DH v R

Case [2015] NZSC 35

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NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985
IN THE SUPREME COURT OF NEW ZEALAND
SC 9/2014
[2015] NZSC 35
BETWEEN

DH (SC 9/2014)
Appellant

AND

THE QUEEN
Respondent
Hearing:

22 October 2014

Court:

McGrath, William Young, Glazebrook, Arnold and O'Regan JJ

Counsel:

W C Pyke and S K Green for Appellant
A Markham for Respondent

Judgment:

16 April 2015

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

  1. The appellant appeals against a decision of the Court of Appeal dismissing his appeal against conviction on 16 counts of sexual offending against his daughter.[1]

    [1]DH (CA687/2012) v R [2013] NZCA 670 (Harrison, Simon France and Dobson JJ) [DH (CA)].  Leave to appeal was granted by this Court on the approved question “whether the Court of Appeal was correct to dismiss the conviction appeal”: DH (SC 9/2014) v R [2014] NZSC 50.

  2. Counter-intuitive evidence is evidence admitted in cases involving allegations of sexual abuse of young persons for the purpose of correcting erroneous beliefs or assumptions that a judge or jury may intuitively hold and which, if uncorrected, may lead to illegitimate reasoning.  The Law Commission said the purpose of such evidence is “to restore a complainant’s credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance”.[2]  The major focus of the present appeal is on counter-intuitive evidence given at the appellant’s trial by a clinical psychologist, Dr Suzanne Blackwell. 

    [2]Law Commission Evidence; Evidence Code and Commentary (NZLC R55 vol 2, 1999) at [C111].

  3. We heard this appeal immediately before the hearing of another appeal in which Dr Blackwell’s evidence was also challenged, Kohai v R.[3]  Judgment in that appeal is being delivered at the same time as the delivery of this judgment. 

  4. Counsel for the appellant, Mr Pyke, did not mount a general challenge to the admissibility of counter-intuitive evidence in all cases.  But he argued that the scope of Dr Blackwell’s evidence in the present case was excessive and that parts of her evidence were inadmissible.  He said it dealt with matters which were not relevant and the admission of the irrelevant material had been prejudicial to the defence at trial.  He said the Court of Appeal had failed to appreciate the prejudicial effect of the potential misuse of Dr Blackwell’s evidence by the jury.

  5. The other grounds of appeal that were pursued in this Court related to the directions given to the jury by the trial Judge, Judge D J McDonald, in relation to the counter-intuitive evidence, on the subject of memory and in relation to the good character evidence that was adduced at the trial.  Mr Pyke also raised a concern about a comment made by the Judge in his summing up about the appellant’s family doing their “dirty laundry”. 

  6. The case for the appellant is…

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AGLC
DH v R [2015] NZSC 35
Case
[2015] NZSC 35
Decision Date

CaseChat Overview and Summary

The appeal in DH v R was brought by the appellant, DH, against a conviction and sentence for sexual offending against a child. The High Court was asked to consider whether the trial judge made errors in directions to the jury regarding the admissibility and scope of expert evidence, memory, and good character evidence. The High Court also considered whether the trial judge's comments during the summing up were prejudicial.

The legal issues before the Court included whether the trial judge should have provided a direction to the jury regarding the expert evidence, whether the trial judge's direction on memory was appropriate, and whether the judge's comment about "dealing with dirty laundry" was prejudicial and should not have been made. The Court was also required to consider the cumulative effect of any errors made by the trial judge.

The Court found that while the trial judge could have given a more succinct direction regarding the expert evidence, any error was not material given the nature of the defence. The Court held that the trial judge's direction on memory was not helpful in this case, as the defence focused on the fabrication of allegations rather than the accuracy of the complainant's memory. The Court held that the "dirty laundry" remark was gratuitous and should not have been made, but it did not reflect on the appellant and did not have a prejudicial effect on the outcome of the trial. The Court found no cumulative effect of the errors that would warrant a new trial.

The appeal was dismissed, and the conviction and sentence of the appellant were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Markham provided us with a copy of ch 17 of the Crown Court Bench Book issued by the Judicial Studies Board of England and Wales in March 2010. This contains a number of model directions dealing with matters such as “avoiding judgements based on stereotypes” and “late reporting”. The latter includes the following statement:[47]The experience of the Court is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others, who react with shame or fear or shock or confusion, do not complain or go to authority for some time. It takes a while for self-confidence to reassert itself. There is, in other words, no classic or typical response. A late complaint does not necessarily signify a false complaint, any more than an immediate complaint necessarily demonstrates a true complaint. It is a matter for you to determine whether, in the case of this particular complainant, the lateness of the complaint, such as it is, assists you at all and, if so, what weight you attach to it.[47]Judicial Studies Board “Crown Court Bench Book” (March 2010) at 358 <>We can see the benefit in a direction of this kind being given, and therefore obviating the need for expert evidence. But the area of delay in reporting is less controversial than some other areas, such as retractions or normalisation, as is reflected by the inclusion in s 127 of the Evidence Act of a direction on delay. Not all of the topics covered by the evidence given by Dr Blackwell in the present case would be amenable to a jury direction of this kind. The majority of the Supreme Court of Canada in R v DD found that, as a matter of law, delay in disclosure by a complainant, standing alone, will never be a proper basis for an adverse inference against the credibility of the complainant. Delay was therefore an issue that could be dealt with by a judicial direction, which meant that expert evidence on the topic was not “necessary” (the statutory test for admission of evidence of this kind in Canada, in contrast to the “substantial help” test under the Evidence Act). The majority said that the trial judge should instruct the jury that there is no inviolable rule on how people who are the victims of trauma such as a sexual assault will behave. In assessing the credibility of complainants, the timing of the complaint is simply once circumstance to consider in the factual mosaic of a particular case.[48] [48]R v DD, above n 24, at [63]–[65].In subsequent cases, R v DD has been seen as applying only where expert evidence dealing exclusively with the issue of delayed complaints is in issue. For example, in R v Talbot, a decision of the Ontario Court of Appeal, evidence called to explain that delayed or inconsistent disclosure and even recantation of claims of abuse is not unusual was found to be admissible despite the decision in R v DD.[49] In R v Meyn, expert evidence to the effect that it was common for victims of abuse to continue involvement with their abusers was ruled admissible.[50] There appears to thus be a hybrid approach in Canada, whereby, if the only issue is the making of a delayed complaint, standing alone, this will be dealt with by jury direction as suggested in R v DD,[51] but counter-intuitive expert evidence will be allowed in relation to other issues. Discussion[49]R v Talbot (2001) 161 CCC (3d) 256 (ONCA) at [38]–[43].[50]R v Meyn (2003) 176 CCC (3d) 505 (BCCA) at [49]–[56]. See also R v Tayebi (2001) 161 CCC (3d) 197 (BCCA).[51]See, for example, R v Crampton (2004) 188 OAC 357 (ONCA); R v B (R) (2005) 77 OR (3d) 171 (ONCA); R v MWW (2006) 205 CCC (3d) 410 (ONCA); R v WB (2005) 201 CCC (3d) 309 (ONCA); and R v Wiebe (2006) 205 CCC (3d) 326 (ONCA).We do not think it is appropriate to be prescriptive about how erroneous beliefs or assumptions are best to be countered in criminal trials. Judicial directions, s 9 statements and expert evidence are all possibilities. We do, however, consider that a cautious approach needs to be taken to the ambit of expert evidence given at trials of this kind to ensure that such evidence is confined to what would be substantially helpful, there is focus on live issues and that the evidence is not unduly lengthy or repetitive and is expressed in terms that address assumptions and intuitive beliefs that may be held by jurors and may arise in the context of the trial. Jury directions of the type used in England and Wales on topics where there is a general acceptance of the topic are a worthwhile alternative to expert evidence. If all the areas that would otherwise be covered by expert evidence are amenable to jury direction, this would obviate the need for the evidence and it would no longer be substantially helpful. If not, the jury directions could reduce the scope of the evidence to topics not covered in the directions. In the present case, Dr Blackwell gave a succinct summary of her evidence which, with some minor amendments and amplifications, could have formed the basis of a written statement that could have been read to the jury, whether by the witness or the registrar or, if she gave viva voce evidence, could have been the extent of that evidence. The summary was as follows:In summary, the evidence that I have given does not prove or disprove that sexual offending has occurred in this case. My evidence has been intended to provide information about the behaviour of children and adolescents who have been sexually abused. Reading of the research literature, as well as my own experience, has indicated that reporting of child sexual abuse is most commonly delayed. But as I said before, the timing of a complaint does not assist us in determining its credibility because false complaints may be immediate or delayed and true complaints may be immediate or delayed. There are a number of reasons for non-reporting or delay of true complaints of child sexual abuse and these include the close or family relationship between the child and perpetrator. May be initial lack of understanding that the behaviour is wrong or illegal. Normalisation of the offending by both the victim and the perpetrator. Loyalty to and dependence on the perpetrator. Fear of the perpetrator, fear of being blamed, feelings of shame and embarrassment. So as I’ve said probably far too many times, delayed reporting is common and this is specially the case when the perpetrator is known to the child. And one of the findings in the literature is that parents and caregivers are less likely to support a child when the child accuses a family member or romantic partner of the parent or caregiver. And just as the child may be reluctant to disclose when the perpetrator is someone close to them, the parent may be less likely to support the child when the perpetrator is someone close to them. And so the availability of trusted, competent, protective adults to whom the child may disclose may be highly relevant in a child’s decision making about reporting sexual offending. And the availability of trusted people who may believe them and able to protect them may be pivotal to their decisions to report the offending. Retraction of sexual abuse allegations may be truthful and an attempt to repair earlier untruthfulness. Or the retraction itself may be untrue and an effort to repair unforeseen consequences of the truthful allegations. And parental non‑supportiveness is a non risk factor for retraction of true allegations. Some sexually abused children may come to hate their abusers, while others will – may continue to maintain a close relationship with them and in some cases continue to have feelings of love and affection for them, despite the sexual offending that has occurred.In its decision in the present case, the Court of Appeal suggested that Dr Blackwell’s evidence should have been summarised and presented as an agreed statement to the jury.[52] This echoes the views expressed by that Court in RA v R and M(CA23/2009) v R. We agree that such an approach ought to be considered in cases of this kind. That will depend on the content of the evidence to be given (in particular whether it is limited to a topic such as delay not affecting the likelihood of a truthful or false complaint, on which there is apparently general acceptance or whether it includes evidence on more controversial topics, where there is not), whether the defence counsel wishes to cross-examine, whether a defence expert on the same subject is to be called, whether counsel are in agreement as to the method of presentation and other factors. Jury direction about counter-intuitive evidence[52]DH (CA), above n 1, at [26].At the appellant’s trial, the Judge gave a lengthy direction about Dr Blackwell’s evidence. He emphasised that Dr Blackwell had not met the complainant and that her evidence was designed to educate, correct misunderstandings and remove false preconceptions. Having canvassed some of the evidence, he said:But this is all general, not specific to this case. That has to be emphasised again. As Dr Blackwell quite properly in her evidence said, and as I tell you, her evidence did not seek to prove or disprove that sexual offending occurred in this case. It says nothing about the credibility, the believability of [the complainant]. It is completely neutral, her evidence, in that regard. Mr Pyke argued that this direction was inadequate. He referred again to the observations of the Victorian Court of Appeal about grooming in SLS v R[53] where an expert witness had referred to the alleged offending as grooming behaviour but said that this was relied on only as evidence of grooming, not as evidence of the offending. The Court of Appeal of Victoria had expressed doubt that the jury would understand or maintain that distinction.[54] We agree, but we do not see this as having any relevance to the present situation. [53]SLS v R, above n 27.[54]At [201].Mr Pyke said a cautious approach to Dr Blackwell’s evidence required the Judge to explain to the jury that, if they accepted her evidence, they should not reason that because the complainant or the defendant behaved in a way that may be consistent with victims or perpetrators of sexual abuse, that meant that the offending had occurred.While a direction to that effect would have emphasised the clear message already given by the Judge that Dr Blackwell’s evidence did not prove or disprove that sexual offending had occurred in the present case, we do not see its omission as material. Dr Blackwell had not suggested that because the complainant or the defendant behaved in a way that may be consistent with victims or perpetrators of sexual abuse, that meant that the offending had occurred. Neither had the prosecutor. In fact, Dr Blackwell made it clear that her evidence did not prove or disprove that any offending occurred in the present case,Jury direction about good character evidence The Judge gave a direction to the jury referring to the fact that the defence had elicited evidence from the officer in charge that the appellant did not have any previous convictions. The Judge added:The purpose of that evidence is twofold. The accused asks you to give it weight, as indicating he is not the sort of person likely to commit these offences. Secondly, he asked you to take it into account in assessing [the complainant’s] truthfulness. Remember, of course, that logically there will have always been a first time for everyone who has offended. Every criminal offends for the first time. Evidence of good character, which this has been called for, is not of itself a defence, but you can, if you wish, take it into account in the way that I have said.Mr Pyke took exception to the passage indicating there will always be a first time for everyone who has offended, and that every criminal offends for the first time. He particularly deprecated the use of the term “criminal”, which, he said, characterised the appellant as a criminal, notwithstanding that he had no previous criminal history. He said that a direction indicating that an offender must start somewhere suggests a prior disposition towards offending, which devalues the good character evidence in the eyes of the jury.The Court of Appeal rejected this submission pointing out the logic of the statement that there must always be a first time for everyone who has offended. However, the Court said it would have been preferable the Judge had not used the word “criminal”.[55] We agree with the Court of Appeal that it would have been preferable not to use the term “criminal” in this context. We think, however, it is clear that the reference to “every criminal” was a reference back to the immediately preceding words, “everyone who has offended”. Neither referred to the appellant and we do not think there is any real risk that the jury would have thought they did. We do not agree with Mr Pyke that a reference to the fact that there will be a first time for “every criminal” unfairly undermines the value of good character evidence. It is, as the Court of Appeal said, a logical statement. Jury direction about memory [55]DH (CA), above n 1, at [36].The Judge said to the jury that it may be helpful to give some guidance about memories, given the witnesses were referring to events that had happened many, many years ago. He said:[56][57] In view of the significance of these matters in the trial, it may be helpful if I give you some guidance about memories, given the witnesses are referring back to events that happened many, many years ago. Human memories are not permanently stored as if recorded on a tape, unaltered, to be played back at some later time as an exact recording of an event. I am sure you are all perfectly aware of that from your own experiences. Nor are memories always completely accurate. Memory depends in part on knowledge and in part on other sources of information additional to what is recorded when the event is first experienced. [58] There are three stages of memory, acquisition, when you see or hear or you acquire it, storage of the memory, and then recall of that memory. The processes used with each stage influence how accurately and completely any witness to an event will later be recalled. The stage at which memories are retrieved, that is, when a person is asked to recall what has happened in the past, will inevitably be influenced by cues available at the time, the things that are used to jog the memory, as we sometimes say. Those cues can include the nature of the questions asked, physical cues such a photographs or the nature of the occasion on which you are asked to recall. So the accuracy and fullness of any person’s recall may depend on factors such as the time that has passed since the event, and personal significance of the event. That is a matter of common sense, isn’t it? I am sure we all in our memories have clear recollections of things that are personally significant to us. The emotive content of the event, the occurrence of other related events, why and by whom the person is being asked to recall, and the kinds of retrieving cues provided at the time of recall. So you need to think about those sorts of things when making a decision about particular evidence which depends for its reliability on the accuracy and the fullness of the witness’s recollection of what was said and done.[56]Emphasis added.The Court of Appeal pointed out that the direction then given by the Judge mirrored aspects of a report issued by the Law Commission on memory theory in 1999.[57] The Court of Appeal expressed the view that it would have been preferable if the Judge had not given the memory direction. It said the information was unnecessary and would not have assisted the jury. [57]At [33], referring to Law Commission Total Recall? The Reliability of Witness Testimony (NZLC MP13, 1999). The Commission did not suggest this material was in a form that was suitable for jury direction.Mr Pyke submitted that the science in this field is complex and has developed considerably since 1999, when the Law Commission report was written. He referred us to an article by a Harvard Professor, Daniel Schachter, a leading scientist in this field, to illustrate how complex the science is. He suggested that the Judge’s directions were old fashioned when compared to this more recent exposition of the relevant science. The direction went beyond the expertise of the Judge.Mr Pyke expressed particular concern about the Judge’s comments on the impact on a memory of the personal significance of the event that is being remembered, in the passage we have highlighted above. Mr Pyke described this aspect of the direction as “oath helping”. He said it suggested there might be a good explanation for the complainant’s poor memory and the inconsistencies in her evidence. Mr Pyke said that because the direction was made in the summing up, counsel did not have a chance to counteract it. It was not likely to have provided assistance to members of the jury in their evaluative task. It involved an area of science outside the expertise of the Judge and, because it had not been foreshadowed, it was not something that counsel had the chance to comment on.We accept that the direction did not capture all the subtleties of recent memory research and did, in places, appear to be discussing matters of scientific fact, such as the reference to the three stages of memory. However, the focus of the defence in the present case was not on the accuracy of the memory of the complainant, but rather on whether she had fabricated the allegations. It was not suggested that she had made an error of memory but rather that she had lied. Mr Pyke did not point to any particular way that the direction could have affected the trial or the way the jury approached its task. His complaints were generalised.In light of those factors, we do not think it was helpful for the Judge to give directions on the issue of memory. We accept that it may be helpful in some cases to give guidance to a jury about memory, but we do not think this was such a case. However, we do not consider the direction given by the Judge had a material impact on the present case for the reason given above.[58][58]At [126].We do not comment on the appropriateness of giving directions along the lines of those given by the Judge in a case where the accuracy of a witness’s memory is in issue because of the developing science in the field and the fact that we did not have detailed submissions on the issue. We can see that a general direction on memory could assist a jury if a statement that does not involve divided scientific opinions can be identified. That is a topic which could be considered by the authors of the New Zealand jury trials bench book.Jury direction: reference to “dirty laundry”One aspect of the defence case was that the complainant had “copycatted” her cousin, who made allegations of sexual abuse against an uncle. The cousin complained to her parents, but not to the police. In closing, the prosecutor said that the copycatting idea did not make sense. As no one had done anything in response to the cousin’s complaint, it would not have made sense for the complainant to try to bolster her own complaint by reference to her cousin’s experience. In his summing up, the Judge summarised this aspect of the prosecutor’s closing as follows:Well, there is really no evidence of [copycatting] apart from what the mother immediately said to her daughter when she complained. [The mother had said “[the complainant] was only saying that it happened to her because it happened to … her cousin”.] If she was copycatting I suppose [the cousin] might have never seen the light of day, because [the cousin] decided that her sexual abuse was not worth, even though she told us it was true, anything being done about it, some uncle who did it to her. Does that help you in any way that the [appellant’s] family deal with their dirty laundry? It’s a matter for you, ladies and gentlemen. In the Court of Appeal, Mr Pyke said that the meaning of this comment was transparently to the effect that the cousin had been persuaded not to complain to the police and that the family laundered the offending in-house. He said that there was no evidential foundation for such an inappropriately prejudicial inference. The Court of Appeal rejected that submission. The Court said it was not satisfied that there was any suggestion that the appellant was involved either in the sexual abuse against the cousin or the suppression of its disclosure. However, the Court said it would have been preferable if the Judge had not used that “emotive sort of language” and described the remark as “unnecessarily gratuitous”. But it said that, when considered in context, it was not unfair.[59] [59]DH (CA), above n 1, at [39].In this Court, Mr Pyke said that the Court of Appeal failed to address the combined effect of the dirty laundry remark and the reference to a “criminal” in the direction on good character. He said that because these were made in the summing up, the appellant did not have any right to reply to them.We agree with the Court of Appeal that the “dirty laundry” remark was gratuitous and should not have been made. However, we agree with that Court that, when it is considered in context, it is obvious that it does not refer to anything done by the appellant and does not reflect on him. There was no suggestion that the appellant had anything to do with the sexual abuse of the cousin or the decision not to report it to the police. The remark could not reasonably be construed as referring to him or reflecting on him. As neither the “dirty laundry” remark nor the reference to “criminal” reflected on the appellant, there was no need for the Court of Appeal to address their combined effect.Cumulative effectMr Pyke said that it was necessary to consider each of these grounds of appeal separately, and then to assess their cumulative effect. For the reasons we have given we do not see any of the grounds of appeal as being made out so the argument based on the cumulative effect of the grounds of appeal does not need to be addressed.ResultThe appeal is dismissed.Solicitors: McLeods, Kerikeri for AppellantCrown Law Office, Wellington for Respondent

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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