R v H(CA541/07) [2007] NZCA 461 (24 October 2007)

Last Updated: 2 January 2015

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

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT (BUT NOT THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY

ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA541/07 [2007] NZCA 461

THE QUEEN

v

_H(CA541/07)

Hearing: 16 October 2007

Court: O’Regan, Chisholm and Potter JJ Counsel: D C Ruth for Appellant

M N Zarifeh for Crown

Judgment: 24 October 2007 3 pm

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted.

_{B The appeal is dismissed.}

R V H(CA541/07) CA CA541/07 24 October 2007

C We make an order prohibiting publication of the reasons for judgment (but not the result) in news media or on internet or other publicly accessible database until final disposition of trial. Publication in Law Report or Law Digest is permitted.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] The appellant, H, faces two charges of sexual offending involving his stepdaughter, whom we will call X. X was six years old at the time of the alleged offending. His trial is due to start on 5 November 2007. On 3 October 2007, a number of pre-trial applications were heard by Judge J A Farish. One of these was an application by H under s 44 of the Evidence Act 2006, for permission to cross- examine X’s mother about a statement made by X in June 2004 (when X was three years old) to the effect that her natural father, W, had “tickled her fanny”. We will call this the “2004 statement”.

[2] In a judgment dated 12 October 2007, Judge Farish declined the application, essentially on the basis that there was no tenable evidential basis suggesting that K had been sexually abused when she was three, and therefore no proper basis for the proposed cross-examination. H now appeals to this Court against that decision. We have accorded urgency to the appeal so that the trial is not delayed.

Issues

[3] The issues on the appeal are whether the 2004 statement and the events which followed it provide a tenable evidential basis for the proposed cross-examination and, if so, whether the cross-examination should be permitted under s 44(3).

Section 44

[4] Under s 44(1) no question can be put to a witness relating directly or indirectly to the sexual experience of a complainant in a sexual case with a person other than the defendant, except with the permission of the judge. Under s 44(3), the Judge must not grant permission unless satisfied that the question “is of such direct relevance to facts in issue in the proceeding... that it would be contrary to the interest of justice to exclude it”.

[5] H contends that the 2004 statement is of direct relevance to a fact in issue in the present proceeding because it contained a complaint against X’s natural father, W. H wishes to argue at trial that W may have been responsible for the events leading to the present complaint by X. It is not intended to use evidence relating to the 2004 statement as a basis for any suggestion that X is lying or otherwise lacking in credibility in making the present complaint. H contends that there is a proper evidential basis for placing information about the 2004 statement before the jury, and for using it as a basis for a contention that X has transferred to H blame for something which may have been done to her by W.

[6] In order to evaluate those contentions, it is necessary to set out some detail about the allegations against H and about the complaint said to have been made by X in the 2004 statement.

The allegations against H

[7] On 29 September 2006, X told her mother that H had put his finger inside

X’s genitalia. She said this had happened while X was showering, and H had come

into the shower with her. This is the basis of count one in the indictment, a charge of sexual violation by unlawful sexual connection. X also said that while H was in the shower with her, he got X to help him shave his pubic hair. This is the basis for the second count in the indictment, a charge of doing an indecent act on a child.

[8] The complaint by X to her mother was made in the course of a discussion between X and her mother about X’s poor behaviour. X had been on an access visit to her natural father, W, on the day before the complaint was made. W and X’s mother have lived apart for some years.

[9] On 5 October 2006, X participated in an evidential video, conducted by a police interviewer. She told the interviewer that she was in the shower and that “Dad” had come in, washed her back, and hurt her “fanny” when he had the soap and put the soap on his finger. When asked what had happened then, she said “He put his finger through my fanny and then it hurts and it stinged”. She said that this had happened on one occasion only.

[10] Both H and W have the same christian name, and X refers to both of them as “Dad”. For this reason, the interviewer questioned X about who was responsible for this conduct. She identified the person responsible as H, and made a clear distinction between H and W.

[11] Later she repeated the allegation, saying that H had “put his finger through my fanny and then he hurt me”. She said that he had hurt her “inside my fanny”.

[12] Later in the interview, X said that H had got her to shave him “by the willy”.

[13] Later in the interview X was asked whether, when “Daddy” normally helped her in the shower, he entered the shower or not. She said that normally he did not get into the shower with her. She was then asked his hair colour (she answered black) and whether he was tall or short (she answered tall).

[14] H underwent two police video interviews, one on 11 October 2006 and one on 20 October 2006. He denied the offending. He told the interviewer that he was

in the habit of shaving his pubic area, that he did this from time to time when he was in the shower, but that he did not know how X would have seen him doing this or known that he did. He said that he sometimes washed X’s hair when she was in the shower, but he had not got into the shower with X and had not touched her vagina. He also denied that he had got X to help him shave his pubic area.

2004 statement

[15] At the time of the 2004 statement, X and her mother were living with a female friend of X’s mother, who was a foster parent for the Department of Child Youth and Family Services (CYFS). X’s mother had separated from W, X’s father. X told her mother, “Daddy tickled my fanny”. X’s mother had not begun her relationship with H at that time, and it was clear the “Daddy” to whom she was referring was W. W had had mental health problems, and X’s mother discussed X’s statement with a mental health support worker. That support worker notified CYFS.

[16] At about the same time, there was an allegation of sexual offending against X’s half-brother, who was six or seven at the time, and both X and her half brother underwent evidential videos. The report of the evidential interviewing unit of CYFS relating to the “diagnostic interview” of X was in evidence before the District Court in this case. The interview took place on 17 February 2005. The interviewer stated in the report that X had said that her father tickles her and she laughs, that X had replied negatively to tickles she didn’t like, and that when asked who was allowed to touch her “fanny”, had replied “no-one”. The interviewer concluded that X had not disclosed any sexual abuse: she had talked about normal tickles and had not indicated any going on or near her genital area. The interviewer said that X had identified body parts and “fanny” and “willy” on baby dolls. The allegation involving X’s half-brother appeared to involve sexual misconduct by another, older, boy who was living in the same household.

[17] Just prior to the hearing of the pre-trial applications in the present case, X’s mother was interviewed by the police about the 2004 statement. She said that when X had said her fanny was tickled, “there was no drama, she was giggling and

laughing, mind you she was three”. She said that X used to talk about her thighs being fanny, and she was very ticklish on her thighs.

The District Court Judge’s decision

[18] In the District Court, the application was on the basis that counsel for H sought leave to question either X or X’s mother about the 2004 statement. However, during the course of the District Court hearing this was modified to an application to cross-examine X’s mother only.

[19] The Judge noted the decision of this Court in R v M (2000) 18 CRNZ 368, in which it was stated at [28] that the predecessor of s 44 (s 23A of the Evidence Act

1908):

... protects the child complainant against questions being put concerning his or her prior sexual experience without it first being demonstrated to the Court that there is some tenable evidential basis suggesting that such experience may exist. But if the defence is able to show a basis for the proposed questioning which is more than speculative and that abuse by another person is relevant and accordingly “an issue in the proceeding”, the interests of justice may well require that some questioning of the complainant be permitted.

[20] Judge Farish accepted the Crown’s argument that there was no tenable evidential basis suggesting any prior sexual abuse of X by any person. She said that the 2004 comment was made in a different context to the present complaint, at a time when X’s mother was particularly sensitive to issues of sexual abuse because of the concern at her son’s involvement with another youth. She noted that the evidential interview following the 2004 statement had revealed no allegation of sexual abuse by X, and that the investigation by CYFS and the police had ruled out any suggestion that W had in fact been abusing either X or X’s half brother. She therefore declined leave.

Is there a tenable evidential basis for the cross-examination?

[21] Counsel for H submitted that there was a tenable evidential basis for contending that the 2004 statement disclosed sexual abuse, and that this provided a proper basis for the cross-examination in this case. He noted in particular:

(a) The alleged offending occurred immediately after X had returned from an access visit to W;

(b) Both H and W have the same christian name, and both are referred to as “Dad” by X;

(c) H was not in a relationship with X’s mother when the 2004 complaint was made;

(d) It was possible that X had transferred responsibility for the alleged offending from W to H;

(e) The 2004 statement referred to interference with X’s “fanny” as does the allegation reflected in count one in the indictment in this case.

[22] Counsel emphasised that he was not seeking to use the evidence of the 2004 statement as an indicator of a false complaint by K. Rather, it was intended to be used as a basis for a submission that there had been transference from W to H.

[23] We agree with the Judge’s analysis that the basis for the cross-examination in the present case would be speculative. The 2004 statement was made in circumstances where there is doubt as to whether X was referring to her genitalia when she used the term “fanny”, and, although she talked of tickling her fanny, she did this in a context where she was laughing and obviously not distressed. That is in contrast to the complaint made against H. The involvement of CYFS following the

2004 statement seems to have been because of a concern about X’s half brother’s situation, rather than about X herself, and the evidential video which followed the

2004 complaint did not lead to any disclosure of sexual abuse of X by W or anyone else.

[24] The present allegations against H were made in a context where the interviewer was at pains to distinguish between H and W. X’s answers to the interviewer’s questions indicate a clear understanding of the difference between the two, and a clear view that H was the perpetrator in the present case. The evidence of shaving, which H acknowledged is consistent with his habit of shaving his pubic area, also suggests that there has been no confusion between H and W.

[25] In our view, the 2004 statement does not provide any proper basis for an assertion of transference by X of responsibility from W to H. The investigation following the 2004 statement resulted in no disclosure of sexual abuse of X by W. Cross-examination of X’s mother would lead to her making hearsay statements about what X told the CYFS interviewer. In order to give a full picture she would need to explain the circumstances relating to X’s half-brother and the inquiries relating to him. The evidence that would emerge would not provide a proper basis for a suggestion that W sexually abused X in 2004 and did so again in the present case.

[26] We agree with Judge Farish that the evidence of the 2004 statement is not of such direct relevance to any fact in issue at H’s trial that it would be contrary to the interests of justice to exclude that evidence. That being the case, s 44(3) required the Judge not to grant permission to H to question X’s mother about the 2004 statement.

Result

[27] We conclude that the District Court Judge was right to decline permission under s 44 in this case. We give leave to appeal, but dismiss the appeal.

Solicitors:

Crown Law Office, Wellington