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R v E (CA308/06) [2007] NZCA 404; [2008] 3 NZLR 145; (2007) 23 CRNZ 976 (12 June 2007)

Last Updated: 31 December 2014

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

ORDER FOR INTERIM SUPPRESSION OF THE NAME AND IDENTIFYING DETAILS OF THE APPELLANT.


IN THE COURT OF APPEAL OF NEW ZEALAND



CA308/06 [2007] NZCA 404



THE QUEEN




v




E (CA308/06)




Hearing: 20 November 2006 and 5 July 2007

Court: Glazebrook, John Hansen and Harrison JJ Counsel: G W Calver for Appellant

M A Corlett for Crown on 20 November 2006

C L Mander for Crown on 5 July 2007

Judgment: 21 November 2006

Reasons for Judgment: 12 June 2007 at 4pm

Judgment and Reasons for Judgment recalled and re-issued: 11 September 2007 at 4pm


JUDGMENT OF THE COURT



A The appeal is allowed, the conviction quashed and a verdict of acquittal

entered.





R V E (CA308/06) CA CA308/06 [11 September 2007]

  1. Order prohibiting publication of the name and identifying details of the appellant for a period of five working days from the date of re-issue of

this judgment.












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 there be an order for a retrial? [145] Result [182]




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 received the extra material and all of the further written submissions from Mr E and the Crown, we were in a position to give the reasons for judgment on

12 June 2007 - see R v E (CA308/06) [2007] NZCA 234. (We understand that the delay in filing the further submissions arose because it was some months before the Crown received a report on the trial from the prosecutor, Mr J Krebs).

[4] In his further submissions filed after the November hearing, Mr Calver asked the Court to reconsider its order for a retrial. A formal application to recall the November judgment was made on 19 June 2007. There was then a further hearing on 5 July 2007 to consider that application. On 11 September 2007, in [2007] NZCA 403, we granted Mr Calver’s application for a recall of our judgment of

21 November 2006 and our reasons for judgment of 12 June 2007. This is the re-issued judgment.

[5] We divide the re-issued reasons for judgment into the following topics:

(a) The charges;

(b) The complainant’s evidence;

(c) The conduct of the prosecution; (d) The course of the trial;

(e) The summing up; and

(f) Should there be an order for a retrial?



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 during the school term 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?

  1. Um (pauses) when um ... I used to go to [Mr E’s mother’s] house and [Mr E] used to always go and do sex. ...

Q. Okay. When you say he does sex ...

  1. 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 (but see our discussion at [178]). 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.

  1. 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:

  1. And I just need to check on ... you told me that [Mr E] put his private in yours, is that right?

A. (nods).

  1. 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 July 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 or perhaps that she may have been repeating something she had heard and not fully understood. 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 may indicate that she was worried about giving the “correct” answers. 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 would not, however, stop “coaching” being part of the defence case at any retrial or, indeed, stop the risk of possible past or future “coaching” being factored into any decision about whether a retrial should take place.

[30] If a retrial was ordered, 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 [1998] UKPC 38; [1999] 1 AC 210 (PC). (Note, however, that, under the Evidence Act 2006, there are no special rules relating to complaints in sexual cases.

[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 one is ordered and 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] As any retrial would take 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 SS Hontestroom v SS Sagaporack, SS Hontestroom v SS Durham Castle [1927] AC 37 at 49 (HL) and R v Bertrand [1867] EngR 20; (1867) LR 1 PC 520 at 535. 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 with 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 Cornhill on a prosecutor’s duties in Randall v R [2002] UKPC 19; [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:

  1. Can you just, I just want to ask you, did you tell [Mrs B] in that interview, did you tell her the truth about things ...

A. Yes.

  1. Did you. So when you told [Mrs B] that [Mr E] had put his privates in your vagina, is that the truth ...

A. Yes.

  1. And when you told [Mrs B] that he’d done it heaps of times, was that the truth too ...

A. Yes.

  1. And when you said that it made your vagina feel sore, was that the truth ...

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 is relevant to the retrial issue, discussed below at [145] - [181].

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”. The following exchange then took place:

Q. And what did [Mr E] say to you about what he was doing, anything

...

A. um he said to keep it a secret.

Q. Now have you made a mistake about any of that ... A. No.

Q. Well since you said to Mr Calver that you might have made some mistakes you had better tell us what you meant. What sort of things might you have made some mistakes about that you can think of ...

A. I can’t remember.

Q. Do you know why it was when Mr Calver said do you think you have made some mistakes, why do you think you said yes ...

A. no audible answer.

Q. Don’t know, have you made any mistakes about the stuff we’ve talked about, have you made mistakes or not ...

A. um.

Q. Ok. Mr Calver said to you that you can’t really remember what happened. Do you remember he said that, that was his last question

...

A. no audible answer.

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.

Q. But before that, before you had that interview with [Mrs B] had you been to [Mr E’s] house during the last holidays ...

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 will have significance when we come to decide whether there should be an order for a retrial (see at [163] - [171] 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.

Q. Not one. [Mr E’s] given evidence and told us that there was what do you say about that ...

A. Okay well he obviously knows of sometime that I don’t.

Q. Mm so there weren’t any occasions when you found them in there together ...

A. There are no occasions that I know of that they were in there together. [Emphasis added]

[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, as any retrial would occur 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. In our view, this 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 was still a risk that the jury may have drawn 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 a (preferably 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. See in this regard s 32 of the Evidence Act 2006.

[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 (2005) 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:

  1. Finally, [the complainant], you had an opportunity obviously of assessing her personality ...

A. Mm. How are you – Objection – [Crown].

  1. I will put it this way. Did you ever notice any difference in [the complainant’s] behaviour –

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 [26] - [31]. 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 [119]. 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”. Mr Calver 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], 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] NZCA 422; (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 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 there be an order for a retrial?


[145] Section 385(2) of the Crimes Act gives the Court, when it allows an appeal, the discretion to quash a conviction direct a judgment and verdict of acquittal to be entered, to direct a new trial, or to make such other order as justice requires. The question is whether there should be an order for a retrial in this case.

[146] In R v Samuels [1985] 1 NZLR 350 (CA), Cooke J, for the Court, said that this Court has not evolved hard-and-fast rules regarding the exercise of the discretion to direct a new trial. Its approach has been substantially the flexible one recommended by the Privy Council in Reid v R [1980] AC 343 (PC). In Reid, on appeal from the Court of Appeal of Jamaica, the Privy Council said (at 349) that the power to order a new trial should not, “[s]ave in circumstances so exceptional that their Lordships cannot readily envisage them”, be exercised where a reason for

setting aside the verdict is that the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. The Privy Council said that it is not in the interests of justice, as administered under the common law system of criminal procedure, that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant.

[147] At the other extreme, where the evidence against the defendant at the trial was so strong that any reasonable jury if properly directed would have convicted the defendant, the more appropriate course would be to apply the proviso to the equivalent of s 385 of our Crimes Act and dismiss the appeal instead of incurring the expense and inconvenience to witnesses and jurors which would be involved in another trial.

[148] In cases in between those two extremes, the Privy Council said that there will be many factors deserving of consideration, some operating against and some in favour of the exercise of the power. These factors include (see Reid at 350):

The seriousness or otherwise of the offence must always be a relevant factor; so may its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies upon the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial.

[149] Mr Calver, for Mr E, submitted that we should not order a retrial in this case because there are such problems with the complainant’s evidence that any retrial would be unfair and any resulting conviction unsafe. In his submission, there were major problems with the complainant’s evidential interview and these difficulties were exacerbated by what happened at trial. He also expressed concerns about possible “coaching” of the complainant before any retrial. The Crown’s position is that there is no reason for a retrial not to occur.

[150] In order to evaluate Mr Calver’s submission, we start with the evidential interview of the complainant. As we note above at [27], the interview began with a burst of disclosure which provided a bare evidential basis for the charges but virtually no other details were given. The complainant, despite the efforts of an experienced interviewer, said that she could not remember any of those details. She even asserted in the course of the video interview that she could not remember any of the times that she had allegedly been sexually violated – see the passage quoted at [19] above.

[151] We have accepted Mr Calver’s submission that this provided grounds for concern about possible “coaching”, either conscious or unconscious – see at [26] - [31]. In terms of unconscious “coaching”, which may possibly have led to the complainant repeating something she has heard and not fully understood, we note that there was a suggestion during the evidential interview that the complainant may have had knowledge of other alleged sexual misconduct by Mr E - see at [34] – [35]. There was also a suggestion from the prosecutor in the course of the trial that the complainant and her brother “could have said a whole lot more stuff, mind you”, which may also refer to other alleged misconduct - see at [58]. The concern about “coaching” was exacerbated by the complainant’s apparent suggestibility, which was commented on by both counsel and by the Judge at trial - see at [28] and [119] above.

[152] We also accept Mr Calver’s submission that the complainant’s unreliable memory was not confined to the allegations themselves but extended beyond that. For example, she said that she did not remember what she had said to her mother about the offending. The exchange went as follows:

Q. Okay. I wonder what you remembered about telling your mum? A. (Shakes head) Can’t remember.

Q. I wonder when you told mum about it? A. Um not very long ago at all.

Q. Mm Mm. And how come you told your mum, when you did? A. Um can’t remember.

  1. What had been happening before that... um that you thought about it to tell mum?

A. Um (pauses) can’t remember.

  1. Were there any more things that you told your mum about than you’ve told me?

A. Um. I told you right until he stopped doing it..? Q. You..

A. But, most of the things I can’t remember at all.

Q. I wonder if you’re able.. are you able to write any of it down? A. (Shakes head).

  1. I know you mightn’t be able to spell everything, but... I wonder if you are able to write anything down?

A. (Shakes head).

[153] The difficulty the complainant had in remembering what she told her mother is a little surprising. The video interview occurred on 1 September 2005 and she made the disclosure to her mother in August 2005.

[154] In cross-examination at trial, the complainant also had difficulty in remembering any of the places where Mr E and his family had lived. The following exchange took place:

  1. Okay now, you say these things happened with you and [Mr E] is that right?

A. Yeah.

Q. And they all happened at [Mr E’s] house. A. Yeah.

Q. Now can you remember his other houses? A. No.

Q. Can you remember going to houses before the last one? A. Yes.

Q. Okay. Do you know where they were, these houses? A. No.

Q. How many houses can you remember? A. None.

  1. None. Can you remember which street the house was [that] these things you say happened in?

A. No.

[155] We also accept Mr Calver’s submission that there were inconsistencies in the complainant’s evidence. The first inconsistency related to her age when the alleged offences occurred. This exchange took place in cross-examination:

  1. Did all these things happen when you were five or could they have happened when you were six or four or three or when?

A. Only when I was five.

[156] In re-examination, however, the complainant said that she had stayed at Mr E’s house during the last holidays and that some of the “stuff” happened when she was five and some happened when she was six. This was consistent with what she had said in her video interview.

[157] There was also inconsistency between what the complainant said in cross-examination about whether her mother was present in Mr E’s house at the time of the offending and her evidence in the video interview and in re-examination. In the video interview, the complainant stated that her mother had sometimes been there talking in the lounge with Mr E’s mother when “these things happened”. In cross-examination the complainant said that she was sure that the alleged offending had happened when her mother was in the house talking to Mr E’s mother. In re-examination, she agreed that “stuff” happened sometimes when her mother wasn’t there.

[158] Further, there was a difficulty with the complainant’s evidence as to how often the alleged offending had occurred. Her evidence was that the alleged offending had happened “heaps”. She agreed in cross-examination that heaps meant “hundreds of times”. It is clear from the initial part of the video interview, where the interviewer was testing her understanding of various concepts, that the complainant knew what “heaps” meant. She also said in that earlier part of the interview that she

could count up to 1,001. This presumably means that she knew what “hundreds”

were as well.

[159] As indicated at [8] - [12], the complainant’s evidence appeared to be that the offences had only occurred in the school holidays. In the period covered by the first charge the only school holidays were the immediate Easter break and the holidays in the second half of April. In the period covered by the second charge the only relevant school holidays were in July – see at [12]. There was a discrepancy between the evidence of the complainant and the evidence of Mr E’s mother as to how often the complainant was at Mr E’s house in the holidays. The complainant said that she went to Mr E’s mother’s house nearly every day, while Mr E’s mother’s evidence was that she looked after the complainant and her brother for a maximum of four or five days in the holidays – see at [10]. Even on the complainant’s evidence, however, she was not looked after every day of the holidays by Mr E’s mother.

[160] It also seems to have been accepted at trial that there were occasions during those holidays when Mr E was working or undertaking other activities. Mr E’s mother said, for example, that on one occasion in the July school holidays they had all watched movies together but that Mr E had to leave for work halfway through the movie. This evidence is not inherently implausible.

[161] Given the relatively limited period in which the offences could have occurred, it appears unlikely that these offences could have happened “heaps”, let alone “hundreds of times” as the complainant alleged. This is reinforced by the fact that Mr E’s mother said that, in the course of her daily activities, she passed Mr E’s room frequently on her way to the bathroom. She also said that she checked on the children in her care regularly. There seems no reason to doubt this evidence. Mr E, if he did commit the offences, would have to have been careful to pick times when his mother was likely to be otherwise engaged.

[162] While it is true, as the prosecutor pointed out to the jury in his closing address, that it was necessary for the Crown to show only that the offences had happened once during the relevant period of each representative charge, the fact that

the complainant’s evidence exaggerated the frequency of the alleged offending is nevertheless relevant in the assessment of the complainant’s credibility and reliability. We also note that, if, despite the limited opportunity, the offending had occurred “heaps” or “hundreds” of times, this makes the complainant’s inability to remember any details at all very surprising, particularly given that the last occasion when the alleged offending occurred was relatively recent. The video interview took place on 1 September 2005 and the last alleged offending occurred during the July holidays which commenced on 8 July 2005 and finished on 25 July 2005.

[163] While the inconsistencies and other memory lapses may not have been significant in the context of a trial where the complainant had been able to provide more details of the alleged offending, they assume greater importance in the light of the paucity of detail as to the alleged offending in the complainant’s evidence. There was, however, a much more fundamental problem with the complainant’s evidence as it was given at trial.

[164] We point to the exchange with Mr Calver at the end of his cross-examination

- see at [28] above. As we note at [73], arguably that exchange amounted to an effective recantation of the complainant’s evidence. Mr Mander, for the Crown, submitted that the passage was too vague to be counted as a recantation. That would probably have been the case had the complainant’s evidence in her video interview been a detailed recital of the events that she alleged had happened. However, as we note above, this was not the case.

[165] Any details were incredibly sparse. Therefore, there was not very much that she might have got “wrong a bit”, apart from the very bare bones of the allegations. These were that Mr E put his privates near hers and that he sometimes put his penis in her vagina. The complainant also stated that he tried to get her to touch his privates but that she never did. She said that the offending had happened “heaps of times” since Mr E moved into his new house, that her vagina felt sore when it happened and that Mr E had told her not to tell anyone.

[166] In re-examination the complainant, without prompting from leading questions, reaffirmed that her allegation that Mr E put his penis “near” her vagina

and that he had told her to keep it a secret - see at [70] above. She also (although this evidence had been led in examination-in-chief) volunteered the information that her vagina was sore when this happened. The complainant had already confirmed in cross-examination that these things had happened “heaps”. Therefore the only bit of her evidence in the video interview that she might have got “wrong a bit” was the allegation that Mr E sometimes put his privates right into hers and that he tried to get her to touch his penis but she never did.

[167] It is true that the complainant did finally in re-examination, albeit in response to leading questions, confirm the allegation as to Mr E’s penis going into her vagina. Mr Mander responsibly accepted, however, that, because this was in response to leading questions and therefore improperly obtained, it should be disregarded. Given the difficulties that there clearly were in eliciting evidence from the complainant without those leading questions (and in this regard we refer to the first part of the questioning set out at [70]), it cannot be assumed that the complainant would have repeated the crucial allegation in re-examination without that prompting. In any event, it would be quite improper for us to speculate on what the complainant might have said had she been questioned in an appropriate manner. We can only operate on the basis of the evidence that was given.

[168] As we note at [73], the evidence in re-examination (ignoring the leading questions) was not sufficient to sustain the actual charges faced by Mr E. In saying this, we are taking into account the fact that the complainant volunteered that when Mr E put his privates near her vagina, it made her vagina sore. However, the value of this is diminished greatly by the fact that this had been improperly led in examination-in-chief by the prosecutor and that the subject had not arisen in cross- examination - see at [65] - [68]. In any event, we do not consider that it would have been safe for the jury to have inferred that the complainant’s vagina had been made sore by Mr E’s penis penetrating her genitalia on the basis of this statement alone.

[169] The Crown also submitted that the value of the passage in cross-examination was diminished by the fact that it was elicited by leading questions and therefore could not be seen as a true recantation. Apart from the fact that leading questions are allowed in cross-examination, the passage at the end of Mr Calver’s cross-

examination was effectively a repetition of answers volunteered by the complainant in her video interview - see at [19]. We accept Mr Calver’s submission that this is highly significant.

[170] It is also of significance that there was a paucity of other evidence to support the Crown case. As pointed out by Mr Calver, there were no relevant admissions by Mr E and the medical evidence was at best neutral for the Crown. There was some corroboration from the complainant’s brother, S, that the complainant spent time alone with Mr E shut in his room. However, even if a jury accepted that evidence, it does not corroborate the actual allegation of sexual violation. For example, it would be unlikely that Mr E would put his penis “near” the complainant’s vagina (if he did) without doing so behind closed doors.

[171] Taking all of the above matters into account, there was (absent the leading questions in re-examination) insufficient evidence adduced at trial to justify a jury, acting reasonably, to convict. In terms of the test in Reid (see at [146] above), this means that a retrial should not be ordered. (We do not see this case as coming within the exceptional circumstances Their Lordships were unable to envisage).

[172] We also accept Mr Calver’s submission that, taking into account the above matters, ordering a retrial would be unfair and that any resulting conviction would be unsafe. We have some concern that the leading questions in examination-in-chief and re-examination may have tainted the complainant’s evidence for any subsequent retrial – see at [68].

[173] It is true that this is not a case where the complainant’s evidence was elicited by leading questions, the bare allegations having been made by the complainant voluntarily at the beginning of the video interview. In our view, in the unusual circumstances of this case, it is, however, possible that the leading questions may have reinforced those answers. As can be seen from the comment set out at [27], the complainant does seem to have been concerned to give the “correct” answers. We also note our concerns as to possible “coaching” - see at [151].

[174] In addition, there are difficulties associated with the complainant’s “inability”

to remember. There are three possibilities that arise:

(a) her loss of memory was genuine but the alleged offending occurred;

(b) she does remember the alleged offending occurring but is unwilling to talk about the events in question; or

(c) she does not remember the alleged offending because nothing happened.

[175] The jury at the first trial were required to consider these possibilities and, of course, would have been obliged to return a not guilty verdict if they considered that there was a reasonable possibility that the complainant did not “remember” further details because nothing happened. The assessment would not have been easy and there was no expert evidence, on memory for example, to assist the jury and little in the way of corroborating evidence. In these circumstances, attempting to choose between the three possibilities may in itself have amounted to speculation.

[176] Further, if the complainant’s loss of memory was genuine and extended as far as her assertion that she did not remember any of the times that she was allegedly offended against (see at [19] above), taken literally this would suggest that she should not have given evidence of the events at all. A witness cannot give evidence of events she does not remember. The complainant’s assertion, however, might be taken as meaning that she did not remember the details of what occurred, but did remember Mr E’s penis going into her vagina. Exactly what she meant was not, however, clarified in the interview. We have also already commented that the complainant’s loss of memory was in itself a bit surprising given the events that she was describing were relatively recent ones – see at [162].

[177] If the complainant did remember but was unwilling to talk about the events in more detail then the evidence was left in its barest form. There was, however, in this case a real temptation for the jury to speculate and fill in the details for themselves - hence our suggestion that a jury warning should have been given at the first trial - see at [143] - [144].

[178] It may be that, despite these difficulties, it was correct to leave the case to the jury in the first trial, particularly as there was some corroboration of the

complainant’s evidence from S, her brother. However, the very slim basis in the evidential interview for sustaining the charges and the dangers arising from this, as described above, are further reasons a retrial should not be ordered – see R v Maxwell [1988] NZCA 192; (1988) 3 CRNZ 644 at 647 (CA), R v W (CA387/02) CA387/02 24 July

2003 at [45] – [46], P v R (CA140/05) CA140/05 24 August 2005 at [12] and

Reid v R [1980] AC 343 at 349 – 350 (PC).

[179] It is also the case, as held in Reid, that the Crown should not have the opportunity to improve its case on any retrial when there was insufficient evidence at the first trial - see at [146]. The complainant will be eight years old at any retrial (assuming it would take place before December this year) and it may be assumed that she will be more mature and possibly less suggestible. Her evidence may also be more detailed.

[180] If the evidence was “improved” in any retrial by the complainant remembering further details, however, this in itself would cause concern. The jury would have to consider whether she was truly remembering other details previously forgotten (and the reliability of any resulting memories), whether the evidence of those details had been “coached” (intentionally or unintentionally) or whether the complainant always did remember those details but had just been unwilling to give evidence with regard to the detail. We accept Mr Calver’s submission that it would be very difficult for the trial process easily to ascertain the answer to those questions. In our view, that task would be even more difficult than the task faced by the jury in the first trial, discussed at [174] - [175] above.

[181] In summary, we consider that a retrial would be inappropriate in this case due to the problems with the complainant’s evidence in the first trial and in particular her comment that she could not remember “any of the times” that the alleged offending had occurred. The concern about the potential for conscious or unconscious coaching, given the paucity of the evidence and the complainant’s susceptibility to suggestion, also tips the scales against an order for retrial. Furthermore, the recantation in cross-examination which, discounting the answers elicited in re-examination by leading questions, was never cured is a fundamental barrier to ordering a retrial. Absent the leading questions in re-examination a reasonable jury

could not have convicted. Lastly, the Crown should not have the opportunity of improving its case on retrial (for instance by calling the mother to add details of the complaint) when there was insufficient evidence at the original trial. These factors (in particular the effective recantation of the complainant’s evidence) also point to a verdict of acquittal being entered.

Result


[182] For the above reasons, the appeal is allowed, the conviction quashed and a verdict of acquittal entered.

[183] Mr E’s name and identifying details are subject to a District Court order for interim name suppression. We are uncertain when that order expires. Although this may be a duplication, we make an interim order suppressing Mr E’s name and identifying details for a period of five working days from the date of the re-issue of this judgment. This is designed to provide an opportunity for Mr E to make any further application with regard to name suppression to the District Court if he wishes to do so.

















Solicitors:

Crown Law Office, Wellington


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