Langman v Police
[2022] NZHC 3209
•2 December 2022
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-220
[2022] NZHC 3209
BETWEEN AARON LANGMAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 November 2022 Appearances:
S Pyke for Appellant
R E Budd for Respondent
Judgment:
2 December 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 2 December 2022 at 3:00 pm Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
LANGMAN v POLICE [2022] NZHC 3209 [2 December 2022]
Introduction
[1] Aaron Langman (the appellant) was charged with assault on a person in a family relationship.1 The complainant, N, is his former partner. At the conclusion of a Judge-alone trial in the Auckland District Court on 10 June 2022, Judge J D Large found the appellant guilty, and convicted him of the charge.2
[2] The appellant now appeals against his conviction. His grounds of appeal allege that:
(a)The Judge failed to take proper account of the complainant’s tendency to lie about a matter relevant to a fact in issue in the proceeding, or an attack on her veracity.
(b)The Judge erred in his finding that text messages and a screenshot sent to the appellant in April and May 2021 were of no relevance to the events occurring on 14 October 2020.
(c)The verdicts regarding the “kitchen” and “bedroom” assaults are inconsistent.
The alleged offending
[3] The alleged offending was summarised by the Judge in his decision delivered on 10 June 2022. He said:
[10] [N], in her evidence, said that the defendant had been drinking at work, had come home and was continuing to drink. Her evidence was that he had a bottle of red wine, a box of beers, and then was commencing on spirits. Her evidence was that she had gone to bed, and at about 11 o’clock or thereabouts she went to the kitchen to ask him if he was coming to bed, or if not to at least turn the music down. She said that at that point she was pushed to the floor by Mr Langman, and consequently bruised her knee. There was a photograph shown in evidence to the complainant, and she confirmed it was her right knee that had been bruised and that photograph was taken at that time.
[11] She then said she went to the bedroom and got into bed. The bed is a mattress on the floor, as opposed to a bed with a bed base as I understand her
1 Crimes Act 1961, s 194A.
2 New Zealand Police v Langman [2022] NZDC 10946.
evidence. She said that she was in bed and the defendant came in. He was standing to the side of her and then put all his weight on her, effectively falling onto her while she was in bed, initially on her feet, and then as she moved there were, on her evidence, actions by the defendant which caused him to sort of elbow her to her face and restrict her breathing. She then said she had to bite him twice when he was restricting her breathing and he was pushing her onto the floor.
[12] The defendant denies that, saying it did not happen. He acknowledged having some six beers or so. He said that the complainant had been hassling him. The sergeant had put that she was “nagging” him, and as a consequence of that nagging, in the sergeant’s words, Mr Langman, being drunk, was angry and behaved in the way that the complainant said he behaved. He said no, he did not.
…
[15] Clearly, there is a conflict in the evidence here between that of the complainant and that of the defendant. Their accounts of the same events are pretty much at odds in every respect.
…
[19] Because of the difference in the two respective positions and the respective stories, I have to assess the credibility and reliability of the evidence of both the defendant and the complainant.
…
[21] In considering this case and the fact scenario, the police have proceeded on the basis of effectively two parts to the incident, namely the incident in the kitchen and then the incident in the bedroom.
[22] The evidence of [N] in the kitchen was that she was pushed by Mr Langman and fell heavily to the floor and bruised her right knee. As I have said, the right knee is seen to be bruised in the photograph. That evidence from
[N] was not challenged as to how in any other way that bruise could have occurred.
[23] The inference I draw from the evidence I have is that there was a bruise caused by Mr Langman in the kitchen, and as a consequence if that was the only issue for determination that would be the answer to the charge because I would be sure about that, but given the second part of the police case, the allegation of the assault in the bedroom, I am obliged to look at that evidence as well.
[24] [N] in her evidence said that the defendant’s actions were deliberate. She did not say “deliberate”, but that is the inference she wants me to draw from her evidence, that: “He flopped himself onto the floor, onto my feet”. Those were her words when she gave her evidence. In answer to the sergeant: “What happened next?”, she said: “He sort of elbowed me”.
[25]Mr Langman said that did not happen.
[26] I find it difficult to be sure that what [N] said happened in the bedroom did indeed happen, and my uncertainty is because if she had had to bite Mr Langman twice, as she has told the police, there would clearly have been some mark on his arm given it was not a one bite action, it was two.
[27] I find it not credible that there was such an action which left no mark whatsoever, and I am satisfied from what Constable Robinson said, that there was no mark on Mr Langman’s arm at the time he was speaking with the police that night.
[28] If the test was on the balance of probabilities the answer may be different, but in respect of the bedroom incident I am not sure and therefore I am not satisfied beyond reasonable doubt that that part of the incident occurred in the way I was told.
[29] But. in respect of the kitchen incident, I am sure and do accept [N’s] evidence. One of the reasons I reject Mr Langman’s evidence in relation to that was his denial was also accompanied by embellishment to his evidence, in that there were issues not put to [N] about the ripped clothes that Mr Langman told me about this morning.
[30] Had there been no other evidence from [N] and it was just a “he said” and “she said” situation, then again on the balance of probabilities I would be likely to dismiss the charge, but here there was the independent or actual objective evidence available in the photograph of the bruise on the knee which is consistent with the evidence given by [N].
[31] I am sure that the assault in the kitchen did occur, and I find the charge proved as to the kitchen incident alone.
Approach on appeal against conviction
[4] The appellant appeals his conviction pursuant to s 229(1) of the Criminal Procedure Act 2011 (the Act). Section 232(2)(b) provides that in the case of a Judge- alone trial, the court must allow the appeal if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or in any case a miscarriage of justice has occurred for any reason.
[5] Miscarriage of justice means any error, irregularity, or occurrence affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial, or a trial which is a nullity.3 What amounts to a miscarriage of justice is something more than an inconsequential or immaterial mistake or irregularity. The appeal court must determine whether there has been a “true miscarriage”, being something which has gone wrong and which was capable of affecting the result of the
3 Criminal Procedure Act 2011, s 232(4).
trial.4 The appeal court should disregard those irregularities which plainly could not, either singly or collectively, have affected the result of the trial and which therefore cannot properly be described as being miscarriages.5
[6] The appeal is to proceed by way of a rehearing, and the appeal court is required to form its own view on the facts in accordance with the approach described in Austin, Nichols & Co Inc v Stichting Lodestar.6 The Court of Appeal in Sena v Police explained the proper approach:7
[38] … If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But, to the extent that [counsel for the appellant] was suggesting that the role of an appellate court is to consider the issues de novo as if there had been no hearing at first instance, then we do not agree. Since it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”. There are two main, overlapping, reasons for this.
[39] The first is that a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case. In assessing the plausibility of what is said by the witnesses, the judge has the advantage of being also able to form a view as to what sort of people they are. This is an appreciable consideration despite the now well-recognised difficulties with demeanour-based credibility assessments.
[40] The second consideration, in effect the other side of the coin to the first, is that appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. …
[7] Where the court finds that something amounting to a miscarriage has occurred, it may only dismiss the appeal if, after considering all the admissible evidence, it considers that notwithstanding that there has been a miscarriage, a guilty verdict was inevitable in the sense of being the only reasonably possible verdict on that evidence.8
4 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [31].
5 At [30].
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
7 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 (footnotes omitted).
8 R v Matenga, above n 4, at [31].
[8] If the appellate court allows the appeal it must set aside the conviction, and must also direct a judgment of acquittal be entered or direct that a new trial be held, or make any other order it considers justice requires.9
Submissions
The appellant
[9] Ms Green for the appellant says that the Judge erred by failing to determine the disputed facts regarding several text messages the appellant alleged the complainant had sent him some five or six months after the alleged assault in which she demanded that he pay her a sum of $10,000. Ms Green submits that the text messages which were sent to the appellant by the complainant reveal her ulterior motive for making a false complaint to the Police — that of obtaining a sum of money from the appellant.
[10]It is convenient to set out what the Judge said about the text messages issue:
[9] I heard a great deal of evidence relating to subsequent actions, and texts sent in April and a screenshot in May 2021. I do not see though I have to make any determination on the substance or ingredients of those texts because that is not going to assist me in my determination of what, if anything, happened on 14 October 2020. I am not obliged to make findings on all matters, just on issues that assist me to determine the critical question here.
[11] In the course of her cross-examination of the complainant, Ms Green showed her a single page of paper containing a text message dated 28 April 2021 in which demand was made for the payment of “ten k” into a nominated bank account by the following day. The text messages included:
You’ll be arrested today for contacting me and saying I claim to be a victim. I actually am. Your [sic] a piece of Fucking shit for what you have done.
I needed help I wouldn’t ask for [sic] from the man who bashed us unless I really really needed it and all I get is abuse and stalked by Fucking ugly pizza face waldens [sic] for 6 months
[12] The text message also contained threats that the appellant would be sent to jail and assaulted in prison by gang members and the statement: “How hard would have be to come c your baby.” Under cross-examination the complainant said that she
9 Criminal Procedure Act, s 233.
didn’t believe that she had sent the text message to the appellant. The cross- examination of the complainant proceeded as follows:
Counsel:Well did you send that text to demand $10,000 from Mr Langman?
Complainant: No, I don’t believe that, I don’t actually believe that I did, I don’t recall that.
Counsel:Okay, you do understand the difference between “I don’t recall” and “I don’t believe I did”?
Complainant: I don’t recall, I just don’t recall and I’d just had a baby from after.
Counsel:Are you saying you could have sent this because you were unwell, and you just don’t remember?
Complainant: I don’t think so.
Counsel: You have been unwell at times during the relationship? Complainant: Only due to [the appellant’s] ongoing abuse.
[13] Ms Green submits that the evidence regarding the complainant sending the text messages to the appellant was relevant to the complainant’s veracity. She says that the complainant’s veracity was also challenged in cross-examination when it was suggested that the complainant was effectively making an allegation of rape, which the complainant immediately retracted.
[14] Ms Green submits that the evidence regarding the allegation of rape made by the complainant and also the out of court statements made in the text messages sent by the complainant to the appellant reflect on the complainant’s veracity and her disposition to lie. Counsel submits that the evidence qualifies as evidence of veracity pursuant to s 37(3)(a), (c), and (d) of the Evidence Act 2006. Ms Green says that the complainant’s “spontaneous evidence of a rape complaint, shows that when under the legal obligation (while giving evidence), she was careless (at least) with the obligation to keep to her oath to tell the truth”. Ms Green submits that the complainant’s evidence on that issue was relevant to her veracity and could have been taken into account by the Judge when considering the assault that the complainant alleged had taken place in the kitchen on 14 October 2020.
[15] Ms Green submits that the text message extorting money and threatening that the appellant would be assaulted in jail by gang members, is veracity evidence. Counsel submits that the text messages show that the complainant is motivated not to tell the truth and that she is motivated by other considerations such as getting help from the appellant, asking the appellant to go and see their baby, and paying her money. Ms Green says that it can be inferred that if the complainant could get the money she would either attempt to withdraw her complaint or give false evidence about the alleged assault.
[16] Ms Green says the evidence shows that the complainant has a disposition to lie. Ms Green accepts that although the complainant was not shown to have lied by making a false complaint regarding being forced to have sex with the appellant, she was shown to have “a biased disposition” towards the appellant. Counsel further submits that the complainant’s evidence on these matters also goes to the issue of her reliability as a witness, and she submits that the Judge ought to have taken the evidence into account under s 122 of the Evidence Act.
[17] Ms Green further submits that the decision of the Judge in finding the alleged assault in the kitchen proven and not finding the alleged assault in the bedroom proven, amounts to inconsistent verdicts. She submits that there is an inconsistency because proof of both assaults is based on the complainant’s account of what occurred, and she says there is no independent evidence to verify either of the assaults.
[18] Ms Green says that the Judge found the assault in the kitchen proven by reason of the photographs of the bruise on the complainant’s knee. She notes that although the Judge described the photos as being “independent” evidence of a bruise, it is not independent evidence. Ms Green says that the only evidence of the complainant suffering a bruise to her knee was that given by the complainant herself. She says no expert evidence was presented by the prosecution regarding the bruise to establish that by its appearance its age could be determined. She says that there being no medical or other independent expert evidence the only evidence of the complainant having suffered the bruise as a result of the assault was that of the complainant herself and depended entirely upon her being accepted as being a reliable witness.
[19] Ms Green submits that the Judge erred by mistreating the photographs and evidence of the complainant as independent proof of the assault in the kitchen.
[20] As regards the appellant’s evidence at trial, Ms Green submits that it was clear, compelling, consistent, and cogent. She submits that by comparison, the complainant’s evidence can be characterised as being argumentative, unreliable and lacking veracity. She submits that the appellant’s evidence ought to have created doubt as to the complainant’s account of both assaults.
The respondent
[21] Ms Budd for the respondent submits that the text messages produced to the District Court and referred to in the evidence are not relevant to the facts in issue. She submits the Judge was correct to disregard the evidence regarding the text messages and they were not relevant to either the events of 14 October 2020, or to the complainant’s credibility and reliability. She submits that the evidence does not have the quality of being substantially helpful to the Court, and should not have been admitted.
[22] Ms Budd accordingly submits that the Judge disregarding that evidence does not amount to a miscarriage of justice.
[23] As regards the issue of whether or not the complainant had alleged that she had been raped by the appellant, Ms Budd notes that the complainant made it clear in her evidence that she was not suggesting that at all, and the Judge was entitled to disregard that part of her evidence as not being relevant to the issue of the complainant’s credibility and the issues he had to decide regarding whether the charge was proven beyond reasonable doubt.
[24] Ms Budd submits that while the Court should exercise the “customary caution” when considering the Judge’s decision to prefer the complainant’s evidence to that of the appellant as to what had occurred on 14 October 2020, the Judge explained his reasons for finding the charge of assault relating to the incident in the kitchen proven. She says that the Judge was justified in finding that the evidence regarding the bruise on the complainant’s right knee provided support for her evidence regarding what
happened in the kitchen when she was assaulted by the appellant. Ms Budd also notes that the complainant was not directly challenged in cross-examination regarding her evidence of suffering a bruise from the assault. Ms Budd says that the existence of the bruise and it having been caused by the assault was not an element of the offence as charged, and therefore the prosecution did not have to prove it was caused by the appellant’s actions on 14 October 2020. She says that therefore it was not necessary for the prosecution to call evidence from an expert or medical evidence regarding the bruise in order for it to be appropriate for the Judge to accept the complainant’s evidence to have suffered the bruise as a result of the assault.
[25] In response to the appellant’s submission that the Judge’s different findings regarding the kitchen and bedroom assaults amount to an inconstancy of verdicts and miscarriage of justice, Ms Budd submits that the Judge was entitled to consider the separate aspects of the assault differently and reach different conclusions on them. She submits that while the Judge’s assessment of the reliability and credibility of the complainant’s account of the assault that she said took place in the kitchen was also relevant to his assessment of her account of what she said occurred in the bedroom, it was nevertheless open to him to reach the different conclusions that he did, and he explained his reasons for doing so.
[26] Ms Budd submits that the Judge’s findings and verdict do not constitute a miscarriage of justice, and he was entitled to find that the prosecution had discharged the burden of proving the charge to the requisite standard of proof beyond reasonable doubt. She accordingly submits that the appeal should be dismissed.
Discussion
[27] In her evidence at the trial the complainant said that she and the appellant had been in a relationship from around the start of November 2019. And in October 2020 she was 13 weeks pregnant. She said that the appellant had come home that evening after he had been drinking at work. After he arrived home he kept drinking. She said that she went to bed, and later at about 11.00 pm got up and went to ask the appellant whether he was coming to bed or if not to turn off the music he was playing. She said that the appellant reacted by abusing her about their finances. She said that she then
went to the kitchen to get her medication and the appellant was also in the kitchen pouring himself another drink. She said that it appeared that the appellant had thought that she was going to hug him, and that he had violently pushed her away and onto the hard floor. She said that the appellant had been standing beside her and he had pushed her over with all his weight. She said that when she was pushed to the floor it was really painful. She said that she had landed on her right side and really hurt her knee in the process. She said her knee “just smashed onto the floor”. She said that she picked herself up and went back to bed and lay down across it. She said that the appellant was by that stage extremely intoxicated and that he came into the bedroom, “flopped himself down on to the floor, onto my feet and put his full weight down on me”. She said there was then:
… a bit of a skerfuffle where he’s turned around, he elbowed me in the neck, he then used an open hand on my face, he tried to restrict my breathing. … And then I have bitten him in an attempt to get away and then I’ve gotten away from him and I have called the police.
[28] The complainant was referred to the photographs taken by the Police and produced as Exhibit 1 showing her right leg with two distinct bruises in the area of her knee. She said that they were “the instant bruises that [she] received from [the appellant] pushing [her] onto the kitchen floor”.
[29] It is quite clear from the photographs produced as Exhibit 1 that the bruises shown in them are consistent in terms of their location with the complainant’s evidence as to how and when they were caused. They are both quite large and distinct bruises with red/purple colour in the centre.
[30] When Police Constables Robinson and George arrived at the address sometime after midnight, Constable Robinson said in evidence that the appellant was in the lounge area and he was “quite highly intoxicated”, and appeared to be “almost vacant”. Constable Robinson said that the appellant said to him something along the lines of: “She was just having a go at me, she was yelling at me and then bit my arm”. Constable Robinson said that he had then asked to see and was shown the appellant’s arm, but he couldn’t see any visible marks from what he was suggesting.
[31] The complainant’s evidence regarding what happened in the kitchen when the appellant forced her onto the kitchen floor and she landed on her right side hurting her knee, is consistent with the location and appearance of the bruises on her right knee as depicted in the photographs, Exhibit 1. The photographs are independent evidence which corroborate the account given by the complainant of what happened in the kitchen and how she came to suffer the injuries which produced the bruises.
[32] The appellant gave evidence and was cross-examined by the Police prosecutor. In his evidence in chief the appellant said that after he arrived home on 14 October 2020 he “might have had a few beers” and had cooked himself some dinner. He said that the complainant was asking him where he had been all day and an argument developed between them and continued to escalate. He said that the complainant eventually went to bed, and about an hour afterwards he went to bed and tried to lie down on the bed but the complainant started kicking him in the back and trying to push him out of the bed. He said that he had attempted to leave the bedroom and go and sleep somewhere else, but the complainant had followed him around the house and was screaming at him, and at one stage they were both in the kitchen together.
[33] Although the appellant said that he did not push the complainant to the ground in the kitchen, he did not describe anything happening that could account for the bruises she suffered on her knee.
[34] Under cross-examination the appellant denied assaulting the complainant in either the kitchen or the bedroom, and denied that he was angry at her. He accepted that the text message he said he had received from the complainant was sent to him shortly after the birth of the complainant’s baby and some six months after the events of 14 October 2020.
[35] I reject Ms Green’s submission that there is no independent evidence of the assault in the kitchen and that the only evidence of what happened relies on the accuracy of the complainant’s evidence. The complainant’s account of what happened when she was forced or pushed onto the kitchen floor by the appellant is supported by the existence of the bruises in the area of her right knee, and by the Police photographs of her right leg on which the bruises are clearly visible. The complainant’s account is
further supported by the evidence of Constable Robinson regarding the “quite highly intoxicated” state the appellant was in when he saw him shortly after midnight on 14 October 2021. And I note that Constable Robinson said that the appellant told him that the complainant had bit his arm, which is consistent with what the complainant said she did when the appellant had flopped on top of her on the mattress on the floor after she had returned to the bedroom.
[36] It is apparent from the written transcript of the complainant’s evidence that she gave a clear and measured description of what she said had happened. Under cross- examination she was responsive and demonstrated that she was being careful to be accurate. As an example, when asked under cross-examination about her pregnancy and when she became pregnant she said:
Counsel: Now what month do you make it that you became pregnant? Complainant: I got pregnant on the night of [the appellant’s] 40th birthday,
where he forced me to have sex with him because it was his
birthday.
Counsel: So you’re making an allegation of rape now are you?
Complainant: I’m not saying that, I’m just saying that I wasn’t comfortable with the situation.
Counsel:Well you do know what forcing someone to have sex with is an allegation of?
Complainant: Okay, I understand, well I’m not saying that. I went through with it, so …
Counsel:Well no, are you making an allegation that he raped you on his birthday or not?
The Court: She just said she’s not.
[37] Although I have not had the advantage of seeing and hearing the complainant and appellant giving their evidence, I am satisfied that the complainant’s account of what occurred is credible and reliable and there is sufficient evidence on which to conclude that the complainant’s account of the incident in the kitchen is proved beyond reasonable doubt.
[38] While the complainant’s account of the incident in the kitchen is corroborated by the evidence of the bruise she suffered when she was pushed onto the floor by the
appellant, her account of the incident in the bedroom when she says the appellant “flopped” on top of her is unsupported by directly corroborating evidence such as is the case with the bruise. However, her evidence of having bitten the appellant in an attempt to get away from him when she said he used an open hand on her face and was trying to restrict her breathing, derives support from Constable Robinson’s evidence that the appellant told him that the complainant had bitten him on the arm. While the Judge said that he was satisfied by Constable Robinson’s evidence that there was no observable mark on the appellant’s arm when he spoke to him shortly after midnight, the absence of any marks does not necessarily mean that the biting did not happen. The complainant’s account derives support from the appellant himself telling Constable Robinson that the complainant had bitten him, and the absence of any bite marks on the appellant does not mean that the biting could not have occurred as described by the complainant.
[39] However, while I consider that the evidence of the complainant in relation to both the kitchen incident and the bedroom incident is credible and plausible, having not seen the complainant and the appellant give evidence I consider it appropriate to defer to the Judge’s assessment of the reliability of the complainant’s account of what happened in the bedroom. Accordingly, while I am satisfied that the charge is proved beyond reasonable doubt in relation to the incident in the kitchen when the appellant forcibly pushed the complainant onto the kitchen floor, I consider that the high standard of proof beyond reasonable doubt has not been reached in relation to the incident in the bedroom.
[40] There is of course one charge of assault of a person in a family relationship under s 194A. The finding that the charge is proven in relation to the first phase of the assault that occurred in the kitchen and not as regards the second phase which is alleged to have occurred in the bedroom, does not amount to an inconsistency of verdicts. There is just the one charge, and one verdict.
[41] I also agree with the Judge that the evidence regarding the text message received by the appellant some six months or so after the events of 14 October 2020 is of no relevance to the court’s determination of the charge of assault relating to that date. Despite the complainant’s denial of having sent the text messages, it appears
that the text messages were sent to the appellant fairly soon after the birth of the complainant’s baby. The text messages appear to relate to an attempt to get the appellant to go and see the baby and to provide financial support for the complainant. While the text message contains a threat of possible violence to the appellant in the event that he was sent to jail, there is nothing in the text message that would inform the court’s determination of what actually happened during the events of 14 October 2020.
[42] And I reject the submission made by Ms Green that the text message is veracity evidence that ought to have been admitted by the Judge pursuant to s 37 of the Evidence Act. The text evidence does not fall within the scope of any of the provisions of s 37(3), and does not demonstrate any of the matters set out there. It is clearly not evidence that would be substantially helpful in assessing the complainant’s veracity as regards her account of what occurred on 14 October 2020.
[43] It is also quite clear that the complainant’s answers in cross-examination to the questions put to her about her pregnancy, did not involve her making a false allegation of rape against the appellant and then promptly withdrawing it. To the contrary, it is quite clear that the complainant was saying that she was not comfortable with what happened. Again this evidence does not fall within the scope of any of the provisions of s 37(3), and does not demonstrate any of the matters set out there. It is clearly not evidence that would be substantially helpful in assessing the complainant’s veracity as regards her account of what occurred on 14 October 2020.
[44] There is nothing in this issue which could possibly amount to a miscarriage of justice.
Conclusion
[45] I accordingly find that the Judge did not err in any respect in reaching his decision and finding the charge proved. There is no miscarriage of justice.
Result
[46]The appeal is dismissed.
Paul Davison J
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