R v W [2007] NZCA 408 (11 September 2007)

Last Updated: 31 December 2014

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA164/07 [2007] NZCA 408

THE QUEEN

v

_W

Hearing: 26 July 2007

Court: Wilson, Panckhurst and Venning JJ Counsel: G J King for Appellant

M F Laracy and C E R Power for Crown

Judgment: 11 September 2007 at 3pm

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

_{(Given by Venning J)}

R V W CA CA164/07 11 September 2007

Introduction

[1] On 14 March 2007 the appellant was found guilty by a jury in the High Court at Dunedin on four representative counts of indecently assaulting his daughter, L, and one count of raping her. He was also found guilty of one count each of sexually violating his granddaughters, E and C, and one count of indecently assaulting E. He was sentenced to seven years’ imprisonment. He appeals against conviction on the basis that there should have been separate trials and certain evidence was wrongly admitted.

Background to the complaints and counts

[2] The appellant is 74 years old. L is now 45. At the time of the trial E was 21 and C was 18. The offending is historical. L gave evidence that the appellant’s offending against her commenced when she was about eight or nine years old and continued until she left school in 1977 at the age of 15. E gave evidence that the offending took place when she was aged between eight and 12. C said the offending against her occurred when she was aged between five and nine.

[3] L said that from the age of seven or eight the appellant would play horsey games with her whilst he was in bed. The games started with her sitting on his stomach, but then the appellant would move her down from his stomach to his genital area. She complained of something hard digging into her at the time. Later, when she was about nine to ten years old, the appellant started coming into her bedroom at night. Under the pretext of looking for the cat the appellant would lift up the covers, put his hand under them and start to tickle her, which progressed to touching and feeling and ultimately to the appellant putting his fingers in her vagina under her pyjamas. While doing that he would ask her if she liked it. He also told her not to tell anyone, that if she did she would get into trouble and she would be a naughty girl. He called her a pet name, a “wee rabbit”. That type of activity occurred four to five times a month. In about 1974 when L was 12 the family moved to another town. L said that after the move the appellant continued to come into her bedroom but without the pretext of looking for the cat. She said that she would

pretend to be asleep but he still put his hands under the covers and masturbated her by putting his fingers inside her vagina.

[4] The appellant had a lease on an island in the middle of a South Island river. L said that on one occasion when they were on the island he lay her down on the grass, took her pants down and put several of his fingers in her vagina. He then raped her. At that time she was about ten or 11 years old. Again the appellant said this is our “wee secret” and told L not to tell anyone, that she would be a naughty girl and would be in trouble if she did.

[5] L gave evidence that the offending continued until she left school at 15. She was able to identify when she left school by reference to the time when her mother had a gallbladder operation. She said that when she was between 13 and 15 the appellant would come into her room, kneel or lie on her bed and digitally penetrate her. During these occasions he would also say:

I know you like it so much, it’s our wee secret, don’t tell anybody, don’t let anybody else do this to you. You’ll be in trouble if you say anything for being a naughty girl.

She said this occurred several times a month.

[6] L also said that, as she got older, the appellant would kiss her and put his tongue in her mouth. He said that he needed to teach her because otherwise she would never get a boyfriend.

[7] L also gave evidence that she had been raped by the appellant in his ute after a night at a gun club. The appellant was found not guilty on that count.

[8] L left home. She married in 1983 when she was 21. She had two daughters, E and C. In 1994 at the age of 32 she and her husband purchased a general store. They worked long hours in the store. During the school holidays they sent E and C to her parents’ home for a break. Despite what had happened to her, L said she sent the children because her mother wanted her grandchildren to visit, she had taught the girls to look after themselves and she thought the appellant would have mellowed as he grew older.

[9] The youngest daughter, C, gave evidence first. She said that when she and E were staying at their grandparents’ house during the holidays the appellant would come into their room at night and rub eczema ointment on to her but while doing so he would move his hand down to her vagina and rub the ointment into her vagina by putting his fingers inside. C said that whilst he was doing that he would ask if it felt nice and would say “it’s our secret” and that she was not to tell anyone. She said that happened every night that she was staying with her grandparents. It happened from when she was about five years old until before her eighth birthday.

[10] E confirmed that from when she was about eight, almost nine, she and C would go and stay with their grandparents during the holidays. She said the appellant would come into the bedroom at night and rub eczema ointment into her inner thighs and then put his finger inside her vagina. She gave evidence that the appellant would ask whilst doing it: “Do you like that, does that feel good?” She also gave evidence that the appellant would ask her sometimes if she liked the way that he showed how he loved her. She said that on one occasion she was in bed with both grandparents. After her grandmother got up, she was sitting on the appellant’s stomach. E said that the appellant tried to push her down to his groin area. She said that sometimes he would touch her chest area and pinch her nipples and that sort of thing. She described him tracing his finger from her clitoris to her anus.

Additional evidence

[11] In addition to the evidence of the complainants, one of L’s older brothers, B, gave evidence. He said that when the appellant was confronted with these allegations in 1998 at the time he was staying in Australia with another brother, A, he admitted abusing L but denied abusing his granddaughters. Evidence was also adduced from B’s former partner, D, who was called to give evidence that L had disclosed sexual abuse to her in 1985 (this evidence was called to rebut a suggestion of recent fabrication).

[12] Detective Lodge gave evidence that in May 2006 he spoke to the appellant regarding the allegations. The appellant denied the allegations when they were put to him. It was also put to him that he had admitted to his sons in a meeting in

Sydney that he had offended against his daughter and he denied that he had ever made such admission. He told the detective that the whole thing was about money and his daughter L was not happy with his relationship with his second wife.

[13] The appellant did not give evidence but called a witness to give character evidence on his behalf.

The process of disclosure

[14] L first disclosed the abuse to B’s partner in 1985. Shortly after that she disclosed it to her husband. B also became aware of the allegations.

[15] E first disclosed the offending to a counsellor in 1997 when she was 12. L then learnt of her daughters’ allegations for the first time. L said that the disclosure led to her speaking to her other brother, A, because he had a young daughter of about eight and the appellant and his wife were staying with them. That led to the confrontation of the accused referred to above. L did not, however, make a formal complaint to the police until December 2005.

The confrontations in 1998 and 2002

[16] After L spoke to A, the family arranged a meeting between A, B and the appellant and his wife. L attended by telephone call. She confronted the appellant with her allegations. L said the appellant broke down and admitted what he had done to her, said that he was sorry and that it was at a time he was sexually deprived. The appellant denied any offending against C and E. B’s evidence was consistent with L’s evidence on this confrontation.

[17] L then said that she spoke to both daughters C and E about the matter. They did not consider they were strong enough to go through the ordeal of a formal complaint and the full court process at the time. L was also concerned about her mother’s health so they decided not to take the matter further at that time. In September 2002 L’s mother died. There was an incident at the funeral. L and E

gave evidence that the appellant blamed E for her grandmother’s deteriorating health and eventual death. L said that she and the appellant argued, and that she said words to the effect of “so if she had kept her mouth shut like I did all those years everything would have been fine”, to which the appellant replied “exactly”.

Complaint to the police

[18] Difficulties later arose between L and the appellant concerning her mother’s estate. She wrote to a solicitor concerning the matter. She also sent a letter to the appellant in 2005. She then received a letter from the appellant’s solicitors threatening her with defamation. L said that when in late 2005 she learnt that the appellant was spending time with a neighbour’s young child she finally decided to go to the police.

Stay and severance application

[19] Prior to trial the appellant sought a stay of the charges relating to L on the grounds of delay, and severance of the counts involving C and E from the counts involving L. The applications were declined by Lang J in a decision delivered on 27

February 2007.

The appellant’s submissions

[20] In written submissions in support of the appeal Mr King advanced five primary points:

• A miscarriage of justice had occurred through all counts being heard together.

• The Crown should not have been permitted to adduce complaint evidence from the counsellor, the complainant’s brother B or from D.

• The appellant was denied a fair trial through the admission of hearsay evidence relating to what A and the appellant’s wife were alleged to have said about the abuse.

• The trial Judge should have given a full corroborative warning in relation to L’s evidence.

• The proceedings should have been stayed; the appellant had not had a fair trial.

[21] Without conceding any of the above, Mr King identified in his oral submissions that the strongest grounds for the appellant were that there should have been separate trials and the wrongful admission of D’s complaint evidence.

Crown response

[22] Ms Laracy submitted that:

• Lang J was right not to sever the trials and the trial Judge’s direction more than adequately dealt with the use to which the similar fact evidence could be put.

• The counsellor’s evidence was properly admitted as recent complaint evidence.

The hearsay evidence adduced in the course of B’s evidence was insignificant and of no effect in the overall context of the trial.

• D’s evidence was properly admissible as a response to the challenge to L under cross-examination.

• There was no need for the trial Judge to give a full corroboration warning.

• There was no miscarriage occasioned to the appellant by denial of a stay.

Separate trial/similar fact

[23] Mr King submitted that the decision of Lang J to decline the application for severance was wrong. He submitted there were insufficient similarities between the accounts of L and her daughters to justify their admission as similar fact so that the combined trial had led to a miscarriage.

[24] The thrust of Mr King’s submission was that the evidence went no further than evidence of propensity and that more is required: R v Hsi En Feng [1985] 1

NZLR 222 (CA); R v Absolum HC AK T11392 19 October 2001; R v D (LE)

(1989) 50 CCC (3d) 142 (SCC) per Sopinka J at pp 161-162; and Perry v R (1982)

[1982] HCA 75; 150 CLR 580 (HCA) 593-595.

[25] The principles in relation to severance were confirmed by this Court in R v W

[1995] 1 NZLR 548 at 555:

The general principle is that counts arising from incidents unrelated in time or circumstance are not to be tried together unless evidence as to one is relevant to another, to an extent that its probative value outweighs its prejudicial effect. That may be so in a variety of circumstances, of which similarity of the facts is one.

We agree that in relation to the counts involving C the Crown is entitled to place before the jury the fact of the complaints made many years later by the two grand-daughters as explaining what might otherwise seem the inexplicable decision on C’s part to raise her own complaints after such a lapse of time. This has nothing to do with similar fact. We would however go further and hold that in relation to J and B, in two respects the evidence of C, if accepted, would be of distinct probative value. First, given the emphasis in the current era (absent in C’s childhood) about "bad touching", it would assist the jury to assess the possibility that these two young children had misunderstood the actions of their grandfather and overreacted to innocent actions on his part. Secondly, C’s evidence would cast light on and assist the jury to assess the possibility that the relationship between the appellant and his grand-daughters was a normal and innocent one and that it was out of the question that events such as alleged by J and B could have happened. In other words, it is relevant to the credibility of J and B. In those respects the evidence is admissible as similar fact.

We do not go so far as to accept the proposition advanced for the Crown that whenever members of a family make allegations of abuse against the same individual within the family, all charges should always be heard together. Nevertheless, where as here the allegations are interwoven or interconnected the desirability of presenting the case on a realistic rather than an artificial basis will usually point against severance. Here in our opinion the probative

value of the evidence on each set of charges in relation to the other set is sufficiently strong to outweigh the prejudicial effect.

[26] We agree with the assessment of Lang J that there are a number of factors in the present case that are of a sufficiently similar nature to lead to the conclusion the evidence of all three complainants was relevant and admissible in relation to the charges alleging digital penetration, particularly:

• All three complainants were either children or grandchildren of the accused and in his care at the time of the offending.

• The offending against L occurred when she was aged between eight and 15. The offending in relation to E occurred when E was aged between eight or nine and

11 or 12. The offending against C occurred at an earlier age than the others, but that is explained as C was sent with E to stay with the appellant. In each case the conduct started when the complainants were under the age of ten years and were prepubescent.

• The digital penetration occurred shortly after all complainants had gone to bed.

• The appellant took advantage of his role as father and grandfather to go to the complainants’ rooms when they were in bed, even when his wife was in another part of the house.

• The accused masked his true intentions, initially at least, by providing excuses for putting his hands under the covers and touching the complainants – in the case of E and C by applying eczema ointment and in the case of L by using the excuse of checking if the cat was in the bed.

• During the offending the appellant would ask questions which suggested he considered that he was pleasuring them. He would ask “if she liked it” (L), if it “felt nice” (C), and “do you like that” and “does that feel good” (E).

• The appellant also told both L and C that what he was doing was “our little secret” and that they were not to tell anyone.

[27] We agree with Lang J’s assessment that, taken as a whole, the evidence goes beyond mere propensity.

[28] In addition to the similar fact evidence there were also the following features of the evidence that supported the decision not to sever:

• C and E’s allegations came to light in 1997/1998. Although the appellant was confronted at the time, after discussing matters with her daughters, L (and her daughters) agreed they were not ready to face up to the ordeal of a formal complaint and trial at the time. E and C’s young age was an important consideration. Further, all three were concerned for the appellant’s wife’s health and the effect on her of public disclosure. The evidence explains L’s decision not to complain at that time.

• L’s evidence of abuse of a similar nature would have assisted the jury to assess whether E and C had misunderstood the actions of their grandfather given the pretext used by the appellant that he was caring for them by applying ointment.

• The evidence of the confrontation between L and E and the appellant at L’s mother’s funeral in 2002 was important. The evidence was directly relevant to both L’s and E’s complaints. It linked the two and was evidence from which the jury could draw an inference the appellant was admitting to the abuse of both. The appellant’s response to L at the time closely ties E’s allegations with L’s and can only be understood by E’s evidence of abuse.

[29] Mr King suggested that the appellant was prejudiced because he was denied the opportunity to elect to give evidence against one of the complainants but not the others. That submission could be made whenever similar fact evidence is given. It is a consideration, but it is not an overriding one. When first spoken to by the detective, the appellant did not seek to make a distinction between L’s and E and C’s allegations. He denied them all. We are not persuaded that the point justifies this Court’s intervention.

[30] Mr King then submitted that the jury must inevitably have been affected by a circularity of reasoning in considering the case in respect of E and C. He submitted they would have been influenced by the alleged admissions in respect of the offending against L. Mr King also suggested that “it was too big an ask” for the jury to disregard the similar fact evidence on the counts to which the Court held it did not apply. We consider these were all factual issues for a properly directed jury to determine. The trial Judge, Miller J, gave the jury strong and clear directions on the similar fact evidence and the use to which it might be put:

[41] You will appreciate that some of the evidence alleges broadly similar conduct against [L, C, and E].

[42] I have said that you must consider each charge separately and bring in a separate verdict in relation to it. The verdict must reflect the evidence relevant to that charge. If you conclude that the [appellant] is guilty on one or more of the charges, it is unsafe and improper to reason along the lines that he must therefore be guilty of any other charges. That a person may have done something bad on one occasion does not mean that he has done something bad on another occasion with the same complainant or a different complainant.

[43] However, common sense and experience tell us that if two complainants give sufficiently similar accounts of what the [appellant] has done to them and they have not colluded, then the evidence of each may be taken as supporting the other.

[44] The Crown says that the actions of each of the three women described have significant similarities and that the evidence of each complainant does support that of the other, in relation to those counts that allege digital penetration. The similarities that it relies on are:

(a) The three complainants are children or grandchildren of the

[appellant].

(b) The conduct is said to have occurred on numerous occasions while in his care.

(c) That in each case the complainant was young; [C] and [E] were prepubescent, as was [L] when she says the offending began.

(d) The conduct was audacious, in that it often occurred when others were nearby.

(e) That it involved digital penetration, often for quite sustained periods.

(f) That he would regularly ask if what he was doing felt good, so it appeared that he was trying to pleasure them.

(g) That he initially masked his true intention by a pretext, looking for the cat in [L’s] case and applying ointment for the other two girls.

(h) That many of the instances involved him coming to a bedroom at night and lifting the bedcovers.

(i) He told all of the complainants that what he was doing was a secret between them and that they should not tell.

[45] I emphasise that these alleged similarities are confined to the offences involving digital penetration. That is, the Crown asks you to take into account what [C] and [E] said about digital penetration of them when considering the allegations of digital penetration of [L] (counts 1, 2, 4, and

6). And it asks you to take into account what [E] said about digital penetration of her, and what [L] said about the offences against her, when considering count 7 (that relates to [C]). It asks you to take into account what [C] said about digital penetration of her, and what [L] said about digital penetration, when considering count 8 (which relates to [E]).

[46] Put another way, when you consider counts 3 and 5 (rape counts) and count 9 (indecent assault of [E]) you may not take into account what the other complainants told you about what the [appellant] did to them.

[47] So what I have done is set out what the Crown says or are the similarities that you may rely on in relation to the counts alleging digital penetration.

[48] I now want to talk to you about the approach that you have to take to what the Crown asks you to take into account.

[49] You cannot support the evidence of one complainant as supporting the evidence of another on these charges unless you are satisfied of two things:

(a) The first is that there is discernible pattern in what the complainants allege. That is there is such a distinctive similarity between their accounts that each logically supports and reinforces the other;

(b) The second is that the three complainants have not collaborated to concoct false but matching allegations and that there is no other reason why such similar accounts should be given, for instance that [C] in effect piggybacked on the story which she knew [E] had told [the counsellor], or that [L] lied because of anger at her father over her mother’s estate and induced her daughters to lie also.

[50] If you are satisfied about those two things, that there is that distinctive similarity, and that they have not collaborated, then you can conclude that the evidence of each complainant supports the others on the offences involving digital penetration.

[51] If you are not satisfied of that, then you must guard against any tendency to think along the lines of “well in any event he has a tendency to

behave badly, so he must be guilty”. That would be false logic and it would be obviously unfair.

[31] That the jury understood and followed the directions is perhaps independently confirmed by the not guilty verdict on the second count of rape.

[32] Mr King suggested that if there had been a separate trial the issue of why L did not complain to the police about abuse for three decades would not have been adduced or relevant. Therefore the explanation L offered which portrayed the appellant in a very negative light would not have been included. We do not accept this submission. At a trial involving E and C’s complaints, evidence would still have to be led to explain the delay from the disclosure in 1998 to 2005. That would inevitably have involved evidence from L. It would have been artificial and quite contrived to seek to adduce that evidence without reference to the abuse that L said she herself had suffered which undoubtedly formed part of the reason for the decision not to complain earlier. Also, it was L’s decision to complain in 2005 that brought matters to a head.

[33] Finally Mr King submitted that at a separate trial the evidence of B and D would not have been admissible in relation to E and C. To a degree, B’s evidence assisted the appellant’s defence of the complaints by E and C. B accepted that the appellant denied offending against them, which provided the basis for the appellant to make the submission that he had consistently denied offending against them without the need to give evidence himself on that point. D’s evidence was not admissible against the appellant on the counts involving E and C. The jury were directed on the use to which they could put her evidence. We return to the issue of D’s evidence shortly.

[34] In short, apart from the similarities in relation to the counts involving digital penetration of L, E and C, it would have been artificial to seek to sever the trials. There is no miscarriage arising out of the decision not to severe and to permit the similar fact evidence to be led in relation to the indecent assault counts.

Complaint evidence

[35] Mr King submitted that the Crown should not have been permitted to adduce complaint evidence from the counsellor in relation to E, nor from B and, particularly, B’s former partner, in respect of L’s complaints.

[36] The counsellor’s evidence was adduced as evidence of recent complaint. Mr King submitted that there was no evidence the complaint to the counsellor was made at the first reasonable opportunity and that, in any event, the evidence was itself unsatisfactory in that it went beyond establishing consistency, when the counsellor described the complainant’s distress. He also submitted there must also be concern about it because the counsellor was not sure or could not recall whether she had been given a full copy of E’s statement by the police before trial, but the police officer confirmed that she had been.

[37] The evidence is admissible as complaint evidence so long as the complaint was made at the first reasonable opportunity after the offence: R v Nazif [1987] 2

NZLR 122 (CA). In determining whether the complaint was made at the first reasonable opportunity a court should take into account the age, nature and personality of the victim, the relations with those to whom the complainant might be expected to complain and the reasons for delay in making the complaint. There is no rigid maximum or hard and fast rule as to the extent of the delay which would render the complaint inadmissible. In some cases a delay of some years is still accepted as reasonable and the evidence accepted as recent complaint: R v Pinkerton CA342/92

23 March 1993; R v Accused (CA132/97) [1997] NZCA 82; (1997) 15 CRNZ 26 (CA) and R v King CA300/04 13 December 2004. The reasons for the delay require careful consideration.

[38] In the present case E disclosed to the counsellor after a referral from a school counsellor. That was in 1997 when E was about 12. E gave evidence that her grandfather, the appellant, had been abusing her from when she was eight, almost nine, and that it continued until she was 11, almost 12. She described an incident when her grandmother came into the room as the last occasion the appellant abused her. She knew that because she took a letter from a magazine in which a

grandmother wrote suspecting her husband was abusing his grandchildren to the session. She thought that her grandmother had written the letter. At most, on her evidence, the delay would have been a year. But the evidence was that E and C regularly went to their grandparents during each school holidays. On that basis it is more likely that the interview with the counsellor occurred within three to four months of the last offence that E described.

[39] While the offending was ongoing for a period from when E was eight or nine until she was almost 12, there were good reasons for her not to have complained earlier. First, her grandfather was an authority figure. She had been sent to stay with her grandparents by her parents. As a child she would have been well aware of the relationship of her parents, her mother in particular, to her grandparents. At her young age she would have been confused and unsure of who to speak to about what her grandfather was doing to her. Her evidence was that she was scared and confused.

[40] It is now generally acknowledged that children who have been abused fear the abuser in a family context. This, coupled with a desire to maintain family harmony and feelings of guilt, lead to a reluctance to disclose. The delay in making a complaint is reasonable in the circumstances of this case. We accept that the counsellor’s evidence was properly led as recent complaint evidence.

[41] We do not consider there is anything in the point made by counsel that the counsellor may have had a copy of E’s statement sent to her by Detective Lodge in March 2006, a year before she gave evidence. The counsellor said she could not recall receiving a copy of E’s statement. She agreed that she did get some information on a sheet but wasn’t sure if it was a statement or not. She was challenged on the point by defence counsel. At the end of the day it was a matter of credibility and weight for the jury. Defence counsel addressed the jury on that point as the Judge recorded at para [102] of his summing up. Nothing more was required.

[42] Counsel also took exception to the counsellor’s evidence of E’s demeanour during the interview. Again the evidence was admissible as part of her narrative of

the complaint. It was a question of the weight to be given to it: R v Daleszak

CA145/06 27 November 2006 at [36].

[43] As noted, the principal challenge that Mr King mounted against the evidence admitted at trial was to D’s evidence. Miller J allowed her evidence to be called in response to a recent fabrication challenge. D gave quite detailed evidence of the complaint L made to her in 1985.

[44] Following the cross-examination of L, counsel for the Crown sought to adduce evidence that L had complained to D in 1985 on the basis that defence counsel’s cross-examination had raised the issue of recent fabrication.

[45] Mr Westgate, defence counsel at trial, opposed the admission of D’s evidence. He accepted that the cross-examination suggested that recent financial difficulty had contributed substantially to L’s decision to lay the complaint but noted that cross-examination had confirmed that L had complained to her husband in the

1980’s. He submitted that the defence were not suggesting the fabrication was recent but rather that L’s decision to go to the police in 2005 was as a result of her financial difficulties and her resentment of the way her father had dealt with the administration of her mother’s estate. The Judge did not accept those submissions. He considered the cross-examination suggested that L’s complaint was fabricated, substantially because of her relatively recent financial difficulty.

[46] The evidence of L’s complaint to D is prima facie hearsay and inadmissible. It could only have been admitted on the basis that it was in response to a challenge of recent fabrication.

[47] A preliminary point arises, namely whether D was the first person L complained to. Although Mr King submitted that L had complained first to her husband, L’s evidence was that the first person she complained to was D, her brother B’s partner at the time. She was not seriously challenged on that point. The issue is whether there was a proper basis for the admission of her evidence.

[48] The basis for the admission of evidence in response to a challenge of recent fabrication is to be found in the passage of Holmes J in R v Coll (1889) 24 LR Ir 522, 541:

It is, I think, clear that the evidence of a witness cannot be corroborated by proving statements to the same effect previously made by him; nor will the fact that his testimony is impeached in cross-examination render such evidence admissible. Even if the impeachment takes the form of showing a contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion, it does not follow that the way is open for proof of other statements made by him for the purpose of sustaining his credit. There must be something either in the nature of the inconsistent statement, or in the use made of it by the cross-examiner, to enable such evidence to be given.

[49] More recently it has been confirmed that the cross-examination must be such that it can be interpreted as containing a direct challenge to the complainant that their story is a recent concoction: R v Roberts [1942] 1 All ER 187, 191 (CA). Recent in this context means “after the event” as distinct from “recently” in the sense of a timescale: R v G CA199/95 15 June 1995.

[50] L was cross-examined about her delay in complaining to the police against the background that the allegations had existed for some time. It was put to her that she effectively raised the allegations against the appellant from time to time when it suited her for her own strategic reasons. For example defence counsel cross- examined L:

Now just picking you up on the assertion that you buried this secret until

2005 again that isn’t quite right because there were a few occasions where you would raise if I can put it like this the spectre or the threat that you were

going to lay charges against the [appellant]. Do you remember that

happening on a couple of occasions?.....Never before we found out about the girls.

After 1997 between 1997 – 2005?.....When we found out about the girls I said that we discussed it, the three of us, decided at that time not to lay charges but not to say that we never would. My mother’s health was deteriorating and for her sake it was one of the reasons that we didn’t want to put her through it or ourselves at that time.

[51] L was also cross-examined about a letter she wrote to a solicitor on 29 June

2005 in which she sought advice regarding the appellant’s handling of her mother’s estate. In the letter she had said:

I am estranged from my father due to growing up being amongst other things, ... sexually abused by him.

And that she:

... believe(s) he owes me for what I have suffered.

Counsel cross-examined her:

You wrote that didn’t you?.....Yes I did and that doesn’t mean monetary terms.

And again, this is on 29 June 2005 at the end of this letter you conclude if I can put it like that by writing and believe he owes me for what I have suffered and as yet haven’t yet ruled out laying charges against him therefore only wish him –that’s your father, the accused - the very minimum of what he is entitled, that’s what you wrote isn’t it?.....Yes because there were other issues when we were trying to settle for probate and my father was sitting there lying about money and things and my brother had given money towards the funeral. My father denied it um and I just my mother had said to me before she died that she worked hard all her life. She said it’s for you kids, it’s not for some new woman to be tripping round the world on, which at the time my mother was in the resthome ...

[52] With respect to Miller J, we are not able to accept that the thrust of the cross- examination by defence counsel was to the effect that L’s allegations of abuse were invented after the event. Whilst the defence case was the allegations were false, it was implicit in counsel’s cross-examination that the defence accepted that the allegations had been about for some time. The defence case was that L used the allegations for her own purposes and as a negotiating ploy from time to time.

[53] Ms Laracy submitted that a distinction could be drawn between the allegations and the purpose for making them which would support the admission of the statement. We are unable to accept that this correctly articulates the purpose for which rebuttal evidence is permitted. It is trite to observe that, in every contested case involving allegations of abuse, the defence case will be that the allegations are false. That does not, however, permit the Crown to lead evidence of prior complaint in every case. We consider that the evidence of recent complaint by D should not have been led. The real issue is whether that led to a miscarriage.

[54] In our judgment it did not lead to a miscarriage for two reasons. First, the way the matter was addressed by the trial Judge and, secondly, the way the issue of the complaints featured in this case.

[55] In his summing up, the trial Judge directed the jury as to the use to which they could put the evidence of D as follows:

[75] The Crown further relies on the evidence of [D] the gist of which was that [L] complained to her of sexual abuse by her father, over a period of years, including rape on the island. This evidence cannot be relied on as additional evidence that these things said happened, as I said. Rather the Crown called [D] to rebut any suggestion that [L] made it all up recently because of a dispute over money. You may take it into account for that purpose only.

[56] The Judge’s summing up was consistent with his ruling that permitted the evidence to be led in the first place. The jury were directed that they were not to take D’s evidence into account as evidence that the abuse and rape that L complained of to D had taken place. On the basis of that direction, the jury would only have taken account of D’s evidence to address the issue of whether L had made up the complaints in an effort to obtain money from the appellant. Used that way, D’s evidence did no more than confirm L had raised the complaint at a time when she was not motivated by money. Even if it was not admissible as a response to a recent fabrication challenge, the impact of the evidence used in that way was limited.

[57] The second reason is that the prejudicial effect of D’s evidence is very limited in the context of this case given that there was already a significant amount of evidence concerning L’s earlier complaints before the jury. There was the evidence elicited in part through cross-examination by defence counsel that L had complained to her husband in the mid 1980’s. There was also direct evidence that L had made the complaints to both her brothers in 1998 properly led as part of the narrative leading to the confrontation and admission by the appellant. The issue was not whether L had complained at the first opportunity but whether the substance of the complaints was true. The defence case was that the complaints were false and that L used the complaints for her own purposes from time to time. In the circumstances of this trial we are not persuaded that the admission of D’s evidence has led to a miscarriage.

Hearsay

[58] Mr King also submitted that the appellant was denied a fair trial through the admission of hearsay evidence of what A and the appellant’s wife were alleged to have said about the abuse. Counsel also criticised the evidence E gave about her grandmother walking in on an incident of abuse.

[59] Mr King submitted that the effect of B’s evidence was to leave the jury in no doubt that B, his other brother A and their mother all believed the appellant had been sexually abusing L and his granddaughters. It is true that B did give hearsay evidence as to a discussion with his brother A as to the fact A had said the appellant had been interfering with L and her daughters. However, the evidence was led not for the purpose of establishing the truth of what A had said but rather by way of background to explaining why B had arranged a meeting at A’s house to confront the appellant. The important feature of B’s evidence and the feature which would have made the impression on the jury was his direct evidence of the confrontation of the appellant (with L on the telephone) and the admissible evidence that the appellant admitted he had interfered with L. Further, it seems from the transcript that the most offending aspect of the evidence followed confirmation from defence counsel that what was to follow was not contentious. Mr King properly did not pursue counsel error as an appeal point.

[60] Mr King also submitted that B gave evidence as to the appellant’s wife’s belief. But B’s evidence-in-chief concerning his mother was limited to the observations of her reaction at the time the appellant made the admissions. B said:

Mum was there and she was crying as well.

That was an unobjectionable observation. It was only under cross-examination that

B gave further evidence in response to counsel’s questions:

And your mother and your father stayed together after this so-called admission, is that right?.....My mother said to me on one occasion what can I do.

Answer the question. They stayed together?.....They did stay together because my mother said I can’t leave him I need him.

They stayed together?.....They stayed together.

[61] Again the evidence elicited by counsel in cross-examination was not evidence that the mother necessarily believed the complaints. The evidence was adduced by counsel for the defence to confirm that even after the admissions (which the appellant did not accept were made) the appellant’s wife, as L’s mother and grandmother of E and C, remained with the appellant until her death. It was part of the defence strategy to elicit evidence to support the submission that the appellant’s wife would not have stayed with him if the allegations had been made and if she believed they were true. It was a legitimate strategy. Again, while the issue was properly not raised as one of counsel competence, the following observations of the Supreme Court in R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 at [66] are relevant:

[66] There will be cases in which particular acts or omissions of counsel may in retrospect be seen to have possibly affected the outcome but they were deliberately judged at the time to be in the interests of the accused. In some cases the accused will have agreed or acquiesced – only to complain after conviction. Where the conduct was reasonable in the circumstances the client will not generally succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment made by trial counsel which could well be made by another competent counsel in the course of a new trial.

[62] In this case the line of cross-examination was a reasonable and legitimate defence strategy. There has been no miscarriage.

[63] E gave direct evidence that, the last time the appellant had interfered with her before she spoke to the counsellor, her nana had come in to the bedroom and:

She sounded really angry and she was like “come on [W] let these girls get some sleep” and walked back out the room again and he had been doing it to me at the time.

She said that after the appellant left the room she heard her grandparents arguing. She said her grandmother sounded angry because of the tone of her voice. The evidence was direct evidence of her grandmother’s actions and reactions observed (and overheard) by E. It is not hearsay.

[64] Shortly after that E, as noted previously, read a letter in a magazine written by a grandmother expressing concern that she had witnessed her husband interfering with her granddaughters and seeking advice. E said that she believed it was her grandmother who had written in. She later accepted that it was not written by her grandmother. The evidence is not strictly hearsay. The evidence was not led to prove that the appellant’s wife believed the appellant was abusing his granddaughters, rather it was led as evidence of E’s belief. It was relevant because it explained the circumstances of her disclosure to the counsellor.

Corroboration

[65] Mr King next submitted the Court should have given a corroboration warning in relation to L’s evidence and that such a warning was particularly necessary because she had acknowledged that she had raised the allegations on a number of occasions but had not gone to the police until December 2005.

[66] Counsel submitted that a direction firmly incorporating the aspects of prejudice as discussed by the High Court of Australia in Longman v R (1989) 168

CLR 79 was required.

[67] This issue was addressed by Miller J before summing up. Counsel agreed that a corroboration warning should be given. The Judge however took the view that s 23AB of the Evidence Act 1908 applied even where the offences pre-dated the Evidence Amendment Act 1985 (No 2). He referred to the decision of this Court in R v M CA187/95 13 November 1995. At defence counsel’s request the Judge agreed to give a limited direction incorporating a warning as to the complainant’s reliability.

[68] With respect to Miller J, the issue was not whether s 23AB of the Evidence Act applied to the case. It was whether a corroboration warning of some kind was required on the facts of the case. The section contemplates that, while such a warning is no longer obligatory, a Judge may nevertheless decide to comment on the absence of evidence tending to support the complaint evidence: s 23AB(2).

[69] Whether a warning will be required, and if so, its terms, will depend on the trial Judge’s assessment in each case. In R v M this Court confirmed that a direction in the terms discussed in Longman was not required in every case and that to require such a warning:

would be to move against the trend evident in the statutory provisions and the view consistently expressed by this Court that the summing up is to be tailored to the particular case.

[70] In dealing with the difficulties an accused might face and the direction the

Judge should give the Court observed:

No particular form of words can have general application. On appeal the enquiry will be whether, in the circumstances, the trial was unfair such that there has been a miscarriage of justice.

[71] This Court has recently confirmed that principle in R v M [2007] NZCA 217.

[72] In the present case the Judge did direct the jury as to the effect of delay, both on the reliability of the complainant’s evidence and also on the possible prejudice to the appellant. The Judge said:

[62] Where there has been substantial delay in bringing charges to trial, an accused may face difficulty in conducting his defence. That may arise in two ways. The first is that the case will turn on the oral evidence of the complainant, and her memory may have faded or it may have been unconsciously altered over time such that she is not a reliable witness. If you think that is the case, you should look for other evidence that you accept and which may tend to support what she says, such as, evidence of admissions, or the similar fact evidence, provided of course you accept that evidence.

[63] The second way in which an accused may encounter difficulty is that he may lose the opportunity to call witnesses who may have been able to rebut what the complainant says, or locate other evidence that may have been useful to him.

[64] You heard, for example, that two witnesses died, [F] and [G]. Mr Westgate highlighted that, noting that [F] was involved in the conversation from Sydney when the accused is said to have admitted wrongdoing and might have been able to confirm that he was simply trying to calm [L] on the phone. The Crown responded that you may reflect on what assistance that might have provided the defence. Would [G] be expected to remember [an identified] incident at all for example. And would [F] have been in a position to say whether the accused made any admissions in Sydney or comment on whether he had an opportunity to offend against [L] or the other two girls while they were in the house.

[73] While the Judge could perhaps have given the jury a more fulsome direction as to the effect of delay on reliability, he did alert the jury to it as a matter for their consideration and directed them as to the difficulties the appellant faced by reason of delay. The direction was adequate. No miscarriage arises.

Stay/unfair trial process

[74] Mr King’s final ground was a challenge to Lang J’s decision declining to stay the proceedings in relation to L. Mr King submitted that there was specific prejudice to the appellant because his wife was deceased. He submitted she was a material and crucial witness.

[75] The submission is premised on the basis that the appellant’s wife would have been helpful to the defence. At best that is speculative. It may equally have been that her evidence would have been dangerous to the appellant and harmful to his case. Given E’s evidence that her grandmother walked into the bedroom and told the appellant to leave the girls alone and was then heard to argue with the appellant, she could have been cross-examined extensively. Further, as she was present when the appellant made the admissions in 1998, again she would have been open for cross-examination as to the appellant’s admissions and her reaction to the confrontation. Finally, it is not insignificant that there was another family member present at the time of those admissions, A, but the defence chose not to call him.

[76] Before Lang J it was also argued that the defence was prejudiced by the absence of the evidence of G, the driver who stopped and spoke to the appellant during the incident of rape alleged to have taken place in the ute. The appellant was found not guilty on that charge. The absence of G did not impact on his ability to defend that particular count.

[77] Mr King next submitted that the delay meant that a great deal of highly prejudicial material relating to the “complex family dynamics” led to the appellant being portrayed in a very poor light. There is nothing special about that. The evidence disclosed a dispute between L and the appellant. The dispute and the steps

they took reflected badly on both of them. It was open for the defence to challenge L

and portray her in a bad light as a result of the dispute, as it did.

[78] Mr King then suggested that there could have perhaps been some generic “I didn’t want it to happen to anyone else” statement to explain why L went to the police at the end of 2005 instead of L being permitted to lead detailed evidence of her concerns about the appellant’s actions towards a neighbour’s child. Given the lengthy delay in complaining to the police, such a general statement would have been insufficient. The Crown was entitled to adduce the reason given by L to explain precisely why she did complain at the time she did, particularly against the background of the challenges to her credibility.

[79] Mr King suggested that there may have been a tactical decision by L not to make her complaint to the police before 2005. We agree with Ms Laracy’s response that clear evidence would be required to support a submission that the complainant was deliberately abusing the process so that a stay should be directed. It has been held that there is no abuse where a merited prosecution is brought in circumstances even where the complainant hopes to receive a collateral benefit from a conviction: Pryce v Vine [1997] NTSC 52; (1997) 138 FLR 320 (NTSC). The evidence does not approach that in this case. It was not argued that way before Lang J or at trial. L’s delay in complaining enabled the defence to make the submission, which was before the jury, that she was using the allegations to her advantage when it suited her, particularly when she was financially motivated to do so. The submission supported a strong attack on L’s credibility. Ultimately, it was a matter for the jury to resolve.

[80] Finally, in his written submissions, although not during the course of his oral submissions, Mr King embarked on a challenge to the development of the law in this area since the 1960’s and 1970’s. It is unnecessary to respond to those submissions. It is sufficient to observe that society has changed since the 1960’s and 70’s and that Parliament has recognised that change in society with changes in legislation. The Evidence Act 2006 is the latest example of such development. The courts have also acknowledged those changes. It could also perhaps be observed that summings up to juries in the 60’s and 70’s were rather more directory than is the norm now. The short point is that we live and practise in a different environment.

Conclusion

[81] The points raised by Mr King, taken individually or collectively, have not lead to a miscarriage of justice in this case. The appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington