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High Court of New Zealand Decisions |
Last Updated: 29 July 2023
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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S)
OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL
PROCEDURE ACT 2011. SEE
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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
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CRI-2021-463-154
[2022] NZHC 2838 |
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BETWEEN
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HF
Appellant
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AND
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THE KING
Respondent
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Hearing:
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10 October 2022
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Appearances:
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MA Simpkins for the Appellant AJ Gordon for the Respondent
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Judgment:
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1 November 2022
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JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 1 November 2022 at 12.00pm
Registrar/Deputy Registrar
Date.................................
Solicitors: Lance Lawson Limited, Rotorua
Crown Solicitor, Rotorua
HF v R [2022] NZHC 2838 [1 November 2022]
Introduction
[1] The appellant faced one charge of rape and one charge of unlawful sexual connection in the Youth Court.1 The charges arose in relation to sexual conduct with the appellant’s aunt, though given their respective ages, the pair grew up as and considered themselves cousins. The appellant was 16 years old at the time of the offending and the complainant 17 years old. The appellant’s position at trial was that the sexual activity between the pair was either consensual, or he had a reasonable belief in consent.
[2] Following a two-day Judge-alone trial before Judge MA MacKenzie in the Youth Court, the Judge found both charges against the appellant proved.2
[3] The appellant now appeals against that decision, saying that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.3
[4] The appellant also applies to admit new evidence on the appeal, being an affidavit of the complainant’s older sister who I will refer to as MM. MM gives evidence of what she says the complainant told her about the offending. MM’s affidavit also attaches two text messages which the complainant sent two days after the alleged offending. The text messages are said to undermine the complainant’s evidence that she did not consent to the sexual conduct with the appellant.
[5] This judgment is structured as follows:
(a) I first set out the factual background and the key aspects of the Judge’s decision.
(b) I then summarise the applicable legal principles.
2 R v KH [2021] NZYC 489.
3 Criminal Procedure Act 2011, s 232(2)(b).
(c) I then summarise the parties’ submissions.
(d) Next, I set out my decision on the appeal, putting aside the fresh evidence.
(e) Finally, I address the whether the new evidence should be admitted on the appeal, and if so, whether when combined with the evidence given at trial, it might reasonably have led the Judge to conclude that the charges had not been proven.
Factual background
[6] There was no dispute at trial that sexual conduct took place between the complainant and the appellant, and each of them gave a (relatively) similar account of what that conduct involved. The key issue at trial was whether the complainant consented or the appellant had a reasonable belief in consent.
[7] The complainant’s evidential video interview (EVI) was played as her evidence-in-chief.
[8] The appellant was at home on 5 February 2021 when the complainant called in to his address. This followed an arrangement the complainant’s mother and her sister (that is, the complainant’s own aunt) had made, namely that following the complainant’s return to school after the summer holidays in early 2021, she was to start going to her aunt’s house after school (given that would be easier for her mother to pick her up later in the day).
[9] The complainant’s evidence was that she initially went into the house and up onto the top deck, and was vaping there. There was then some texting between the appellant and the complainant to the effect of the complainant asking the appellant if he had any papers and filters for a smoke, following which the complainant went down to the appellant’s bedroom.
[10] The complainant’s evidence was that the appellant asked the complainant for a lighter, which she had, and then she recounted sitting and lying on the appellant’s
bed and scrolling through Instagram on her phone. She said that the appellant then began touching her on her lower half, but never by her vagina. She said that the appellant was rubbing his hand on her leg, on her thigh and then touched her around her bottom, trying to move her undies and said things like “no one’s going to find out if something happens, don’t tell anyone. I don’t want anyone knowing”. The complainant’s evidence was that she made it clear at the time that she did not want to do this with the appellant because of their familial relationship, telling him he was raised like her brother and that “nothing’s going to happen”.
[11] Importantly for matters discussed later in this judgment, the complainant was clear in her EVI that she could have left the appellant’s bedroom at any time but did not, and didn’t know why she had not. She had initially said in her EVI that at one stage the appellant was blocking the doorway, though there were in fact two exits from the appellant’s bedroom. Nevertheless, as noted, the complainant accepted throughout that she could have left the room at any time.
[12] After the initial conduct described in [10] above, the complainant said that the appellant then pulled down his pants, tried to get her to give him oral sex, to which she protested and said “no”, and when she turned the other way, he jumped onto the bed behind her and started “fake humping” her. He then rolled her over and kissed her. The complainant said she froze after this had happened though continued to protest at what was occurring. She said the appellant pushed up her school uniform pushed her underwear to one side and tried to have sexual intercourse with her, though could not and then lubricated her vagina (by spitting on his fingers) and then had sex with her. The complainant said that she was saying “no, no” during this time, and words to the effect of “no I don’t want this you’re my little brother”. The complainant also said that at some point during the intercourse, the appellant put a pillow over her face telling her to shut up because the window was open and people might hear her.
[13] The complainant said that the appellant took his penis out, sat on a chair next to the bed and then forced her to give him oral sex, during which he ejaculated in her mouth. After this had occurred, the complainant said that the appellant put his clothes on, left to go to a family tangi and told her to make his bed “like the dog you are”.
[14] The complainant’s evidence was that the first person she told about what had happened was her sister who I will refer to as C (a different sister to MM whose affidavit is the subject of the application to admit new evidence). C gave evidence at trial that she had noticed the complainant was not her usual self later in the day on 5 February 2021, and while she initially did not tell her that sexual intercourse had occurred with the appellant, she told C that the appellant had touched her, rubbed her on her leg and gave C an example of how the appellant had “loomed” over her. C’s evidence was that about two weeks later, the complainant told her that she had been sexually assaulted by the appellant (though did not say in what way), but could not recall any other details about conversation.
[15] As noted, the appellant did not deny that sexual intercourse or oral sex had taken place, but as also noted at the outset of this judgment, said that the complainant had consented or at the very least, he had a reasonable belief in consent. His evidence was that the complainant had “come on” to him, and after coming into the bedroom, had started kissing him and then ended up on the bed on her back. He said that the complainant then took off her underwear, opened her legs and there was no discussion between them about sexual activity, though it was clear she was wanting to have sex with him. He said they had intercourse, though he had stopped before he ejaculated and returned to sit on the La-Z-Boy chair next to the bed. He said that at that point, the complainant, who was still on the bed, leaned over to give him oral sex. The only comment she made was that she was worried her Mum might smell it in the car. The appellant also said that after the oral sex had occurred (though before he had ejaculated), the pair had got back onto the bed and sexual intercourse had again taken place, and he told the complainant that he was going to pull out and ejaculate on her stomach, which he then did.
[16] The Judge summarised the competing accounts as follows:
[57] What [the complainant] and [the appellant] say about the sexual activity in the bedroom is similar to the extent they both agree that there was sexual intercourse on the bed when [the appellant] put his penis into [the complainant’s] vagina, then he used his saliva to lubricate her, then there was oral sex on the chair next to the bed. That the sexual activity finished by [the appellant] inserting his penis into [the complainant’s] vagina back on the bed and then withdrawing to ejaculate on her stomach was not put to [the
complainant]. Where [the complainant] and [the appellant] diverge is whether the sexual activity was consensual, or not.
[17] Evidence was also given by a number of other witnesses as to events which followed 5 February 2021, and in particular, about interactions between the appellant and the complainant at subsequent parties and what the complainant was alleged to have said to some of those attending the parties. The evidence about these subsequent engagements was relevant to the complainant’s evidence in her EVI that she refuses to go places where the appellant or his family will be.
[18] The day following the events in question (6 February 2021), both the appellant and complainant attended a seventeenth birthday party for a mutual friend, A. The complainant’s evidence about the party was that she was scared of the appellant and had kept her distance from him (and had been surprised to see him there, as she did not know he was coming to the party). A video of the complainant at the party, taken by the appellant on his phone, was produced at trial. This showed A and the complainant, who appeared in the video to be intoxicated, appearing to have a good time. The complainant said she did not have much of a memory from that evening, and there was no evidence that she was aware that the appellant was making the video of her at the time.
[19] Evidence was also given at trial by A and her partner’s younger brother, who I will refer to as J, about a discussion they said they had with the complainant in A’s bedroom while they were waiting for everyone to show up to the party. A said that the complainant had said to them “guess who I fucked” and after a time, told them “oh yeah I fucked [the appellant]”. A said that the complainant seemed like she was bragging about it. J said that the complainant had told them that she had had sex with someone and after they had tried (unsuccessfully) to guess, the complainant said it was the appellant (which J said he thought was “pretty weird”). J gave evidence that his impression was that the complainant was happy at the party. Both A and J said they did not say anything to the appellant about what the complainant had told them.
[20] A and J’s evidence was put to the complainant who said she did not remember any such conversation and that it was not something she would have wanted to brag about, given her encounter with the appellant had been non-consensual.
[21] There was evidence of two further interactions between the complainant and the appellant in February 2021. The first, on 12 February 2021, occurred when both were attending another birthday party (of M, who is related to both the appellant and complainant). In her EVI, the complainant said she felt scared and uncomfortable in the appellant’s presence at the party. In cross-examination, she accepted that she could have left the party and said she had thought about doing so, and had tried to ring her older sister but she did not pick up her phone. M was called as a defence witness, and said that at the party on 12 February 2021, she hadn’t seen any interaction between the complainant and the appellant, as the complainant was “hanging out” with M at the party.
[22] The second instance was on 18 February 2021, when the complainant went to Welcome Bay in Tauranga with M, arriving at Welcome Bay sometime after midnight. The complainant accepted in cross-examination that the appellant was at the house she and M went to and that she had known that he was there. The next day, M, the complainant, the appellant and a male friend of the appellant all went to Mount Maunganui where they got food and socialised together. M said in evidence that during the Mount Maunganui trip, the complainant seemed “invisible” to the appellant, given the appellant had “a thing” with M’s best friend and was more interested in her best friend rather than there being any significant interactions with the complainant.
The Judge’s decision
[23] Two days after the completion of the trial, the Judge delivered comprehensive reasons for finding the charges proved. There is no suggestion that the Judge misdirected herself on the elements of the charges, or on any other relevant evidential directions (including as to consent).
[24] The Judge noted that the case ultimately boiled down to the issue of consent and the complainant’s evidence, stating “[t]he Crown’s case stands or falls on her evidence and what I make of it”.4
4 At [27].
[25] The Judge summarised both the complainant and the appellant’s evidence, as well as the key evidence given by others at the trial. She described the complainant’s evidence that she could have left the appellant’s room at any time but just did not know why she did not do so as candid.5 The Judge noted that the complainant was “carefully cross-examined” by Mr Simpkins, counsel for the appellant at trial (and on this appeal). The Judge noted that the complainant “... did not step back from what she had said in the evidential interview. She remained firm that what happened in the bedroom was not something she had consented to”.6
[26] The Judge then addressed the evidence of A and J and recorded her finding that it was “unconvincing”. She noted the different evidence given by A and J as to what the complainant had said (one saying the complainant said “guess who I fucked” and the other saying she said “guess who I had sex with”). Further, she noted that J’s evidence in particular was vague, as there were a number of things he could not recall yet he purported to recall that they had had dinner precisely at 6 o’clock on 5 February 2021 (which the Judge noted was apparently prompted by seeing some photographs with a time strap on it, rather than being an independent recollection). She also noted that it was odd that neither A nor J had spoken to the appellant about what they were told, despite J in particular saying that it was “weird”. The Judge further noted that what the complainant was said to have told A and J was entirely at odds with what she told her sister C, whose evidence the Judge accepted.7
[27] The Judge did not consider the complainant’s behaviour at the party on 6 February 2021 or the video produced in evidence to be particularly relevant or to undermine the complainant’s credibility. She stated that it may well have been the case that the complainant seemed happy at the party, particularly given alcohol was involved, “[b]ut that does not mean that [the complainant] was being untruthful when she said she was scared”.8 The Judge also reiterated the evidence that the complainant may well have not known she was being videoed and her evidence was certainly that she was not aware that the appellant was taking any video. In a similar vein, the Judge
5 At [49].
6 At [61].
8 At [82].
did not find the evidence about the further interactions between the complainant and the appellant, summarised at [21] to [22] above, assisted in any material way. She noted that “There is no typical way that someone who has been sexually assaulted behaves. Any preconception that there is a typical sexual abuse complainant who behaves in a particular way is a misconception”.9
[28] Finally, in the crux of her findings on why she found the charges proved, the Judge said the following about her assessment of the complainant’s reliability and credibility:
[89] In terms of reliability and credibility, the Crown case stands or falls on the evidence of [the complainant]. Is her evidence both reliable and credible? I assess that [the complainant’s] evidence is both reliable and credible for the following reasons:
(a) [The complainant] gave a plausible and detailed description of the events in [the appellant’s] bedroom on 5 February. She also described how she felt. If this was all a big lie it is a very elaborate lie to have told. The detail included about the smokes, [the appellant] rubbing her leg, the dry humping, [the appellant] pinning her down and inserting his penis into her vagina, putting a pillow over her face, withdrawing his penis to lubricate her vagina with his saliva, [the appellant] moving to the La-Z-Boy and forcing her to give him oral sex and then ejaculating. It is a very detailed description of what happened. [the complainant’s] narrative that the sexual activity was not something she wanted is detailed and compelling.
(b) A piece of evidence that has the ring of truth to it is that [the complainant] says that why she said “no’ to the sexual activity was because of the family connection, describing [the appellant] as “like my brother, we grew up together”. This is a key piece of evidence.
(c) That what [the complainant] says and [the appellant] says about critical aspects of what happened in the bedroom are remarkably similar, including [the appellant] withdrawing his penis from her vagina in order to use his saliva on his finger to lubricate her vagina.
(d) [The complainant] told her sister [C] that something had happened the same day. This was [the appellant] rubbing her leg and that it was something she did not want. She told C about two weeks later that she had been sexually assaulted. This is consistent with what she said in her evidential interview and shows consistency over time. As noted, I have no reason to put [C’s] evidence to one side. On the subject of [the complainant]
9 At [88].
telling [C] what happened, it is an incremental disclosure. She told her sister the same day that something had happened with [the appellant], but did not tell her sister that she had been sexually assaulted until about two weeks later, so there was a delay. As explained, [the complainant] said why that was so. I assess that she had a good reason to delay telling her sister about the sexual assault.
(e) That I assess that [the complainant] did not exaggerate and was candid about things that did not help her. For example, she confirmed in the evidential interview and in her evidence that she could have walked out of the room at any time, but she just did not. She also said that [the appellant] was touching on her lower half but never by her vagina. [The complainant] was candid about being at places at the same time as [the appellant].
(f) There was opportunity as [the complainant] and [the appellant] were the only ones at [the appellant’s] home at the time.
(g) [The complainant’s] evidence is internally consistent and has remained consistent over time. She did not step back during the trial from what she had said in the evidential interview. She was not shaken in any real way in terms of her evidence, which has remained consistent over time, although whether her underpants were pushed to the side or were off is a bit confusing. Early on in the evidential interview [the complainant] said that her underpants were pushed to one side by [the appellant]. Later on in her evidential interview, she said that he took off her underpants. She was asked about her clothes in re-examination and said that her underpants had remained on but pushed to one side. It is, on the face of it, an inconsistency, but not to the point that it undermines the overall reliability and credibility of her evidence.
(h) As already explained earlier in the judgment, Mr Simpkins challenged the plausibility of [the complainant’s] recounting of events in the bedroom, but [the complainant’s] evidence remained consistent, that she did not consent to the sexual activity. For example, her description about how she and [the appellant] came to be having sexual intercourse. In the EVI, [the complainant] said that [the appellant] opened her legs and put his legs in between. During cross-examination, [the complainant] said that her legs were not open before [the appellant] got between them. This is congruent with what she said initially.
(i) Sometimes small details help. For example, [the complainant’s] evidence that [the appellant] told her to make the bed, “like the dog I am”, which is an unusual thing to say. Also, [the complainant’s] description of [the appellant] putting the pillow over her face and there being a metallic taste in her mouth after [the appellant] had ejaculated. Again they are small details, but suggests that these were things she actually experienced.
(j) I do not consider that the interactions between [the complainant] and [the appellant] in the two week period post 5 February 2021 undermine [the complainant’s] credibility in any meaningful way. As noted, a plank of the defence case was that on one hand [the complainant] said that she was scared of [the appellant], she was scared at the party on 6 February and [M’s] birthday party and that she had said during the EVI that she refused to go anywhere [the appellant] and his [whānau] were. I have discussed [this] already in the judgment.
(k) As I have said, [the complainant’s] behaviour post 5 February does not assist one way or another in terms of whether she had non-consensual sexual activity with [the appellant].
[90] In an overall sense, [the complainant’s] evidence had an air of reality to it when I run the rule of common sense over it. [Her] evidence was detailed, generally consistent over time and was plausible. From [the complainant’s] perspective, this was not something that she wanted, particularly given the family relationship. Her evidence that she said no because [the appellant] was like a little brother is a key piece of evidence. It has a real ring of truth to it.
[91] I assess therefore that [the complainant’s] evidence is both reliable and credible for the reasons I have set out.
[29] In contrast, the Judge considered the appellant’s evidence about what happened to be implausible, stating “It does not have the ring of truth about it and makes no common sense when I run the ruler of common sense over it”.10 In particular, she found it implausible that immediately after coming into the appellant’s bedroom, the complainant initiated sexual activity that the appellant just went along with, without there being any discussion at all between them, particularly given their family connection. She stated “[i]t seems rather farfetched that [the complainant] would just lie down on the bed, take her undies off, open her legs and not say anything at all to [the appellant]”.11 She also said that the appellant’s evidence that he “just stopped part way through the sexual intercourse and hopped off the bed does not make much sense”.12 Nor did she consider the appellant’s evidence that he also just stopped part way through the oral sex to make sense.13 The Judge ultimately concluded that the appellant’s evidence did not give rise to a reasonable possibility that the sexual conduct had been consensual and she therefore put it to one side. On this basis, and given her
10 At [93].
11 At [94].
12 At [98].
13 At [98].
acceptance of the complainant’s evidence, the Judge concluded “I am sure that she did not consent to the sexual activity”.14
[30] It followed from her acceptance of the complainant’s evidence that the Judge was also sure that the appellant did not believe on reasonable grounds that the complainant was consenting to the sexual activity. This was because the Judge accepted that the complainant made it clear that the activity was not something that she wanted, as well as there was some physical force involved, both in terms of the appellant pinning the complainant down in order to penetrate her vagina, and forcing her mouth onto his penis.15
Approach to the appeal
[31] Section 232(2)(b) of the Criminal Procedure Act 2011 (the Act) provides an appeal against conviction will succeed if the appeal court is satisfied that “in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”. Section 232(2)(c) further provides that in a jury or Judge-alone trial, an appeal must be allowed if “a miscarriage of justice has occurred for any reason”.
[32] Section 232(4) defines a miscarriage of justice as:
... any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[33] In Sena v Police, the Supreme Court addressed the approach to be taken to an appeal against conviction following a Judge-alone trial.16 The Court confirmed that such appeals are to be conducted by way of rehearing. However, the Court clarified that a rehearing still requires the appellant to identify an error, and that in assessing whether there has been an error, the appellate court should take into account any
14 At [103].
15 At [104].
16 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
advantages a trial Judge may have had— including in relation to findings of credibility based on contested oral evidence.17 In this context, the Court reaffirmed an appeal court’s “customary caution” in interfering in such findings, for two key reasons:
[39] The first is that a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case. In assessing the plausibility of what is said by the witnesses, the judge has the advantage of being also able to form a view as to what sort of people they are. This is an appreciable consideration despite the now well-recognised difficulties with demeanour-based credibility assessments.
[40] The second consideration, in effect the other side of the coin to the first, is that appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.
The parties’ submissions
[34] Putting aside for the moment the further evidence sought to be admitted on the appeal, Mr Simpkins submits that the Judge failed to properly assess the evidence that the complainant could have left the room at any time. While he acknowledges that the Judge addressed this aspect of the complainant’s evidence in the context of her findings on the credibility of the complainant’s evidence, he submits it was an error for the Judge not to first consider it in the context of an available inference of consent or a reasonable belief in consent.
[35] In this context, Mr Simpkins submits that this uncontested evidence, when coupled with the fact that the complainant had voluntarily come into the appellant’s bedroom, lay down on his bed, and could have but did not leave at any time (including when the appellant was touching her legs, bottom or underwear), gives rise to an available inference that the complainant consented, or that the appellant had a reasonable belief that the complainant was consenting to the events that then took
17 At [38].
place. Mr Simpkins submits that this in turn calls into question the credibility of the complainant’s account, and in particular that she said “no” to the sexual conduct with the appellant.
[36] Mr Simpkins also points to the complainant’s acceptance that there were two exit points from the bedroom, and her confirmation when re-examined by the Crown prosecutor that if she had not been able to get out through the door where she said the appellant was positioned at one point, she could have used the other door that went upstairs into the main house.
The respondent’s submissions
[37] Ms Gordon for the respondent highlights that the Judge expressly dealt with the complainant’s concession that she had the option to leave the bedroom, at paragraphs [49] and [89] of the judgment.
[38] Ms Gordon also notes that the Judge stated that the complainant’s evidence about being able to leave the room was one of the reasons why she accepted that the complainant’s evidence was credible and reliable; namely that this aspect of the complainant’s evidence was candid. Ms Gordon submits that give it was quite open to the Judge to accept the complainant’s evidence, it was equally open to her to accept that the complainant communicated to the appellant when he started touching her and while the sexual intercourse and oral sex took place that she did not want to engage in such activity. In those circumstances, Ms Gordon submits that the undisputed fact that the complainant knew she could have left the room at any time but did not so does not provide an evidential foundation for consent or the appellant having a reasonable belief in consent.
Discussion
[39] I am satisfied that the Judge did not err in her treatment of the complainant’s evidence that she could have left the room at any time.
[40] The difficulty in the appellant’s argument is that there was a conflict of evidence between the complainant and the appellant about the events which occurred,
at least in terms of whether the complainant consented to them (or the appellant had reasonable grounds to believe there was consent). What inferences might be able to be drawn about consent or a reasonable belief in consent needed to be founded or based on underlying facts reliably established to the Judge’s satisfaction. The Judge therefore had to first determine what happened between the complainant and appellant on 5 February 2021, and having made those factual findings, determine whether she was sure the complainant had not consented to the sexual intercourse and oral sex, and if so, whether the appellant nevertheless had a reasonable belief in consent.
[41] In order to determine what had happened, the Judge necessarily had to start with the competing narratives of the complainant and appellant and make factual findings as a result. It therefore was not an error for the Judge to first determine whether she accepted the complainant’s evidence as credible and reliable. As she noted, the Crown’s case stood or fell on the complainant’s evidence. It was also not an error for the Judge to use the complainant’s own evidence that she could have left the room at any time in the context of her credibility/reliability findings. It is uncontroversial that proper “concessions” made by a witness will often reflect positively on the witness’s credibility and/or reliability. And the evidence that the complainant could have left the room at any time was not strictly a concession in any event, given it was information the complainant had volunteered herself in her EVI.
[42] The Judge was clear in her view, and gave fulsome reasons, why she ultimately preferred the complainant’s account of what had happened and dismissed the appellant’s narrative as a reasonable possibility. The Judge’s acceptance of the complainant’s evidence necessarily included that the complainant had made it clear to the appellant on a number of occasions that she did not wish to engage in the sexual conduct. Having accepted the complainant’s evidence, the undisputed fact that the complainant could have left the room at any time could not give rise to a reasonable belief in consent. The latter is irreconcilable with the Judge’s acceptance that the complainant had protested at various points during the sexual conduct, as well as her finding that there was some physical force involved.
[43] There is also nothing in the one door/two door point. Irrespective of whether the Judge recorded there were two means of existing the appellant’s bedroom, the point
remains that the complainant accepted that she could have left the room at any time. To put the point another way, whether she could have left the room via one door or via two doors is irrelevant when it was accepted by her that she could have left the room.
[44] This ground of appeal must therefore fail.
Should the further evidence be admitted on the appeal?
[45] The principles relevant to an application to adduce further evidence on an appeal are well settled. The evidence must be fresh (that is, it could not with reasonable diligence have been produced at trial), credible and cogent (the latter in the sense that, in combination with the other evidence at trial, it might reasonably have led to a verdict of not guilty).18 The overriding criterion will always be what course will best serve the interests of justice.19
The new evidence
[46] As noted, the appellant’s application concerns an affidavit sworn by MM about what she says the complainant told her about the events in question. Subsequent to swearing her affidavit, however, MM gave a statement to police, and then participated in a detailed EVI. The complainant also gave a statement in response to MM’s affidavit. Mr Simpkins responsibly accepts that if MM’s affidavit is admitted on the appeal, so too should the subsequent materials.
[47] Following the charges being proved in the Youth Court, MM was spoken to by a private investigator employed on behalf of the appellant, which ultimately led to her swearing her affidavit of 21 March 2022. The private investigator gave evidence at the appeal hearing and said that he had gone to speak with the complainant’s former boyfriend, who I will refer to as K, but had instead met with MM, who is now in a relationship with K. That discussion led to MM’s affidavit. The investigator
18 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; and Lundy v R [2013] UKPC 28, [2014]
2 NZLR 273 at [120].
19 R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [22] as cited in Lundy v R, above n 18, at [119].
confirmed that he had been retained on the appellant’s behalf prior to the Youth Court trial, but had not been aware at that time of K or MM.
[48] Turning to the proposed new evidence, in her affidavit of 21 March 2022, MM says:20
(a) That she knows both the complainant and the appellant very well and has spent a lot of time with both of them.
(b) That in around “February 2020” (which I assume is an error and should be a reference to February 2021), the complainant told her about “hooking up with [the appellant]”, and that she and the appellant had slept together. MM says in her affidavit that the complainant “never said anything to me about [the appellant] raping her”.
(c) That:
[The complainant] told me that when she went at [the appellant’s] house, she went down to his room to see if he had any smokes and stuff. [The complainant] said that [the appellant] started touching her and whatever, and that she didn’t say no.
She didn’t say they she had had sex with him (sic) but she did say that she gave him head (oral sex).
I cannot recall exactly when she told me that but it was just a few days after it had happened. The way she told me made me think that she had hooked up with [the appellant] willingly and that she was not upset about it.
When she was telling me about it, she was not upset about it at all.
In fact, it seemed to me that she was sort of bragging about it.
When she told me about it, she told me that she had enjoyed it.
I don’t recall her exact words, but she said something like “...you know considering how young he is, it was quite good compared to others...”.
20 I put aside plainly inadmissible aspects of MM’s affidavit (such as statements as to her personal belief or opinion), as well as more peripheral aspects of her evidence not directly relevant to the issues I must determine (such as MM’s evidence that she had been at some parties following the alleged rape and did not notice any issues between the complainant and the appellant).
[49] MM also refers in her affidavit to a conversation that she says she and K had had on Messenger with the complainant (from K’s Messenger application). MM says “in the conversation I asked [the complainant] “who did you fuck, [CP] or [the appellant]?” (emphasis added). The complainant’s reply was sent across two messages, the first reading “Both”, the second stating “What’s the problem?” Copies of those messages are attached to MM’s affidavit.
[50] Nine days later, on 30 March 2022, MM made a statement to the police about her affidavit. In the statement, MM says that the private investigator had originally come around to speak to her partner K, but ended up talking to her instead. She says the private investigator did not take a statement from her at that time. She says that after the private investigator left her house, her aunty came around to her house in tears and told her that another aunty (the appellant’s mother) had asked her to come around and speak with MM to try and get her to sign a statement. In her 30 March 2022 statement to the police, MM says that she did not want to sign a statement for the appellant, at which point her aunty had phoned the appellant’s mother and put her on speaker phone, who said “do whatever you can to make her sign the statement”. MM says that her aunt then said “do you need anything as Nan is willing to offer you some money to make you accept”. MM says she needed the money but was not willing to take money from them and told them that. MM goes on to say in her statement to say that a couple of days later, the appellant’s mother came around to see her and said that if she didn’t sign the statement “she would make sure that the same would happen to me”.
[51] MM says that she understood this comment to relate to some years ago when she had had sexual intercourse with the appellant when he was under age. MM says in her statement that she was afraid the appellant’s mother would refer this to the police and she would be charged with rape or underage sex.
[52] In her 30 March statement, MM says that later on 21 March 2022, she went and signed the affidavit that the private investigator had prepared. She says that she didn’t want to be in the middle of it all and “felt a bit trapped”, and “pressured to sign that statement”. She says that she hadn’t given the information provided in her affidavit in the Youth Court trial given she was never approached and asked to.
[53] In a handwritten addition to the (typed) statement, MM says that when the private investigator came to her house, he didn’t take any notes and when she went to sign the affidavit “at the lawyer’s office it had been typed up”.
[54] The complainant then provided a further statement to police dated 18 May 2022. She says that the contents of MM’s affidavit had been recounted to her, “and the majority of it is lies”. She says that she had been in a relationship with K for about two years and they had broken up in about November 2020. She says that she found out that K had been cheating on her with her sister MM. She notes that things between her and MM were not good from this point onwards.
[55] The complainant says that she never told MM what had happened to her on 5 February 2021, and that she didn’t talk again with MM until around June 2021 when her niece was born.
[56] The complainant states that she never bragged to MM about supposedly how good the appellant was (sexually in bed) despite his age.
[57] The complainant says that she did tell K that the appellant had raped her, but that this was months after it had occurred. She said this was after K kept harassing her on text message that she had slept with the appellant.
[58] In terms of the messages attached to MM’s affidavit (referred to at [50] above), the complainant says that when she got the message, she believed it was K who had sent it (including because CP’s name was spelt incorrectly). She goes on to say:
Yes I did reply “both”. The reason I did this was out of spite to [K]. During my relationship with [K], he had jealousy issues about my friendship with [CP]. Nothing happened between [CP] and I, we were just good friends. He was also jealous about by close bond with [the appellant].
The reason I wrote back the response “both” was that I wanted to get back at
[K] as I am still angry with him over hooking up with my sister. I knew this would have really pissed him off.
In the context of the conversation [K] was actually trying to get back in a relationship with me.
MM wasn’t even involved in the conversation.
[59] The following day, 19 May 2022, MM participated in a lengthy EVI with the police. Key points from her EVI include that:
(a) In relation to her earlier statement about her aunty and the appellant’s mother trying to get her to sign a statement, MM reiterates her stance that she did not want to get involved. She says that “I really just wanted to sign it to get them out of my face because they were trying ... they were showing up and messaging and no matter how many times we asked or told them not to come they still did not like ... no matter how many times we told them we didn’t want to be involved they still got us involved. So I just assumed that if I signed everything and ... they will just leave us alone”. MM reiterates that she had felt threatened to make the statement given her earlier sexual encounter with the appellant.
(b) When she went to the lawyer’s office to sign the affidavit, she just scanned through it and felt quite overwhelmed and “just felt pressured”. She explains that when she went to sign the affidavit, she could not go into the building because she did not have her vaccine pass and that what she had read in relation to the affidavit “was off a laptop”. She says that he (which I infer to be either the lawyer or the private investigator) asked “is that right” or “does that look alright to you”, and she just said “yeah”. She says that she did not know if she was allowed to suggest changes or not, and was conscious that if she did make changes, they might make the difference in terms of her being “less of a witness for him” and “my slight word changes would have changed my whole statement completely and not being in favour for [the appellant] as much ...”.
(c) That when she was speaking with the investigator, they had spoken for about 40 minutes and he did not take any notes.
(d) Finally, that there had not been a direct offer of money to her in return for signing the affidavit, but “I had implied it I guess”. She goes on to
say that after she had signed the statement, she got a number of messages from the appellant’s mother thanking her for signing the statement and asking whether her and K needed anything including money, and she ended up blocking her communications.
[60] The interviewing officer then took MM through her 21 March 2022 affidavit to ascertain whether what she had said in the affidavit was or was not correct.21 Key points are as follows:
(a) In terms of her statement in her affidavit that in or around February 2021 the complainant had told her that her and the appellant had “hooked up” and that the complainant had said nothing about being raped, MM said that “at the time like we weren’t talking at all”, but when they did talk:
... she didn’t tell me that they slept together. But she said that she went over, and they hooked up. Yeah. But she didn’t mention to me that it was rape.
(b) In terms of the statement in her affidavit that when the complainant was telling her about it “she kind of sounded like she was happy about hooking up with him”, she says in her EVI that “[s]he didn’t sound happy but she ... it was like ... it wasn’t anything she we wanted to hide. Like it was like she wanted to let me know”.
(c) In relation to her affidavit evidence that the complainant told her she didn’t say no to the appellant, MM said:
Aw I guess it’s ... cos not that she didn’t say no, but she said I ... I didn’t tell him to stop. That’s all she said to me like, it wasn’t a
... she didn’t say no, she just didn’t tell him to stop.
21 In this context, for similar reasons referred to at fn 20 above, I put aside and do not address statements as to MM’s belief (and similar), which are not admissible evidence. I also put aside aspects of the evidence in which MM repeats what she says K says the complainant had told him. There are clearly hearsay issues with such evidence.
(d) MM said that they went into it in a little more depth a week or so later, when the complainant told her that the appellant “started touching her on whatever and that she didn’t say no”. MM then went on to say:
Yeah, so she didn’t say that. Like she was like or ... he started touching me and stuff and like I should have but I couldn’t ... I couldn’t tell him to stop that’s all she had said to me. Not that she didn’t say no.
(e) MM says that the complainant said to her “that she could have told him to stop but she didn’t want to, like yeah she wanted to tell him to stop but she couldn’t, yeah”.
(f) In terms of the oral sex, MM stated:
Yeah, so she just said, like after she said, I should have said no, well or I should have told him to stop but I couldn’t. Um, I said, yeah I guess.
And she’s like “Yeah, I did give him head though. Not cos I wanted to, but like he made me give him head”. That’s what she told me. That’s what she had said.
(g) MM also denies that she said anything to the private investigator to give the impression that the complainant had hooked up with the appellant willingly or was bragging about it. Rather, she says that the complainant did not seem upset about it when she was telling her and it didn’t make any sense to her why the complainant was telling her about it.
(h) In terms of her earlier statement that the complainant had told her that considering how young the appellant was, he was “quite good compared to others”, MM said this was incorrect, and that the complainant had only talked about his penis size, and how big he was, to the effect that “you know considering how young he is, it’s quite big”.
[61] In relation to the messages referred to at [49] above, MM states that the exchange on 7 February 2021 was between K and the complainant only, and not K and
MM on the one hand and the complainant on the other, stating “I wasn’t even involved in this conversation”.
The parties’ submissions
[62] Mr Simpkins submits the evidence is fresh, in the sense that the private investigator had effectively “tripped over” MM’s evidence when he ended up talking to her rather than K as originally intended.
[63] Mr Simpkins also submits that the contents of MM’s affidavit resonate with evidence given at trial (such as the arrangement for the complainant to go to the appellant’s house after school, and her going down to the appellant’s bedroom to give him smokes), which he says reinforces its credibility and cogency. Mr Simpkins acknowledges that MM has changed her evidence between her March 2022 affidavit and her later statement and EVI to the police, but submits that has to be viewed in the context of her concern at being reported to the police for her earlier sexual intercourse with the appellant. Mr Simpkins further submits that MM’s evidence in her later EVI is consistent with the complainant not objecting to the sexual conduct, which is relevant to consent and a reasonable belief in consent. Mr Simpkins further submits that if MM’s further evidence were to be admitted, it would also cast the evidence of A and J in a different light, which as noted at [19] above, the Judge had rejected.
[64] Finally, Mr Simpkins submits that even if MM’s affidavit and subsequent materials are not admitted on the appeal, the text messages between the complainant and K on 7 February 2021 are objective, and thus clearly credible and cogent. He submits that they paint a different picture of the complainant’s explanation of what had occurred between her and the appellant, and again give rise to the reasonable possibility of consent or a reasonable belief in consent.
[65] Ms Gordon submits that the evidence of MM is not fresh, in that with reasonable diligence it could have been produced at trial. She refers to the private investigator’s acknowledgement that he had been hired to work on this matter prior to the trial, and that there is no real explanation as to why steps had not been taken to speak to K and MM at that time.
[66] Ms Gordon submits that in any event, there are real concerns with the credibility and reliability of MM’s evidence, given she has been shown to change her evidence quite significantly from her sworn affidavit to her EVI. Ms Gordon accepts that there remains a residual question as to whether the existence and content of the messages referred to at [49] above might reasonably have led the trial Judge to conclude that the complainant did consent to sexual activity. But she submits that the messages must be viewed in the context of being an exchange between the complainant and K only, and the complainant’s further statement and explanation of the messages summarised at [58] above is important context. When viewed in this light, Ms Gordon submits that the messages do not cast any real light on whether the sexual activity between the complainant and the appellant was consensual, or otherwise undermine the complainant’s evidence at trial which was accepted by the Judge.
Discussion
[67] There are real doubts in my view as to whether MM’s evidence is fresh, in the sense that it could not with reasonable diligence been put before the Court at trial. There is no clear explanation for why K and MM were not spoken to before trial. Given it plainly occurred to the appellant, or the private investigator, to speak with K after the trial, so too could he have been spoken to before the trial, which may have then led to the private investigator speaking with MM also.
[68] But even putting aside the question of freshness, I am not persuaded that the proposed new evidence, which must include in my view MM’s further statement and her EVI, is sufficiently credible or cogent that it ought to be admitted on the appeal.
[69] There are plainly issues around the credibility and reliability of MM’s evidence across her affidavit, statement and EVI. As can be seen from the summary of her evidence at [46] to [59] above, there are a range of inconsistencies between MM’s sworn affidavit and her EVI in particular. Further, even focusing on the EVI only, MM clearly has difficulty recalling the detail of discussions she said she had with the complainant at least a year earlier (assuming for present purposes that the discussions occurred in or around June 2021, when the sisters began speaking again). Ultimately,
I consider it highly unlikely that MM’s most recent account of what she recalls about a conversation or conversations she said she had with the complainant in around mid- 2021 would undermine the complainant’s clear and consistent evidence of what she said occurred between her and the appellant in February 2021, evidence which the Judge found credible and reliable.
[70] Further, MM’s evidence in her EVI that the complainant told her that she should have told the appellant to stop but did not do so (even if accepted) does not speak to the complainant’s evidence that she had said to the appellant at the outset that “nothing was going to happen” given the family relationship between her and the appellant. Nor does it say anything about the complainant’s evidence that the appellant put a pillow over her face at one stage, or that there was some force involved, both in terms of the appellant pinning the complainant down to have sex with her and then forcing her to give him oral sex (which contributed to the Judge’s finding that the appellant did not have a reasonable belief in consent). If anything, MM’s EVI is consistent with the complainant’s account that the appellant made her give him oral sex, and inconsistent with the appellant’s evidence that the complainant had voluntarily offered to do so. Nor do I consider there a real risk that MM’s evidence would have led the Judge to a different conclusion in relation to A and J’s evidence. Their evidence, and particularly that of A, was to the effect that the complainant had bragged about her encounter with the appellant. The Judge said she had concerns about the credibility A and J’s evidence, in terms of there being a conversation with the complainant as they suggested, or if so, what was said. She preferred C’s evidence (and the complainant’s) over that of A and J. These are areas in respect of which an appeal court will exercise customary caution. Further, one thing that MM was clear about in her EVI was that her statement in her affidavit that the complainant had been bragging about what had happened between her and the appellant was wrong and did not reflect what she had told the private investigator. At its highest, her evidence is to the effect that some months after the events in question, the complainant had not seemed to her to be upset when recounting what had occurred.
[71] In this context, I consider MM’s evidence to be quite different from that in MG v New Zealand Police, in which evidence of one of the complainant’s close friends was admitted on the appeal, the appeal allowed and a retrial ordered.22 The friend gave a very detailed account of what she said the complainant had told her about her sexual encounters with the appellant. The friend’s evidence in MG v New Zealand Police did not suffer from the credibility and reliability concerns that exist in this case and as noted, was a very detailed account of what the complainant had said had happened. The friend was cross-examined at the appeal hearing and remained firm in her evidence of what the complainant had told her. Further, in the complainant’s evidence in response, she had accepted many aspects of her friend’s evidence, and said that the differences between their evidence stemmed more from a misunderstanding. This is in contrast to MM’s evidence in this case, which is a confused, changing and ultimately unclear account of what she says the complainant told her some months after the events in question.
[72] For these reasons, I do not consider it appropriate to admit MM’s evidence on the appeal.
[73] The text messages are in a different category, however, in that they are objective and the complainant accepts that she sent them. They plainly say what they say. For this reason, while there is a question-mark over whether they are fresh, they are reliable evidence and ought to be admitted on that basis. The inquiry then becomes whether their existence demonstrates that there has been a miscarriage or a risk of a miscarriage.
[74] The messages must of course be viewed in their context. The complainant’s evidence, and even that of MM in her EVI, is that the exchange of messages was between the complainant and K only, not the complainant and MM (as MM originally said in her affidavit). K had been the complainant’s boyfriend, but had apparently cheated on her with MM and then become MM’s partner. The complainant’s statement that her messages to K were out of “spite”, “to get back at him” and to “piss him off” is understandable in that context. Accordingly, while there can be no doubt about what
22 MG v New Zealand Police [2017] NZHC 3137.
the messages say or that the complainant sent them, I do not consider they shed any real light on whether the sexual conduct between the complainant and appellant was or was not consensual (or the appellant had a reasonable belief in consent). Their existence therefore does not give rise to a miscarriage or a risk of a miscarriage.
Result
[75] The application to admit further evidence is dismissed, other than the text messages of 7 February 2021, which are admitted.
[76] The appeal is dismissed.
Fitzgerald J
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