C v The King

[2024] NZHC 3336

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-000024

[2024] NZHC 3336

BETWEEN

C

Appellant

AND

THE KING

Respondent

Hearing:

10 September 2024 (via AVL/VMR)

Counsel:

J C Hannam for Appellant

J M Woodcock for Respondent

Judgment:

11 November 2024

JUDGMENT OF LA HOOD J

(Appeal against Conviction)

[1]                 Following a Judge-alone trial, Mr C (the appellant)1 was convicted in the New Plymouth District Court on 16 February 2024 of the following 33 charges of historic sexual abuse against his stepdaughter:2

(a)Seven charges of indecency with a girl under the age of 12.3 Aside from the first, these charges were all representative.

1      The appellant’s name is not suppressed but is anonymised to protect the identity of the complainant pursuant to s 203 of the Criminal Procedure Act 2011.

2      R v [C] [2024] NZDC 4425 [Decision on appeal].

3      Crimes Act 1961, s 133(1)(a).

C v R [2024] NZHC 3336 [11 November 2024]

(b)Eleven charges of sexual conduct with a child under 12.4 Three of these charges were representative charges involving kissing the complainant. Three are representative charges involving the appellant touching the complainant’s genitalia with his fingers. Three involve the appellant wiping ejaculate on the complainant’s mouth, two of which were representative, and one was specific. Two are representative involving the appellant touching the complainant’s breasts.

(c)Three charges of sexual conduct with a young person.5 Three of these were representative.

(d)Six charges of attempted sexual violation.6 Three of these charges were representative involving the appellant attempting digital penetration of the complainant. Three involve the appellant attempting to put his penis in the complainant’s mouth, two of which were representative charges.

(e)Six charges of sexual violation by unlawful sexual connection.7 Five of these charges involve connection between the appellant’s tongue and the complainant’s genitalia, four of these being representative. One of these charges was a representative charge of digital penetration of the complainant.

[2]                 Mr C now appeals the convictions. A notice of appeal was filed in respect of both conviction and sentence, but Mr Hannam confirmed that only the conviction appeal is pursued.

4      Section 132(3).

5      Section 134(3).

6      Section 129(1).

7      Sections 128(1)(b) and 128B.

[3]The appeal is brought on the grounds that:

(a)The trial Judge used propensity evidence of the appellant’s previous conviction for indecently assaulting the complainant’s sister incorrectly.

(b)The Judge placed undue weight on matters relating to the appellant’s credibility.

(c)The evidence of the complainant’s behaviour towards the appellant is inconsistent with sexual offending.

(d)Overall, it is contended the Judge erred in convicting the appellant.

The offending

[4]                 The complainant was the appellant’s stepdaughter. The appellant entered into a relationship with the complainant’s mother when the complainant was about five years old. The alleged offending was as follows.

First address

[5]                 In about July 2004, the complainant’s mother moved in with the appellant. While living at this address, the appellant began entering the complainant’s room and touching her while she pretended to be asleep. On one occasion he touched the complainant, before removing her pants and rubbing her genitalia. She opened her eyes after the abuse and saw the appellant leaving her room. Over the period of a year at this address, the appellant regularly abused the complainant, about three times per week. The abuse included rubbing her chest and bottom, forcing his tongue into her mouth, kissing her, licking her breasts, rubbing her genitalia, and attempting digital penetration of her genitalia.

Second address

[6]                 The family then moved into a second address. The appellant continued offending against the complainant in a similar manner. The offending escalated to the

appellant sometimes removing his clothing and masturbating. During this time, when the complainant was about eight, the appellant attempted to put his penis in her mouth and put ejaculate over her mouth.

[7]                 During the week between 17 August 2006 and 4 September 2006, the appellant indecently assaulted the complainant’s 11-year-old sister. While she was in bed, he put his hands down her underwear and rubbed the outside of her genitalia. He was charged with this offence on 26 September 2006, pleaded guilty and was sentenced. Propensity evidence relating to this offending was adduced through an admission of facts, pursuant to s 9 of the Evidence Act 2006.

Third address

[8]                 Following the indecent assault conviction, the appellant moved to a third address. In late 2007, the appellant moved out of this address to a fourth address, and the complainant and her mother moved in. During this time, at both addresses the complainant had contact with the appellant and the complainant said the appellant continued to offend against her in the same way.

Reporting the offending

[9]                 The complainant formally disclosed the abuse in an evidential interview with Police on 6 August 2020. Police charged the appellant in October 2021.

The District Court decision

[10]              In an oral judgment given on 16 February 2024,8 the Judge convicted the appellant of all charges. The evidence was heard from 12 witnesses over two and a half days.9 The appellant elected to give and call evidence.10

[11]              The Judge noted that the burden of proof was on the Crown and that it must prove the ingredients of the offences beyond reasonable doubt.11

8      Decision on appeal, above n 2.

9 At [23].

10 At [24].

11 At [14].

[12]              The Judge found there was no need to discuss the legal definitions of sexual violation and indecent assault as the legal issues were not in dispute. Rather, what was in dispute were the factual allegations. On both the Crown and the defence case, if the allegations were proved, they would be breaches of the criminal law.12

[13]              The Judge then gave himself misconception directions, namely the direction that “there is no such thing as a typical response to allegations of sexual abuse”.13 Further, an early complaint does not necessarily mean it is true, and there are many reasons why people delay in making complaints.14 Nor is it the case that sexual offending occurs only outside family relationships.

[14]              Finally, the Judge directed himself on inferences. He acknowledged that, in this case, the issue of propensity evidence arose in that the appellant was convicted of sexual offending against the complainant’s sister.15 He noted this evidence showed a sexual interest in a young female child and engaging in an act with her which is inherently unusual behaviour.16

[15]              The Judge identified that the central issue was the credibility of the complainant and of the appellant.17 He noted there were conflicts between the two narratives, and while he did not have to resolve those differences, he did have to determine what evidence he could accept and what he could reject.

[16]              The Judge considered the appellant’s evidence first, recognising that while the burden of proof was on the Crown, it was appropriate to start with the defence evidence as there are “a number of possible consequences that may flow from whether I accept or reject his evidence, or  if  his  evidence  raises  a  reasonable doubt.”18 The Judge then explained the tripartite approach, being cautious not to suggest there is a reversal of the burden of proof.19

12 At [15].

13 At [18].

14 At [19].

15 At [20].

16 At [21].

17 At [22].

18 At [28].

19 At [29].

[17]              The Judge noted the evidence admitted by consent pursuant to s 9 of the Evidence Act. Namely, the propensity evidence already mentioned, as well as property transactions, the complainant’s date of birth, and that the allegations ranged from August 2004 to March 2011.20

[18]              The Judge found the appellant’s evidence to be unconvincing due to a number of inconsistencies. For example, the appellant stated he did not drink beer. However, this was inconsistent with the evidence of witnesses he called. This was relevant because the allegation of kissing the complainant involved the complainant describing the taste of beer.21 Another inconsistency was that the appellant said he did not enter the children’s bedrooms at night, despite the facts admitted under s 9 establishing that he did enter the complainant’s sister’s room.22

[19]              Having rejected the appellant’s denials, the Judge turned to the complainant’s evidence. The complainant’s evidence in chief was a video recorded interview, and she was cross-examined. Her evidence was that she was treated as special by the appellant, was at times given alcohol, taught to drive, and had items purchased for her.23 The Judge viewed her evidence as honest and sincere. She made concessions  at appropriate times and was careful to explain her perception that the appellant treated her “gently” and that she was “grateful she was not raped”.24 He noted she was confused about his behaviour towards her, but given her age that confusion was unsurprising.25

[20]              The Judge also emphasised that the delay in reporting the abuse could not be seen to be unusual, given  the  complex  relationship  she  had  with  the  appellant. In particular, she spoke of the shame that prevented her from speaking up about the abuse earlier.26

20 At [35].

21     At [37] and [38].

22 At [38].

23 At [45].

24 At [47].

25 At [54].

26 At [59].

[21]              In relation to the propensity evidence, the Judge reminded himself that the evidence of the appellant’s earlier conviction did not mean he offended against the complainant. However, it did show that he had a sexual interest in a young female. In terms of the substance of this conviction, there was no suggestion of any collusion between the two sisters. There were common factors between the previous offending and the current allegations, namely the provision of alcohol by the appellant.27

[22]              Overall, the Judge assessed the complainant’s evidence as credible and reliable, and the appellant’s denials as not credible. He was satisfied the appellant did the acts forming the basis of the charges, and that the essential ingredients of each charge had been proved beyond reasonable doubt.28

Approach on appeal

[23]              Section 232(2)(b) of the Criminal Procedure Act 2011 (CPA) provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.”29 A miscarriage of justice means any error, irregularity or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.30

[24]              As this is a general appeal, this Court is required to form a view of the facts.31 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.32 This approach does not mean the role of the appellate court is to consider the issues de novo as if there had been no trial. It remains for the appellant to show that an error has been made, and in assessing whether there has been an error, the Court must take into account any advantages the trial judge may have had.33

27 At [62].

28 At [74].

29     Criminal Procedure Act 2011, s 232(2)(b) and (c).

30     Section 232(4).

31     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].

32 At [38].

33     At [38] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

[25]              Where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary” caution, for two overlapping reasons:34

[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.

[26]              In the present case the Judge had the benefit of seeing the oral evidence progressively unfold before him in the context of the trial as a whole,35 and would have observed the nuances of the complainant’s evidence.36 The impression the trial judge is able to gain from hearing and seeing the oral evidence is not necessarily or usually apparent from the “cold typeface” of the written record.37 An appellate court merely has the transcript, “the dead body of the evidence, without its spirit; which is supplied, when given open and orally, by the ear and eye of those who receive it”.38 Although caution is required in relying on a witness’s demeanour, the Court of Appeal has noted that tone of voice “is important in conveying meaning” and “cannot be captured in a written transcript”.39 And that pauses can be significant, and gestures

34     Sena v Police, above n 31 (footnotes omitted).

35     See Green v Green [2016] NZCA 486 at [31].

36     At [40]; See also Patterson v R [2024] NZHC 2307 at [51].

37 Rae v International Insurance  Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 199, followed in Austin Nichols, above n 33, at [13] and recently restated in Green v Green, above n 35, at [31].

38   R v Bertrand (1867) LR 1 PC 520 at 535 cited in R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [73].

39 Munro, above n 38, at [74]. The Court in Munro went on to discuss the difficulties with credibility assessments, including those based on demeanour (at [79]), but said “[83] However, it is equally true that assessing credibility from a written transcript in many cases will not achieve better results, particularly in the absence of other contemporary evidence. There remain advantages in hearing and seeing the witnesses as outlined in the previous section. Further, appellate courts are often directed only to parts of the evidence and do not obtain a full sense of the whole trial and the dynamics of the trial process.”

and facial expressions can also convey meaning and are not recorded in a transcript.40 For all of these reasons, I must exercise caution in a case like this.

The appellant’s arguments on appeal

[27]              The submissions for the appellant primarily centre on the Judge’s credibility findings. Essentially, it is contended that there were areas of conflict in the evidence that should have been addressed in more detail by the Judge. The key areas of conflict were: the regular entry into the bedroom of the complainant; providing alcohol and cigarettes to children; visits to the third address; and a consideration of the “weird” relationship between the appellant and the complainant.

Misuse of propensity evidence

[28]              First, Mr Hannam argues the propensity evidence of the prior conviction was misused to find against the appellant in relation to his claims he did not supply the complainant (or her sister) with alcohol or enter their bedrooms.

[29]              The Judge found that “if the defendant did not go into the rooms, as he wanted me to accept, then  he  would  not  have  known  where  people  were  sleeping.”41  Mr Hannam submits it is possible to know where people are sleeping without entering their rooms and the appellant said in his evidence in chief that he had been taught as a caregiver not to enter children’s rooms. The mother of the complainant supported the appellant on this point. It is therefore submitted that the Judge was wrong to conclude that the appellant was not credible on this point based on the two admitted occurrences of entering the children’s rooms.

[30]              In relation to the claim that the appellant gave alcohol to the complainant and her sister, the appellant submits the Judge was wrong to rely on the complainant’s evidence and that of her stepsister. The complainant’s stepsister had provided a statement to the police during the investigation of the offending against the complainant’s sister in which she said that the appellant had provided the sister with alcohol (aged 11) on the evening of the offending, and she appeared intoxicated. It is

40     Munro, above n 38, at [74].

41     Decision on appeal, above n 2, at [41].

submitted that the Judge erred in failing to expressly refer to the appellant’s strong denial of this in his decision. It is further submitted that the use of alcohol during the 2006 offending was merely one event and does not establish a pattern of behaviour. Finally on this topic, it is submitted that the Judge did not warn himself of the use of the earlier statement, nor did the s 9 admission of facts include that he provided alcohol to the complainant or her sister.

[31]              Mr Hannam submits the Judge was wrong to find that the appellant “gave evidence of not drinking”.42 The appellant did not claim a total absence of drinking, rather he conceded he occasionally consumed alcohol, stating “I might have the odd beer occasionally, but it was very rare for me to drink.” Mr Hannam submits that as the evidence of his drinking and smoking was not critical, the Judge should not have seized upon the apparent conflict and magnified it.

Evidence relating to offending at third address

[32]              Second, Mr Hannam submits the Judge failed to deal with a substantial weakness in the evidence for charges 22-29,43 the offending at the third address. The Judge did not address the appellant’s statement that he did not go to the third address during the relevant period. The evidence of the complainant’s mother was that there were some daytime visits, but the appellant was never alone with the complainant.

[33]              The evidence regarding abuse at the third address was the complainant stating that the appellant came to the house frequently and she would “wake up in the middle of the night to, to him being in my room fondling me.” Mr Hannam submits the only substantive detail was the complainant’s statement in her video interview that “...him and mum would go to, go to bed and then I’d wake up and I’d either be on the couch or in the spare room and same deal, use me as his play toy. I suppose maybe that’s why it’s so hard to remember individual accounts because he, it would have just, it would have just gone like the same routine like over and over.” It is submitted that

42 At [39].

43 Charge 22 (attempted digital violation); charge 23, (touching genitalia); charge 24 (attempted unlawful connection between the appellant’s penis and the complainant’s mouth), charge 25, (wiping ejaculate), charge 26 (kissing), or charge 28 (connection between the appellant’s tongue and the complainant’s genitalia).

there was a lack of specificity on these charges and the complainant’s statement that the “same deal” occurred is not enough to prove the case.

Behaviour inconsistent with offending

[34]              Third, Mr Hannam submitted the behaviour of the complainant of maintaining a relationship with the appellant into adulthood and the affection she held for him is inconsistent with the offending. Mr Hannam says that there was a conflict between the way the complainant described the relationship, and the way others did. The appellant submits that the relationship as observed by others was a normal one, inconsistent with the allegations of abuse, whereas the complainant described being made to feel special in a way that was said to be consistent with grooming.

No separate findings for each charge

[35]              Finally, Mr Hannam submits that the Judge fell into error by making general findings of credibility that he applied to all charges rather than separate findings in respect of the elements of each charge. If he had done the latter, he would have had to consider weaker evidence, such as the appellant’s presence at the third address, and weigh the claim of the frequency of offending against the quality of the relationship between the appellant and the complainant. Moreover, the Judge should have conducted a fulsome assessment of the propensity evidence, rather than adopting it as support for the propositions that the appellant provided the complainant with alcohol and entered her bedroom.

Assessment of arguments and decision

[36]              The Judge’s decision was required to provide a rational and considered basis for the conclusions reached that addressed the substance of the appellant’s case.44 The Judge was not required to address every issue or argument advanced by the appellant.45 As the Supreme Court noted in Sena, with oral judgments such as this, imperfection of expression is practically unavoidable.46

44     At [36]–[37].

45 At [37].

46     Sena v Police, above n 31, at [37].

The propensity evidence and the appellant’s credibility

[37]              I accept the Crown submission that the Judge did not misuse the propensity evidence. The issue for trial was whether the offending occurred or not. The defence was that the complainant’s allegations were a fabrication. The truthfulness of the complainant’s account was therefore the dominant trial issue. The Judge directed himself that the propensity evidence was relevant but not determinative.47 The Judge was clearly entitled to consider that the propensity evidence supported the complainant’s account. It showed that the appellant had a sexual interest in an 11- year-old female, who was the complainant’s older sister (by two years) and was prepared to act on that interest by engaging in sexual abuse of her in the same household at the same time as he was alleged to have been sexually abusing the complainant. There was also no error in the Judge using aspects of the propensity evidence common to both sisters’ accounts, such as the entry into the bedroom and the provision of alcohol, to make credibility findings against the appellant.

[38]              The Judge gave clear reasons for rejecting the appellant’s evidence.48 He properly directed himself on how to use the appellant’s evidence and ultimately put his evidence to one side.49

[39]              There was nothing wrong with the Judge’s decision regarding the supply of alcohol to the complainant. The appellant’s evidence that he never supplied the children with alcohol conflicted with the 2006 police statement of his daughter given at a time contemporaneous to the allegations of both sisters. The appellant opened the door to this cross-examination when he claimed he had never supplied alcohol to the children.

[40]              I also consider the Judge did not err in his assessment of the evidence relating to the appellant entering the children’s rooms. The trial judge had the benefit of assessing the evidence of the witnesses in a trial process and had the best opportunity to evaluate the strengths and weaknesses of the case. The Judge was entitled to accept that the appellant was unconvincing in his evidence that he did not enter the children’s

47     Decision on appeal, above n 2, at [21].

48     At [37]–[43].

49     At [28]–[31].

rooms. And the Judge was clearly entitled to give weight to the fact that this assertion was contradicted by his guilty plea to having entered the sister’s bedroom to sexually abuse her.

The complainant’s behaviour

[41]              I reject the submission that the complainant’s behaviour in delaying her complaint and maintaining a relationship with the appellant was inconsistent with the allegations. The Crown case was that the appellant groomed the complainant. There was evidence at trial that the appellant and the complainant were close, and he treated her as special. In cross-examination, the complainant explained her feelings of shame, confusion, and conflict because of the abuse. Continued contact with an offender is not inconsistent with sexual abuse. There is no typical response to sexual abuse and sexually abused children can behave in lots of different ways and in ways that do not make sense, including having ongoing contact with an offender.50

Separate reasons for each charge and offending at third address

[42]              I also reject the submission that the Judge was required to give separate reasons for finding each individual charge proven, and had he done so he would not have found the third address charges proven. Although there were numerous charges over a lengthy time period, the same essential issue had to be determined in respect of each charge, namely was the complainant’s account that the appellant sexually abused her over a significant portion of her childhood true or a fabrication. Once that issue was resolved in the complainant’s favour (beyond reasonable doubt), conviction follows as a matter of logic provided there was some evidence of an offence capable of proving a charge beyond reasonable doubt.

[43]              In respect of the charges relating to the third address, these were representative charges. This meant the Crown only had to prove that the appellant offended in the way alleged at least once over the three-year time period (between 2006 and 2009). I accept the Crown submission that the complainant’s evidence of prolonged sexual abuse in the ways alleged by these charges, combined with her evidence that it

50     Te Kura Kaiwhakawā | Institute of Judicial Studies Responding to Misconceptions about Sexual Offending: Example Directions for Judges and Lawyers (July 2024) at 41–43.

continued in the same way at the third address, was sufficient to prove the charges. The complainant’s evidence was that these allegations were part of a continuing course of the same sexual abuse from the first address when she was about six years old until 2011 (when she moved overseas). The appellant’s evidence that he could not have committed these offences because he never visited the third address was contrary to the complainant’s evidence that it continued at the third address (albeit not as frequently and just at night). And the complainant’s mother gave evidence that she took the complainant to see the appellant at the third address, and the appellant stayed over at the address.

[44]              At the hearing of the appeal, Mr Hannam accepted that the evidence relating to the third address charges was capable of proving them to the required standard. But he said the Judge was wrong to conclude the charges were proven given the lack of specificity. However, I consider the Judge’s general credibility findings combined with the evidence relating to the third address was sufficient to prove beyond reasonable doubt that there was sexual abuse of the type alleged in these charges on at least one occasion during the relevant period. It is a feature of cases of historic sexual abuse that complainants cannot necessarily recall every specific instance of abuse but can be sure that the same pattern of abuse occurred in a particular location over a prolonged period. I see no error in the Judge’s approach to these charges.

Overall assessment

[45]              Finally, I consider there is no basis, on an overall assessment of the evidence, to conclude that the Judge erred in convicting the appellant. There was no error of law in the Judge’s approach nor any error in his assessment of the evidence. The Judge had the significant advantage of making credibility findings after seeing and hearing the witnesses, in particular the complainant and the appellant. The Judge provided a rational and considered basis for his conclusions that addressed the substance of the appellant’s case. Moreover, my own assessment on appeal is that there is no error in the conclusion that the complainant was telling the truth when she said the appellant sexually abused her in the various ways alleged over a prolonged period of her childhood.

Conclusion

[46]              It follows that the appellant has failed to persuade me that the Judge erred in his assessment of the evidence at all, let alone to such an extent that a miscarriage of justice has occurred.

[47]I dismiss the appeal.

La Hood J

Solicitors:

Hannam & Co Lawyers, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent