competency hearing concerning a girl aged 11 conducted in the absence of the jury constituted an irregularity requiring that a conviction be quashed.

[9] However, that decision occasioned criticism in a note in the Law Quarterly Review ((1950) 66 LQR 157) by A L Goodhart. The thrust of the note was to the effect that competency was an issue for the Judge alone and that if the jury was exposed to the process there was an unacceptable risk that evidence as to

competency may be improperly used with reference to credibility (the jury’s function).

[10] In R v Hampshire [1995] 2 All ER 1019 the Court of Criminal Appeal doubted the analysis in Reynolds, essentially on the basis that it purported to be based on R v Dunne [1929] 21 Cr App R 176 (CCA), when that case did not actually concern the issue of competency. In Hampshire the Court held at 1028 that:

... a judge who considers it necessary to investigate a child’s competence to give evidence in addition to or without the benefit of an earlier view of a videotaped interview under s 32A of the 1988 [Criminal Justice] Act, should do so in open court in the presence of the accused because it is part of the trial, but need not do so in the presence of the jury. The jury’s function is to assess the child’s evidence, including its weight, from the evidence he or she gives on the facts of the case after the child has been found competent to give it. The exercise of determining competence is not a necessary aid to that function.

The Court added that the Judge should remind the child of the importance of telling the truth in the presence of the jury.

[11] Hampshire was decided in the context of a video-taped evidential interview in which the competency of the child was the subject of inquiry by the interviewer at the commencement of the interview.

[12] Since the passage of the Youth Justice and Criminal Evidence Act 1999 the position in England has been confirmed by statute. Section 54 deals with the question of witness competence and subs (4) provides that the determination of the question of competence “shall take place in the absence of the jury (if there is one)”.

The Australian approach

[13] Mr Sainsbury also drew our attention to decisions in a number of other jurisdictions. The High Court of Australia in R v Demirok [1977] HCA 21; (1977) 137 CLR 20, held that a jury should not be exposed to the process by which a wife was examined concerning her preparedness to give evidence at the trial of her husband for murder. The wife was a competent, but not compellable, witness. The approach advocated in the Law Quarterly Review note to which we have referred was endorsed, and

Reynolds was criticised. The majority (Barwick CJ dissenting) held that the inquiry in the presence of the jury by which the wife elected not to give evidence gave rise to such prejudice as to require a retrial.

[14] In addition to Demirok, Mr Sainsbury referred to cases decided in New South Wales, Victoria, Queensland and South Australia, in all of which child competency was viewed as an issue to be determined by the Judge and in the absence of the jury.

The Canadian approach

[15] By contrast, in R v Ferguson (1996) 112 CCC (3d) 342, the British Columbia Court of Appeal reviewed the practices in England and Australia and concluded that a competency hearing in the presence of the jury did not necessarily compromise a fair trial (although the conviction was set aside on other grounds). Finch J in delivering the judgment of the Court said this:

33 I think there may be much to recommend conducting the inquiry in the jury’s presence. This inquiry is somewhat analogous to the voir dire held into whether an expert witness is qualified to give opinion evidence on a certain subject matter. Juries hear that evidence even though it is for the judge to decide whether the witness is qualified to testify as an expert, because experts’ evidence on their qualifications is relevant to their credibility and hence to the weight juries may attach to the experts’ opinions if they are permitted to give them. In the case of a child witness, the evidence given by a prospective child witness on a s.16 [of the Canadian Evidence Act 1985] inquiry may very well assist the jury in weighing the child’s evidence on the substance of the complaint if she is subsequently found competent to testify. For child witnesses, the questions of competence

– to be determined by the judge – and of credibility – to be determined by the jury – are tightly entwined. Evidence relevant to one issue will be

relevant to the other. This distinguishes inquiries into the competence of

child witnesses from inquiries into the competence of alleged spouses.

34 The only reason for not conducting the inquiry under s.16 in the jury’s presence would be the possibility of prejudice to an accused if the child were found by the trial judge to be not competent to testify. It is not clear to me that such prejudice would necessarily arise. In such circumstances, the jury would know the evidence on which the child was held to be not competent. That evidence need not, however, include any inquiry into the substance of the child’s complaint. The possibility of prejudice to an accused is a matter to be discussed by the judge with counsel before the s.16 inquiry occurs.

35 While it may be advantageous, therefore, in some cases, to conduct the s.16 inquiry in the presence of the jury, it was not a reversible error in this case to conduct that inquiry in the absence of the jury. Clearly the

inquiry must be conducted in open court, but I see nothing in the legislation to require that the inquiry be held in the presence of the jury.

We shall return to these observations shortly.

The approach in Pennsylvania

[16] Finally, counsel referred to a decision of the Supreme Court of Pennsylvania (Commonwealth of Pennsylvania v Washington, 554 Pa 559, 722 A 2d 643 (1998)) in which a conviction was quashed because child competence was determined in the presence of the jury. The Court said that:

We go a step further than our sister jurisdictions and create a per se rule requiring the trial court to conduct a competency hearing in the absence of the jury.

Some observations

[17] As this review shows, there is some diversity of approach, although predominantly other jurisdictions favour the view that because competency is a legal question for the Judge, its determination should occur in the absence of the jury, albeit that a promise from the witness to tell the truth remains a prerequisite in the presence of the jury.

[18] We, however, agree with the observations of the British Colombia Court of Appeal in Ferguson. That is, an inflexible rule is inappropriate. Where competency is seriously contested, whether on account of immaturity or intellectual capacity, there may well be advantage in a hearing in the absence of the jury. Given that child complainants typically disclose alleged abuse at a video-taped evidential interview, it is generally known in advance of trial whether competency is seriously in issue. In such cases there may be a need for expert evidence and for the complainant to give evidence of a kind which it is inappropriate for the jury to hear unless and until competence is established.

[19] Where, however, a real challenge to the child’s competence is not indicated, there still remains the need for a promise to tell the truth and that process should occur in the presence of the jury.

[20] It may be that the various authorities (save for Ferguson) suffer from a failure to observe the distinctions which can arise with reference to a competency inquiry. We read the various cases from other jurisdictions as accepting that, even where competency is determined in the absence of the jury, the child’s promise to tell the truth is an essential requirement in the presence of the jury. It follows, we think, that in the run of cases where competency is not the subject of serious dispute, it is preferable for the Judge to question the child and obtain the required promise in the presence of the jury. Otherwise, the child is subjected to a similar process twice.

[21] Incidentally we do not read this Court’s decision in R v Accused (CA245/90) as authority for the proposition that where the competency of a complainant is to be seriously contested a hearing in the absence of the jury is not an option. The voir dire is a settled trial process, invariably available where a trial Judge is requested to make a ruling as to the admissibility of evidence.

[22] Equally, R v Accused (CA245/90) does not say that if the inquiry to establish a child complainant’s capacity to promise to tell the truth occasions prejudice to an accused, this Court may not intervene. It may, and it therefore remains, therefore, to examine the process which occurred in this instance.

The Evidence Act 2006

[23] Before we turn to the ancillary argument, it is necessary to refer to the new Act. In it, the concept of competency is replaced by one of eligibility. To that extent the above discussion is now out of date. The Act provides that in both civil and criminal proceedings, "any person is eligible to give evidence": s 71(1)(a). Nonetheless, ss 77(1) and (2) contemplate that, generally speaking, witnesses aged

12 or over will take an oath or affirmation, while those under 12 years will make a promise to tell the truth.

[24] The removal of the competence requirement reflected a recommendation of the New Zealand Law Commission Report, Reform of the Law (NZLC R55 1999). The new starting-point, therefore, is that eligibility is assumed. We envisage, however, that if a young child is unable to give coherent evidence a Judge will still

retain a discretion to exclude the testimony under s 8 of the Act (the general exclusion provision). We note in this regard the view expressed in the New Zealand Law Society, June 2007 seminar publication on the Evidence Act 2006 at p 200:

A decision to exclude evidence on these grounds may be made at any time, although a pretrial inquiry will generally be preferable.

We agree, and for the reasons discussed previously (para [18]).

[25] With reference to testing a child’s understanding of truth and lies, and ability to make a promise, there is no longer any such requirement. Eligibility (competence) is assumed. At the evidential interview stage reg 8(d) of the Evidence Regulations 2007 applies. The interviewer must simply inform a child under 12 years of the importance of not telling lies, and obtain a promise (in any form) to tell the truth. Regulation 49 enables a trial judge to warn, or inform, a jury about evidence given by very young children (under six years). All of this underlines the extent to which trial practice will change under the new Act, with the result that this main aspect of the first ground of appeal is now of largely historical interest.

Was the competency inquiry inappropriate in this case?

The arguments

[26] The thrust of Mr Sainsbury’s argument under this head was that there was such a degree of interplay between the Judge and the child witness, that the complainant was “personalised” and received “a sympathetic endorsement” from Judge Gaskell. Moreover, towards the end of the process the Judge said:

I think you know the difference between truth and lies.

This, submitted Mr Sainsbury, amounted to the trial Judge’s personal assessment, which could have been interpreted by the jury as meaning “I think you will tell the truth”.

[27] And, in the context of a case which hinged on the credibility of the complainant, and that of the appellant (who gave evidence before the jury), the “head

start” which the complainant enjoyed was highly significant, and prejudiced the trial process so as to give rise to a miscarriage in Mr Sainsbury’s submission.

[28] Mr La Hood submitted that the distinction between establishing an ability to tell the truth, and truthfulness itself, would have been obvious to the jury. There was, counsel said, nothing inappropriate about the manner in which the Judge verified the complainant’s appreciation of truth and lies, and obtained a promise to be truthful. Questions were asked in an age appropriate manner and the Judge sought to place the child at ease in a strange environment, but, at the same time, to establish his appreciation of the solemnity of the occasion and the need for truthful answers.

Our conclusions

[29] At the invitation of counsel we listened to an audio tape of the competency inquiry. We also had the benefit of a transcript, but this, of course, lacked the colour which was evident from the recording itself. The Judge began by asking the complainant his age (7 years) and whether he had eaten some coloured sweets, which resulted in a request for him to show the jury his tongue. When the complainant did so there was some laughter from the jury. At that point the Judge asked some conventional objective-based questions in order to demonstrate that the complainant understood the concepts of truth and lies. At that point attention was turned to the meaning of, and need for, a promise to tell the truth. After the witness demonstrated his awareness of the meaning of a promise (by reference to a concrete example), the Judge obtained the required promise.

[30] We are not persuaded that the inquiry had the capacity to prejudice a fair trial. In particular, we do not think that it gave rise to the risk that the Judge would be seen by the jury as having indirectly endorsed the complainant’s credibility. There was an element of levity as a rapport was established with the child, but equally the exchanges culminated in the Judge conveying to the witness the importance of the occasion and the need to be truthful.

[31] In summing-up, Judge Gaskell gave a conventional direction concerning functions and thereby stressed that it was for the jury to determine the credibility of witnesses. In addition, she gave this direction concerning the approach to a child’s evidence:

[47] [The child] is obviously a very young witness. There is no particular age at which someone becomes able to give evidence. A witness, before he is able to give evidence needs to understand the difference between truth and lies and he needs to be able to promise to tell the truth and you saw me go through that with [the child] to establish that he was competent in that way.

[48] There are no special rules for you to apply when you are considering the evidence of a child. You can take into account his age and his ability to understand times, dates, things of that kind, but, as with any other witness it is for you to decide by using your common sense and your wisdom, whether [the child] was being truthful and whether he was a reliable witness and how much weight you can give to what he told you.

Hence, we are satisfied the competency inquiry was placed in its proper perspective and the need to assess the complainant’s evidence with care was suitably emphasised.

[32] For these reasons we do not accept the argument that the competency inquiry was conducted in a manner which was unfair to the appellant, much less that it calls in question the correctness of this Court’s decision in R v Accused (CA245/90).

The s 23A ruling

The complaint

[33] In his written submission Mr Sainsbury outlined the intended evidence in this way:

Application was made ... to cross-examine the complainant about an incident where the appellant was driving a car containing the complainant and a friend of a similar age in the rear seats. The appellant saw the two playing some sort of game that involved the two boys grabbing at each other’s crotches. The behaviour was enough for the appellant to tell the two to stop.

Leave to cross-examine the complainant on this topic was sought pursuant to s 23A of the Evidence Act 1908. Counsel argued that the Judge was wrong to decline leave and that, in the result, a miscarriage of justice was occasioned.

The Judge’s ruling

[34] In her oral ruling the trial Judge said this:

[4] What is alleged by the Crown is that the accused performed oral sex on the complainant, that he touched his penis, and that he induced the complainant to touch his (the accused’s) penis.

[5] The evidence the defence proposes to adduce and the related questioning of the complainant is capable of coming within the term “the sexual experience of a complainant with any person other than the accused”. I do not accept that the evidence of two boys, fooling about, fully dressed, in the presence of an adult, bears any similarity to the alleged offending which is said to have occurred at the complainant’s home when his mother was out and he and the accused were alone there, when the accused closed the lounge curtains and shut the door to ensure privacy, and when he undressed both himself and the complainant before initiating the alleged sexual conduct.

[6] The question Mr Sainsbury proposes to put is in my view, not of such direct relevance to the facts in issue in the proceeding that to exclude it would be contrary to the interests of justice. It would not be prejudicial to the defence case to exclude it from evidence and therefore leave is refused under s 23A(2).

[35] The gist of the argument advanced by counsel was that exclusion of the evidence denied the appellant a legitimate opportunity to demonstrate how the complainant (aged 6 at the relevant time) would have knowledge of sexual matters, even absent his involvement in the acts alleged. Hence, it was said, the appellant was denied the opportunity to pursue a legitimate and probative line of inquiry.

Was the ruling in error?

[36] Section 23A(2) provides that evidence shall not be given, and no question shall be asked of a witness, relating directly or indirectly to their sexual experience with any person other than the accused, except with leave. We think it is distinctly arguable that the intended questions fell outside the ambit of s 23A(2).

[37] The real issue was whether the intended questions were sufficiently relevant to any issue in the case. In a sense, the trial Judge founded her ruling on the question of relevance, when she said that the intended topic was not of such direct relevance to the facts in issue as to make exclusion of the evidence contrary to the interests of justice. But this approach, based on s 23A, presupposes that the intended questions were of some relevance, although not sufficiently so to meet the statutory threshold.

[38] We prefer to assess this ground of appeal on a straight relevance basis. Whether the intended questions were meaningfully relevant to the issue of the complainant’s knowledge of sexual matters we very much doubt. But, certainly, we think that denial of this line of inquiry did not entail the risk of a miscarriage of justice.

Result

[39] For these reasons the appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington