R v W [2012] NZHC 1273 (8 June 2012)

Last Updated: 17 July 2012

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS AND THE ACCUSED, PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-079-000950 [2012] NZHC 1273

THE QUEEN

v

W

Hearing: 17 February 2012 (Heard at Auckland)

Appearances: T V Clark for Crown

P J Morgan QC for Accused

Judgment: 8 June 2012

_{JUDGMENT OF FOGARTY J}

This judgment was delivered by Justice Fogarty on

8 June 2012 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244

O’Sullivan Lawyers Ltd, PO Box 10215, Te Rapa, Hamilton

Copy to:

P J Morgan QC, PO Box 19021, Hamilton

R V W HC HAM CRI-2010-079-000950 [8 June 2012]

[1] This judgment follows upon an earlier judgment of this Court of 24 June

2011, staying an historical sex abuse trial.[1] The first judgment should be read now with this judgment.

The current trial in 2011

[2] In 2011, W went to trial ultimately facing an indictment of 17 counts of sexual offences against three young girls, alleged to have been committed over a period between 1976 and 1984. That is between 36 and 28 years ago. Eleven counts alleged indecent assault on a girl under 12: four counts against V, one against K and six against J. Four counts alleged he induced the girls to do an indecent act on him: two by V, one by K and one by J. There was one count of attempted rape of J and another of rape of J. There was a non-sexual count where he threatened to kill V’s mother and made that to V.

The previous proceedings in 1984

[3] J and K are sisters. The accused lived with their mother in Auckland. One night after he and their mother had been out, and been drinking, they came back home. Their mother left in the car to take the babysitter home. W came into J & K’s bedroom, assaulted J and sexually assaulted K. Later in the early hours of that morning he made a statement to the police admitting those offences. He also admitted that such indecent assaults had happened in the past. He was charged with assault against J and a sexual assault against K. The case was given a depositions date.

[4] V is the daughter of a former partner of the accused. He lived in her house before his relationship broke up and he went to live with the mother of J and K. Prior to the incident just described involving J and K, V had made a complaint to the

_{police of sexual misconduct by the accused. This was in Tauranga.}

[5] The Tauranga police later come to the household of J and K in Auckland and asked them whether or not they had been assaulted by the accused. The said no, probably fearful to speak frankly.

[6] When the charges against the accused in respect of J and K were set down in Auckland for depositions on 6 April 1984, the police arranged to have V called as a witness. V and her mother were provided air tickets to fly from Tauranga to Auckland for the depositions. This was no doubt for V to provide corroboration. It was on the eve of that hearing that the accused pleaded guilty.

[7] The summary of facts described not only the two charges against J and K, but also recorded past conduct:

[K] told the police that the defendant had touched her quite a few times in this manner. She was usually asleep when it would happen but would wake up when her vagina began to hurt.

...

When spoken to by Police the accused admitted touching the complainant [K] on her vagina but denied that he had put his hand inside her pyjamas or that he had put his finger inside her vagina.

He admitted touching her on a number of occasions while she was asleep in bed but could not remember how often. He denies ever touching her vagina from the inside of her pants or inserting his finger.

[8] On the date set for the depositions, the accused pleaded guilty to one charge of indecent assault on K and one charge of assault on J and on 4 May was sentenced to nine months’ imprisonment on both charges.

[9] Following the conviction and sentence of W in 1984, the police closed three files that they had opened, one on the complaint by V in Tauranga, and the other two on the complaints by J and K in Auckland. It was done separately by entering the three file reference numbers on the one form. That closure was found by this Court on 24 June 2011 at [23], to indicate that the police considered that they had now cleared all the complaints.

[10] This previous Court history, conviction and sentence, came to light in the course of the trial. On 24 June 2011 the trial in Hamilton was stayed on terms. The trial was stayed for at least two months and the Crown were to make further inquiries as to what took place in the police investigations and Court processes in 1984. The trial would only proceed if the Crown applied successfully for the stay to end.

[11] The jurisdiction of the Court to stay on this basis was an exercise of the Court’s inherent jurisdiction, as explained in the House of Lords decision of Connelly v Director of Public Prosecutions.[2] This judgment has been followed in New Zealand many times. The leading speech is that of Lord Devlin, extracts of which were cited in the judgment of this Court granting partial stay, at paras [35] – [43].

[12] Judges of the High Court in their inherent jurisdiction have the power to declare that the prosecution must as a general rule join in the same indictment charges that “are founded on the same facts, or form or are a part of a series of offences of the same or a similar character”.[3] Further, if the Judge is satisfied that the subject matter ought to have been included in the first indictment then the appropriate form of order to make in a case is that the case “not to be proceeded with”: see para [43] of the judgment of 24 June.

[13] Following the partial stay judgment of 24 June 2011, further inquiries were made by the police. Affidavits have been filed by the two police officers in Auckland who dealt with the complaints by J and K. The defence have located the counsel who appeared for the accused in 1984 and he has filed an affidavit. The complainants, J and K, have also filed affidavits.

[14] The Crown has now decided not to pursue any counts in respect of V. Presumably this is because they do not know the content of the complaint by V. Her

file was not found. And so there is a real risk that any charges based on the complaint by V would directly contravene the Connelly v DPP principle.

[15] The Crown, however, have applied to amend the indictment, have the stay lifted, and pursue charges based on complaints by J and K which the Crown argue are “fresh” being in that sense allegations which were not made when the two girls were interviewed by the police in 1984.

The issue

[16] The issue to be decided in this judgment is whether or not leave should be granted to file an amended indictment and leave should be granted to continue the proceedings. There is an application for leave to continue the proceedings by the Crown. There is also an application by the accused for an order for permanent stay.

Crown’s submissions

[17] The principal submission of the Crown is that the Court can be satisfied that the allegations contained in the proposed amended indictment are “fresh”, as they were not made until 2008 (by J) and 2010 (by K) to the Australian police. All but one of the charges sought to be pursued are in respect of J, who did not make any sexual complaint in her statement in 1984. There is one charge being pursued in respect of K, on the basis it was not a complaint made in 1984. The Crown contend J did not have an opportunity to make her complaints in 1984.

[18] The proposed amended indictment charges the accused with indecently assaulting J between January 1981 and December 1984 by touching her vagina. Further, as a representative charge, between the same dates of having J perform oral sex on him. Further, another representative charge that between the same dates he performed oral sex on her. Then there is one charge that he attempted to rape her, again between the same periods of dates, and another charge that he did rape her. Then there is a representative charge that on occasions he touched her vagina, and one charge that he put his toe into her vagina, another that he tried to pull her pants

down and another that he touched her vagina and breasts. Finally, in respect of K, that between June 1982 and June 1984 he induced K to perform oral sex on himself.

[19] It is a central submission of the Crown that the girls did not make any mention of these allegations contained in the proposed amended indictment, to the two police officers who interviewed them on the night of the assaults to which the accused had pleaded guilty, and inferentially did not have an opportunity to do so.

[20] Both detectives, now retired, have had difficulty recalling events. But they say from their practice at the time, and from their experience, that had the girls made mention of the allegations now contained in the proposed amended indictment, those allegations would have been recorded by the police.

[21] Statements by the two girls were taken by these two officers on the night. In the case of K, she does say in her statement that she had been assaulted previously on numerous occasions. That is why, in the amended indictment, the only charge being pursued in respect of K is the allegation of oral sex.

[22] In the case of J, her statement describes a physical assault which is not sexual. It occurred when she was intervening in the bedroom that she and J shared, trying to bring to an end the indecent assault on K.

[23] J has filed an affidavit describing her recollection of being interviewed by the police that night. She recalls her mother, K, and herself, seated at a table with a detective.

I recall the Detective talking to [K] and asking questions. I recall saying “But this isn’t the first time” and my mother embedding her nails into my leg telling me to “shut up” or “be quiet”.

I recall my mother telling me to shut my mouth and that I would get a chance to talk. This chance did not arise and I recall thinking that maybe we will get to speak when we go to Court.

[24] J has no recollection of being interviewed separately from her sister at the time. J’s recollection of being interviewed was solely in the presence of her mother and her sister at a long table. But both detectives are of the view that the two girls would have been interviewed separately. They are unsure as to whether or not the

mother would have been with each girl at the time that they were being interviewed. They believe the mother had the ability to go in and out of the rooms so as to be able to be beside each girl at any particular time.

[25] It is plain beyond doubt that J’s recollection in 2011 of the 1984 assaults by the accused that evening is quite different from the written statement taken by the police in 1984.

[26] At the 2011 trial her evidence of the evening of 19 February 1984 is that the accused came into the bedroom. He first came to her and attempted to indecently assault her. She resisted. He then went over to K and began indecently assaulting her. She then tried to stop him and was assaulted.

[27] In her written statement made and signed in 1984, however, J said that she was in bed with her little brother, who had come into her bed for comfort. She woke up to see the accused leaning over the bed of her sister. She intervened and was assaulted by the accused.

[28] At the 2011 trial, J was confronted in cross-examination with the statement she made to the police in 1984. She accepted that the account in that statement was quite different from the account that she had just told the jury. She said what was written was “not my recollection of the event”. She denied that her brother was in her bed. She agreed that the account in the written statement was quite a different account from what she had just given in evidence. She accepted it was her statement as she accepted it was her signature to it.

[29] Ms Clark, for the Crown, sought to down-play the contradiction between J’s evidence at the trial and her written statement in 1984. She said it only differed as to whether or not her brother had been in her bed and whether or not there had been an attempted sexual assault on her before the sexual assault on her sister. These, however, are very distinct stories. The differences are quite remarkable. Essentially they are two different narratives as to what happened to her that night.

[30] The statement taken from K by the police that night does record that she said that she had been assaulted in this way previously. The fact that K was able to say this throws into contrast J’s assertion that she was not allowed to speak by her mother. But in any event, in her affidavit J says that she told the police that this sort of thing had happened before, as I have set out above. Furthermore, on J’s own affidavit and in her evidence at the 2011 trial, she says she was expecting to give evidence in Auckland in the depositions of the charges against W in 1984.

[31] The significance of the affidavit evidence of the police officers is that they detailed interviewing techniques designed to enable complainants to make a full complaint to the police. They categorically dispute that all the statements would have been taken from both girls interviewed together at one long table. They acknowledge it is possible that the mother might have been present during the taking of J’s statement, or part of it, and might have, in a subtle way, restrained her. That possibility has to be contrasted with the fact that K was able to tell the police that there had been numerous previous similar sexual assaults.

[32] It is a feature of the charges which the Crown seek to pursue now against the complainants, many years later, that the charges are much more serious than the assaults that occurred on the night in 1984, and different from what K said had happened previously.

[33] Ms Clark argued that the Court should not speculate beyond the affidavit evidence before the Court. But what is plain is that the Crown case that the allegations are fresh has to depend in part on the proposition that these young girls were not given an opportunity, when they were interviewed by the police, to complain about all the sexual misconduct by the accused against them. Or, that if they made general complaints the police did not follow them up.

[34] The sworn affidavits of the detectives are to the contrary. There is a conflict between the Crown’s affidavits. The conflict has to be resolved on the probabilities. This is an adjudication, not speculation. I turn then to the affidavits from the detectives involved in 1984.

[35] Mr Pearson is currently the District Manager of Intelligence at Auckland Metro Crime and Operations Support and between 1974 to 2008 was a sworn police officer. He attained the rank of Detective Inspector. In February 1984 he was a detective.

[36] He says:

I do not recall any comment being made by [J] to that effect that “this was not the first time”. If I had heard such a comment I would have followed it up during interview.

I don’t recall [K] saying anything about having to perform oral sex. If there had been any allegations of that nature it would have been documented and investigated.

With regard to [J], the statement reflects what I would have been told by [J]

at the time. ...

Any complaint by either of the girls would have been taken down at the time. It was the perfect opportunity for police to gather evidence of further offending so that all matters could have been dealt with at one time.

There is no possibility that the complaint of either [J] or [K] would have been put aside. At the very least a statement would have been taken and the facts passed on to Murray [McDonald] so that they could be put to the accused. Depending on evidential sufficiency a charge could and would have been laid. It was the best opportunity to gain an admission from the accused.

...

If I had any thought whatsoever that the mother was trying to influence the girls I would have interviewed them separately or at least questioned them without the mother being present to establish whether they were being influenced.

I do recall the girls’ mother saying that they were prone to exaggeration.

My impression of [J] and [K] was that they were saying very little about what had happened and the extent of the information available to Police at that time is what is contained in their statements of 19 February 1984. That is all we could get from the girls at that time.

[37] Mr McDonald is now retired. He now works as an accountant. He was a detective at the time. His memory is vague. He believes that he was the detective who spoke to J.

The girls would definitely not have been interviewed together.

I would say that David [Pearson] would have talked to [K] and I would have talked to [J]. The mother of the girls is most likely to have been with [K] initially.

During the interviews we would have been concerned to understand what had happened and to see whether [K]’s complaint was supported by [J].

There is no doubt that there would be times when the girls were alone with their mother during the initial interviews, although the girls would have been kept apart from each other. Their mother would have been free to move between them.

...

I did not notice the girls being coerced in anyway[sic] by their mother. If either of us had noticed any such behaviour we would have dealt with it. While nothing surprises you in this job, a mother not doing the best for her daughters through this type of offending would not normally cross your mind as a possibility. We wouldn’t have been looking for it. She would have had the opportunity to influence the girls if she wanted to.

...

I do not recall [K] complaining about having to perform oral sex on the accused.

I have no recollection of a comment from [J] to the effect that “this was not the first time”. If this had been said I am sure it would have been part of [J]’s statement. There were references to other events from [K] but these were vague.

If [J] had made any further complaint or allegations, these would have been

investigated. ...

[38] The Crown used these affidavits to bolster the Crown’s argument that the

allegations seeking to be pursued by J and K made for the first time in Australia over

20 years later are fresh and so not tainted by the Connelly v DPP principle. With

respect, I think there is an error of law embedded in the Crown’s assumption.

[39] In Connelly v Director of Public Prosecutions Lord Devlin quoted from Wigram V-C in Henderson v Henderson.[4] In that judgment the Vice-Chancellor was explaining the principle that parties with complaints are required to bring forward all of their complaints, not selectively proceed on one set in one set of proceedings and

_{another in another set of proceedings. The Vice-Chancellor said the Court:}[5]

... will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of a subject in contest, but which was not brought forward, ...

[40] As the Vice-Chancellor pointed out, however, and counsel agreed, this policy of the common law is not a rule, it is a principle. It can be departed from only if there are special circumstances.

[41] On the affidavits of Messrs McDonald and Pearson, these girls were separately interviewed in an environment which did not constrain them from making complaints against the accused of previous sexual offending in addition to the immediate reason for the police coming to the house that evening. Furthermore, K did so, albeit in a vague way. I am satisfied that J did have an opportunity to make a general complaint, just as K did that night. But that J did not make the complaint, for if she had it would have been recorded.

[42] It is a fact that at the time that J and K were being interviewed they had been living up to that evening under the roof of the accused. There is often a natural tendency on the part of children who fear the abuser not to make complaints until the abuser has left the home. J and K had denied any abuse when interviewed previously by the Tauranga police who were looking for corroboration of V’s complaint.

[43] I am also satisfied that at that time both girls would not know that W would not return to their house and would likely be constrained in making complaints beyond the events of that evening.

[44] The night of that incident was the last time that the accused was in the same household as J and K, but they may not have appreciated that was the case at that time. As the depositions approached, however, they would have known W was gone from their lives.

[45] Had there been depositions, J and K, and for that matter V, would have been led by police or Crown counsel on a re-telling of their complaint and would again have had another opportunity to make additional complaints.

[46] Indeed, J has filed an affidavit saying she expected to be able to complain then. That opportunity was taken from the girls by the Crown taking a guilty plea. W’s plea of guilty to the two charges was taken just before the depositions were due to start.

[47] The plea was the result of a plea bargain. Mr D C Reid was counsel for W at the time. He has no memory of the detail. But he has his diary of commitments. Working from this he is sure that he reached a plea bargain. The desirability of such a bargain is obvious. The three girls were due to give evidence in Court. Following that evidence it would have been open for the police to lay fresh charges based on all complaints made in the course of the depositions. The police elected to take pleas of guilty on the two charges and not pursue the depositions, against a summary of facts which included an acknowledgement of multiple past offending. The summary of facts is also consistent with a plea bargain. On the probabilities W made a plea bargain with the prosecution, which included disclosing to the Judge admissions of past sexual misconduct, in addition to the two charges he pleaded to.

[48] As already noted, following the conviction and sentence the police formally recorded that all the complaints by J, K and V had been cleared.

[49] The analysis now turns upon whether there are special circumstances to allow a trial on “fresh” allegations, which could have been made either at the interviews, or in the depositions. The onus for an exception to be made lies on the Crown, for the Crown advances the submission.

[50] The Crown analysis does not proceed on the basis that it has to make out special circumstances to depart from the principle in Connelly v DPP. Rather, its argument is that this is still just a normal historical sex abuse case. Those complaints previously dealt with are now dropped from this trial. And the complaint is proved by the statement taken on the night is also dropped. But as to the rest of the complaints it does not matter as they are fresh. This is not a special circumstances argument. It does not address the fact that there was an earlier opportunity to make additional complaints to the complaints already made and a further oppportunity provided for by the depositions, which opportunity was taken away by the plea

bargain. These opportunities fall within the test in Henderson cited above at [39]

“which might have been brought forward”.

[51] I do not think there are any special circumstances favouring departing from Connelly v DPP. There are in fact circumstances the other way, even if I am wrong to say the Crown has to advance special circumstances justifying a departure from Connelly v DPP.

[52] At the 2011 trial J gave evidence she was sexually assaulted that night in February 1984. If J’s contradictory written statement had not been discovered the accused might well have been convicted on her oral evidence at the trial. It is now utterly apparent that that would have been a false conviction. The Crown are now abandoning that allegation because it is inconsistent with her contemporaneous written statement of what happened that night. On what basis then do the Crown still rely on her memory as to earlier and far more serious assaults, which she did not complain about at the time to detectives who were aware that W was admitting past sexual offending, while they were interviewing the girls?

[53] I do not think it is a special circumstance that these complaints made in 1984 were by children. The prosecution of the complaints is not by them. It was by the police. They were interviewed by experienced detectives, who knew their responsibilities, as is apparent from the affidavits. The reference in the agreed summary of facts to past criminal behaviour was deliberate. It was common at the time. It was obviously intended to be taken into account in sentencing. Those were decisions made by police officers, not by the children. But the women, now, cannot avoid the consequences of those decisions by the police.

[54] Mr Morgan has submitted in his written submissions that it is important for the police and the Crown to be held to compromises by way of plea bargain in criminal litigation. Such compromises are in the public interest and would not be entered into if the accused were at peril of being subject to further prosecutions. I do not think this argument is necessary to support Connelly v DPP.

[55] In my view there are no special circumstances for departing from the Connelly v DPP principle. Rather, there is a serious risk of an injustice if the principle is not applied. J’s memory may be faulty and she may be exaggerating the history of lesser sexual offending, admitted by the accused and taken into account on his earlier sentencing.

[56] On top of that I bring into consideration the explanation of these complainants for having made fresh complaints in 2008 by J and 2010 by K. What happened is that J came to the view in adult life that the accused had not been sufficiently punished in the prison sentence he was given and that is the reason why they made fresh complaints.

[57] The application by the Crown to lift the stay is declined. The application by the accused for a final stay is granted. The accused is discharged.

---

[1] R v W HC Hamilton CRI 2010-079-000950, 24 June 2011.

[2] _{Connelly v Director of Public Prosecutions [1964] AC 1254.}

[3] Ibid at 1347.
[4] _{Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100.}
[5] Ibid at 115. See also judgment of 24 June 2011, above n 1 at [38].