Hall v The Queen

[2017] NZHC 1489

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

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202

CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-8 [2017] NZHC 1489

BETWEEN

CRAIG ANTHONY HALL

Appellant

AND

THE QUEEN Respondent

Hearing:	19 June 2017
Appearances:	S Vidal for Appellant I Murray for Respondent
Judgment:	30 June 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]      On 24 January 2017 the appellant, Mr Hall, was convicted after a Judge alone trial in the District Court on one charge of assault with intent to commit sexual violation and two charges of indecent assault.1   He was acquitted on one other charge of assault with intent to commit sexual violation.  He was sentenced to three years four months imprisonment on 15 February.2

[2]      During   the   course   of   the  trial,   Judge   Callaghan   made  two   rulings. On 16 January, he dismissed an application for the defence to put a question to the complainant regarding sexual experience with another person.3    On 17 January he dismissed an application for a mistrial.4

[3]      The appellant appeals against conviction on the basis that the Judge erred in dismissing these applications.   He also appeals on the basis that the Judge erred when assessing credibility.  For the reasons that follow, the appeal is dismissed.

Background

[4]      The  charges  related  to  alleged  sexual  offending  between  2011  and  2015 against three complainants: [RR], [SS], and [SO].

[5]      The factual setting was that the appellant lived in Dunedin but during 2014 stayed with [C] in Invercargill.  [RR] lived there and was [C]’s partner.   [SS] lived there and was his daughter.  [SO] was a friend of one of [C]’s daughters.

[6]      In  respect of [SS]  the allegation was that on  an occasion after her 12th birthday he sat on top of her, told her to be quiet, put his hand on her breast area and removed her jeans and underwear.   He then exposed his penis and placed it on or near her vagina while moving back and forth.  This gave rise to the first charge of assault  with  intent  to  commit  sexual  violation.   The defence case was  that  the allegations were false, and the assault never took place.

[7]      In relation to [RR], the allegation was that after leaving a tavern in the early hours  of  the  morning  the  appellant  kissed  her,  then  physically  carried  her  up a driveway or alleyway for a short distance.  He restrained her, took down her tights and underwear, exposed his penis, and attempted to put his penis into her vagina. It was also alleged that the following morning he grabbed her in the groin area and told her he could trust her to say nothing.   A week later he again grabbed her between her legs and said he was going to have sex with her.  This gave rise to the second charge of assault with intent to commit sexual violation.  The defence case

was that the “incident” after leaving the tavern was a consensual sexual encounter, and that the following morning the appellant apologised expecting [RR] to do the same, but she did not.   The defence said that two weeks later the complainant approached the appellant, placed her hand on his groin, and said that they should have sex.

[8]      The allegations relating to [SO] were that while she was sitting at a piano in the lounge of an address where both were living, the appellant reached around her from behind, placed his hand on her groin area, and rubbed for a few seconds.  She left the room, and on coming back 20 minutes later, the appellant again approached her from behind, put his hand on her breast, and invited her to come to his room later in the evening.  This gave rise to the two indecent assault charges.  The defence case was that the allegations were false and the assaults never occurred.

[9]      It was not in dispute that if proved, the assaults were indecent, nor that [SO] did  not  consent  to  the  indecent  assaults  and  that  the  appellant  could  not  have believed that they consented.

[10]     The Judge found that he was not sure of guilt on the charge of assault with intent to commit sexual violation against [SS], and that charge was dismissed.   In respect of the other three charges, the Judge accepted the complainants’ accounts and found the defendant guilty.

Principles and approach on appeal

[11]     Mr Hall appeals as of right.5   The Court must allow the appeal if it finds that the Judge erred in assessing the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.6    Miscarriage is any error, irregularity, or occurrence in or 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.7

5      Criminal Procedure Act 2011, s 229.

6      Criminal Procedure Act, s 232(2).

[12]     The appeal proceeds by way of rehearing, and the Court must examine the

Judge’s reasoning carefully, and come to its own conclusion on the facts.8

Appeal Ground One:   Ruling against allowing evidence going to complainant

[RR]’s sexual experience

The provenance of the application and the Judge’s Ruling

[13]     In a Police interview, the appellant discussed a conversation he had with [C], who was at the time of the alleged offending, [RR]’s boyfriend.  He said [C] told him that he had sex with his partner [RR] the morning after the alleged offending.

[14]     The defence wanted to adduce this evidence as a question to be put to [RR], asking whether she had consensual sex with [C] on that morning, and if so putting it to [RR] that it was not credible that she would do so after being subjected to a sexual assault the night before.

[15]     The application was made under s 44 of the Evidence Act, which provides:

Evidence of sexual experience of complainants in sexual cases

(1)       In a sexual case, no evidence can be given and no question can be put  to  a  witness  relating  directly  or  indirectly  to  the  sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

…

(2)       In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.

(3)       In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

…

[16]     The Judge characterised the issue before him as whether [RR] was a credible witness insofar as her allegations are concerned, the purpose of asking the questions being to show that she could not be believed because “she would not have consented to sexual activity with her partner sometime later in the day, the allegation being within six hours.”

[17]     The Judge concluded:

This sexual activity, in my view, is not relevant to the issue in this trial… I am of the view that no question about this person’s conduct following the incident is relevant to that issue. It is not crucial in my assessment of her credibility. There is no suggestion here that there is transference of blame and  there is  also the  suggestion  being made  that she  has  made  up  this allegation. In my view, the fact that she might have had intercourse with another person sometime later in the day is not relevant to that consideration. I will not allow the questions to be put.

Submissions

[18]     Ms Vidal for the appellant says the purpose of the questions was to challenge the credibility of the complainant, who had said that she and [C] had an emotional and heated break-up on the evening of the alleged assault, and the appellant was there at the time.   She said that she was distraught after the breakup, crying and emotional, and that there had been ongoing discussion about it that evening.

[19]     The appellant said that the complainant was not upset, and that he did not witness an emotional breakup on that evening.  He said he saw [C] leave, in a bad mood, the tavern where they had all been drinking, and [RR] decided to stay out drinking with him.  They spent a number of hours together, then the appellant and [RR] groped one another consensually before he apologised, and then they shared a taxi home.  He said that [RR] was not upset at any point.

[20]     Ms  Vidal  stressed  the  appellant’s  right  to  a  fair  trial.  She  referred  to

R v Clode, where the Court of Appeal said:9

Section  44  of  the  Evidence Act  (and  its  predecessors)  were  enacted  to prevent the entirely reprehensible and inappropriate blackening of the characters  of  particularly  women  complainants  by  directly  or  indirectly

“tarring” them in the eyes of the jury. It was not, in terms, intended to preclude or somehow truncate the advancement of a full defence which is otherwise open to the accused.

[21]     The ruling to disallow the questions, it is submitted, prevented the appellant from advancing a full defence, such that he did not receive a fair trial.  The purpose of putting the questions was submitted to be proper, relevant to the complainant’s credibility, and not intended to tar her reputation.

Discussion

[22]     Put simply, Ms Vidal  wanted to  put it that if the complainant had  been sexually assaulted she would not have had sex with [C] that morning. The thesis was that this was not credible.

[23]     Section 44 creates a presumption that evidence of a complainant’s sexual experiences  with  anyone  other  than  the  defendant  will  be  inadmissible.    The relevance threshold needed to overcome this in s 44(3) is high.10

[24]     Specifically, the fact that the complainant had sex with her partner hours after the alleged sexual assault was sought to be adduced to assert:

(a)      [RR]’s  allegations  are  less  likely  to  be  true  (untrue  or  raising  a reasonable doubt); and

(b)[RR]’s account of the evening, including the assertion that she had gone through an emotional break-up with her partner and had been noticeably upset in the defendant’s company, is less likely to be true (untrue or raising a reasonable doubt).

[25]     The policy reason behind s 44 is to prevent the “tarring” of the complainant and  to  prevent  the  defence  from  tapping  into  inappropriate  assumptions  about consent, and why complainants allege sexual abuse.   In this case, there was no risk of that.  No inappropriate moral judgement or inference of bad character was being attempted; it was merely to be another piece of evidence in the factual matrix for

determining which account of the events to believe.  If the complainant had sex after a limited sexual encounter with the appellant that was not against her character.

[26]     However, protection against “tarring” is not the only purpose of the section. As Elisabeth MacDonald notes, one of the reasons victims of sexual abuse are reluctant to come forward is the fear of having their sexual history put under the microscope, and so there is a more general purpose in making sure this is not ordinarily the case.11   Regardless, the wording of the section is clear: it applies to all sexual encounters of the complainant with people other than the defendant.  To be admissible, then, it must meet the heightened relevance threshold of being “of such direct relevance to facts in issue in the proceeding… that it would be contrary to the

interests of justice to exclude it.”

[27]     William  Young  J  elaborated  on  the  relevance  of  sexual  activity  on  an unrelated occasion in B (SC12/2013) v R: “[g]enerally and most importantly the victim supposed interest in having sex on …[another] occasion cannot logically provide any support for the theory that she consented to have sex with the appellant

on  the  night  in  question”.12      The  Court  of  Appeal  also  took  that  position  in

Singh v R,13 where leave to appeal to the Supreme Court was declined.

[28]     [RR] was cross-examined about the argument with [C], how she had been crying and was upset, and her going home and sleeping in a lone room rather than in [C]’s room, but that by Sunday morning they had reconciled.   The appellant challenged the evidence, saying that [RR] did not cry, was not upset, and that he saw no indication that she and [C] had split up.     The Judge made factual findings rejecting the appellant’s evidence that the witnesses were lying.14

[29]     The District Court Judge was of the view that the conduct of [RR] after the alleged offending was not at all relevant.  With regards to assertion (a), I agree. In my view there is no logical nexus between [RR] having sex with her partner early

the next morning and the assertion that the allegation of sexual assault is false.

11     Elisabeth MacDonald Principles of Evidence in Criminal Cases (Brookers, Wellington, 2012) at

205.

12     B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261.

13     Singh v R[2016] NZCA 552.

14     R v Hall, above n 1, at [72]-[73].

People react to their sometimes bad experiences in different ways, and the idea that she would be in such a state that having sex with her partner soon after would be unthinkable is not a reasonable inference.

[30]     With regards to assertion (b), there is a tenuous relevance link.  There is an intuitive   caution   about   the   assertion   that   a   couple   who   have   just   had a relationship-ending argument would be unlikely to be having sex a few hours later. Emotion produces unexpected results. However, the link is weak, and does not meet the heightened relevance test in s 44.  There was a great deal of evidence before the Judge with which to assess the credibility of the two accounts of the evening, and even if this had met the relevance threshold, its exclusion would not have resulted in an unfair trial or a miscarriage of justice.

Appeal Ground Two: Mistrial application

The provenance of the application, and Judge Callaghan’s Ruling

[31]     The appellant, [C], [RR] and another man were in different hotels on the night of 13 September 2013.

[32]     They began at Glasines Tavern, then after an argument [C], [RR] and his friend left.  [RR]’s sister arrived and took [RR] and Mr Hall to the Southland Tavern. The sister left, and Mr Hall and [RR] went on to the Newfield Tavern.

[33]     During the re-examination of [RR], the Crown sought to lead evidence of a police job-sheet recording police contact with the complainant in November 2014. Importantly, the job-sheet contained a statement of [RR] that the sexual assault happened at the Southland Tavern car park, which was inconsistent with where the complainant alleged it happened during her evidential video interview (where she said it happened near the “Newfield Tavern”).

[34]     The job-sheet had not been disclosed to the defence, and this was the first that the defence had heard about it or any reference to the Southland Tavern.   The defence submitted that there should be a mistrial because the non-disclosure raised an issue of trial preparation, and of election as to trial before a Judge and jury or

judge  alone.    Disclosure  of  the  statement  would  have  affected  how  [RR]  was cross-examined, and Mr Hall, as a result of the prior inconsistent statement, would or at least may have elected trial by jury.

[35]     The Judge, in dismissing the application, was satisfied that the non-disclosure could  be  rectified  by  [RR]  being  recalled,  asked  about  the  contradiction,  and cross-examined on the point. He found that as it was a judge alone trial, there would be no prejudice to the defence.  He would be able to assess the relevance of the clear reference to two different taverns.

[36]     Regarding  the  election  issue  the  judge  referred  to  s  51  of  the  Criminal

Procedure Act 2011, which reads:

Timing of election

(1)       An election under section 50 must be made at the time of entering a not guilty plea, unless the defendant obtains the leave of the court under subsection (2).

(2)       The court may grant leave to make an election at a later time, but only if the court is satisfied that there has been a change in circumstances that might reasonably affect the defendant’s decision whether to elect a trial by jury.

(3)       The court must not grant leave under subsection (2) after a Judge- alone trial has commenced.

[37]     The Judge was of the view that the inconsistencies between the statements were  not  such  that  trial  by  jury  would  necessarily  have  been  preferred  by  the defence, and that leave might not have been granted under s 51.

Submissions

[38]     The appellant through Ms Vidal submits that credibility was a key factor in the trial. A prior inconsistent statement was a critical piece of evidence, and would have substantially changed the approach to running the defence.  It would have been relied upon  to  challenge the credibility of  [RR],  and  would  have been  used as leverage to put to the complainant that she had manipulated the other complainants into making false statements against the defendant.   A jury trial would have been more appropriate for such an approach, and she asserts that this would have been

elected by the appellant. The disclosure of an inconsistent statement, it is submitted, should be considered to be a change of circumstances that might reasonably affect the decision whether to elect trial by jury.  At the point when disclosure should have been made, leave would have been granted under s 51 to amend the election, as the election made had not been fully informed, through no fault of the appellant.

[39]    The appellant submits that recalling [RR] was insufficient to rectify the situation, as the cross-examination of [RR] would have been ‘completely different’ if the disclosure had been made prior to the trial.   Ms Vidal submits that had the inconsistency in the evidence been identified earlier, it would have been the springboard for an approach which was otherwise of some risk to the defence, to suggest that there had been a concocted story in respect of all complainants.

[40]     It is also said that the defence would have made an application for third party disclosure in relation to [RR]’s counsellor if the statement had been disclosed at the correct time.

[41]     Mr Murray for the Crown says that [RR] was ready and available for recall so the job sheet could be put to her, and photographs could be obtained of the area around the Southland Hotel which the parties could consider before the hearing re-commenced.  He added that the inconsistency in the job sheet did not mean that election of trial by jury would necessarily have been preferred by the defence.

[42]     Mr Murray submits that the job sheet simply showed that [RR] identified the wrong hotel, and there were other examples of the same type of issue being raised with [RR] and the other complainants.  There was nothing particular about this.  He submits that the appellant was able to make the most of the apparent inconsistency and was thus not prejudiced.

Discussion

[43]     The complainant had to explain her inconsistent statements.  In my view the Judge was correct in concluding that this could be remedied by recalling [RR].  The defence by then had the advantage of an inconsistency on what was arguably an important  point.  The  contradiction  was  able  to  be  put  to  the  complainant  in

cross-examination, and as there was no jury, this irregular procedure could not cause prejudice to either side.

[44]     The Judge evaluated that explanation for its inconsistency.  While it is true that  the  defence  may  have  made  an  application  under  s  51,  I do  not  see  the significance of the outcome, although such an application may have been successful.

[45]     A judge alone trial is not governed by the specific provisions dealing with mistrials and aborting trials under s 113 of the Criminal Procedure Act 2011, or s 22 of the Juries Act 1981.

[46]     Mr Murray for the Crown submits that only in extreme circumstances will a judge alone trial need to be aborted.

[47]     In my view, the defence submissions overstate the significance of this piece of evidence and its connection to the strategy that otherwise would have pursued. That strategy – alleging that [RR]  had manipulated the other complainants into making up allegations – was available to the defence without the prior inconsistent statement.    There  is  nothing  in  the  inconsistent  statement  itself  that  suggests collective fabrication or manipulation, and it merely casts doubt on [RR]’s credibility to some degree.  [RR]’s credibility could be (and was) targeted in a number of other ways, and the argument about manipulation and fabrication leveraged off these. It does not seem likely, then, that this evidence would have been the catalyst for deciding to make a s 51 application nor that it would have been more advantageous before a jury.

[48]     After the trial commenced the Judge only has the power to allow re-election if the trial is aborted and a new trial ordered.15

[49]     I consider Mr Murray is right that, according to authority, the defendant must show something material has changed since the election was made and that the

change is proximately linked to the election of trial by jury.

15     Anderson v R [2015] NZCA515; Anderson v Police NZHC 923; [2015] NZLAR 999 at [30].

[50]     The appellant’s case, supported by Ms Vidal’s submissions, is that he would have fundamentally changed his trial tactics, and suggested collusion.  However, he was already aware of the familial connection between the complainants, and could have run that argument had he wished to do so.  He chose not to overtly suggests collusion and Mr Murray submits that knowing what was in the job sheet was not going to change that.

[51]     Judge Callaghan’s judgment records that the appellant accepted there was an incident at the Newfield Tavern, while denying criminality, and the Judge addressed this on the basis that if it had been a situation that that incident happened somewhere else, then he would have told the Police that in the interview.16

[52]     The crucial finding is at para [74] of his judgment:

Accordingly, in respect of that charge, I am satisfied that the Crown have proved beyond reasonable doubt that Mr Hall did assault the complainant, RR, the assault being that he held her while forcing himself upon her, and at the time the defendant intended to penetrate the complainant’s genitalia, the evidence is clear in respect of that; that the complainant did not consent to the intended penetration, she asking him to stop, and the defendant did not believe on reasonable grounds that the complainant was consenting to the intended penetration.

[53]     It is not enough that the defence perceive that the change in circumstances may affect an election; the Court must come to its own objective view.17  The authors of Adams on Criminal Law suggest that changes in circumstances that might reasonably affect the defendant’s election decision:18

… might include, for example, where new charges are added to the proceeding, when leave is given under s 115 to withdraw a guilty plea, or when a defendant who is charged with a category 3 offence was to be tried by a jury because of a co-defendant’s election of jury trial (see s 139(1)) and the  co-defendant  then  pleads  guilty  to  the  charges  he  or  she  faced. An election may also occur at a later time if a charge is amended before the trial to  substitute  one  offence  for  another,  and  the  substituted  offence  is  a category 3 offence: s 134(5).

16     R v Hall, above n 1, at [71].

17     Anderson v Police, above n 15, at [34].

18     Simon  France  (ed)  Adams on  Criminal  Law  —  Procedure  (online  looseleaf ed,  Thomson

Reuters) at [51.02].

[54]     The change in circumstance must be more fundamental, which alters the nature of the case to be tried, not merely involve changes in the evidence that might make some strategy more attractive than otherwise.   There is limited authority on s 51. Other than fundamental changes like new charges being added,19  the other category of successful applications has included circumstances of the offender or their knowledge of the options has changed.   For example, where counsel have provided inadequate advice about the right to trial by jury,20 or where a defendant on a bail curfew made the decision on the basis that she wanted to be on the curfew for as short a time as possible, and then the curfew was lifted.21   A new, and in my view not particularly critical piece of evidence, coming to light after election does not meet the standard.

[55]     I do not see anything in the point that discovery may have been sought against a non-party in respect of the statements made by [RR].  She clearly gave two different accounts.  She was tested on this.  If she was mistaken in respect of the job sheet, then it was likely the mistake was repeated if she spoke to another non-party, and that does not advance the case on appeal.

[56]     This ground of appeal, it seems to me, is misguided for a more general and principled reason.  Essentially, the defence are saying that had they known about the statement earlier, they would have sought to run an argument before a jury that they acknowledge would have been ill-advised in a judge alone trial.   It would be paradoxical  to  find  that  here  a  miscarriage  of  justice  has  occurred  because  the defence did not get the opportunity to convince a jury using an argument that they thought would not convince a judge.

Appeal Ground Three:  Credibility Assessment

Submissions

[57]     The appellant submits that the Judge failed to give sufficient weight to the issues affecting the credibility of the complainants ([RR] and [SO]), and that he did

not give the defendant “the benefit of the doubt” as he should have.

19     Police v Perkins [2016] NZDC 4238.

20     Smith v Police [2016] NZHC 2796.

21     Anderson v Police, above n 15.

[58]     In relation to [RR], the appellant says that the complainant’s evidence about the nature and extent of her relationship with [C] following the alleged incident was inconsistent with that given by [C].   [C] said that their relationship had continued until November 2016.  This continuing relationship is submitted to provide a motive for why the complainant would maintain false allegations, as [C]’s daughters too were making allegations against him.  It is further submitted that the Judge did not adequately consider the delay between the alleged incident and [RR]’s complaint, nor her conduct during that period.

[59]     With regard to [SO], the appellant submits that the Judge did not take into consideration the delay between the offending and the complaint, or the fact that [SO] had drunk a lot of alcohol at the time of the alleged offending.   It was also submitted that the way in which she alleged the offending occurred was physically impossible.

Discussion

[60]     The Supreme Court has  reviewed the correct  approach to  appeals  which involve an argument of unreasonable verdict in R v Owen.22   The test is whether the verdict is unreasonable having regard to all the evidence so that the jury could not reasonably have been satisfied to the required standard that the accused was guilty. The principles were set out by the Court of Appeal in Webb v R,23 that the appellate Court is carrying out a review function and not substituting its own view of the evidence, and the court of hearing has advantages which must be brought to account. Weight is for the Court, and reasonable minds may disagree on matters of fact.  The appellate court should not likely interfere with the fact-finding court.  This is not a re-trial on the written record, and it must be shown why the verdict is unreasonable and after making proper allowance for the principles referred to, the verdict should nevertheless be set aside.   In short, it is only if the Judge’s conclusions on the

evidence  were  not  open  to  him  or  her  that  the  verdict  can  be  considered

unreasonable.

22     R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.

23     Webb v R [2013] NZCA 666.

[61]     The Judge made it clear that he had taken into consideration the delay in all the complaints that were made, and the fact that the witnesses may have had motives for giving false evidence.24   The Judge said, in relation to [RR], that apart from the mistake about which tavern the offending happened outside, “she has not wavered”, and that he found her credible.25   The Judge also set out his reasons for rejecting the evidence of the appellant.26

[62]     The Judge further found that [SO]’s evidence was “clear and credible”.27

In respect of the physical impossibility argument, the Judge found as fact that the appellant was sitting on a chair behind [SO] “within reaching distance”.28     Such a conclusion was available on the evidence.

[63]     Apart from re-arguing the defence case, the submissions on appeal regarding credibility add little.  The Judge was well placed to make findings of credibility, and all of the above findings were available to him.

Conclusion and Disposition

[64]     The Court was well served by the submissions of counsel.

[65]     The  appeal  was  advanced  carefully  and  thoroughly  by  Ms  Vidal,  and

Mr Murray replied in the same way.

[66]     The appellant has not demonstrated that a miscarriage of justice has occurred, and the appeal is dismissed.

……………………………………………….

Nicholas Davidson J

Solicitors:

Southern Law, Invercargill

Crown Law, Wellington

24     R v Hall, above n 1, at [60].

25 At [70].

26     At [71-72].

27 At [76].

28 At [76].