R v L (CA274/07) [2007] NZCA 460 (23 October 2007)

Last Updated: 2 January 2015

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA274/07 [2007] NZCA 460

THE QUEEN

v

_{L (CA274/07)}

Hearing: 20 September 2007

Court: O’Regan, Potter and Keane JJ Counsel: L B Cordwell for Appellant

M F Laracy for Crown

Judgment: 23 October 2007 at 4 pm

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

_{(Given by Keane J)}

R V L (CA274/07) CA CA274/07 23 October 2007

[1] On 16 February 2007 the appellant, a 74 year old man, was convicted of raping his niece, X, then 12, during the only occasion on which she says she stayed with him, his wife and their children at their home in during Tauranga, the 1970

Christmas holidays, between 1 December 1970 and 31 January 1971. He was acquitted of indecently assaulting her older sister at an earlier time.

[2] At his trial the appellant, who elected to give evidence, his wife and those of their children who gave evidence, denied that X had ever stayed with them in any Christmas holidays or ever. Moreover, it was the defence case, three aspects of X’s evidence were demonstrably false.

[3] First, X said in evidence that she was raped during the Christmas holidays in her final year at intermediate school. Seemingly reflecting that, the indictment initially alleged that the offence occurred in the 1971 Christmas holidays. During the trial, after resort to the school’s record of admissions, that was amended to the 1969 holidays and, after school photographs were consulted, the 1970 holidays. That variance in itself, the appellant contended, and contends still, showed just how uncertain X was.

[4] Secondly, X identified the night of the rape by recalling that the appellant’s wife was absent and that the reason for this, she was told, was that the wife had gone to look after her sick father. The father of the appellant’s wife had died in May 1970, in excess of six months before the 1970 Christmas holidays.

[5] Thirdly, X maintained, during those holidays the appellant and his wife worked in a wine shop to which she was taken. Also that the appellant made a second advance to her, in his car, on the way back from the shop. His evidence and that of his wife was that he began work on the shop in May 1971, five months after the holidays. He produced the advertisement, recovered from newspaper records, to which he said he responded and his application.

[6] The trial Judge, Baragwanath J, the appellant accepts on this appeal, fairly and accurately put his case to the jury: that on these three bases X’s evidence, on

which the Crown case ultimately depended, was unworthy of belief. The jury, properly directed as it was, on the evidence as it was, he contends, could not properly have convicted. Had it acted reasonably, it must have been left with a reasonable doubt: R v Ramage [1985] 1 NZLR 392 (CA), R v Hand CA200/98 28 October 1998.

[7] We are unable to agree. The Crown evidence as it evolved on the primary challenge, the first of the three, initially seemed to contradict X’s evidence. As it became finally it vindicated her. The third challenge is without moment. Only the second had any cogency. But, on the evidence as a whole, which included similar fact evidence not just from the sister but a granddaughter, that was for the jury who, despite these challenges, accepted X’s evidence.

First challenge – time span for offence

[8] In her evidence in chief on the first day of the trial, 7 February 2007, X said, consistent with the indictment as it then was, that the offence she alleged happened in the 1971 Christmas holidays. The indictment alleged an offence between

1 December 1971 and 31 January 1972. X did not say how old she was then. She gave her date of birth as 18 April 1958. She was, she said, in form two.

[9] Counsel for the appellant put to her that in her statement to the police, dated

29 January 2005, when she complained formally, she had been unclear whether the offence had happened during the August or May holidays or the Christmas holidays. Indeed she had said that it had not happened over Christmas. X responded that it happened in January 1972:

I had Christmas with my parents and then it was after that and to an 11 year old school holidays is a long time.

[10] Counsel for the appellant then put to X that this did not begin to reconcile with her further evidence that the appellant’s wife was absent to be with her sick father. The father of the appellant’s wife had died on 18 May 1970. X remained adamant that that was why she understood the appellant’s wife was absent.

[11] A little later X said that she was about the same age as the appellant’s son

Johnny, who was then 13. There this exchange:

And you were ... 11, 12. Last year of Intermediate School. You were born on 18 April 1958 ... yes.

You are saying that in your evidence that this occurred in January 1972 ...

uh-huh.

So you would have been 13 ... no. No ... don’t think so.

Well 58 through to 71 would make you 13 wouldn’t it ... 12, 11, 12. What is it, that year I was turning –

On 18 April 1971 you would have turned 13, correct ... I guess if that’s the maths yeah. I was held back a year in school.

[12] This was the first topic on which X was re-examined. She was asked how it was she could say that she was 11 or 12 at the time. She answered:

Worked it out that it was my second year in intermediate school so that worked it out on age, but I was actually kept back a year in intermediate school. I had three years in intermediate.

She elaborated:

When I resumed school I remember thinking differently about everything when I was walking to school like there was a – two teachers who were married at our school Mr and Mrs H and I remember thinking oh yuck do they do that, and Mrs H was my teacher.

[13] On the third day of the trial, 9 February, the Crown, after having had the records of the intermediate school X attended checked, applied for leave to amend the indictment to make the offence period 1 December 1969 – 31 January 1970. The appellant’s counsel objected. The defence case had been marshalled to answer the Crown’s case as it then was.

[14] Baragwanath J acceded to the application. He said:

It is apparent that the complainant at two places in her original statement gave an account consistent with the proposed amendment. She departed from that period only as a result of being led by Crown counsel ... and of course defence counsel employed the Crown’s dates in cross examination. The

complainant’s evidence before she was challenged was that she was 11. As a result of the challenge she extended the range to 11 to 12.

Only one aspect of the defence case, the discrepancy between the offence period and the date of the death of the father of the appellant’s wife, Baragwanath J held, was affected. That was not enough. He allowed the indictment to be amended.

[15] On the first day of the second week of the trial, Tuesday 13 February, counsel for the Crown distributed to the jury the amended indictment. Immediately afterwards a witness statement from the present principal of the intermediate school X attended was read to the jury.

[16] The principal confirmed that X had been at the school for two years. She had begun on 4 February 1969 and left on 16 December 1970. He had been unable to find the attendance records for her classes and could not say in whose class she had been in her final year. He did confirm that Mrs H was then a teacher at the school.

[17] X was recalled solely to be cross-examined by the appellant’s counsel, who began by pointing out to her that if the offence happened in December 1969 - January 1970, when she would have been 11, that was inconsistent with the appellant’s intimated evidence that he applied for the wine shop position in May

1971.

[18] A little later counsel took her to her earlier evidence that she was 12 or 13 in her last year at intermediate school. To this she replied that in this she had been approximate and added:

I just know I was in the last year of intermediate.

[19] The appellant’s counsel then put to her the principal’s evidence that she had been at the school for two years between 4 February 1969 and 16 December 1970. In response she asked whether the date on which she had enrolled at high school had been identified. She added:

As I said I spent an extra year in intermediate so I asked my legal team to check when I exactly started high school.

[20] Counsel put to X the letter from the principal the effect of which was, he said, that she had enrolled in high school in 1971. She challenged that. She asked how the letter could be accurate if the principal could not say whether or not Mrs H had been her teacher. She said again:

I knew I was kept back a year. ... If the records are straight ... they should know I was in Mrs H’s class in form 2. Who was my teacher in form 2.

[21] The appellant’s counsel returned, finally, to the inconsistency between the dates the principal said she attended school and those on which the appellant applied for the position at the wine shop. X remained unshaken.

[22] When re-examined X said she was kept back a year because she was too young to go to high school, and that Mrs H was her teacher in her second year in form two, her third year at the school. The offence she complained of, she confirmed, happened in the Christmas holidays before that year. She recalls being petrified at the prospect of being in Mrs H’s class. She recalls also seeing Mrs H for the first time as a woman; a woman who had sexual relations with her husband, Mr H, another teacher at the school.

[23] On 13 February 2007, after the school photographs were consulted, the appellant admitted three facts. The school records were incomplete and did not record, as they should have, that X had attended the school during 1971. X was in Mrs H’s class first in 1969, in form one, and again in 1971 in her second year in form two. She entered high school on 1 February 1972. By these admissions the appellant confirmed that in this respect at any rate, X was completely truthful and accurate.

Other two challenges

[24] X’s ultimate evidence that the offence she complained of happened during the 1970 Christmas holidays, between 1 December 1970 and 31 January 1971, was, we accept, open to challenge in the two further ways advanced on this appeal. But that is all. Neither raises any serious question as to X’s truthfulness and accuracy.

[25] That X was mistaken in saying that the appellant and his wife were at that time working in the wine shop, when that could not have happened until five months later, is readily explicable. The appellant had been selling liquor in a hotel for five years before he applied for that job, as he confirms in his own letter of application and as a son of his confirmed also. To a child of 12 a liquor store and a wine store might well have seemed the same.

[26] X’s evidence that when the appellant raped her the appellant’s wife was absent to look after her sick father, and indeed that they had seen her off earlier in the evening, cannot, we accept, be reconciled with the fact that the father had died five months before. This was the appellant’s best point at trial and remains so on this appeal. It is no more than that.

[27] This discrepancy, in isolation, was not compelling. The jury could still have accepted that on this issue X was truthfully recounting what she had recalled being told on the night. Or the jury could have concluded that she was merely mistaken, that she had conflated two distinct memories, but was otherwise truthful and accurate.

Result

[28] On the evidence as a whole the jury, properly directed and acting reasonably, was entitled to rely on X’s evidence that the appellant raped her in the 1970

Christmas holidays. Her evidence was definite and, on the main point of challenge, vindicated. The two remaining challenges at most show X to have been confused as to two details. Neither was fatal to her account. The appellant’s appeal against conviction will be dismissed.

Solicitors:

Crown Law Office, Wellington