Donaldson v The King
[2023] NZHC 3393
•28 November 2023
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE COMPLAINANT’S MOTHER, SISTER, AND BROTHER
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2023-454-22
[2023] NZHC 3393
BETWEEN GARRY JOHN DONALDSON
Appellant
AND
THE KING
Respondent
Hearing: 7 November 2023 (via VMR) Appearances:
F D Steedman for Appellant
K Barber and N H Brown for Respondent
Judgment:
28 November 2023
JUDGMENT OF McQUEEN J
[1] On 6 April 2023, Mr Garry Donaldson was found guilty of the following charges after a Judge-alone trial before Judge Northwood in the Palmerston North District Court:1
(a)two charges of sexual violation by rape (one specific and one representative);2
1 R v Donaldson [2023] NZDC 5556 [Decision under appeal]. Mr Donaldson was also charged with wounding with intent to injure. That charge was dismissed at the trial.
2 Crimes Act 1961, ss 128(1)(a) and 128B; maximum penalty 20 years’ imprisonment.
DONALDSON v R [2023] NZHC 3393 [28 November 2023]
(b)a representative charge of sexual violation by unlawful sexual connection;3 and
(c)a representative charge of indecency with a girl under the age of 12 years.4
[2] On 26 June 2023, Mr Donaldson was sentenced to 16 years and two months’ imprisonment.5
[3] Mr Donaldson now appeals his convictions.6 He submits that the District Court Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. Specifically, he submits that the Judge failed to give appropriate weight to the evidence from the complainant’s mother, and the ways in which it differed from the complainant’s evidence. He says also that the Judge accepted the complainant’s evidence uncritically and ignored that her narrative otherwise lacked evidential support.
[4] The Crown opposes the appeal. The Crown submits that the Judge did not err in his assessment of the evidence or in concluding that the complainant was honest and reliable. The Crown says the Judge was best placed to consider the evidence, and that he was correct to rely on the complainant’s evidence.
[5] For the reasons below, I consider that Mr Donaldson’s appeal should be dismissed.
What happened?
[6] Mr Donaldson has been in a relationship with the complainant’s mother for approximately 27 years. I will refer to the complainant as Beth and her mother as
3 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
4 Section 133(1)(a); maximum penalty 10 years’ imprisonment. I note that this provision was repealed by s 7 of the Crimes Amendment Act 2005. However, it is charged pursuant to s 12(1) of that Act, which provides that: “Every provision of the principal Act amended or repealed by a section of this Act applies to an act or omission occurring before the commencement of the section as if the section had not been enacted”.
5 R v Donaldson [2023] NZDC 12857.
6 Leave to appeal out of time was sought and granted, the Crown not objecting.
Emma. Mr Donaldson had a significant role in Beth’s upbringing, being a primary caregiver on many occasions while Emma worked late shifts at a factory. The offending for which Mr Donaldson was charged is said to have occurred from the time when Beth was nine years old and living with Emma and Mr Donaldson in Palmerston North.
[7] While Mr Donaldson has been convicted and sentenced of the sexual offending with which he was charged, I refer to the offending as allegations as his convictions are under appeal. Broadly, it is said that Mr Donaldson sexually abused Beth while she was between the ages of nine and 13.
[8] The offending is said to have begun between 25 July 1996 and 24 July 1997, while Beth was nine years old. Mr Donaldson looked after Beth after school while her mother worked from 4:00 pm until midnight. They were home alone together. It is said that on one occasion during the afternoon, Beth had finished showering and had walked out of the bathroom wearing a towel. It is said that Mr Donaldson called out to her to come into his bedroom. It is said that Beth responded, saying that she would get dressed first, and then come and see him. It is said that Mr Donaldson told her not to worry about getting dressed and to come into the bedroom anyway.
[9] It is said that when Beth entered the room Mr Donaldson was lying on the bed fully naked, and that he told Beth to come onto the bed and give him a cuddle. It is said that Beth struggled to do so while she was wearing the towel and that Mr Donaldson then told her to take it off. It is said that Beth then sat on the edge of the bed with her back to Mr Donaldson while they were both fully naked, and that Mr Donaldson began touching her back. It is said that Mr Donaldson then grabbed Beth and raped her. This gives rise to the specific charge of sexual violation by way of rape.
[10] It is then said that between 25 July 1996 and 24 July 2001, while Beth was between the ages of nine and 13, Mr Donaldson would approach her during the night in her bed while she was asleep. It is said that Mr Donaldson would come into her room, sit on the edge of her bed, remove her clothes and use his fingers to penetrate her vagina. It is said that Beth would freeze in fear and not move. It is said that after
doing so, Mr Donaldson would suddenly stop and leave the room quickly. It is said that Beth would know that he was coming because she slept with the hallway light on, and that Mr Donaldson would turn it off before he came into her room. It is said that Mr Donaldson would do this most nights when Beth was aged nine and ten, but significantly less so between the ages of 11 and 13. This gives rise to the representative charge of sexual violation by unlawful sexual connection.
[11] It is said also that on some occasions when Mr Donaldson went into Beth’s room at night he would rape rather than digitally penetrate her. This is said to have occurred approximately once every couple of months when Beth was between the ages of 10 to 12, and that the frequency decreased to the point where it occurred perhaps twice a year when she was aged 13. This gives rise to the representative charge of sexual violation by way of rape.
[12] It is also said that from when Beth was nine years old, while her mother was working, Mr Donaldson would call her into the lounge while he was watching television and invite her to sit on his lap. It is said that when she did so, Mr Donaldson would expose his penis, and place Beth’s hands on it, directing her to masturbate him. It is said that Mr Donaldson would then take Beth into the bathroom so that he could ejaculate into the sink, before returning to the lounge to watch television on his own. This is said to have occurred approximately twice a week while Beth was between the ages of nine and 11 years old. It is said to have become less frequent when she was older. This gives rise to the charge of indecency with a child under 12 years old.
[13] It is said that at the commencement of the offending Mr Donaldson told Beth not to tell anyone anything. However, it is also said that Beth told her mother, Emma, about Mr Donaldson sexually offending against her. Emma confronted Mr Donaldson and required him to leave their home for a few weeks. It is said that Emma then allowed Mr Donaldson back into the home on the condition that he attended counselling, and that Mr Donaldson did so, before eventually continuing to offend against Beth.
The District Court judgment
[14] The Judge began by describing the parties involved and the allegations against Mr Donaldson. He then described his role and set out the standard of proof and the burden of proof, noting that the fact that Mr Donaldson had given evidence did not change the standard or burden. He described the elements of each of the offences.
[15] The Judge then turned to the evidence, noting first that there was little probative value in Mr Donaldson’s interview with the Police following his arrest because he had little to say in that interview. The Judge considered that there were significant conflicts in the evidence, particularly between Mr Donaldson and Beth, and that therefore it was necessary for him to consider the honesty, reliability, and credibility of each witness.
[16] As to the evidential issues, the Judge first addressed the issue relating to the bedroom that Beth was using at the time of the alleged offending, and the incident that Mr Donaldson accepts occurred. He did so for the purpose of assessing credibility as between Beth and Mr Donaldson.
[17] As to the bedroom, the Judge set out the witnesses’ different versions of events, being that:
(a)Beth said that Mr Donaldson offended against her in bedroom three which was her main bedroom at the time, that she had moved into bedroom two because she felt safer there because it was closer to her mother, and that she was maybe 14 or 15 when she had moved back to bedroom three;
(b)Mr Donaldson’s view was that offending could not have occurred in bedroom three because at the time Beth was occupying bedroom two, having been put there by him and Emma owing to moisture ingress issues, that the move had occurred a few months after moving into the house, and that she did not go back to bedroom three until she was between 16 and 18; and
(c)Emma said that Beth was originally in bedroom three but that she moved into bedroom two because of the moisture issues, that she could not remember when this occurred, but recalled that Beth had been in bedroom two at the time disclosure was made regarding the masturbation (or bathroom) incident.
[18] The Judge concluded that there was little that could be drawn from the evidence on this issue owing to the lack of detail as to when the bedroom shifts occurred. The Judge considered that the “evidence is just too imprecise and varied”, later concluding that although the differences could be reconcilable, the dispute did not erode Beth’s credibility to the extent that her evidence needed to be rejected.7 The Judge did however note that:8
… [Emma]’s evidence has its challenges. She was clearly a reluctant witness, and emotional and sometimes in tears addressing the topics at hand. Often her default position when asked a question was that she “did not know” the answer or could not recall. At times, however, she was assertive, and her memory seemed reasonably intact.
Given that [Emma] was occasionally assertive and capable of remembering things, it could be that she was selective in what she chose to say. But giving [Emma] the benefit of the doubt, another way to approach this is that she was being asked to recall a traumatic and sensitive topic which drove a wedge in her relationship with her daughter and husband. Looked at that way leads to a conclusion that she genuinely struggled to recall the detail of what happened.
[19]And also that:9
[Beth] and Mr Donaldson gave seemingly credible and reliable evidence on this particular topic. Both their accounts made sense and hung together well. There was nothing inherently wrong with them. [Beth] gave two reasons for moving room, that made sense. She agreed that the room was damp, but she said that occurred for a long time and far later than Mr Donaldson recalled. [Beth]’s evidence includes compelling detail about this topic. For example, she moved her bed out from the wall to try and address the dampness.
What is also compelling from her point of view, is that she was occupying bedroom 3 at the time of her 10th birthday, and all her friends were in that room for a party there. That birthday party would have occurred on 27 July 1997, during the time when Mr Donaldson is said to have offended against her.
7 Above n 1, at [76] and [131].
8 At [70]–[71].
9 At [73]–[75].
To some extent these accounts may be reconcilable. It is agreed by all that that room required work to make habitable and there is a debate as to when that occurred. Mr Donaldson said that it occurred earlier during their occupancy at the house and that made sense. However, there is also evidence that [Beth] would move back and forth between the rooms, particularly in her teenage years. Aside from the reference to “teenage years”, the period when those moves occurred lacks precision. [Beth] said that she preferred to stay in bedroom 2 because it was closer to the lounge and other people in the house. All of this is consistent with shifts between bedrooms, but the dates when that occurred are lacking – and there is good reason for that, given the passage of time.
[20] The Judge then turned to what he described as the “bathroom incident”, being a sexual incident which Mr Donaldson accepted did occur. Mr Donaldson ejaculated in front of Beth. Mr Donaldson’s explanation was that Beth wanted to know what sperm looked like and so they went to the bathroom, and he showed her by masturbating to ejaculation. Beth, however, said that she had sat on Mr Donaldson’s knee and he got an erection. She said that he made her masturbate him to ejaculation.
[21] The Judge considered that there two ways in which this incident might be relevant. First, it might support a conclusion that Mr Donaldson was sexually attracted to Beth, and second, that might support a resolution of the conflicting accounts of what happened. The Judge considered that although Mr Donaldson had denied being attracted to Beth, he had accepted that he had “lost self-control on that occasion”.10 The Judge then said:11
Even on Mr Donaldson’s account, it must be the case that he found nine-year- old [Beth] sexually stimulating on this occasion. The child was right there with him when he masturbated to ejaculation in the bathroom. The inescapable conclusion, must be that Mr Donaldson at least at the material time, was sexually attracted to children. There can be no other conclusion as far as that is concerned.
[22] The Judge then turned to credibility issues. His Honour took the view that having concluded that Mr Donaldson was attracted to Beth at the relevant time, his explanation was less credible than Beth’s explanation. The Judge:12
10 Above n 1, at [92].
11 At [93].
12 At [96]–[98].
(a)did not accept Mr Donaldson’s claim that as part of some sort of sex education, he had masturbated to ejaculation to show Beth what sperm looks like;
(b)considered there was little evidence that Mr Donaldson had any role in Beth’s sex education, and no reliable evidence as to what she was being taught;
(c)held that Beth’s evidence that Mr Donaldson had got her to masturbate him was more aligned with the conclusion that Mr Donaldson found the incident sexually arousing;
(d)considered that Beth’s evidence conformed more closely with her mother’s account, which did not include reference to Beth asking any questions about wanting to see what sperm looked like; and
(e)considered that Mr Donaldson’s evidence minimised the incident, as a distraction from what really happened, and that his version was an “inherently unbelievable and flawed account”.
[23] The Judge recorded that his conclusions about the bathroom incident impacted his assessment of Mr Donaldson’s evidence in a more general way.
[24] Turning then to the other evidence, the Judge noted that Mr Donaldson’s account that Beth’s brother, who I refer to as Sam, was often at the house to provide care to Beth was not consistent with Sam’s own evidence, which was that he was not around a lot and that Mr Donaldson was the person watching Beth. The Judge therefore did not accept that Sam was at the house on a supervisory basis, even though he made have been there occasionally. Sam’s account was rather that he had other distractions at the time, and that he paid little attention to Beth. On those bases, the Judge rejected Mr Donaldson’s evidence.
[25] The Judge then assessed Beth’s evidence, describing it as “impressive”, and observing that “her memory is good”, and that she “gave a very precise account about
what had occurred” in relation to the specific charge of sexual violence by way of rape.13 His Honour highlighted the details that Beth had provided, such as:
(a)that she would sleep with the hallway light on and that Mr Donaldson would always turn it off before he came into her room;
(b)the degree of pain caused to her stomach and lower body;
(c)the evidence regarding the masturbation incidents starting in the lounge and finishing in the bathroom;
(d)the fact that Beth “gave credit where it was required”, in the sense that she acknowledged the abuse happening often initially but then decreasing in frequency as she got older; and
(e)where her clothing ended up when Mr Donaldson came into her bedroom to abuse her.
[26] The Judge was of the view that the detail provided “compellingly supports the accuracy of [Beth]’s account of what happened”.14 Against that, was the allegation that Beth had made everything up in order to mount a campaign against Mr Donaldson, whom her mother had allowed back into the house after the bathroom incident. The Judge did not consider that such a characterisation was apt, instead stating:15
But I [sic] that is not necessarily the case. The situation in the house had clearly become fraught, and [Beth] still has issues with her mother for favouring Mr Donaldson over her when she allowed Mr Donaldson back after the bathroom incident. It is easy to see how [Beth] still thinks that. Contrary to the possible theory I have outlined above, what makes more sense is that as [Beth] went into her teen years, she lashed out against Mr Donaldson, and the inability of her mother to protect her even when she had the chance. As she got older, she realised the significance of what had been done to her.
[27] The Judge then turned to evidence from Beth’s sister, who I refer to as Sara. Sara gave evidence that Beth had told her that Mr Donaldson “had made her touch
13 Above n 1 , at [111].
14 At [120].
15 At [122].
him”, pointing to her vaginal area. His Honour considered that the fact that Beth had told Sara about what had occurred meant that “in reality, Beth mentioned two forms of sexual touching by Mr Donaldson to two trusted people soon after the incidents occurred.16 His Honour was also of the view that the evidence from Beth’s partner added weight to Beth’s evidence, because there was consistency in what Beth had told him.
[28]The Judge then concluded:
[133] To return to the charges and the essential elements, I am satisfied that the factual allegations that sit behind the first charge, which is sexual violation by rape after [Beth] came out of the shower, have been established. The Crown has made me sure that Mr Donaldson had sexual intercourse with [Beth] without her consent. I am sure that Mr Donaldson did not believe [Beth] was consenting and nor did he have a reasonable grounded belief that she was.
[134] I satisfied that Mr Donaldson had sexual intercourse in a similar way, on at least one occasion between 25 July 1997 and 24 July 2001. In fact, I am satisfied that the offending occurred as [Beth] said it did, on a less regular basis than other forms of sexual abuse – that is once every couple of months.
[135] I am sure that Mr Donaldson sexually abused [Beth] by penetrating her genitalia with his finger or fingers, at night, in whatever room she was sleeping in on at least one occasion between the dates in the relevant charge.
[136] I am sure that the offending was more regular than that, and more regular than the occasions of rape. I am sure that [Beth] is correct when she said that offending of this kind might occur a couple of times a week, and more in the beginning of the timeframe in the charge.
[137] I am sure that Mr Donaldson indecently assaulted [Beth] by making her masturbate him to ejaculation. In law, [Beth] was a child at the material time, and it is clear that procuring a child to masturbate him would be regarded as indecent by right thinking members of the community. Similarly, I am sure that Mr Donaldson was aware of the aspects of the act and the surrounding circumstances that right thinking members of the community would consider made the behaviour indecent.
[138] The offending occurred on at least one occasion between 25 July 1996 and 25 July 1998 but I am sure the offending was more regular than that. It is always hard to be sure about timeframes, and [Beth] was definitely not counting the number of times she was assaulted. To a small child, it might be that it seemed this happened all of the time, but I am sure that this occurred on, as [Beth] said, probably about twice a week.
16 Above n 1, at [124]–[126].
Approach to appeal
[29] Pursuant to s 232(2)(b) of the Criminal Procedure Act 2011, a first appeal court must allow a first appeal if satisfied that in the case of a Judge-alone trial, the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred. A first appeal court must also allow a first appeal if satisfied that a miscarriage of justice has occurred for any reason.17 It must dismiss the appeal in any other case.18
[30] Where an appellant argues that a Judge erred in their assessment of the evidence, the appeal is to proceed by way of a rehearing, and the appeal court is required to form its own view of the facts.19 As such, if the appeal court comes to a different view than the trial judge on the evidence, it follows that the trial judge has erred and the appeal must be allowed.20 Nevertheless, the onus is upon the appellant to show that an error has been made, and in assessing the evidence the appellate court must recognise any benefits that the trial judge may have had. Particularly, where a challenge is made to the credibility of findings based on contested oral evidence, the appellate court must exercise caution.21
[31] In a broader sense, a “miscarriage of justice” is defined as: “any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.”22 As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.23 A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.24 This standard means that “an appellant does not have to establish a miscarriage in the
17 Criminal Procedure Act 2011, s 232(2)(c).
18 Section 232(3).
19 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32]. See also Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
20 Sena, above n 19, at [38].
21 At [38]–[40].
22 Criminal Procedure Act, a 232(4).
23 Matenga v R [2009] NZSC 18, [2009] NZLR 145 at [30].
24 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.25
What do the parties say?
Mr Donaldson
[32] Mr Steedman, counsel for Mr Donaldson, focused entirely on the evidence that was before the District Court. He submits that the Judge erred in his assessment of the evidence by:
·[failing] to give appropriate weight to the evidence of the complainant’s mother…
·[failing] to give sufficient weight to the many points of difference between the evidence of the complainant and the evidence of her mother
·[accepting] uncritically what the complainant said in relation to all of the allegations of sexual wrongdoing
·[giving] too much weight to evidence given by the complainant in relation peripheral trivia, reasoning that the accuracy of her evidence in relation to these matters leant weight to her allegations of sexual wrongdoing
·[ignoring] the inherent difficulties associated with the complainant’s narrative, including a lack of evidential support from any other source.
[33] Mr Steedman submits that the evidence given by Emma casts serious doubt on the accuracy of Beth’s evidence. He submits that the issue of where Beth was sleeping, who put her to bed and what happened in the house at night-time is of fundamental importance, highlighting the differences in evidence between Beth, Emma and Mr Donaldson on these matters. He submits that it was implausible that Emma would not have realised that abuse beyond the bathroom incident was continuing, thus there is reasonable doubt that it did occur. Mr Steedman also says this is consistent with the evidence which shows the disclosures made by Beth to Emma only ever related to the bathroom incident.
[34] Mr Steedman accepts that, on its face, the evidence was sufficient to justify convictions on all charges of sexual abuse. But he submits that Beth’s evidence is
25 R v Sungsuwan, above n 24, at [110].
unreliable, erroneous, and unsafe. He says that to substantiate the allegations it is necessary to rewrite history. Mr Steedman says:
I acknowledge that the admission made by the appellant in relation to his acknowledged abuse (in respect of which he was never charged) raises a number of unresolved questions. I accept completely that he must have been sexually stimulated by the presence of his nine year old step-daughter in order to masturbate into the hand basin. I acknowledge that his inability to understand why this happened is concerning. Having said that, it is my submission that there is no evidence of any other sexual wrongdoing on which convictions could safely be based.
The Crown
[35] Mr Brown, for the Crown, submits that as this Court does not have the benefit of seeing and hearing witnesses, it should not interfere unless it can be shown that the trial judge’s findings are inconsistent with facts incontrovertibly established by other evidence or are patently improbable, and there is nothing to suggest that is the case in the present circumstances.26 Mr Brown submits that this is a paradigm case where a court of first instance would have been in the best place to make an assessment of the relative strength of the evidence having listened to all the witnesses. He says that the fact that the Judge accepted Beth’s evidence does not amount to a miscarriage of justice.
[36]Specifically, Mr Brown submits that:
(a)the Judge carefully evaluated Emma’s evidence and correctly assessed Beth’s evidence;
(b)the Judge’s assessment of Mr Donaldson’s explanation was plausible and available on the evidence, and the finding that he was attracted to the complainant was significant and correct;
(c)it is not inconceivable that the Emma would fail to appreciate Beth was being abused, as she was comfortable enough to let Mr Donaldson back into the home;
26 Hutton v Palmer [1990] 2 NZLR 260 (CA) at 268.
(d)for Mr Donaldson to have had opportunity to offend against Beth he would simply need to be the last person to go to bed, and it is unsurprising that Beth recalled the times that Mr Donaldson put her to bed more readily as that would have been when she was abused; and
(e)Beth’s account was not uncorroborated, as she disclosed it to two people a short time after it began, and it is unsurprising that she did not further disclose what was occurring, Mr Donaldson having returned to the home (and continued offending, on her account).
[37] Mr Brown submits that the Judge did not improperly reason that Mr Donaldson was guilty from reliance on unimportant details supplied by Beth, but rather included the detail offered by Beth as a factor supporting her reliability. He says that this was a legitimate expression of the Judge’s role as the fact finder, and that the details provided by Beth were direct recollections of the relevant environment in which the offending took place. Mr Brown submits that Mr Donaldson’s evidence regarding what occurred in respect of the bathroom incident was implausible, and that the Judge properly assessed this.
Analysis
[38] I have not had the benefit of seeing and hearing from the witnesses in this matter. To the extent that there is conflicting testimony, and issues of credibility, an appellate court will exercise its “customary caution”.27 Appellate judges are not as well-placed as a trial judge to determined contested questions of fact based on contested oral evidence, and there is also the danger in the appellate process that judges are taken to evidence in a sometimes selective manner.28 I bear this in mind as I consider the appellant’s contentions.
27 Sena, above n 19, at [38]; citing Austin, Nichols, above n 19, at [13].
28 At [39].
General assessment of the evidence
[39] I consider first Mr Steedman’s submission that at a general level, the Judge failed to take sufficient account of Emma’s evidence and wrongly drew negative inferences from how she gave her evidence in comparison to how Beth gave hers.
[40] The context for this point is that the Judge found Beth to be a truthful and accurate witness, even noting her as “impressive”. Mr Steedman says that the Judge considered that her ability to provide details about the minutiae of her daily life enhanced her standing as a witness.
[41] Mr Steedman suggests that the Judge was then critical of Emma’s willingness to say in response to a question that she could not recall details, or she simply did not know the answer. He suggests that this has led to a situation where Emma’s honesty is downplayed while he contends Beth’s “little lies” are used to give her more credibility in her “big lie” (that is, that Mr Donaldson sexually abused her as set out in the charges).
[42] As a general matter, I do not accept this is a fair reading of what the Judge said. The Judge carefully considered Emma’s situation, noting that while Emma could be seen as being selective in what she chose to say, alternatively, she could be given the benefit of the doubt, given that she was being asked to recall a traumatic and sensitive topic which drove a wedge between her daughter and husband.
[43] Given the allegations at trial related to events that occurred decades ago, it is understandable that Emma could struggle to recall some matters. Nor can it be ignored that for Emma, an implication of the allegations being established is that she failed to prevent the continuation of serious harm to her daughter, including by inviting Mr Donaldson back into the home.
[44] The Judge also carefully assessed the detail of Beth’s evidence. I do not accept that, at a general level, his assessment of the significance of her recall of details or her acknowledgement that she could not recall details was wrongfully used to enhance his view of her reliability.
[45] Accordingly, I am satisfied that there was no error in the Judge’s assessment of Emma and Beth as witnesses in the general way asserted by Mr Steedman.
[46]I turn then to consider the specific evidential matters raised by Mr Steedman.
Post separation bed routine
[47] The first specific evidential matter may be described as the “post separation bed routine”. This relates to the period after Beth disclosed the sexual offending to Emma, because of which Mr Donaldson left the home for a period but then returned. It is not in dispute that before the disclosure, Mr Donaldson was caring for Beth after school and into the evening, as Emma’s job required her to work in the afternoon and evening. After the disclosure, however, Emma changed her shifts so that she was at home after school and at night.
[48] Mr Steedman says that there is sharply contrasting evidence from Beth and Emma on important points. In essence, I understand that his suggestion is that it is implausible that Beth could be repeatedly raped and sexually abused at night over several years when her mother was in the house at the time, and that if proper weight had been placed on Emma’s evidence, this would have raised reasonable doubts about the allegations made. Mr Steedman submits that it is, then, of fundamental importance what bedroom Beth was sleeping in, who put her to bed, and what the routine in the house was each night.29 He contends that the Judge wrongly did not regard the latter two matters as important.
[49] Mr Steedman submits that Emma’s evidence was that she was the person that always put Beth to bed, that she and Beth would talk freely at that time, that Mr Donaldson would go to bed early because he had to get up early for work, that she never realised that Mr Donaldson was not in bed with her late at night, and that she watched Mr Donaldson intensely and never saw any inappropriate behaviour between him and Beth. In contrast, Mr Steedman says that Beth’s evidence was that
29 Mr Steedman considered the evidence relating to the possible presence of others at night-time unimportant. I understand this to refer to the suggestion by Mr Donaldson that Beth’s brother had a supervisory role at the house, which was not accepted by the Judge as established on the evidence.
Mr Donaldson would always put her to bed and that she does not recall Emma putting her to bed. Beth’s evidence was also that he did not start the abuse again immediately after he returned home, although she could not recall how long the gap was before the abuse resumed.
[50] Mr Steedman suggests that to substantiate her claim, Beth has had to “re-write history” by claiming that she was routinely put to bed by Mr Donaldson, not her mother. Undoubtedly, there is conflict between the evidence of Emma and Beth about who put Beth to bed. There is also conflict with Mr Donaldson’s evidence on this point. It seems likely that Mr Donaldson continued to put Beth to bed while Emma was still working in the evening. Emma’s evidence was that it was about a couple of months before her work hours changed. Mr Donaldson also gave evidence that as Beth got older, she did not need tucking into bed.
[51] It was not necessary for the Judge to resolve this conflict and he did not do so. This does not amount to an error in that the Judge placed insufficient weight on Emma’s evidence on this point. The Judge was entitled to assess the credibility of Beth based on all the evidence he heard, not just as to who put her to bed. As Mr Brown submits, it is conceivable that Emma did permit Mr Donaldson to put Beth to bed as she trusted him sufficiently to allow him to return to the home after Beth’s disclosure to her.
[52] In any event, I agree with the Judge’s conclusion that as the offending is alleged to have occurred after Beth was in bed, it was not necessarily connected to being put to bed by an adult.30
[53] Mr Steedman also addressed which bedroom Beth was using at the time the offending is said to have occurred. He submits that this issue was important because bedroom two is closer to the lounge and the master bedroom, and because Beth acknowledged that offending never occurred in bedroom two. He says that the evidence from Emma and Mr Donaldson was that Beth moved into bedroom two a short time after they purchased the house, but that Beth’s evidence was that bedroom three was her bedroom apart from a very short time in bedroom two. Mr Steedman
30 Above n 1, at [114].
submits that the evidence supports a conclusion that bedroom two was Beth’s bedroom for essentially the entire duration of the alleged offending period.
[54] The Judge concluded that he was unable to draw firm conclusions as to when Beth shifted between the two bedrooms.31 He regarded the evidence as too imprecise and varied to allow this. He noted that there were a number of reasons why the shifts occurred, and recognised that the lack of need to remember such shifts and the passage of time would affect recall.32 The Judge concluded that his inability to reach firm conclusions did not significantly affect the credibility of Beth or Mr Donaldson, which he assessed later in the judgment.
[55] As with the question of who put Beth to bed, I do not consider that the conflict of evidence about which bedroom Beth was sleeping in at the time of the offending is a conflict the resolution of which was essential for the Judge’s assessment of whether the offending was established beyond reasonable doubt. The Judge considered other relevant evidence, for example, Beth’s evidence about the way Mr Donaldson would turn off the hallway light on the way to her room, and the detail of the offending. I therefore conclude that it is not the case that the Judge erred in his consideration of the evidence relating to which bedroom Beth was sleeping in at the relevant time.
[56] The third aspect raised by Mr Steedman relates to the evening routine in the home. Mr Steedman refers to Emma’s evidence that sometimes she and Mr Donaldson would go to bed together and sometimes she would go to bed earlier than him. Emma gave evidence that she was not aware of Mr Donaldson not being in the bed late at night. Again, I do not consider anything turns on this evidence. None of it excludes the possibility of Mr Donaldson’s alleged offending. The Judge did not err in not placing greater weight on Emma’s evidence in this respect.
[57] In conclusion, then, I am not satisfied that the Judge erred in his assessment of the evidence relating to who put Beth to bed, which bedroom she was using, and what the household evening routine was.
31 Above n 1, at [76].
32 At [76].
Disclosure of sexual abuse
[58] The second concern identified by Mr Steedman relates to the nature of the disclosure made by Beth to Emma about Mr Donaldson’s offending against her. Beth’s evidence was that while she could not remember if she told Emma everything when she spoke to her, she is sure she told her about more than one occasion of abuse, in particular, that she told her about the first time Mr Donaldson raped her, in their bed. The evidence from Emma was that the only complaint made to her by Beth related to the bathroom incident. It appears that the Judge accepted Emma’s evidence that Beth complained to her only about the bathroom incident.33
[59] Mr Steedman suggests that it “beggars belief” that having disclosed the offending once to her mother, Beth would not make further disclosures of ongoing offending. He refers to Beth’s evidence that in arguments with her mother, she would threaten to go to the Police over what Mr Donaldson had done to her but says that she did not at those times mention his ongoing abuse. Beth’s explanation, in evidence, was that disclosure to her mother the first time “didn’t work out great for me”. There is force to the Crown’s submission that having disclosed sexual abuse once, and with Mr Donaldson returning to the home, it is unsurprising that a child did not make further disclosures. I do not accept that the lack of further disclosures by Beth to her mother supports a finding of error in the Judge’s assessment of Beth’s credibility.
[60] In this context, Mr Steedman emphasises that the evidence given by Beth’s sister about when Beth described to her the abuse by Mr Donaldson, Beth described it as Mr Donaldson forcing her to touch him, pointing to her genital area. Mr Steedman submits that this is not evidence that Mr Donaldson touched her. He raises this in the context of the Judge’s comment that Beth had mentioned two forms of sexual touching by Mr Donaldson to two trusted people soon after the incident occurred.34 However, the Judge noted that at the time of disclosure to her sister, Beth was: 35
… an under 10 year old attempting to explain things she probably did not know very much about. Her struggle to talk about it was borne out by the fact that she indicated her genital area to explain to [her sister] where she was touched.
33 Above n 1, at [123], but see also [78].
34 At [126].
35 At [125].
[61] The Judge also noted the evidence given by Beth’s partner of her disclosure to him of Mr Donaldson’s abuse and considered that all these statements made by Beth added weight to her claim of being sexually offended against by Mr Donaldson as she alleged, and undermined Mr Donaldson’s contention that she was lying.36
[62] I do not consider that the Judge erred in his assessment of the evidence relating to disclosure of the sexual offending.
Conclusion
[63] Overall, I find no errors in the Judge’s reasoning. I consider that he carefully considered all the evidence before him and properly assessed its credibility and reliability in reaching his conclusions. Accordingly, I conclude that no miscarriage of justice has occurred.
Result
[64]For the reasons above, the appeal is dismissed.
McQueen J
Solicitors:
Crown Solicitor, Palmerston North for Respondent
36 Above n 1 , at [129].
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