ND v R [2012] NZHC 2944 (7 November 2012)

Last Updated: 22 November 2012

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

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-032-3827 [2012] NZHC 2944

ND

v

_{THE QUEEN}

Hearing: 6 November 2012

Appearances: C Nicholls for ND

I Murray for the Crown

Judgment: 7 November 2012

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] ND was tried by a jury in the High Court before me on one representative and three specific charges of sexual violation by rape, one charge of sexual violation by anal intercourse and one charge of attempted sexual violation by anal intercourse. ND was found not guilty by the jury on all charges.

[2] ND, as a successful defendant, now applies for costs pursuant to s 5 of the

_{Costs in Criminal Cases Act 1967.}

ND v R HC WN CRI-2011-032-3827 [7 November 2012]

[3] The charges ND faced were laid following a complaint by his former wife, CD. The complaint, in terms of the charges laid, related to alleged events between

1 February 1986 and late April 1989, when ND and CD’s relationship ended. The representative charge of rape reflected an allegation of sexual violation by rape on at least 20 occasions during that period. The other specific charges referred to particular instances of sexual violation by rape, sexual violation by anal intercourse and attempted sexual violation by anal intercourse during that period. CD also alleged that, prior to 1 February 1986 when sexual violation by rape within marriage had been criminalised, ND had also raped her.

[4] It is to be noted that CD had, in 1989, made similar allegations against ND. Those allegations had been investigated, but no prosecution had ensued.

[5] In addition to CD’s complaint, at the commencement of proceedings the

police had actual or potential evidence as follows:

(a) In 1989 ND had been found guilty of injuring with intent to injure a

15 year old schoolgirl who was babysitting for CD on the evening in question (“the 1989 babysitter”), following ND’s estrangement from CD. The 1989 babysitter had made a compelling statement to the police in 1989 about that incident which included allegations of attempted rape, with factual similarities (particularly an allegation that ND had tried to put a piece of white coloured material into her mouth) to CD’s narrative. The police had a copy of that statement.

(b) CD and ND had attended marriage guidance counselling at or around the time in question. The police had, following CD’s renewed complaint, obtained a written statement from a marriage guidance counsellor who would appear to have been involved. In his statement that marriage guidance counsellor said that:

I remember that the male partner was quite open at describing how he would tie up his partner for the purpose of sexual satisfaction and that it was only through this activity that he

could achieve sexual satisfaction. I recall that he said that he tied his partner’s hands to the head of the bed, I do not remember any other details.

Earlier the marriage guidance counsellor had said:

The female was absolutely adamant that she did not want to be tied up and was not a willing participant. He could not see her point of view and showed no empathy for her.

(c) A friend of CD’s at the time had made a recent statement that CD said to her, after she had stayed over at the family home of CD and ND one evening, that ND had raped her.

(d) ND’s brother had made a recent statement in which he gave evidence

of a confession to force sexual intercourse on CD made by ND.

(e) ND’s sister-in-law (the wife of the accused’s brother who provided a statement) had made a recent statement in which CD had asked her whether her husband had ever forced her to have sex.

[6] The defence objected to the evidence of the 1989 babysitter (which the Crown intended to lead as propensity evidence) and to the evidence from the marriage guidance counsellor.

[7] As matters transpired, at the time I heard the relevant s 344A applications the police had not spoken to the 1989 babysitter. When they did so, she was not prepared to give evidence. Therefore that evidence was not available at trial.

[8] Following an application based on the confidentiality of marriage guidance counselling, I ruled that the evidence of the marriage guidance counsellor was not, in the circumstances, admissible.

[9] At trial ND gave evidence himself, with supporting evidence from CD’s

(adoptive) sister, ND’s sister and ND and CD’s daughter.

[10] The evidence of CD’s sister and ND’s sister, given for ND, challenged the narrative advanced by the complainant, and, more particularly, ND’s brother’s evidence of a confession by ND of forced sexual intercourse.

[11] Section 5 of the Costs in Criminal Cases Act provides:

5 Costs of successful defendant

(1) Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, or where he is discharged under section 184F of the Summary Proceedings Act 1957 the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.

(2) Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to—

(a) Whether the prosecution acted in good faith in bringing and continuing the proceedings:

(b) Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:

(c) Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:

(d) Whether generally the investigation into the offence was conducted in a reasonable and proper manner:

(e) Whether the evidence as a whole would support a finding of guilt but the information was dismissed on a technical point:

(f) Whether the information was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:

(g) Whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.

(3) There shall be no presumption for or against the granting of costs in any case.

(4) No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or discharged or that any information charging him with an offence has been dismissed or withdrawn.

(5) No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.

[12] The law is well established.

[13] As explicitly provided by subsections (3), (4) and (5) of s 5, there is no presumption for or against the granting of costs in any case. A defendant is not to be granted costs by reason only of the fact that he has been acquitted or discharged. By the same token, no defendant is to be refused costs by reason only of the fact that the proceedings were properly brought and continued. As Hardie Boys J observed in

R v Margaritis: “The Court is to do what it thinks right in a particular case”.[1]

[14] Section 5(2) provides an inclusive list of relevant circumstances. In Solicitor- General v Moore the Court of Appeal emphasised the fact that a matter of relevance does not fit within the s 5(2) factors is not an impediment to its consideration in the exercise of the general discretion conferred by s 5(1).[2]

Discussion

[15] Mr Nicholls advanced ND’s application for costs principally by reference to the fact that evidence which the prosecution would clearly have regarded as being important for its case (that of the 1989 babysitter and of the marriage guidance counsellor) was either never available or was subsequently ruled to be inadmissible. More generally, Mr Nicholls referred to the fact that the original complaint had not led to a prosecution, to the time that had passed and to the inevitable, I took him to submit, challenges to the prosecution evidence which reflected the level of tension and conflict between CD and ND, and – more particularly – within ND’s family.

[16] By reference to those matters, it was Mr Nicholls’ submission that in terms of s 5(2)(b) (sufficient evidence to support the conviction at the commencement of proceedings?) and s 5(2)(d) (whether generally the investigation into the offence was conducted in a reasonable and proper manner?) the Court could properly conclude that this was an occasion where as a successful defendant ND should receive some award of costs.

_{[17] I am not persuaded by that submission.}

[18] I accept that it was more than unfortunate that at the time the police made their propensity application as regards the 1989 babysitter’s evidence they did not know whether or not that person was prepared to give evidence at ND’s trial. I accept, however, Mr Murray’s explanation of that decision: that is, the police were endeavouring to avoid raising these past events with that person before they knew her evidence would be admissible as propensity evidence. I think, as Mr Murray rightly acknowledged, that was to put an understandable human concern about the potential witness ahead of the more general consideration that a propensity evidence application should be made with knowledge that the evidence in question is, indeed, available. But, even if the police had been aware that that evidence was not available, I do not consider that in and of itself would mean that there was not sufficient evidence available at the commencement of the proceedings to support the conviction of the defendant in the absence of contrary evidence. CD’s statement, by itself, was sufficient evidence “in the absence of contrary evidence” to support a conviction. Certainly, in the absence of other evidence, a conviction might have been more difficult to obtain. But convictions are not infrequently obtained based on a complainant’s evidence alone.

[19] As for the significance of my later ruling that the marriage guidance counsellor’s evidence was inadmissible, I do not accept Mr Nicholls’ proposition that the police “knew or ought to have known” that that would be the result of a s 344A application. That application raised two issues: first whether the statutory privilege found in s 18 of the Family Proceedings Act 1980 applied. As regards that, I ruled that it did not, on the factual basis that I was satisfied that it was more likely than not that the marriage guidance counselling in question had not taken place under the jurisdiction of the Family Court. Second, whether that evidence should be ruled inadmissible pursuant to s 69 of the Evidence Act 2006. As regards that, I ruled, by reference to s 69 and a consideration of the competing public interest in disclosure and in preserving the confidentiality of communications within a marriage guidance counselling context, that the evidence was not admissible. I do not think that ruling was inevitable. Without putting any gloss on my written ruling, the issues raised regarding the admissibility of that evidence were not straightforward. I note that, at least in part, I based my ruling on the availability of the complainant’s brother to give evidence of what was, in effect, a confession of sexual violation. Absent that

evidence, although it was impugned at trial in a manner I had not anticipated, the outcome of the application may have been different. Therefore I do not think the police proceeding on the basis of that evidence reflects any failure to investigate in a reasonable and proper manner, nor renders the police’s intended reliance on that evidence at the commencement of the proceeding as improper.

[20] There was no question here of the prosecution having acted otherwise than in good faith. As explained, I am satisfied that, at the commencement of the proceedings, the prosecution did have sufficient evidence to support the conviction of the defendant. Notwithstanding what in my view was an error of judgment as regards determining whether the 1989 babysitter’s evidence was available, the police generally did conduct the investigation into this offence in a reasonable and proper manner.

[21] I do acknowledge that, after the passage of some 20 years or more, the defendant would no doubt have been disappointed for this matter to have been raised again. The complainant had, however, consistently maintained her complaint throughout that period. I do not consider the passage of time itself to be a matter which supports a grant of costs.

[22] For all those reasons I decline this application for costs.

_{[23] There will be no award of costs on this application.}

_{Clifford J}

Solicitors:

Crown Solicitors Office, Wellington for the Crown. C J Nicholls, Lower Hutt for the accused.

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[1] _{R v Margaritis HC Christchurch T66/88, 14 July 1989.}

[2] Solicitor-General v Moore [2000] 1 NZLR 533 (CA).