Heng v The the Queen
[2022] NZHC 2232
•2 September 2022
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. NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-485-96
[2022] NZHC 2232
BETWEEN NAVY HENG
Appellant
AND
THE QUEEN
Respondent
Hearing: 22 June 2022 Appearances:
A Dye and C Gisler for Appellant B Thompson for Respondent
Judgment:
2 September 2022
JUDGMENT OF CULL J
[1] Navy Heng was convicted and sentenced, following a Judge alone trial on three charges of sexual offending with a child under 12.1 He was sentenced to five years and six months’ imprisonment on the most serious offence of sexual violation by unlawful sexual connection,2 with concurrent sentences of three years’ imprisonment
1 R v Heng [2020] NZDC 8934.
2 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty of 20 years’ imprisonment.
HENG v R [2022] NZHC 2232 [2 September 2022]
on the charge of indecent act on a child under 123 and one year’s imprisonment on the charge of indecent communication with a young person under 16.4
[2] Mr Heng appeals his conviction and in the event that the conviction appeal succeeds, his sentence.
Background
The offending
[3] The following facts were accepted by the Judge at trial. Mr Heng was in an intimate relationship with the complainant’s mother. One night, once the complainant, aged eight years, and her sister had been put to bed around 8 pm, Mr Heng entered the complainant’s bedroom. He showed her a video on his mobile phone of himself and her mother engaged in sexual activity. He then proceeded to lay down next to her and touch her genitalia as well as other parts of her body with his hands. He also asked the complainant if she would like to marry him. He then told her to suck his penis, which she declined to do. It was alleged that Mr Heng then put his penis in her mouth. He told her not to call for her mother.
[4] Mr Heng denied the offending. He said he never entered the complainant’s bedroom, nor did he show the complainant any videos. He said he had left the phone containing such videos at home and had a different mobile phone with him that night.
The complainant’s disability
[5] Both the child complainant and her mother have an intellectual disability. The complainant was aged 11 at the time of trial. The complainant was assessed by a psychologist as having an Intellectual Development Disorder (Intellectual Disability) of mild severity. A further assessment of both the complainant and her mother was undertaken by speech-language therapists and communication assistants, who recommended the involvement of communication assistants for both witnesses during
3 Section 132(3); maximum penalty 10 years’ imprisonment.
4 Section 124A; maximum penalty three years’ imprisonment.
the trial. This included a recommendation for communication assistance to defence Counsel in formulating questions in cross-examination.
[6] Pre-trial directions were given that both the evidential video interviews of the complainant and her mother would be played as their evidence in chief, and they each would give evidence by CCTV. In addition, there was a direction that the complainant’s evidence be pre-recorded with cross-examination being conducted after consultation about the proposed questioning with a communication assistant present in Court to assist defence Counsel, Mr Fulton.
[7] The pre-recording of the complainant’s evidence occurred on 20 January 2021 and at the trial on 10 May 2021, the balance of the evidence for the Crown case and Mr Heng’s evidence was heard before the trial Judge.
The verdict
[8] On 18 May 2021, Judge Harrop found Mr Heng guilty of all charges after a judge-alone trial.5 The Judge accepted the complainant’s evidence contained “credible detail”,6 with her disclosures of the offending emerging “naturally, and unprompted”.7 He found her evidence reliable and consistent.8 Noting the complainant’s intellectual disability, the Judge considered that this enhanced her credibility and reliability “in the sense that she is clearly not a child who is capable of fabrication to the level of detail she provided”.9 The Judge also found that the complainant’s evidence was corroborated by the account of her mother, and the videos found on Mr Heng’s phone.10
[9] At sentencing, the Judge identified five aggravating features of the offending being:11
5 R v Heng, above n 1.
6 At [54], [57], [58], [59], [63] and [68].
7 At [83].
8 At [84].
9 At [85].
10 At [91]–[92] and [117].
11 R v Heng [2021] NZDC 23506.
(a)the trauma of the complainant being shown explicit sexual activity involving Mr Heng and her mother;12
(b)a breach of trust, Mr Heng being a familiar male figure in the complainant’s life;13
(c)the particular vulnerabilities of the complainant, given that she has an intellectual disability and “a challenging and unique cognitive developmental and communicative profile” of which Mr Heng would have been “at least generally” aware;14
(d)the age difference between Mr Heng and the complainant of 29 years;15 and
(e)that the offending occurred in the victim’s bed.16
[10] After considering the guideline judgment of R v AM,17 the Judge considered that the appropriate starting point was seven years’ imprisonment.18 A discount of 18 months was applied for the period of three and a half years spent on bail with no breach, and his previous good character.19 This resulted in an end sentence of five and a half years’ imprisonment for Mr Heng.20 Mr Heng was also given a first strike warning under the three strikes regime.
Grounds of appeal
[11] Mr Heng now appeals against his conviction on a number of grounds. The first three grounds of appeal challenge the findings of fact by the trial Judge. They are:
12 At [10].
13 At [10].
14 At [11].
15 At [13].
16 At [13].
17 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
18 R v Heng, above n 1, at [24].
19 At [28].
20 At [29].
(a)The Judge erred when finding that there was a connection between Mr Heng’s penis and the complainant’s mouth, when the express evidence from the complainant was to the contrary.
(b)The Judge erred by relying on the evidence of the complainant and her mother without sufficient consideration of the factors affecting the reliability of their evidence.
(c)The Judge erroneously relied on findings of fact that were not supported by the evidence and had flawed reasoning to justify setting aside Mr Heng’s evidence.
[12] Mr Dye for Mr Heng also alleges trial counsel error, in that trial counsel failed to:
(a)adequately cross-examine the complainant and her mother;
(b)highlight the relevant issues in his closing address; and
(c)call relevant evidence.
[13] Overall, it is submitted that these errors created a real risk that the outcome of the trial was ultimately affected and that a miscarriage of justice had occurred.
[14] Counsel submits that should any conviction be quashed, or the finding of oral penetration be set aside, Mr Heng’s sentence will need to be revisited.
Approach on appeal
[15] This appeal is brought under s 232 of the Criminal Procedure Act 2011 (CPA). An appeal under s 232 is an appeal by way of rehearing.21 If this Court comes to a different view than the trial Judge, then the trial Judge will have erred and the appeal must be allowed. The onus is on Mr Heng to show there has been an error made. The
21 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [29]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Court will allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, or, if for any other reason a miscarriage of justice has occurred.22 Section 232(4) relevantly provides:
…miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[16] I will now deal with the grounds of appeal, which are analysed in two parts. The first relates to whether the verdict was contrary to the evidence and the second raises trial counsel’s competence.
The sexual violation verdict
[17] I turn first to Mr Heng’s submission that the verdict on the sexual violation charge by unlawful sexual connection was contrary to the direct evidence of the complainant.
[18] The principal question for determination is whether the trial Judge erred in finding that the words used by the complainant, that after she had declined to “suck his … private” he “put it through my mouth and I didn’t want to,” was evidence of “a successful and deliberate sexual connection following some persistence in attempting to achieve it.”23
[19] Mr Heng contends that the Judge has inaccurately interpreted the complainant’s evidence, ignored the complainant’s firm statement that she had kept her mouth closed and inaccurately summarised her evidence by stating that the complainant said, “he put his penis in her mouth.”24
22 Criminal Procedure Act 2011, ss 232(2)(b) and (c).
23 R v Heng, above n 1, at [143].
24 At [1].
[20] The critical evidence is contained in the evidential video interview (EVI) of the complainant, the complainant’s oral evidence and the complainant’s mother’s EVI. To assist in an assessment of the evidence, as Counsel urged, the videos and the transcripts were made available to the Court. I will deal with each of these aspects of the evidence in turn.
Complainant’s EVI
[21] The complainant was interviewed by a senior Constable, a specialist child interviewer, on 15 June 2018, a week after the offending. The complainant was asked about the events of 7 June. She described being asleep when Mr Heng came into her room and “woke me up.” Having described his touching her private parts after Mr Heng had removed her pyjamas, the complainant was asked whether there was anything Mr Heng asked her to do to him.
[22] The following passages describe the allegation of sexual violation by unlawful sexual connection as follows:
Q. …You told me about things that he was doing to you, was there anything he asked you to do to him?
A. No, he just told me to um suck his um private back.
Q. Mmm, tell me everything about that.
A. I don’t know.
Q. How do you mean you don’t know? (Pause) You know I talk to kids all the time about this stuff and you’re real safe here and this is the place to talk about this stuff, okay? So tell me about that bit.
A. He was trying to um go in my room and he kept saying when he opens the door, he says what a messy house but it’s a clean house.
Q. So … tell me everything he said about that sucking bit.
A. He told me to do it and I didn’t.
Q. And – pardon?
A. And he was getting his phone.
Q. I didn’t hear you, sorry. He told you to do it and?
A. He, I didn’t do it.
Q. Mmm.
A. Cause it was –
Q. It was?
A. Disgusting to do that.
Q. Okay, tell me everything about him when he asked you to do that.
A. I just yelled for Mum but she didn’t heard me.
Q. Mmm. When he asked you to suck his – did you, what did you call it, his? What was the word you …
A. Private.
Q. His private. When he asked you to suck his private, tell me everything he was doing when he asked that.
A. He was smiling …
Q. Mmm.
A. … and I said no. And he put it through my mouth and I didn’t want to.
Q. Oh okay. And tell me all about that bit.
A. I want to see my Mum for a little bit.
Q. Oh okay, that’s all right. You can just go and see Mum for a minute and then you come back and see me, is that going to be okay?
[23] Following a short break, the complainant is interviewed for a further 15–20 minutes in relation to the alleged sexual violation. During the remaining questioning, the interviewer has construed the words “and he put it through my mouth” as if she had said “he made [her] suck his private”. This occurs three times and Mr Heng’s challenge is that the complainant never said that. Instead, the complainant says that she had her mouth shut tight.
[24] I set out the three occasions below. The first and second occasions are emphasised by italics in the transcript passage below:
Q. So the time is ten forty six, okay. So before you left the room you were telling me that he made you suck his private?
A. Yeah.
Q. Yeah. I want you to have a big think about that … and tell me all about it.
A. I forgot.
Q. Did you? Tell me everything you can remember about it?
A. (No reply)
Q. What’s the first thing that happened when he did that?
A. He came in my room.
Q. Oh, I meant when he was making you suck his private. Tell me about that bit.
A. (No reply)
Q. Tell me everything he was doing.
A. He was um getting my mouth for it …
Q. Mmm.
A. … and I said no and I put my mouth away …
[25] The third occasion occurs shortly after the above passage when the interviewer asks the complainant to tell her about him “making you suck his private”:
Q. … tell me about him making you suck his private.
A. It was, I put my mouth away from it…
Q. Mmm.
A. … and he tried to smile about it but it wasn’t funny.
Q. Mmm. Tell me …
A. And …
Q. I’m sorry, keep going.
A. … then he ringed his Mum.
Q. Tell me about his hands when he was making you do that.
A. He was trying to jiggle it but I was trying to yell for Mum but he was saying no calling for Mum.
[26] Some minutes later the interviewer asks two further questions, stating that the complainant had said “he put it in my mouth”. The questions are as follows:
Q. Okay, there are two more questions. Um, now you told me that you said he put it in my mouth and I didn’t want to.
A. Yeah, cause I tried to close my mouth.
Q. Tell me about that, tell me about him putting it in your mouth.
A. (Pause) That he was um trying to open my mouth.
Q. Yeah.
A. And he tried to um open my mouth when I closed my mouth very, very tight …
Q. Mmm.
A. … that he can’t open my mouth.
[27] The last questions relating to the sexual violation charge occurs immediately following the above transcript, where the complainant says she “closed [her] mouth”:
Q. Mmm. So … you know it’s okay to tell me this stuff and I talk to kids about this stuff all the time, okay? So tell me all about that bit.
A. They, he has a Mum and I know what his Mum is.
Q. I’m talking about the part where he’s trying to put it in your mouth.
A. I closed my mouth.
[28] Mr Dye submits that the complainant’s use of the word “through”, when she said “he put it through my mouth and I didn’t want to”, is the only evidence from the EVI that suggests Mr Heng penetrated the complainant’s mouth with his penis. He says that the questions by the interviewer were leading and persistent and despite them, the complainant maintained her position that she had kept her mouth shut very tight. Further, it is argued that when the complainant was asked about the touching of her private parts with the appellant’s hands, she confirmed he did not touch her with anything else. This appears in the transcript of the EVI as follows:
Q. So…you said [he] used his hands to do that touching. Was there anything else that he’s touched you with?
A. No, nothing else.
[29] The Crown rejects any suggestion that the interviewer’s questioning was leading or persistent or that any pressure was applied to the complainant. The Crown maintains that the interviewer’s words were consistent with what the complainant had told the interviewer; although the words used were different, the effect was the same. Despite the paraphrasing, the Crown submits that there was no basis to think that the complainant was just agreeing to something that was not the truth when she answered “yeah” to the question, “[y]ou were telling me that he made you suck his private?”
[30] The Crown points to the complainant having no hesitation in correcting the interviewer when the interviewer says something that is not correct. For example, when the interviewer mishears the complainant’s reference to Mr Heng as ‘Gravy Blue’, and says the name ‘Grey Repo’ the complainant corrects her. Similarly, when the interviewer asks what the complainant meant by ‘tickling it,’ the complainant clarifies that she had said ‘jiggling’, not ‘tickling’. Those examples, the Crown says, demonstrate that the complainant was capable of recognising where the interviewer had misquoted her.
[31] From the above passages in the EVI transcript, it is self-evident that the interviewer asked leading question and used words which the complainant did not. The assumption which the interviewer has made is that “put it through my mouth” means “made her suck his penis”. The complainant’s response to these reformulated words of the interviewer is telling. The first time, the complainant says “yeah” and after the second occasion when the interviewer repeated her words “he was making
you suck his private” and asking the complainant to tell her about it, the complainant gives a careful response. That response was:
Q. Tell me everything he was doing.
A. He was um getting my mouth for it …Q. Mmm.
A. … and I said no and I put my mouth away …
[32] Again, on the third occasion, when the interviewer repeats her version of what she understood, the complainant repeats:
… I put my mouth away from it…
[33] Disturbingly, the interviewer pursues the complainant with two more questions, again repeating that the complainant said “Um, now you told me that you said he put it in my mouth and I didn’t want to” and the complainant again says, “Yeah, cause I tried to close my mouth.” The interviewer pursues her same question, “Tell me about that, tell me about him putting it in your mouth.” The complainant says, “That he was um trying to open my mouth.” She then says, “he tried to um open my mouth when I closed my mouth very, very tight …that he can’t open my mouth.” Undeterred, the interviewer again asks the complainant “I’m talking about the part where he’s trying to put it in your mouth” and the complainant says, “I closed my mouth.”
[34] In R v E the Court of Appeal analysed the interviewing techniques in an EVI interview of a five year old girl, where objections were raised to the leading nature of the interview.25 The Court accepted that the interviewer asked leading questions but held that it was “a perfectly proper interview technique,” “designed to give the girl a chance to retract, modify or embellish allegations already made and to correct any errors of understanding on the part of the interviewer.” However, the Court placed this caveat on leading questions:26
We consider, however, that leading questions may not be objectionable in an evidential interview of a child if they merely repeat what the child has previously said in the interview, are not used to excess and are employed solely to permit the child to provide clarification, correct or elucidation.
25 R v E (CA308/06) [2007] NZCA 404.
26 At [24].
[35] The interviewer’s use of the word “penis” when the complainant had used the word “privates” was held not to have changed the nature of the allegation, as the child had already made her allegations of sexual violation before the interview question was put and was not fatal.
[36] R v E is distinguishable. Here, the interviewer used the complainant’s word “private,” as the complainant had done. However, the interviewer asked leading questions which did not “merely repeat what the child has previously said in the interview.”27 The interviewer persistently repeated the words “in,” not “through” and the phrase “he made you suck his private” as the passages at [24], [25] and [26] and demonstrate.
[37] In reviewing the complainant’s EVI and giving careful consideration to the passages of the transcript as set out above, I am troubled by the omission of the interviewer to clarify with the complainant what she meant by “through my mouth.” My reasons are threefold.
[38] First, the complainant was eight years old at the time of the interview and with any child complainant, utmost care must be taken to explore what they mean by words or expressions used and ensure that in repeating what the complainant has said, it is done accurately, as the Court in R v E stipulated. This was not complied with here, as noted.
[39] Second, the complainant was assessed as having an intellectual development disorder of mild severity. In the psychologist’s assessment, Dr Brown noted that the complainant was highly susceptible to agreeing with suggestive questions and when questions were repeated with feedback that she was incorrect, the complainant gave a different response to almost all of them. This obviously was in the form of a cognitive assessment, which seeks to explore a person’s cognitive ability and comprehension. Given this suggestibility, there was a significant likelihood the complainant would agree to the interviewer’s question.
27 At [24].
[40] I accept that there are several occasions where the interviewer was corrected when she used words which were not said by the complainant. Those examples demonstrate the complainant has some capabilities of recognising where the interviewer has misquoted her. However, the statements made by the interviewer in relation to “through her mouth” were more complex and sensitive than other statements requiring clarification, to which the Crown refers. It cannot be overlooked that both the complainant and her mother required communication assistance, indicating that they needed help with understanding and expressing themselves.
[41] Third, the complainant’s use of words in this context was highly critical. The Crown draws inferences that the complainant, in saying she was “trying to close [her] mouth” was consistent with Mr Heng making connection between his penis and her mouth and the complainant trying to close her mouth to prevent it going any further. The use of terminology, therefore, was pivotal to the difference between the connection between the penis and the complainant’s mouth and any attempt to do so.
[42] There was a repeated and persistent questioning by the interviewer, not merely repeating what the child has previously said, but putting her own interpretation of what she understood the child was saying, without any clarification. This was contrary to the ruling in R v E.28 Reliance therefore on the wording used by the interviewer, the words used by the complainant without further explanation, and the repetition of the interviewer’s views cast doubt on whether there had been sexual connection between the penis and mouth, based on the complainant’s EVI alone.
[43] I turn then to examine the other evidence relating to the sexual connection offending.
Complainant’s oral evidence
[44] No further questions were elicited from the complainant in her examination in chief relating to the sexual violation allegation. The cross-examination was brief and was as follows:
28 R v E (CA308/06), above, n 25.
Q. In your video interview, you said that he tried to put his private in your mouth, do you remember that part of the video?
A. Can’t remember.
Q. Did the man really try to put his private in your mouth?
A. Yes.
Q. Are you sure that’s true?
A. Yes.
Q. He says it’s not true, what do you say about that?
A. It is true.
[45] The question in cross-examination is framed to ask whether Mr Heng had “tried” to put his penis in her mouth and she confirmed that was true. The complainant did not say Mr Heng had put his penis in her mouth but confirmed that he had tried. There was nothing further asked of the complainant on this issue by the prosecution or the defence.
Complainant’s mother’s EVI
[46] The Crown relies on the EVI of the complainant’s mother. She confirmed that she was not in the room at the time of the offending and in relation to the alleged sexual violation, was not able to give direct evidence. She describes asking her daughter what had happened:29
…once I told him to get out, I said to her, “What happen, happened?” He said, she goes, “Mummy.” She um, “he played with me, did, made me do things like putting his ding a ling in, in my mouth, going up, and down, down.”
[47] The Crown submits that the complainant’s statement to her mother is consistent with the complainant’s statement that Mr Heng put his penis “through” her mouth. This, the Crown says together with her statements that Mr Heng tried to open her mouth wide, that she tried to close her mouth, and his “jiggling” his penis in an attempt to get his penis inside her mouth, all point towards actual sexual connection taking place.
[48] Mr Dye submits that the description from the complainant’s mother is an out- of-court statement, which he concedes is admissible to prove the truth of its contents.
29 Emphasis added.
However, he submits that there is a clear inconsistency between the complainant’s EVI evidence, namely that she moved her mouth and kept it shut tight, and what is claimed to have been said to her mother.
[49] There is a problem in reconciling the difference in the complainant’s statements in her EVI compared to those that she told her mother. Unfortunately, the inconsistency between statements was never explored in the oral evidence of the complainant by the prosecution. As noted, there was no clarification in the EVI about the word “through” or evidence of any attempt to clarify with the complainant whether what she is said to have told her mother was true or whether her statements in her EVI were to be preferred. The matter is simply left.
Other evidence
[50] The Crown relies on other aspects of the evidence to support the Crown contention that actual sexual connection between Mr Heng’s penis and the complainant’s mouth took place. As already noted, the Crown says that the complainant’s words “trying to close my mouth” demonstrates that Mr Heng was trying to force her mouth open and that although she did manage to close her mouth, the fact that the complainant referred to “trying to close her mouth,” supports there being at least some sexual connection. Mr Thompson for the Crown invites the Court to draw the inference that some effort was required to close her mouth, consistent with Mr Heng making connection between his penis and the complainant’s mouth to prevent it going further.
[51] The Crown relies on one further aspect of the complainant’s EVI, where the complainant describes Mr Heng showing her a video of Mr Heng and her mother “doing it too, the same as me… like he did to me.” When the Police seized and analysed Mr Heng’s iPhone, they found four videos of Mr Heng and the complainant’s mother engaged in sexual activity, three of which featured them engaged in oral sexual activity on Mr Heng. The Crown says this provides further support for actual connection having taken place.
[52] I consider then the way in which Judge Harrop based his verdict on the evidence of the sexual violation by sexual connection offending.
The Decision
[53] The Judge commenced his verdict judgment by summarising what the complainant says Mr Heng did to her shortly after she had been put to bed at eight pm on the relevant night:30
[The complainant] says that he touched her genitalia with his hand, showed her indecent material in a video played on his cellphone and put his penis in her mouth.
[54] Although it was an introductory summary and not intended as a direct quote, the assertion that the complainant had said that Mr Heng put his penis in her mouth is a misstatement of her evidence.
[55] At [22] of his judgment, the Judge said of the complainant’s evidence on the sexual violation charge:
While standing he told [the complainant] to suck his penis which she declined to do and closed her mouth tight. Mr Heng opened her mouth and put his penis “through” his mouth. As he did that, he told the complainant not to call for her mother.
[56] Again, the Judge was summarising the sequence of events that occurred that night, but he does not provide the references to the evidence where Mr Heng opened the complainant’s mouth. The reference, which is set out below, is likely to be the complainant’s demonstration during the EVI, that Mr Heng’s hands were near her mouth, while he was standing and followed the complainant’s statement that “he’s trying to get it in my mouth.” The complainant says further that “he was um trying to open my mouth” then “and he tried to um open my mouth when I closed my mouth, very tight … that he can’t open my mouth.”31
[57] The Judge undertook an “assessment of [the complainant’s] evidence in isolation” keeping in mind the potential for unreliability given her intellectual disability. After canvassing her evidence on the other offending, the Judge focused on the following evidence in relation to the sexual violation charge:32
30 R v Heng, above n 1, at [1].
31 At [26] above.
32 The italicised font is the emphasis of the trial Judge. The bold emphasis is my own.
[70] When asked if there was anything that Mr Heng had asked her to do, she said:
No, he just told me to um suck his private back.
[71]She added:
He told me to do it and I didn’t.
[72] [She] described him as smiling when he asked that and that she had said no:
And then he put it through my mouth and I didn’t want to.
[73]When asked further about this, she said she had said no and: put my mouth away … from his private.
[74]She added:
… He tried to smile about it but it wasn’t funny.
[75]She added:
He was trying to jiggle it but I was trying to yell for mum, but he was saying “no calling for mum”.
[76] Again, these are all credible details, consistent with a child recounting events that she had experienced.
[77]When asked what she meant by “jiggling it” … said: Like he’s trying to get it in my mouth.
[78]She described him as standing up when he did that.
[79] [She] was asked further about trying to close her mouth. She said, “cause he was trying to go like this” and demonstrated for the camera that both of Mr Heng’s hands were near her mouth, by inference holding his penis. Again, a graphic demonstration and a credible detail.
…….
[81] In cross-examination, [she] was adamant that Mr Heng had really tried to put his private in her mouth and that she was not making up a story about that.
[82] Towards the end of her interview, [she] was asked again about the video Mr Heng had shown her. She said the video was about him and Mum and “they was doing the same what he did to me”.
[58] From the paragraphs above, the Judge reproduces aspects of the complainant’s evidence and interpolates his views that her responses are consistent with a child recounting events she had experienced. He considered the complainant’s “extensive evidence” was, “on the key issues, credible, reliable and consistent.”33 The Judge confirms that the complainant’s intellectual ability did not give rise to concern about her reliability on the key parts of her evidence, with her disability enhancing her
33 At [84].
credibility and reliability, in the sense that she was not the sort of child who was capable of fabrication to the level of detail she provided.
[59] In reaching his verdict on sexual violation by unlawful sexual connection, he noted:34
As to the requisite sexual connection, I accept [the complainant’s] evidence on this issue. She describes various efforts by Mr Heng to insert his penis into her mouth which she resisted by closing her mouth, but she clearly said that after she had declined to “suck his … private” he “put it through my mouth and I didn’t want to”. This is clear evidence of a successful and deliberate sexual connection following some persistence in attempting to achieve it.
Analysis
[60] The Judge’s assessment of the complainant’s evidence for credibility and reliability was appropriate in the context of these proceedings, particularly given the complainant’s disability. In the critical excerpts of the complainant’s EVI and in her oral evidence, the Judge’s assessment that her guilelessness and detailed narrative was credible and reliable is logical and reasonable. I agree with his assessment.
[61] However, the Judge’s omission to analyse the complainant’s EVI questions and answers is troubling. I consider the Judge has made the same mistake as the interviewing detective. The Judge described “the exemplary manner” in which the interview was conducted by “a specialist child interviewer with many years’ experience”35 but did not consider the effect of the interviewer’s inaccurate repetition of the complainant’s words.
[62] The Judge has treated the words “through my mouth” as meaning “in her mouth” and found that to be the clear evidence of sexual connection. Although the Judge traverses the parts of the relevant passages in relation to this offending, he does not factor in the complainant’s consistent negative answers, when she is pressed on numerous occasions as follows:
no and I put my mouth away; I put my mouth away from it;
34 At [143].
35 At [39].
cause I tried to close my mouth;
that he was um trying to open my mouth;
And he tried to um open my mouth when I closed my mouth very very tight
… that he can’t open my mouth; and I closed my mouth.
[63] In reviewing these passages in the transcript and in the evidence, I find there is overwhelming evidence from the complainant that Mr Heng attempted sexual violation. As the Judge himself noted, the complainant “was adamant in cross- examination that Mr Heng had really tried to put his private in her mouth and that she was not making up the story about that.”36 In my view, that was the consistent evidence she was giving in her EVI, that Mr Heng was attempting to have her open her mouth for the purpose of a sexual connection but the complainant said no and she “put her mouth away.”
[64] The lingering doubt is what was meant when she first said “and he put it through my mouth” and “I tried to close my mouth.” Unfortunately, as noted, this was never clarified with the complainant either in her EVI or in her oral evidence. I am not satisfied beyond reasonable doubt that the defendant did place his penis in her mouth, as there is no description of how that happened, or what she experienced. What is clear however, is her insistence that she moved her mouth away and shut it tightly.
[65] The Judge referred to the demonstration given by the complainant in her EVI of both of Mr Heng’s hands being near her mouth. The Judge draws the inference that this indicated Mr Heng holding his penis. The Judge describes it as “a graphic demonstration and a credible detail.”37 However, the Judge overlooks the context in which the demonstration was given. The interviewer asks the complainant:
So tell me about your mouth when he was doing that. I closed my mouth.
[66] I consider it was open to the Judge to draw the inference that the demonstration indicated Mr Heng holding his penis near the complainant’s mouth. It does not, however, provide support for the conclusion that he was successful in inserting it into
36 At [81] (emphasis added).
37 At [79].
her mouth, or that it was touching her mouth. I note that again, the complainant was not questioned on the demonstration, either in her EVI any further, or in her oral evidence.
[67] I have also given consideration to the “corroborating evidence,” upon which the Judge satisfied himself that each of the allegations were proved beyond reasonable doubt. The first items of evidence are the videos on Mr Heng’s iPhone. The Judge found they provided compelling circumstantial evidence against Mr Heng, that he exposed the complainant to the video of sexual activity as she alleged and such videos were found on his iPhone when the Police searched it. This is indeed compelling evidence but it does not assist in differentiating sexual violation as opposed to attempted sexual violation.
[68] The second piece of evidence is the complainant’s mother’s EVI. As noted, above, I consider the inconsistencies between the complainant’s evidence and the mothers’ statement cast doubt on its accuracy.38 I bear in mind that both the complainant and her mother suffer from intellectual disability, that her mother was recalling the incident 11 days after the event, as well as the likely shock of finding such offending took place in her home with her daughter. I note that later in her EVI the allegation of oral penetration is not brought up again:
Q. You said that you gave her a wash… to make her feel comfortable…
A. Yeah.
Q...... so explain that.
A. Oh cos she turned around, she said to me, “Mum he had his finger down there, playing with me” and she felt a bit uncomfortable going to bed cos she felt like it was, he was still there. So she wanted me to give him, give her a little bit of wash…
[69] Again, I am not satisfied beyond reasonable doubt that the complainant’s mother’s statement is accurate and reliable.
[70] I note that the Crown has invited me to consider the complainant’s description of Mr Heng showing her a video of himself and her mother “doing it too, the same as
38 Above at [47]–[50].
me … like he did to me”, and the corresponding videos on Mr Heng’s phone showing Mr Heng and her mother engaging in oral sex, corroborates that sexual violation by unlawful sexual connection occurred.
[71] Although I find that the videos on Mr Heng’s iPhone provide compelling support for the complainant’s evidence that Mr Heng did show her explicit videos on his phone, I hesitate to draw the further conclusion sought by the Crown. In my view, this statement must be considered against her further statement that, when “he showed me … on his phone … I didn’t look at it… cause it was rude.”39
[72] It is unclear whether the Judge considered that this evidence had the same corroborative effect as suggested by the Crown. The Judge referred to both statements in his decision40 but neither is analysed by the Judge when reaching his verdict for this charge.41 Nor was there any analysis of whether the latter statement raised a distinct possibility that she glanced at the video and did not look at it any further because “it was rude.”
[73] I am not satisfied on the evidence that the complainant actually watched the full video, such that she was confirming that Mr Heng’s penis connected with, or was in, her mouth.
The remaining grounds of appeal
[74] There are three further grounds of appeal. They are that the evidence of the complainant and her mother was unreliable, the Judge mischaracterised Mr Heng’s evidence and erred by rejecting it, and trial Counsel’s failure to conduct and present the defence case competently.
The unreliable evidence
[75] There are a number of aspects of challenge under this ground of appeal. The first is that the Judge placed too much weight on the evidence of the complainant and
39 Emphasis added.
40 R v Heng, above n 1, at [65], [66] and [82].
41 At [142]–[146].
her mother and erred in concluding that evidence was reliable. Criticism is made of the interviewer’s questions, the interviewer failing to pay close attention to what the complainant is actually saying, and the lack of provision for the complainant’s intellectual disability during the conduct of the interview.42 Lastly, the appellant submits that the Judge failed to address the flaws in the complainant’s EVI interview or take into account the complainant’s mother’s resistance to being cross-examined.
[76] I have already addressed the issues regarding the interviewer’s questioning of the complainant in her EVI in the previous section, involving incorrect repetition of the complainant’s statements, some of which are corrected by the complainant, and the persistent questioning. As to the other criticisms, I consider there was nothing further of concern in the way that the interview was conducted. It was open to the Judge to find the complainant’s EVI evidence credible and reliable as I have already detailed.
[77] The appellant has challenged the complainant’s oral evidence, where she answers “I can’t remember” or “I don’t know” to questions which may show her to be “naughty.” I can find no basis for concern in the complainant’s answers. I note that her oral evidence took place more than two years after the offending and her memory could not be expected to be perfect. Mr Dye submits that the complainant’s evidence was not tested in any meaningful way on cross-examination. Particular concern was raised as to the defence position that the complainant had a doll which she played with in a sexualised manner. In her evidence, the complainant said she could not remember the doll. She was not referred to a photo of the doll by Counsel. This submission was expanded in relation to Counsel’s competence allegations, but in my view, nothing of significance turns on it.
[78] Similarly, challenges were raised about the complainant’s mother’s dishonesty in giving her evidence, particularly in relation to her relationship with Mr Heng. The complainant’s mother raised allegations that Mr Heng was pursuing and stalking her, despite her own lack of interest. The allegations by the complainant’s mother may have been of concern if adduced before a jury, but before a Judge alone, these
42 The appellant did not pursue his claim in relation to the three breaks taken during the complainant’s EVI, as subsequent evidence dealt with the issues.
allegations were peripheral to the issues to be determined in relation to the offending against the complainant. I consider there is no material prejudice to the defendant.
[79] The Crown accepts that the complainant’s mother was a reluctant witness and that she found the experience of cross-examination difficult and did not wish to continue. However, the topics upon which she was being cross-examined, namely questions of reliance on money and the nature of her relationship with Mr Heng, were not relevant to the ultimate determination required of the Judge. Further, the complainant’s mother was not present during the offending and the relevance of her evidence was what the complainant told her immediately thereafter. I have already dealt with the safe inferences that can be drawn from her evidence. I do not uphold this challenge.
[80] In dismissing these grounds of appeal, I note that there is an irony in the appellant’s assertions that the complainant’s evidence lacks credibility or is unreliable, when her evidence, being the very answers that she gave to the interviewer, are relied on in respect of the first ground of appeal.
[81] In any event, I find the complainant’s evidence to be credible because of the details she gave and the way she gave it. I agree with the way in which the Judge characterised the complainant’s evidence, as noted in the previous section.43
Mischaracterisation of Mr Heng’s evidence and flawed reasoning
[82] The appellant’s challenge under this ground is that the Judge mischaracterised Mr Heng’s evidence and the Judge’s adverse credibility finding against Mr Heng was founded on a misunderstanding of the evidence and unsound reasoning.
[83] The principal challenge is the finding the Judge made that Mr Heng claimed he had his iPhone cleared of the video images, so that his niece could use it.44 Mr Dye submits that was clearly not true, as the images were still on the iPhone when the Police examined it, as Mr Heng acknowledged. Mr Heng was cross-examined on his evidence that he gave his iPhone with the pornographic videos to his niece. He
43 At [59] and [62].
44 At [126].
explained that his niece could not get into the phone, as it had a PIN on it and she only used it for the music, which she could access through the home page. Mr Dye submits that Mr Heng did not claim at any stage of the proceedings to have deleted the videos from his iPhone and the contrary finding was a significant error in the Judge’s credibility assessment of Mr Heng.
[84] Mr Heng applied for leave to adduce evidence on appeal from Mr Heng, his mother, and his sister, that Mr Heng’s iPhone was regularly given to his niece to play music and that it was either with her or in his mother’s bedroom being charged. His sister, his niece’s mother, gave evidence by AVL from Australia. The purpose of her evidence was to confirm her brother’s evidence that his iPhone was given to her daughter regularly and if it wasn’t with her, then it was being charged in his mother’s room. She could not say with 100 per cent certainty after so many years, where Mr Heng’s iPhone was on the day of the offending but she said “with almost certainty” that it was either with her daughter or in her mother’s bedroom. She also confirmed that her brother had purchased an orange Nokia phone about a month prior.
[85] Similarly, Mr Heng’s mother confirmed that her granddaughter had been living with her but not on 7 June 2018, the day of the offending. She confirmed, however, that whenever her granddaughter (Mr Heng’s niece) was at her house, she was using the black iPhone that Mr Heng gave to her and was going to give to her permanently. She also confirmed that she would listen to music on the phone. When her granddaughter did not have the phone it was in her room where the iPhone’s charger was.
[86] I also heard from Mr Heng, who gave evidence principally about aspects of trial Counsel’s conduct. He said that he had the orange Nokia with him that night and that is the only phone he had with him. He said the black iPhone was at home so he could clear it and back it up before giving it to his niece permanently. He was not asked about using any other phones at trial.
[87] Mr Dye challenges the adverse credibility finding made by the Judge against Mr Heng as to the presence of a third phone on the night of the offending. He submits
that, given there was no questioning of Mr Heng in relation to a third cellphone, such a finding was unavailable to the Judge.
[88] The issue of whether Mr Heng had a third phone was raised at trial, although Mr Heng was not cross-examined on it. The Crown addressed the issue in its closing address, which Mr Dye has replicated in his submissions. The evidence shows there was communication from Mr Heng to the complainant’s mother from a cellphone number 4355 on 7 June 2018. The Nokia phone had no number attributed to it and no sim card in it or any data. Nor were there records of recent communications from the iPhone, which has the number ending 1055. The inference which the Crown invited the Judge to draw was that Mr Heng had available to him another phone that he used on that date but it was not located or seized by the Police. During closing submissions by defence Counsel, the Judge raised the issue that Mr Heng may have had another phone. Trial Counsel took no issue with the Crown’s submission or the evidence. The Judge noted:
Mr Heng told Detective Briscoe that his only phones were the Nokia phone and the iPhone 5. Yet it is clear from the messaging extracted by Detective Briscoe, that he was also using a phone which was neither of those two, to send text messages to [the complainant’s mother] on and around 7 June 2018. That is a further dent in Mr Heng’s credibility.
[89] The finding by the Judge that Mr Heng was using a third phone was open to him on the text messaging evidence from that phone on or about 7 June 2018.
[90] The appellant’s submissions generally challenge the Judge’s reliance on the complainant’s evidence and the support provided by her mother’s evidence and other circumstantial evidence, which he found compelling and was the reason he could and must reject Mr Heng’s denials that the offending ever happened. The appellant submits the Judge misunderstood the defence case, namely that the complainant made the allegation under the influence of her mother, who did have a motivation to lie. Issue is also taken with whether Mr Heng was supposed to bring $70 to the complainant’s house, as well as dinner that night, and whether the fact that he accepted he was dishonest in his dealings with the complainant’s mother were factors, which Mr Dye contends, led to His Honour wrongly making adverse credibility findings against Mr Heng and were thereby flawed.
[91] I am unable to uphold the appellant’s submissions in relation to the Judge’s assessment of Mr Heng’s credibility overall. The Judge heard the evidence of Mr Heng. I accept that the Judge has made a finding that Mr Heng deleted the contents of the videos from the iPhone. The evidence does show, as the Crown concedes, that he was planning to delete the content but had not yet done so. However, I accept the Crown’s submission that this was a minor aspect of the Judge’s assessment of Mr Heng’s credibility and even if incorrect, does not lead to a finding of a miscarriage of justice. These factors were peripheral to the fundamental assessment required of the complainant’s evidence about the sexual offending.
[92] Viewed in the round, the Judge had compelling circumstantial evidence against Mr Heng that he had on his iPhone “the very kinds of video described by [the complainant], yet he is unable to explain how else she could have known about them, still less seen them” if he did not have his iPhone with him that night.45 I agree with the Judge’s assessment that:46
It would be a very implausible coincidence that he has been falsely charged with having his iPhone in the bedroom that night and exposing [the complainant] to the video of sexual activity on it, yet there were such videos on his iPhone when the Police searched it.
[93] I find that it was open to the Judge to make an adverse credibility finding against Mr Heng and to accept the evidence of the complainant in particular, supported as it was by the compelling circumstantial evidence. The complainant’s mother’s evidence confirms the state in which she found her daughter immediately after the offending and her evidence is further support for the complainant’s evidence, subject to my findings in relation to the sexual violation offending.
Trial Counsel competence
[94] The appellant raised numerous failures in respect of the conduct of trial Counsel for Mr Heng. Included in the claims against him were the failure to address the breaks taken during the complainant’s EVI; the failure to challenge the complainant’s evidence with reference to a doll; the failure to challenge her mother’s
45 At [92].
46 At [92].
evidence that the complainant did not have a doll; the failure to address the inconsistencies in the complainant’s EVI about the sexual connection between Mr Heng’s penis and the complainant’s mouth; the failure to address inconsistencies in matters of detail between the complainant and her mother and any inconsistencies within the mother’s own evidence; failing to examine Mr Heng on which child played in a sexualised manner with a doll; failing to effectively summarise the defence case in closing and failing to ensure that relevant evidence was adduced on Mr Heng’s behalf.
[95] Mr Fulton appeared and was cross-examined. He conceded that he had not undertaken all of the challenges that were claimed by the appellant, nor did he call the evidence which was adduced before me at the appeal hearing.
[96] I do not propose to traverse the detail of these claims, as an appeal is not the time for a “minute dissection of whether some aspects could have been dealt with differently or better,”47 as the Court of Appeal has cautioned. There is a fine balance for defence Counsel in pressing witnesses for answers, which may not assist the defence and which may well risk eliciting a stronger negative response. For example, the complainant, when questioned about whether she had a doll that she pulled its pants off and touched its privates, resulted in an answer, “I can’t remember.” I accept the Crown submission that the equivocal answer given by the complainant was a safer option for Mr Heng than a complete denial that may have resulted if Counsel had further pressed the matter.
[97] The defence case was clearly put to the complainant and the complainant’s mother. I note that trial Counsel is criticised for failing to re-examine Mr Heng to clear up his error in his evidence-in-chief, that he remembered the complainant’s sister bringing a doll over to him, pulling its pants down and touching its private parts, when in fact his evidence was that it was the complainant who did so. Mr Heng however, corrected his evidence during cross-examination in response to a different question:
Q. [The complainant] then describes how she says you touched her private part, or her genitalia, and she describes this as annoying and in her video
47 Hall v R [2015] NZCA 403 at [74]; Hamdi v R [2017] NZCA 242 at [48]; and Ross v R [2017] NZCA 587 at [32].
we’ve seen her demonstrate, she uses her finger in a way which is pretty unusual, do you agree with that?
A. Yeah, I’ve seen her do that to her doll also.
[98] The Judge referred to the divergence between the two statements as the basis for his scepticism that the complainant’s demonstration “of what he did with his finger on her genitalia was because he had seen her doing that to her doll as well”.48
[99] I consider trial Counsel could have re-examined Mr Heng on this point, for clarification. However, in any event, I consider this error did not result in a miscarriage of justice. The defence case was clearly put to the complainant and the complainant’s mother and it was open to the Judge to accept their evidence. The Judge was also aware of both statements made, and referred to both in making his findings. In any case, the implication the defence was seeking to draw from the complainant’s alleged “touching” of the doll — that the complainant was exposed to sexual activities and could make up detailed allegations as to Mr Heng’s conduct— was unlikely to have been accepted by the Judge, in my view. The Judge clearly preferred the complainant’s mother’s evidence that “sexual matters had not been discussed with her girls at that young age and that she ensured that sexual encounters with Mr Heng took place when they were away or asleep”, as was open to him.49
[100] As to failing to ensure relevant evidence was adduced, the evidence adduced before me was not helpful to Mr Heng. Neither Mr Heng’s sister nor his mother could say with any certainty that Mr Heng’s iPhone was at his mother’s house the night of the offending. It was equally unhelpful that his mother did not think her granddaughter was staying with her that night. Such evidence, if adduced, would not have assisted the defence.
[101] The evidence that is compelling is the complainant’s evidence that Mr Heng had a black iPhone, not an orange Nokia, on the night of the offending. The fact that the black iPhone had the videos on it both confirms the complainant’s account of the attempted sexual violation offending and her memory of the phone being black.
48 R v Heng, above n 1, at [123].
49 At [123].
[102]I do not uphold the grounds of appeal on Counsel competence.
Conclusion
[103] I am not satisfied that the evidence proves beyond reasonable doubt that Mr Heng is guilty of sexual violation by unlawful sexual connection, and accordingly his conviction for this offence amounts to a miscarriage of justice. However, I am satisfied the evidence proves beyond reasonable doubt that there was an attempted sexual violation.
[104] The Crown has invited the Court to consider that if the Judge erred in his assessment of the complainant’s evidence and the Court was minded to allow the appeal on the sexual violation charge, the proper course would be to direct that a conviction for attempted sexual violation be entered in substitution, under s 234(2) of the CPA. I consider that the Crown’s invitation is appropriate here. Under s 234(2) of the CPA, there will be a conviction for attempted sexual violation entered in substitution.
[105] Regarding the remaining charges, I find that the Judge was not in error in reaching guilty verdicts and convicting Mr Heng of doing an indecent act on a child under 12, namely touching her genitals, and having an indecent communication with a young person under 16, namely showing her the videoed sex activity on his iPhone.
[106] Accordingly, the appeal against the convictions of doing an indecent act on a child under 12 and having an indecent communication with a person under 16, is dismissed.
Result
[107] The appeal is allowed in respect of the conviction for sexual violation by unlawful sexual connection.
[108] I direct that a judgment of conviction for attempted sexual violation by unlawful sexual connection be substituted for the offence of sexual violation by unlawful sexual connection.
[109] The appeal against the two convictions of doing an indecent act on a child under 12, and having an indecent communication with a young person under 16, is dismissed.
[110] Under s 251(3) of the CPA, the sentence is remitted to the District Court to be imposed on the substituted conviction for attempted sexual violation by unlawful sexual connection.
Cull J
Solicitors:
Public Defence Service, Wellington, for Appellant Crown Law Office, Wellington, for Respondent
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