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Court of Appeal of New Zealand |
Last Updated: 23 January 2018
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REISSUED ON 7 SEPTEMBER 2009 PURSUANT TO MINUTE OF THE COURT DATED 7 SEPTEMBER 2009
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF MS X.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA736/2008
CA749/2008 [2009] NZCA 279
THE QUEEN
v
MAIA RONGONUI
Hearing: 23 February 2009
Court: William Young P, Chisholm and Heath JJ Counsel: N Levy for Appellant
P K Feltham for Respondent
Judgment: 2 July 2009 at 11.30 am
Reissued 7 September 2009 : see recall judgment of 7 September 2009
Effective date of judgment: 2 July 2009
JUDGMENT OF THE COURT
R V MAIA RONGONUI CA CA736/2008 [2 July 2009]
A The appeal against conviction is dismissed.
B The Solicitor-General’s application for leave to appeal
against sentence is granted. The appeal is allowed. The
sentence of four
years’ imprisonment is set aside. A sentence of imprisonment of six
years is substituted, in its place.
C Order prohibiting publication of name or identifying particulars of
Ms X.
REASONS OF THE COURT
(Given by Heath J)
Contents
Introduction [1] The appeals [3] The cases for the Crown and Mr Rongonui at trial [5] “Recent complaint” evidence
(a) Background [19]
(b) The nature of the “recent complaint” evidence [26] (c) Was the evidence admissible? [37] The prior statement of Ms X
(a) Was the Judge correct to allow the prosecutor to use the
statement to refresh Ms X’s memory?
[52] (b) Leading questions to elicit content of prior statement
[68] Identification direction
[77] Remaining grounds of appeal
[82] Solicitor-General’s appeal against sentence
[87] Result
[96]
Introduction
[1] Mr Rongonui was charged with one count of sexual violation by
unlawful sexual connection and one of assault with intent
to commit rape. After
a trial in the District Court at Christchurch, before Judge Farish and a jury,
he was convicted on both counts
and sentenced to an effective term of four years
imprisonment.
[2] Mr Rongonui appeals against conviction. The Solicitor-General seeks leave to appeal against sentence.
The appeals
[3] Ms Levy, for Mr Rongonui, advances the following grounds of appeal: (a) The Judge erred in admitting “recent complaint” evidence.
(b) Mr Rongonui’s female relative (Ms X) ought not to have been
allowed to refer to a statement that she made to the Police
(some six weeks
after an alleged conversation with Mr Rongonui) for the purposes of refreshing
her memory. Ms Levy submits that
the statement was not “fresh”.
In that statement, Ms X said that Mr Rongonui had made admissions to her about
what
happened.
(c) The Judge erred in giving an identification direction in relation to
the reliability of a witness at or near the scene.
(d) The Judge gave confusing directions to the jury in respect of Crown
submissions as to motive and lies.
(e) The Judge was unfairly critical of defence counsel when summing up to
the jury.
[4] Ms Feltham, for the Crown, puts the Solicitor-General’s
application for leave to appeal against sentence on the
grounds that the
sentence was manifestly inadequate and wrong in principle.
The cases for the Crown and Mr Rongonui at trial
[5] On 8 April 2007, the complainant, a young female Australian, was in New Zealand for a touch rugby tournament. She and Mr Rongonui gave quite different versions of relevant events. To provide context for some of the points on appeal, we introduce the facts by comparing the cases for the Crown and defence, as put to the jury in closing. It is clear, however, that the jury must have rejected Mr Rongonui’s explanation of what occurred.
[6] Counsel for the Crown, at trial, submitted that the complainant was
a credible witness and that her account of the events
demonstrated that unlawful
sexual connection and an assault with intent to rape occurred.
[7] The complainant’s evidence was that Mr Rongonui walked with
her, along Manchester Street, Christchurch on the
evening of 7 April
2008, they became friendly and, at one time, she asked Mr Rongonui for
directions to get back to the backpackers’
hostel, where she was staying.
At some point, they moved off into a more secluded area off Manchester Street.
She said that she
was struck in the face by Mr Rongonui, knocked to the ground
and kicked in the head twice. The complainant said that Mr Rongonui
sexually
violated her, by putting his penis into her mouth.
[8] Counsel for the Crown submitted that all of that happened with
“the clear intention on the accused’s part that
he intended to have
either sexual intercourse” or “oral sex with her”. Counsel
pointed to Mr Rongonui’s
own evidence, in which he had suggested, several
times, that she have sexual relations with him.
[9] Counsel for the Crown submitted that Mr Rongonui tried to pull the
complainant’s trousers down. He tried to get the
complainant to perform
oral sex on him, while he held her down. She did not consent, told him so,
struggled and pushed him. Nevertheless,
Mr Rongonui managed to force his penis
into her face. The penis either rested on her lips or was inserted into her
mouth. Eventually,
the complainant managed to get free. She ran and
immediately called for help.
[10] The Crown also relied on admissions that Mr Rongonui had made to a
female relative (Ms X). Her name was suppressed during
the trial and she was
allowed to give evidence in closed Court.
[11] Counsel for the Crown also sought to cast doubt on evidence from a local prostitute, called on behalf of Mr Rongonui at trial. She claimed to have seen the complainant and the accused walk past her at about 2.50 am; walking back up Manchester Street towards her about 30 minutes later. That witness also recalled seeing them walking back up an adjacent street and saying that she got a good look
at the complainant at that time. Some five or ten minutes later she saw a
person, whom she thought was the complainant, running down
a nearby street,
looking really upset, and on her telephone. While the Crown suggested that only
the latter part of her evidence
was reliable, the witness’ veracity was
not challenged.
[12] In closing for the defence, counsel for Mr Rongonui submitted that
there was a reasonable doubt and that the jury ought not
to act on the
complainant’s evidence to find the elements of the charges proved beyond
reasonable doubt. Evidence given by
Mr Rongonui was emphasised.
[13] Mr Rongonui’s account began with his visit to Jade Stadium
that night, with a friend, to watch the Crusaders play a
Super 14 rugby game.
The friend was Ms X’s boyfriend.
[14] After the game, Mr Rongonui and his male friend went into town.
They began to drink. They walked around the city, passing
a rugby ball around,
smoking drugs and drinking.
[15] A little later he met a tourist (the complainant) outside
a bar called “Shooters”. Mr Rongonui
said she looked
intoxicated. He introduced himself to her.
[16] Mr Rongonui said that she was “all over” him, meaning
“cuddling, trying to kiss”. At some point
he asked the complainant
to have sex and she agreed. They went down the side street. Mr Rongonui
continued (in examination in chief):
Q. ... And so what happened then.
A. Then we went down the street. She started feeling me up, undoing
my pants and I said we’re going to this park bit
and she said, yep. So we
went into the park bit. She gave me oral sex and yeah, yep.
Q. Okay she gave you oral sex. What happened then.
A. And then we back onto Manchester Street. Back towards the city. Q. What happened then.
A. Um, she checked her pockets and searched for her keys and they weren’t there so, um, we went back to the park bit, had a look for
them, we couldn’t find them and I said I had them to her and she was
like, oh, yep. Can I –
A. Yep.
Q. You’ve said there is oral sex and you ejaculated in her mouth. A. Yep.
Q. Did any other sexual activity take place on that first visit to the park. A. Um, yep, yep, there was.
Q. What happened.
A. I had sex with her.
A. No, no.
Q. So the first visit to the park, just to be clear. A. Yep, yep.
Q. You had oral sex with her. A. Yep.
Q. You had sexual intercourse with her. A. Yep.
Q. And you ejaculated in her mouth. A. Yeah and then I had oral sex again. Q. Right.
A. Yep.
Q. And I think you’ve said you walked back onto Manchester Street.
Correct.
[17] Because the versions of events given by the complainant and Mr Rongonui were so diametrically opposed, the “recent complaint” evidence admitted by the Judge and her decision to allow Ms X to give evidence of oral admissions made to her by Mr Rongonui assumed some importance.
[18] After the hearing, we issued a Minute (of 25 February 2009)
seeking a transcript of the submissions made to the
Judge, together with
transcripts of other discussions on legal points relevant to the appeal. We did
not receive a completed transcript
on all issues raised until 26 March 2009 and
the last of the submissions came to hand on 7 May 2009.
“Recent complaint” evidence
(a) Background
[19] On 11 July 2008, approximately two months before trial, the Crown
had applied under s 344A of the Crimes Act 1961 for a ruling
as to the
admissibility of the “recent complaint” evidence. This evidence
related to the distress of the complainant
after the incident albeit that it
included references to the complainant talking to her friends and, on her
account, telling them
what had happened. This application was supported by
written submissions which referred to legal authorities. As it turned out,
this
application was not able to be dealt with until the morning of the first day of
the trial (Monday 8 September 2008) when counsel
saw Judge Farish, in Court for
Chambers, to discuss the application.
[20] The Judge ruled that evidence could be led from the complainant of
the fact that she had made a complaint shortly after the
incident, so long as
“the details of the conversation” were not led, either from herself
or the person to whom the complaint
was made. In admitting that evidence, the
Judge said that she would give reasons later. No reasons have ever been
provided.
[21] During the course of the Chambers’ hearing the trial Judge
expressed the view that the evidence was relevant only to
narrative. She saw no
reason why the “fact” of a complaint ought to be withheld from the
jury.
[22] The relevant evidence was led from the complainant and her two friends. The two friends were Mr Jones and Ms Garlick. The complainant said she telephoned Mr Jones soon after the events involving Mr Rongonui. The complainant
was explicitly asked not to tell the jury what she said to her friends. She
gave evidence that, after she spoke to them, they took
her back to the hostel
where she had a shower and changed her clothes.
[23] Ms Garlick described overhearing the telephone discussion
between the complainant and Mr Jones. She took the telephone
off Mr Jones and
heard the complainant “very distressed and just struggling to breathe,
just trying to get words out and say
whereabouts she was”. Ms Garlick
added that when she first saw the complainant she was “very
distressed” and “hyperventilating,
crying ... she was struggling to
talk”. She added that she had never seen the complainant like that
before.
[24] Mr Jones gave evidence of the telephone call which resulted
in the complainant and her friends finding each other.
He said:
A. ... she sort of had her head down and was obviously upset and
something had gone wrong and she looked a bit scruffed up
and when we got there
she was all upset and crying and you couldn’t get too much out of her and
then because then the girls
came up behind and they sort of comforted her and
all I could draw from it that obviously something had taken place but we
didn’t
know what and I wasn’t going to ask her sort of
anything.
[25] Ms Levy submits that the evidence was inadmissible and resulted in
the jury wrongly hearing evidence of what the complainant
did, what she had told
her friends and how she appeared immediately after the incident.
(b) The nature of the “recent complaint”
evidence
[26] Resolution of the admissibility issue involves a consideration of s
35 of the
Evidence Act 2006 (the Act), R v Turner [2007] NZCA 427 and R v
Balien [2009]
1 NZLR 170 (CA). The Crown submits that the evidence was admissible (based
on Turner) as part of the narrative. In Balien, at [53], this
Court left open the possibility that Turner might be decided differently
as a result of s 35 of the Act. This appeal raises the question whether
Turner is still good law.
[27] Section 35 provides:
35. Previous consistent statements rule
(1) A previous statement of a witness that is consistent with the
witness's evidence is not admissible unless subsection (2) or
subsection (3)
applies to the statement.
(2) A previous statement of a witness that is consistent with the
witness's evidence is admissible to the extent that the
statement is
necessary to respond to a challenge to the witness's veracity or accuracy,
based on a previous inconsistent statement
of the witness or on a claim of
recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the
witness's evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance
that the statement is reliable; and
(b) the statement provides the court with information that the witness
is unable to recall.
[28] “Recent complaint” evidence was the name given,
before the Act, to admissible evidence demonstrating
that something said
by a complainant in sufficient proximity to an alleged sexual assault was
consistent with testimony at
trial. Such evidence also served to rebut any
suggestion of recent fabrication.
[29] In Turner, this Court referred to R v Kincaid [1991] 2
NZLR 1 (CA) at 9 and White v The Queen [1998] UKPC 38; [1999] 1 AC 210 (PC) at 215-216,
in discussing the nature of such “recent complaint” evidence, as an
exception to the general rule that previous
consistent statements were
inadmissible. In White, Lord Hoffmann said:
... The immediate question is - "How is one to know she is a truthful girl
telling of her complaint?". The answer - that her own assertion
that she did
complain will help the jury to assess her truthfulness - needs only to be stated
to be recognised for its logical absurdity.
Without independent confirmation
of what she said, the girl's own evidence-in-chief that she complained
takes the jury nowhere
in deciding whether she is worthy of belief. The
doctrine of "recent complaint" in sexual cases allowing the prosecutor to adduce
evidence of a prior complaint is not to be confused
with the rule allowing
recourse to such a statement in order to rebut a specific charge of recent
intervention.
(Emphasis added.)
[30] In Turner, the District Court trial had taken place before the Act came into force. So, the pre-Act law applied. The Court held that evidence of what a complainant did at a time proximate to the alleged offence (including her statement
that she had told a third party “what had happened”) was not
recent complaint evidence. Rather, it was evidence of the
complainant’s
conduct, designed to support her credibility. Because, in Turner, no
evidence had been led of the actual words uttered by the complainant, the
evidence did not fall within the scope of the “recent
complaint”
rule, described in White. Mr Turner’s appeal was
dismissed.
[31] Mr Turner sought leave to appeal to the Supreme Court. In
dismissing the application for leave (Turner v The Queen [2008] NZSC 11),
Elias CJ, Anderson and Wilson JJ said:
[3] The first point rests on a misconception of what occurred at
trial. Although the complainant gave evidence of what
she did in the
hours between the incident with the applicant and her going to the
Police, including contacting a
friend and her mother, she was not asked to and
did not give evidence of anything she had said to any person during that time.
The
friend and the mother were not called as witnesses. The Crown relied on the
evidence which the complainant did give as evidence of
conduct which was
consistent with the offending having occurred.
[4] The Court of Appeal saw no difficulty with the evidence being
given for this purpose. As it said, it was the complainant’s conduct
which
was used to support her credibility, not a prior consistent statement. We agree
that the evidence was not in law “recent
complaint” evidence, was
unobjectionable and did not require any special direction.
[5] We do however differ from the Court of Appeal on one minor and
immaterial point in relation to the first proposed
ground. That Court
expressed the view that it would have been preferable for the trial Judge not to
have referred to the evidence
as a complaint. The Judge however used the word
“complaint” in the ordinary sense of that word and the jury would
have
understood it as such, rather than attributing to it the technical legal
meaning of “recent complaint”.
(Emphasis added.)
[32] Barlien was an appeal against conviction, arising from a
trial that took place after the Act came into force.
[33] In Barlien (at [28]-[35]) the Court outlined the legislative
history of s 35. In summary:
(a) The Act had its genesis in a review of the law on evidence undertaken by the Law Commission. In its recommendations (Evidence: Code and Commentary (NZLC R55 1999) at C 168), the Commission
recommended the prior consistent statement rule, now found in s 35. The Law
Commission report did not intend to displace the common
law dealing with recent
complaint evidence in sexual cases. In the form proposed by the Commission in
its draft Evidence Code,
the equivalent of s 35 read:
37 Previous consistent statements rule
A previous statement of a witness which is consistent with the
witness’s evidence is not admissible except
(a) to the extent necessary to meet a challenge to that witness’s
truthfulness or accuracy; or
(b) if the statement will provide the court with information
which that witness is unable to recall.
(b) Under its proposed s 37, the Commission intended to bring the recent
complaint rule within the general ambit of
previous consistent
statements designed to meet a challenge to a witness’s truthfulness or
accuracy. Contrary to the common
law, however, the “complaint” did
not need to be “recent” and could be used to prove the truth of what
was
said.
(c) The scope of what was to become s 35 was narrowed by the
Parliamentary Select Committee. It considered the Commission’s
wording
to be “unworkable and too broad”. For that reason, the
admissibility of previous consistent statements was
limited to the extent
necessary to respond to challenges to a witness’s accuracy or veracity
based on a previous consistent
statement or to claims of recent
invention on the part of the witness: see s 35(2).
(d) The Select Committee’s refusal to retain the recent complaint exception to the hearsay rule was deliberate: see Mahoney and others The Evidence Act 2006: Act and Analysis (2007). The learned authors of that text state that a specific submission from the New Zealand Law Society, seeking to retain the “rule” was rejected: see Mahoney and others at [EV 35.04].
[34] The analysis in Barlien demonstrates the extent to which the
law relating to previous consistent statements has been changed:
(a) The common law recent complaint rule in sexual cases has
been removed.
(b) The admission of previous consistent statements to rebut allegations
of recent fabrication was retained: s 35(2).
(c) The admission of previous consistent statements is permitted in cases
where there has been a challenge to the witness’s
veracity or accuracy,
based on a previous inconsistent statement by the same witness: s
35(2).
(d) Statements forming part of the res gestae (in the sense of the
general background) are not specifically covered by the Act. As to the res
gestae point, see Barlien at [37]-[39].
[35] The disputed evidence in Barlien consisted of what the two
complainants had said at a time proximate to the alleged sexual offending.
This Court found the evidence
was inadmissible, but that there had been no
miscarriage of justice. That view was formed notwithstanding that,
historically, inadmissible
recent complaint evidence that had been wrongly
admitted has been regarded as sufficient to constitute a substantial
miscarriage
of justice.
[36] The convictions were saved because the Court was satisfied that the evidence would have been before the trial Court in any event. The essential allegations were the subject of a contemporaneous confrontation between Mr Barlien and a complainant’s mother and his reactions (by words or conduct) were admissible. Therefore, the substance of the statements made by the two complainants would have been before the jury, albeit on a different basis.
(c) Was the evidence admissible?
[37] In this case, no evidence of what was actually said by the
complainant was led. It is the evidence of the complainant’s
contemporaneous demeanour, the fact that she had told someone what had happened
and the telephone calls to her friends that are in
issue. Does evidence of
that character fall under s 35? Or, may it be admitted as direct relevant
evidence, forming part of the
narrative?
[38] The evidence adduced by the Crown was both relevant and cogent. For
the purposes of s 7(3) of the Act, it was relevant to
prove something of
consequence to the determination of the proceeding; namely, the
complainant’s credibility. It was cogent
because it was evidence of
contemporary behaviour that was consistent with the allegation of sexual
abuse. Section 7(1) of
the Act states that all relevant evidence is
admissible, unless rendered inadmissible or excluded, either by the Act or some
other statute.
[39] Two types of evidence are in issue. The first is evidence led
from the complainant’s friends, Ms Garlick and
Mr Jones, that
describe her general demeanour when she was spoken to on the telephone and
when they first saw her after the
alleged sexual assault. The second was
evidence led by the Crown of the complainant telling her friends what had
happened, without
giving evidence of what specific words were used. The latter
is the type of evidence ruled admissible in Turner. We assume that
this was the basis on which the trial Judge allowed evidence of the
fact of complaint to be led: see [19]
above.
[40] Section 35 deals only with the admissibility of
previous consistent statements. Evidence only comes
within the scope
of s 35 if it amounts to a “statement” of a witness. The term
“statement” is
defined in s 4(1) of the Act, by reference to both
words and conduct:
4 Interpretation
(1) In this Act, unless the context otherwise requires,—
statement means—
(a) a spoken or written assertion by a person of any matter; or
(b) non-verbal conduct of a person that is intended by that person as an
assertion of any matter
[41] Evidence given by a witness of how a person reacted to an event is
not, necessarily a “statement”, as defined.
While
“non-verbal conduct” is involved, evidence of a spontaneous
reaction cannot be evidence of conduct “intended
by [the complainant] as
an assertion” of what occurred. Spontaneous non-verbal conduct is, by
definition, not an intentional
assertion of any fact. In this case, it is plain
that any reaction of the complainant was spontaneous, so s 35 does not apply to
it.
[42] Both Turner and Barlien can be distinguished on that
basis. Both involved spoken utterances. Accordingly, neither Turner
nor Barlien can be regarded as controlling law on the conduct
issue.
[43] More problematic is the evidence of the complainant that was led by
counsel for the Crown, in accordance with the trial Judge’s
ruling. The
evidence is within short compass:
Counsel: Now when your friends arrived. I don’t want you to tell us
what you said but I, I take it that you told them what had
happened and they
took you back to the hostel.
Complainant: Yep.
No point is taken about the leading question asked. Counsel agreed the form
of question eliminated any possibility that the witness
would stray beyond
evidence that the Judge had ruled admissible.
[44] This evidence is of a similar kind to that given in Turner.
The complainant in that case gave evidence that she told her friend what had
happened: at [19]. The question is whether, once the
Act came into force,
evidence of that type is excluded on the basis that it amounts to an
inadmissible previous consistent statement.
[45] The definition of “statement” in the Act (see para [40] above) includes “a spoken or written assertion by a person of any matter”. From the evidence actually given, the jury discovered that two things happened when the complainant reunited with her friends. The jury discovered that the complainant told her friends what had happened. They also discovered that they took her back to the hostel. The jury did
not hear what the complainant had told her friends, though an inference could
readily be drawn that she had told them she had been
sexually
assaulted.
[46] Logically, any jury will realise, in a sexual abuse trial, that (at
some stage) a complaint was made to the police. The
timing of a complaint may
be critical to a favourable assessment of the credibility of the complainant;
just as a delayed complaint
may, despite the judicial direction set out in s 127
of the Act, in practice weigh against a favourable assessment.
[47] Evidence of what a person did is different in kind to evidence of
what that person said. In general terms (moving away from
the particular
subject of complaint evidence in sexual cases), a witness will be permitted to
give evidence of speaking to another
person, without disclosing what was said;
either to avoid the possibility of introducing inadmissible hearsay evidence
or distorting
the conversation by reference only to what that particular
witness said. Such evidence is regularly admitted as part of
the narrative
of events.
[48] Such evidence was admitted for that purpose in Turner. The
approach taken by Turner was approved by the Supreme Court, when it gave
judgment dismissing the application for leave to appeal: see [4] of the leave
judgment,
set out at [31] above. While we recognise that the Supreme Court did
not have to address the statutory definition of “statement”,
the
Court agreed that the evidence given went to conduct rather than what was said.
Therefore, it was not, in law, “recent
complaint”
evidence.
[49] Barlien does not affect that conclusion. Barlien
involved repetition of a victim’s oral statement that the appellant
had “touched her on the fanny and kissed her like
a grown-up”: at
[12] and [18]. Barlien dealt with the words that were actually spoken.
In contrast, the complainant’s evidence in this case was directed to what
happened.
[50] In our view, this Court’s judgment in Turner remains good law despite s 35. The characterisation of the nature of the evidence cannot change. The complainant, by saying she had told her friends what occurred, put in context what happened
afterwards. It was not a previous consistent statement as defined. It was
direct evidence of something that happened that was
relevant to the narrative of
events.
[51] In our view, because evidence was not given of anything actually
said by the complainant, the evidence did not fall within
s 35. Therefore,
being both relevant and cogent evidence going to the complainant’s
credibility (see [38] above), it was admissible.
The prior statement of Ms X
(a) Was the Judge correct to allow the prosecutor to use the statement to refresh
Ms X’s memory?
[52] This point arises from Ms X’s evidence. It is clear, from
notes of evidence taken on voir dire, that she was a reluctant witness.
The Judge directed that her evidence be given in closed Court and ordered that
her name be suppressed,
to assuage her concerns.
[53] Ms X referred to a conversation with Mr Rongonui the day after the
alleged sexual assault in which he was alleged to have
said that “he
hooked up with an Aussie chick”. She also gave evidence of another
conversation about a week later. Contrary
to an agreement between counsel, Ms X
also gave evidence about putting to Mr Rongonui that he had “helped
himself” to
the “Aussie girl”. She stated that she could not
remember what he had said “but he looked pretty guilty”.
[54] The balance of Ms X’s evidence was obtained as a
result of the Judge permitting her, over objection, to
refresh her memory
from a typed version of a statement that she gave to the Police, about six weeks
after the second conversation.
However, Ms X’s memory did not
improve.
[55] The Judge then allowed counsel for the Crown to ask leading questions to extract the precise terms of the prior statement from her. Ms X’s oral responses to those questions form the disputed evidence.
[56] We requested a transcript of the legal discussion that
preceded Ms X’s evidence and similar discussions
that occurred during
the course of her evidence before the jury; including the issue of refreshing
memory.
[57] This part of the evidence emerged after Ms X had said, in answer to
a question from counsel for the Crown about what the
accused said after the
discussion that led to the “looked pretty guilty” remark: “I
can’t remember”.
[58] At that point, counsel for the Crown asked the witness to look at a
statement she had made to the Police about “six
or so” weeks after
the conversation. The typed statement is dated 29 May 2007. Counsel for the
accused objected to that course.
The objection was that no foundation had been
led for the witness to refresh her memory, to which the Judge responded:
“She
just said I can’t remember ... ”.
[59] Ms Levy’s complaint is that the Judge ought not to have
allowed Ms X to refresh her memory from her previous statement.
She does not
rely on any lack of foundation for the Judge to exercise her discretion to allow
that to be done. The challenge is
on the basis that the document was not
sufficiently contemporaneous to be used for that purpose.
[60] That issue turns on the interpretation to be given to s 90(5) of the
Act:
90 Use of documents in questioning witness or refreshing
memory
...
(5) For the purposes of refreshing his or her memory while
giving evidence, a witness may, with the prior
leave of the Judge,
consult a document made or adopted at a time when his or her memory was
fresh.
[61] The issue is whether the document from which the witness refreshed
her memory was “made or adopted at a time when ...
her memory was
fresh”. Ms Levy submits that that threshold could not be met in respect
of a document that came into existence
some six to seven weeks after the
relevant event.
[62] In R v Foreman [2008] NZCA 55 at [50], Hammond J, for the Court, considered what approach should be taken to the interpretation of s 90(5). He said:
[50] This Court has said that the new Act must be seen in its own terms; it
is a new beginning. So as matters now stand, s 90(5)
has to be approached
anew. There will be a number of problems to be solved with respect to this
provision. It is sufficient for present purposes to say that contemporaneity
is the statutory bedrock, and there is no doubt that was satisfied
in this
case. Even so, the laying of a proper basis must still be attended to. The
exercise of refreshing a witness’s memory
should not be confused with a
“reconstruction”. Resort should be had to this technique only if
the witness actually
needs to have her memory refreshed. The rule is intended
to facilitate testimony that would otherwise be unavailable, not to bolster
evidence a witness can provide in any event. The witness should be able to
rely on the document or electronic record to assist in presenting her
testimony only if she
is able to assert that the document accurately represents
her recollection at the time it was made. Neither is it right to enable
counsel
to control the evidence the witness will supply. Counsel should not attempt to
have a witness use the particular record
as a sort of script. That would be
quite improper leading. Finally, the aid is just that; it is not
evidence.
(Emphasis added.)
[63] Ms Levy relies on the proposition that “contemporaneity is the
statutory bedrock”. In Foreman, there was no question that the
statement was sufficiently contemporaneous.
[64] An exclusive focus on the contemporaneity of the document leaves to
one side the possibility that a document made at some
later time may still, as a
matter of fact, have been made or adopted when the witness’s memory of
events was “fresh”.
Situations often arise when a person is not
asked about a particular event for many months but, because of the significance
of the
event or because there has been a continuing need to refer to what had
happened for other reasons, his or her memory of what occurred
remains
“fresh”.
[65] In our view, it is impossible to draw a line as to the
point at which a particular witness’ memory is
no longer
“fresh”. While contemporaneity will, more often than not, be the
touchstone, in each case a factual inquiry
must be made to determine whether the
jurisdictional prerequisite to use of s 90(5) has been met. In a sufficiently
contentious
situation, this may require the Judge to hear evidence, in the
absence of the jury, to make that determination. No such hearing
took place in
this case.
[66] In favour of the exercise of the discretion to allow the witness to refresh her memory, it is unlikely that Ms X would have forgotten what was said by and to
Mr Rongonui. This was a significant event, for Ms X as well as for Mr
Rongonui. Not only was Mr Rongonui a relative but she was also
concerned about
the conduct of her boyfriend. Her conversation with Mr Rongonui may have
allayed any fears about his involvement.
On the other hand, because a narrative
of some detail was involved, it is possible that Ms X’s memory of some
of the detail
might have decayed. On balance, we consider there was
sufficient evidence for the Judge to allow the statement to be put to the
witness for the purpose of refreshing memory.
[67] Because Ms X gave evidence, her prior statement was not hearsay.
Unless she gave evidence which was in substantial accord
with that prior
statement, the prior consistent statement restrictions in the Act were not
applicable. So, once Ms X gave evidence
which was not consistent with the
earlier statement, it was practically inevitable that the statement (or at least
its substance)
was going to be admitted. Although we have engaged with, and
rejected, the s 90(5) argument as presented, we wish to make it clear
that even
if the subsection had not been able to be invoked, the independent admissibility
of the statement would have meant there
was no miscarriage of
justice.
(b) Leading questions to elicit content of prior
statement
[68] After the statement had been put to Ms X to refresh her
memory, the transcript reveals that she continued to
be reticent in answering
questions. At one point she said that her mind “had gone blank”.
Simply putting the statement
to her did not have the effect of jogging her
memory.
[69] Counsel for the Crown then addressed the Judge. From the
transcript, it appears that was done in the absence of the jury.
Counsel asked
whether she could “put the passage to the witness”. She said that
she was prepared either to “put
it directly to her or get her to read
it”. Counsel for the accused submitted that the document should simply
be used to refresh
her memory so that she could be asked questions on it. Her
Honour responded:
Well, we have done that and I think it might be safer to do it in the way in which [Counsel for the Crown] has suggested actually.
[70] The questions asked to extract evidence of the content of the
statement are set out below:
EXAMINATION CONTINUES: [Counsel for the Crown]
Q. In your statement [Ms X], you have told the Police that you said to
Maia Rongonui, “You helped yourself” is that right.
A. Yep.
Q. That he replied, “But she was drunk” is that what happened. A. Yes.
Q. And you said, “That gives you no right to help yourself”. A. Yes.
Q. Is that what happened. A. Mhm.
Q. And then he replied, “Oh I know cuz I did help myself”. A. Yes.
A. Mhm.
A. Yes.
[71] The fact that the Judge allowed counsel for the Crown to
put leading questions to Ms X suggests that she was
satisfied that Ms X was
“hostile”.
[72] Section 94 of the Act states:
94 Cross-examination by party of own witness
In any proceeding, the party who calls a witness may, if the
Judge determines that the witness is hostile and gives permission,
cross-examine
the witness to the extent authorised by the Judge.
[73] By the time the Judge allowed counsel for the Crown to put the statement directly to the witness, the evidence demonstrated that Ms X was not only struggling to remember without an aid but also was reluctant to accept what she had clearly said
in a written statement as being an accurate account of what she had told the
Police earlier. We are prepared, on that basis, to
find that it was open to
the Judge to exercise her discretion to allow cross-examination on the grounds
of hostility.
[74] Once hostility is declared, there is no issue of use of a previous
consistent statement. Leave to cross-examine is granted
when the statement that
the Crown is seeking to elicit is different from the evidence actually
given in Court.
[75] In R v Hira [2009] NZCA 144, William Young P, for the Court,
discussed the use of prior statements of this type, once a witness had been
declared “hostile”
under s 94. The President said:
[30] Once it became apparent that the witnesses were going to be cross-
examined on their previous statements, the most straight-forward
way of
proceeding would have been for the Crown to produce the relevant
statements through the witnesses. These
statements were admissible
(because they were not hearsay and not in the nature of prior consistent
statements). Each had evidential
value. We were told, however, that when this
course of action was suggested, the Judge acceded to objections from defence
counsel
with the result that the prosecutor was required to go through
the relevant statements with each of the witnesses. It
is right to note that an
exercise of this sort was probably going to happen anyway. The prosecutor was
entitled to supplement what
was said in the out of court statements (which we
regard as including the evidence at the preliminary hearing) with such
additional
material as he could extract in cross- examination from the two
women.
[76] Following the approach in Hira, the statement, as a whole,
could have been admitted. Therefore, it did not matter whether the contents
were elicited orally or not.
On that basis, the challenge to this evidence must
fail.
Identification direction
[77] Ms Levy submits that the Judge erred in giving what she described as
an identification warning in respect of evidence
from the prostitute who
identified Mr Rongonui and the complainant together on two separate occasions:
see para [11] above.
Ms Levy contends that the case did not fall within the
boundaries of s 126 of the Act and, in giving the warning, the trial Judge
undermined the defence case.
[78] The Judge directed the jury as follows:
[65] In terms of identification, ladies and gentlemen, you need to consider
a number of issues in relation to reliability. That
is because experience has
shown that sometimes honest witnesses can be mistaken in relation to
identification, but it is a matter
entirely for you. But you might just like to
consider, in terms of assessing [the prostitute] evidence, a number of issues.
One,
perhaps, she did know? Did she have any prior knowledge of the people
that she was identifying? What were the circumstances like?
What was the
lighting like in the area where she was standing? Over what distance
was she making the identification,
in particular in relation to those first two
occasions when she said she identified the accused and [the complainant]? Over
what
time period did she have the people in view? What direction was she
viewing these people from? Was there any particular
reason for her to
recall these people? Was she distracted in any way from her identification?
Was there anything distinctive or
unusual about the people that she was
identifying?
[66] The Crown say [the prostitute] is an honest but, perhaps, a mistaken witness but she, [the prostitute], agreed that she gave a description to the police of the girl that she saw and that was on the last occasion when [the prostitute] said she saw her going into Aberdeen Street. That was, I think,
10 or 15 minutes before [the complainant] comes running out very
distressed.
[67] [Counsel for the defence], however, says [the prostitute] was not
mistaken and, more importantly, [counsel for the defence]
says the person, the
young woman that she saw on those occasions, had the same hair colour, the same
hair style and was wearing the
same clothing. So she is not only reliable in
relation to her identification but she is consistent in terms of the clothing
and
the height and hair colour of the young woman that she was seeing and
therefore she cannot be mistaken. As I said, it is a matter
entirely for you,
and it is a matter for you to assess in relation to [the prostitute’s]
reliability and accuracy.
[79] Section 126 of the Act states:
126 Judicial warnings about identification evidence
(1) In a criminal proceeding tried with a jury in which the case against
the defendant depends wholly or substantially on the correctness
of 1 or more
visual or voice identifications of the defendant or any other person, the Judge
must warn the jury of the special need
for caution before finding the defendant
guilty in reliance on the correctness of any such identification.
(2) The warning need not be in any particular words but must—
(a) warn the jury that a mistaken identification can result in a serious
miscarriage of justice; and
(b) alert the jury to the possibility that a mistaken witness may be
convincing; and
(c) where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.
[80] We agree with Ms Levy that s 126 did not require the Judge to give
an identification warning in respect of evidence of identity
of the witness.
Section 126 is focussed on identification of the accused. Nevertheless, we
consider that the direction which she
gave was justified.
[81] We note that the Judge’s direction did not follow the form
which is used when s 126 applies. In particular, there
was no reference to a
“special need for caution” in relation to the evidence, nor mention
of the possibility of a “serious
miscarriage of justice”. Rather,
the nature of the Judge’s warnings are more aptly characterised as
judicial directions
about the reliability of evidence. Section 122 of the Act
entitles a Judge to give reliability directions such as this. We are
satisfied
that it was open to the Judge to give the directions under s 122. The
identification point fails.
Remaining grounds of appeal
[82] Ms Levy accepted that by themselves, the remaining points (see [3](d) and (e) above) could not give rise to a miscarriage of justice. She put these points forward on the basis that, considered cumulatively with the recent complaint, refreshing memory and identification points, a miscarriage did occur. We should note, however, that the case was argued before the Supreme Court decision in R v Stewart [2009] NZSC 53 was delivered and in light of that judgment we will address the first of the remaining points in a little detail. Before we do so, however, we should record that we do not consider that the Judge was unfairly critical of Mr Rongonui’s trial counsel. It is unnecessary to set out the criticisms. We are satisfied that they were relatively mild and could not have influenced the jury adversely against Mr Rongonui. Certainly, they did not create any overall risk of unfairness, so as to bring into play principles set out in R v Adams CA70/05
5 September 2005 at [87].
[83] In her closing address, the prosecutor commented on the absence of any motive for the complainant to lie. As to the appellant, she said this:
Now I fully accept on behalf of the Crown that people can and do lie for lots
of different reasons. Doesn’t mean they are guilty
by any means and Her
Honour will talk to you about this as well and even though in the accused case,
we known he was only 17 at the
time that those statements were made, we know
that these were serious allegations that were being put on him. He was no doubt
worried
and no doubt stressed, I accept that, but he chose ladies and gentlemen,
he chose not to exercise his right to silence. He chose
to make a statement both
times and he chose to say these things to the police and the Crown says he chose
not to tell the truth and
that’s the truth about the level of contact he
had with the complainant. ...
...that fact that he told lies before he came to Court, the context in which
he told those lies and the time line in which they happened
indicate I suggest
that you can’t rely upon anything he says now either. The second factor is
his evidence in this trial and
the Crown says that it seemed that he was making
things up as he went along. He was minimising things that didn’t assist
him
and he was overstating the things that he thought did help and of course
you’ve heard he blamed almost everybody got lying
or making things
up.
...
The third factor are [sic] his motivations. He is a young man, he is on
trial for some very serious allegations and it is a matter for you, but you
might think that it’s
not surprising that he try and minimise what he did
that night to try and get himself out of trouble.
(Emphasis added)
[84] In her summing up, the Judge gave the usual tripartite direction and she
addressed specifically the arguments advanced by the
prosecutor as to
motive:
[69] The other issue relates to a submission that Ms Beaton made to you
yesterday in relation to motive. She suggested to you
that you needed to
consider, in terms of [the complainant’s] position, her reliability but
also the fact that there does not
appear to be an apparent motive as to why she
would make up this story against Mr Rongonui.
[70] Well, ladies and gentlemen, there is no onus on an accused to put
forward a motive. In this case it is a matter for you
whether or not there is a
motive. There does not appear to be an apparent motive. However, Ms Beaton
went further and suggested
that the accused had a motive to lie. This submission
assumes, of course, that the accused is guilty because if he was innocent his
denials of guilt are not lies at all.
[71] In a subtle way Ms Beaton’s submission really undermines the presumptions of innocence and I ask you to disregard her comments in relation to that. What I believe Ms Beaton was trying to say was that the accused’s varying accounts, the different versions he gave to the police, the version that was put to [the complainant] and then his evidence in chief and cross-examination are consistent with someone realising that they are in serious trouble, and then changing their story to reflect the evidence as it
comes out. As Ms Beaton put to Mr Rongonui yesterday, that he was simply
making it up as he went along.
(Emphasis added.)
In addition when summarising the two cases, the Judge said:
[93] Mr Shamy’s contention was that the Crown is
saying that Mr Rongonui is smart, not sophisticated,
but smart enough to be
able to make up the story. I actually did not think the Crown was saying that. I
actually think the Crown
was saying that he is not clever at all and that is why
he has got himself into such a pickle in terms of the evidence and the lies
he
has told. The Crown has said that the lies he has told are now unravelling
because there is no consistency in terms of his evidence.
[85] It should now be well understood by prosecutors that comments to the
effect that the accused has a motive to lie should not
be made. So it is
disappointing that this problem should once again have surfaced. That said,
the comments the prosecutor made
are not in the same league as those in issue in
R v Stewart. As well, and importantly, the problem was adroitly
addressed by the Judge. She directed the jury to ignore the comment in issue
and she contextualised this direction with a succinct explanation as to why the
comment was unfair. For those reasons we see the
case as falling within
the principle discussed in the judgment of the Privy Council in
Randall v R [2002] UKPC 19; [2002] 1 WLR 2237 at [28]:
... it is not every departure from good practice which renders a trial
unfair. Inevitably, in the course of a long trial, things are
done or said which
should not be done or said. Most occurrences of that kind do not undermine the
integrity of the trial, particularly
if they are isolated and particularly if,
where appropriate, they are the subject of a clear judicial direction. It would
emasculate
the trial process, and undermine public confidence in the
administration of criminal justice, if a standard of perfection were imposed
that was incapable of attainment in practice.
In contradistinction, it is not a situation where, to use the words of the
Supreme
Court in Stewart at [36]:
the prosecutor’s conduct was so blatant a departure from good practice
and so prejudicial that the trial was unfair and the
convictions cannot
stand.
[86] Accordingly we conclude that there was no miscarriage of justice.
Solicitor-General’s appeal against sentence
[87] On the charges of sexual violation by unlawful sexual connection and
assault with intent to commit sexual violation, Mr Rongonui
was sentenced to an
effective prison term of four years. Judge Farish adopted a starting point of
six years for the offending, uplifted
to six and a half years due to the fact
that Mr Rongonui was on bail at the time of offending. The Judge gave a credit
of 18 months
for age and a further 12 months “to reflect the fact that if
I had my way I would release you today but I cannot”. No
uplift was made
for previous convictions, as the Judge noted that “none of them ... are
similar and ... all of your offending
appears within a very short period of
time, five months”. The Judge also commented that Mr Rongonui was
“not a bad
boy at all” and that the offending was “an
impulsive act out of character”.
[88] We agree with the Crown that the Judge’s sentence was
manifestly inadequate. In our view, the Judge placed
far too much weight on the
testimonial material before her and gave too little weight to the evidence of
prior offending on which
Mr Rongonui had appeared previously in both the
Youth Court and the District Court. In our view, though no convictions
resulted, the findings in the Youth Court ought to have been taken into account
and given significant weight: see Kohere v Police (1994) 11 CRNZ 442
(HC). As a result, the overall credit given to the accused was far too
high.
[89] In R v Wilson [1989] 2 NZLR 308 (CA) the public interest in
holding an offender accountable for offending of this type took precedence over
a significant credit for youth.
While Wilson involved an actual
abduction of a woman leading to sexual abuse (which might be viewed as more
serious than what occurred in this
case) the principle that the community
requires protection from offending of this type holds good.
[90] The maximum penalty for sexual violation for unlawful sexual connection is one of 20 years’ imprisonment. Assault with intent to commit sexual violation carries a maximum penalty of 10 years’ imprisonment. The offending was very serious.
[91] We have no difficulty with the Judge’s nominated starting
point of six years: see R v Hassan [1999] 1 NZLR 14 (CA) and R v
Tranter CA486/03 14 June 2004 at [95]. Hassan involved a charge of
assault with intent to commit sexual violation and one of injuring with intent
to injure. No sexual violation
resulted but more serious injuries resulted to
the complainant than in the present case. The Court upheld a sentence of six
years’
imprisonment, while describing it as at the “upper
end”.
[92] We disagree with the District Court Judge on her assessment of
aggravating factors personal to the offender and mitigating
factors.
[93] Mr Rongonui’s list of prior offending, both in the Youth
Court and the
District Court, justified a significant uplift, notwithstanding that Mr
Rongonui was
17 and a half years old at the time of the offending. In addition, the
offending occurred while Mr Rongonui was on bail for another
offence.
[94] There was no guilty plea and no remorse shown. The Judge’s
comments that Mr Rongonui was “not a bad boy”
and that the
offending was “totally out of character” are irreconcilable with
his previous history. So the only
mitigating factor of significance was Mr
Rongonui’s age.
[95] We accept that some credit for youth was required: see R v Mahoni
(1998)
15 CRNZ 428 (CA) at 436-437. Our perception is that the aggravating factors
are of more moment than the appellant’s age. But applying the
principle
that the lower end of a band of sentences should be adopted for any increase on
a Solicitor-General’s appeal and
allowing for our perception that the
starting point was at the high end of the available range, we will treat
the mitigating
and aggravating features as cancelling each other out.
Accordingly we set aside the sentence imposed and replace it with a
sentence of
six years imprisonment.
Result
[96] The appeal against conviction is dismissed.
[97] The Solicitor-General’s application for leave to appeal
against sentence is granted. The appeal is allowed. The
sentence of four
years’ imprisonment is set aside. A sentence of imprisonment of six years
is substituted, in its
place.
Solicitors:
Crown Law, Wellington
NZLII:
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