MG v Police
[2017] NZHC 3137
•14 December 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL THE FINAL DISPOSITION OF TRIAL [RETRIAL]. NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/PERSON 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.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000307
[2017] NZHC 3137
IN THE MATTER OF an appeal against charges being found proved BETWEEN
MG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 November 2017 Counsel:
S J Lance for the Appellant
D G Johnstone and J C Bull for the Respondent
Judgment:
14 December 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 14 December 2017 at 2.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
MG v POLICE [2017] NZHC 3137 [14 December 2017]
Introduction
[1] MG was convicted of seven charges of rape, and two charges of sexual violation by unlawful sexual connection following a Judge alone trial in the North Shore Youth Court.1 All of the charges related to offending against ZS and took place during the course of a relationship between MG and ZS. MG was 16 and ZS was 15 years old at the time.
[2] There was no dispute that sexual activity between MG and ZS had taken place. The key issue in dispute was consent. Judge Ronayne found that ZS “specifically, clearly and firmly” made it clear on each occasion that she did not want the sexual acts to take place.2
[3] MG appeals his convictions on the grounds that the Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred. He says the Judge erred in various ways but in particular by:
(a)Failing to properly assess Facebook messages, including those of a sexually explicit nature, sent by ZS to MG both prior to and during the course of their relationship;
(b)Referring to a counterintuitive explanation for ZS’s delay in complaining which was implausible and not supported by any counterintuitive evidence called by the Crown;
(c)Relying on extraneous matters in assessing ZS’s credibility.
[4] MG also seeks leave to adduce fresh evidence. The evidence is a statement of BN, who was a friend of ZS at the time she was in a relationship with MG. BN’s evidence is that ZS told her about each sexual occasion with MG and she did not ever suggest she was being forced to have sex against her will. In fact, BN’s evidence is that ZS said she enjoyed having sex with MG.
1 New Zealand Police v MG [2017] NZYC 417.
2 At [69].
The offending
[5] ZS and MG met at school in mid-2014. They began exchanging Facebook messages in August 2014 and started dating on 13 March 2015. By this time, ZS was attending a different school.
[6] Sexual intercourse between MG and ZS first occurred on the weekend of 23 to 24 May 2015 and forms the basis of the first charge which is described in more detail below. ZS said that all occasions of sexual intercourse after that (12 in total) were non-consensual. In addition, ZS said that MG would make her perform oral sex on him without her consent. The summary of offending in relation to each charge is set out below.3
Rape, between 23 and 24 May 2015 (Disney movie)
[7] The first rape occurred while ZS was staying at MG’s place for the weekend. His mother and sister were present in the house. She had a fever and was not feeling well. ZS and MG were in bed together, watching a Disney movie. There was kissing and mutual touching which was consensual. However, when MG started taking ZS’s clothes off she said “no” and “please stop”. Despite this, MG covered her mouth and inserted his penis into her vagina. She says she was crying after the event.
Rape, between 23 May 2015 and 25 July 2015 (Office)
[8] This took place in the office at ZS’s house. ZS’s family members were present in the house. While MG was sitting on an office chair, he pulled ZS onto his lap so she was sitting on him with her back facing him. He then pulled her pants down and removed his own pants. He put on a condom and then forced her to sit on him, with intercourse then taking place. ZS said she told him she did not want to do it, and tried to get off him, but he held her in place.
3 The dates of the charges are taken from the charge sheet. There are some variations between those dates and those in the summary of facts, and the District Court judgment.
Sexual violation and rape, between 23 May and 21 July 2015 (Painting room)
[9] Two charges relate to an incident in the painting room at ZS’s house. The sexual violation charge relates to penetration of ZS’s mouth with MG’s penis. ZS said she told MG that she did not want to perform oral sex, that it was “gross”, and that she did not want to do it there in her father’s painting room. Her evidence was that MG grabbed her head, “like a claw hand grabbing a whole handful of her hair”, put his penis into her mouth and controlled her head movements with his hand.
[10] The rape charge arises out of what happened next. MG got on top of ZS and put his penis in her vagina. MG then flipped ZS so that she was on top of MG, and MG held her hips to move her up and down. ZS’s evidence is that she told him not to do what he was doing, saying “please not now, please stop”.
Rape, between 23 May and 25 July 2015 (Bathroom)
[11] This occasion was in the bathroom at MG’s house. MG’s mother and sister were present. MG grabbed ZS by the hand and led her to the bathroom in the middle of the day. There was consensual kissing. She says she began objecting as soon as he started removing her pants. He put a condom on and she closed her legs. She repeatedly told him that she did not want to do this. However, MG picked her up and laid her on the floor, spreading her legs, and inserting his penis into her vagina.
Rape, 28 July 2015 (After school ball)
[12] A further charge of rape concerned events following the school ball. In the car on the way home, MG whispered sexually explicit comments to ZS about sexual intercourse. ZS told him she did not want to have sex with him as he was very drunk. Back in his bedroom, he removed her clothes and forced her to have sex. She described him as angry and verbally abusive, and the intercourse as forceful, heavy and going on for a long time. She repeatedly asked him to stop, telling him that she did not want to do it. MG responded by laughing and joking about how she was actually enjoying it. MG then said to ZS that if she told her parents then he would get into a lot of trouble and he would go to jail.
Rape, 9 August 2015 (MG bedroom)
[13] This occasion took place in MG’s bedroom on 9 August 2015, shortly before the relationship ended. ZS described being grabbed by the wrist and pulled onto MG’s bed. She was pulled on top of him with her pants and underwear down to mid-thigh. Vaginal intercourse took place for a short time. ZS said she told him she didn’t want to do this. ZS describes MG on this occasion as cold and mean, and says that MG was talking in detail about getting with other girls at school.
Rape, between 23 May and 9 August 2015 (Representative charge)
[14] The representative charge relied on ZS’s evidence that vaginal intercourse took place on 12 occasions. ZS could not remember the details of all these occasions but her evidence was that she told MG that she did not want to have intercourse and she would protest that she was underage. She said his reaction was sometimes to yell and even throw things at her. She described him throwing her around into different positions, grabbing her hair and covering her mouth.
Sexual violation, between 23 May and 9 August 2015 (Representative charge)
[15] This representative charge was based on ZS saying that when she was having her period, MG would make her perform oral sex. This occurred in multiple locations in both their houses. ZS said she made it clear she did not want to perform this sexual act. She says that MG emotionally manipulated ZS by saying he was going to get with other girls so that eventually she “gave in”.
The complaint
[16] ZS complained about the rape and sexual violation in August 2016, approximately one year after the relationship had ended. ZS was attending a different school, and taking part in a drama production which involved a character suffering sexual abuse. It was following the last performance of this production that she disclosed to a fellow student that she had been raped by an ex-boyfriend. She subsequently spoke to her drama teacher and repeated the same allegation. She was then interviewed by police, and MG was subsequently charged.
District Court decision
[17] The hearing took place before Judge Ronayne in the North Shore Youth Court between 12 and 14 June 2017. ZS’s evidential interview was played as her evidence in chief. The student to whom she initially complained, the drama teacher, and the officer in charge all gave evidence. MG’s interview with the police was played, but MG did not give evidence or call evidence.
[18] The Judge delivered his reserved decision on 21 June 2017. MG was found guilty on all charges.
[19] The Judge reviewed the legal provisions, the elements of both offences, the general principles, ZS’s evidence in respect of each charge, and the parties’ submissions. The Judge gave himself the standard warnings about the evidence, and noted that he had scrutinised the evidence with special care given the young ages of both the complainant and defendant.4 Furthermore, he made observations about the demeanour of each witness. However, that was done in the context of a warning to himself that he should “place very little weight on demeanour alone or out of context”.5
[20] In terms of ZS’s evidence, the Judge noted that she seemed genuinely very upset when describing what, for her, were non-consensual encounters, and that she was generally a consistent witness.6 He did not detect any evidence of any tendency to invent, distort or exaggerate in her evidence, and he noted she did not unjustifiably or gratuitously criticise MG. In fact, he considered her evidence “measured and fair” and noted that she even praised him several times or conceded the good qualities she saw in him without prompting.7 He also took into account that ZS’s credibility was intact regarding her claims about the physical acts taking place. It was only her credibility regarding the issue of consent and the extent to which she communicated that lack of consent which was at issue.8
4 New Zealand Police v MG [2017] NZYC 417 at [57].
5 At [23].
6 At [58] and [59].
7 At [60] and [67].
8 New Zealand Police v MG [2017] NZYC 417 at [62].
[21] The Judge noted one aspect of MG’s police interview which caused him concern. ZS gave evidence that on one occasion MG said that if she ever got pregnant, he would punch her in the stomach until the baby died. MG admitted he said these words, but replied that he meant it in jest because his biggest fear was accidentally getting someone pregnant. The Judge found that this not only corroborated a detail in ZS’s evidence but was a “somewhat chilling window into MG’s personality and how, in reality, he treated ZS”.9
[22] The Judge reminded himself that he was required to focus on consent elements at the time of any sexual act, although he did not ignore the context and circumstances in which the acts occurred. He then observed:10
Even if I took into account what may, at times, have been a lack of physical resistance or a degree of surrender to the inevitable by ZS, that did not, in fact, constitute consent or provide a reasonable basis for MG to believe that there was consent. Consent cannot be inferred from silence or inactivity. It must be given positively by words or conduct and there is no obligation on ZS to say “No”.
[23] That observation was made in reliance on the decision in Christian v R, in which the Court of Appeal concluded that a positive expression of consent is necessary for establishing consent in cases of sexual violation.11 That case has since been partially overturned by the Supreme Court. The Supreme Court held that while a failure to protest or offer physical resistance does not, of itself, constitute consent and something more is required, that “something more” may be something other than a positive expression of consent.12
[24] In relation to the Facebook messages, the Judge observed that the issue of consent had to be assessed at the time of any penetration or oral sex. The Judge accepted ZS’s explanation that, despite the content of the Facebook messages, she was not ready for sex at the relevant time and she made that perfectly clear to MG.13
9 New Zealand Police v MG [2017] NZYC 417 at [66].
10 At [65].
11 Christian v R [2016] NZCA 450 at [49].
12 Christian v R [2017] NZSC 145 at [5], suppressed pending disposition of retrial.
13 New Zealand Police v MG [2017] NZYC 417 at [67].
[25] The Judge also noted that the nature of some of the sexual activity, when assessed in isolation, might provide a basis for MG to believe she was consenting. For instance, in the painting room ZS was sitting backwards on MG’s lap, a position which the Judge said was arguably indicative of consent. But the Judge went on to say that:14
… such a one-dimensional assessment is flawed. Physical actions alone cannot be assessed in isolation and out of context. The nature of the ongoing relationship, other sexual activity, other communications between ZS and MG, and her specific communications prior to any particular penetration or oral contact, all must be considered.
[26] The Judge addressed the question of ZS’s delay in making the complaint. The Judge referred to the counterintuitive explanations for delay which he observed “are well understood by the courts and reflected in s 127 of the Evidence Act 2006”. ZS’s explanation for the delay was her fear that by complaining she might get the young man she loved in what she described as “major trouble”. She said she wanted to protect him and she also had high regard for his family and especially loved his mother. The Judge considered this explanation “plausible and cogent”, and so he found that the delay in complaining did not adversely affect his assessment of ZS’s credibility.15
[27] The Judge also mentioned the circumstantial evidence of ZS’s ongoing contact with MG, despite the fact that she said the rape was occurring.16 However, in the course of considering all the circumstantial evidence, he stressed that the Court cannot consider consent “as if watching a silent movie … isolated from knowledge of the true dynamics of this relationship”.17 He held that the nature of the relationship was such that by the time of the first act of sexual intercourse, it had reached a point where ZS was overpowered both physically and psychologically by MG.18
[28] Finally, the Judge accepted as truthful and reliable the evidence of ZS and rejected as untrue MG’s denials of a lack of consent. He was satisfied beyond reasonable doubt that MG was explicitly told during at least some of these sexual encounters to stop and did not do so. Moreover, the Judge found that on every
14 New Zealand Police v MG [2017] NZYC 417 at [69].
15 At [71].
16 At [63].
17 At [69].
18 At [70].
occasion that sexual activity referred to in the charges took place, MG knew, prior to the commencement of the sexual activity, that ZS was not consenting.19
Approach on appeal
[29] The right of appeal from a decision of the Youth Court arises under s 351(1) of the Oranga Tamariki Act 1989. Appeals are governed by the Criminal Procedure Act 2011 (CPA) with any necessary modification.20
[30] Under s 232(2) of the CPA, the appeal court must allow the appeal if it is satisfied that, in the case of a Judge alone trial, “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”.
[31] A miscarriage of justice is defined to be an error, irregularity or occurrence in relation to or 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 that was a nullity.21
[32] The approach to an appeal against conviction on the basis of an error in the assessment of the evidence was summarised by the Court of Appeal as follows:22
(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b)Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c)The weight to be given to individual pieces of evidence is essentially a jury function.
(d)Reasonable minds may disagree on matters of fact.
(e)Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
19 New Zealand Police v MG [2017] NZYC 417 at [72].
20 Oranga Tamariki Act 1989, s 355(1).
21 Section 232(4).
22 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87, endorsed by the Supreme Court in Owen v R [2007] NZSC 102, [2008] NZLR 37 at [5] and followed in Ahmad v R [2017] NZCA 320 at [59] and Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [55].
(f)An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.
[footnotes omitted]
[33] As recently confirmed by the Court of Appeal in Ahmad v R, the same principles apply to appeals from judge alone trials. However, where full reasons are given, an appellate court is in a better position to assess the justification for and correctness of the judge’s verdicts than in a jury case.23
[34] As to the challenge to the judge’s findings of fact and assessments of credibility, the appellate court will generally place much weight on credibility findings made by a judge who has had the advantage of seeing and hearing all material witnesses give evidence. That is because the trial judge gains an impression from the evidence which is not necessarily or usually apparent from the “cold typeface of the transcript of that evidence on appeal”.24
Did the Judge err?
Facebook messages
[35] Facebook messages exchanged between MG and ZS were produced as a 500- page exhibit in the Youth Court. They included messages exchanged prior to the start of their relationship in which ZS indicated she might be prepared to engage in sexual activity. They also included messages exchanged during the course of the relationship, and in particular, after the sexual activity had occurred. Some of the messages sent by ZS are sexually explicit, and, in the case of the rape charge after the ball, include a discussion of their sexual activity in the early hours of that day.
23 Ahmad v R [2017] NZCA 320 at [59].
24 Rae International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 199; and Housten v New Zealand Police [2017] NZHC 2203 at [13].
[36]The Judge addressed these messages as follows:25
The issues of consent and any belief in consent have to be assessed at the time of any penetration or oral sexual contact. That unarguable observation assumes prominence in this case because of the sexually explicit nature and timing of some of the Facebook messages between ZS and MG. ZS frankly accepted that at times she was communicating to MG that she was willing to engage in sexual acts. However, she also said that while she thought she was ready for sex, that turned out not to be so when the opportunities arose and she made that perfectly clear to MG. It is a complete misconception that consent to specific sexual activity, whether expressed directly or indirectly and regardless of how graphically expressed, can be taken as consent for all time. That reflects both the legal position and plain commonsense. Furthermore, here, there is, in my view, no evidential basis for a reluctant consent narrative. ZS has said that she did not consent and clearly communicated that to MG repeatedly immediately prior to and during the sexual acts occurring. For his part, MG says that she clearly did consent and that, to the extent that she claims that she did not consent, she is not telling the truth. Nothing in either version of events suggests reluctant consent. Even if broad advance consent could suffice here, to the extent that the Facebook messages might be susceptible to such an interpretation, ZS’s evidence, if accepted, is to the effect that she clearly communicated a lack of consent on each and every occasion. I detected a degree of self-effacing blame in the evidence of ZS which is inconsistent with somebody overegging her evidence or exaggerating any lack of consent. In the same vein, I considered her to be measured and fair. For example, she conceded, unprompted and without any need to do so, that with digital contact, MG would stop when asked to do so.
[37] Mr Lance submits the Judge erred in his assessment of the Facebook messages in a number of different respects each of which is addressed below.
[38] First, Mr Lance submits that the Judge overlooked Facebook messages sent prior to the relationship commencing. These messages include statements that ZS would be prepared to perform oral sex on MG and others which suggest that she would be willing to lose her virginity to him. Mr Lance submits that these messages are inconsistent with the Judge’s view that ZS and MG reached a point prior to the first act of sexual intercourse where ZS was “overpowered both physically and psychologically by MS”.
[39] ZS gave evidence that these messages were flirtatious in nature. She said that she thought when she sent them she was ready for sexual activity but when it came to it she was not. The Judge accepted that evidence. There is nothing inherently contradictory about a relationship which starts with flirtatious behaviour, but, by the
25 New Zealand Police v MG [2017] NZYC 417 at [67].
time of the first sexual act some months later, is characterised by psychological dominance. There was no error in the Judge’s conclusion.
[40] More importantly, the Judge observed that many of the messages pre-dated, by a number of months, the sexual activity the subject of the charges. He reminded himself that the relevant point in time for assessing consent and reasonable grounds for consent was at the time of the sexual activity. These messages did not bear any weight when it came to assess whether ZS had consented at the relevant time.
[41] Second, Mr Lance submits that the Judge erred in relation to his assessment of the Facebook messages which were sent during the course of the relationship between ZS and MG, and specifically on or soon after the dates in the charges. Mr Lance says the Judge only addressed the Facebook messages in terms of “broad consent”, and did not assess whether the messages sent after the rapes and sexual violation charges were inconsistent with ZS’s evidence that each occasion was non-consensual.
[42] The Facebook messages exchanged between MG and ZS during the course of their relationship include photographs, videos, jokes and expressions of love. ZS tells MG how happy she is, how much she loves MG, and how the last few months have been a highlight of her life. Some of the messages include ZS describing what she enjoys sexually in fairly graphic terms. Other messages sent by ZS appear to offer oral sex. There are messages exchanged later on the same day as the rape after the ball. The exchange refers to the sexual activity between them and ends with ZS thanking MG for making the night amazing.
[43] All these messages were put to ZS in cross-examination. She explained that this is just how ZS and MG wrote to each other sometimes, but that the messages were different to what it was like in reality. The Judge referred to the messages sent after the ball in his summary of the evidence in relation to that charge. He also referred to ZS’s explanation for these messages. The Judge was clearly aware of the potential conflict between ZS’s evidence and what was said in the messages, and nevertheless accepted ZS’s evidence as credible. That finding was open to the Judge in my view, and there was no error in that assessment.
[44] The Facebook messages exchanged during the period of the charges raise the possibility that ZS may have consented to some sexual activity on some occasions, but not on other occasions. In other words, the Facebook messages draw into question the reliability, if not the credibility, of ZS’s evidence that she had made it plain she did not consent to each and every occasion of sexual activity.
[45] The Judge did not expressly address the possibility that ZS could have consented on some occasions but not on others. It may have been preferable that he did so. But I do not consider that omission resulted in any miscarriage or real risk of a miscarriage of justice. The Judge reminded himself at the outset that the police had the burden of proving the charges and they had to do so separately in relation to each charge. He also reminded himself that he could accept all or some of the evidence.26 Ultimately the Judge accepted all of ZS’s evidence and rejected MG’s evidence. He found that “on each occasion that sexual activity referred to in the charges took place”, MG knew, prior to the commencement of the sexual activity, that ZS was not consenting.27 The Judge was entitled to reach that decision on the evidence before him.
[46] Third, Mr Lance submits that the Judge provided no analysis or reasoning as to how the messages received by MG would have affected his belief as to whether ZS was consenting. For example, Mr Lance submits that the Judge did not consider how, if ZS had said “no” on the first occasion of alleged rape, how the messages that followed indicating a desire to have sex and that she enjoyed having sex, impacted on MG’s reasonable belief in consent at the time.
[47] That submission does not bear scrutiny in my view. The Judge made a clear and unequivocal finding that ZS communicated a lack of consent on every occasion, and that MG understood that she was not consenting. Those findings obviate any reasonable grounds for consent. Whatever ZS may have said and done on previous occasions is irrelevant if she clearly communicated that she was not willing to engage in sexual activity on the occasion in question. There was no error in the Judge’s approach.
26 New Zealand Police v MG [2017] NZYC 417 at [13] and [19].
27 At [72].
[48] Fourth, Mr Lance says that the messages, and the ongoing nature of the relationship, mean that it is just not credible that ZS was being raped and sexually violated on each occasion. He says the Judge did not take this into account in assessing ZS’s reliability and credibility.
[49] The underlying premise of this submission is that it is not possible to have multiple rapes in the context of an ongoing relationship. Such a premise is flawed in my view. The dynamics of the relationship between ZS and MG had to be taken into account. ZS was young, and inexperienced. She said she was in love with MG and she enjoyed other aspects of being in a relationship with him. She said she was confused about why her sexual experiences did not appear to be the same as others. She also gave evidence about MG being manipulative. He would talk about getting with other girls when he was with her. Finally, she gave evidence about hoping he would not continue to force sexual activity on her. These were all plausible explanations given by ZS for continuing the relationship. This evidence was before the Judge and he expressly referred to the issue of ongoing contact in his reasons.28 He weighed the relevant factors and reached a conclusion which was open to him on the evidence. There was no error in that approach
Counterintuitive explanation
[50] Mr Lance submits that the Judge erred in referring to counterintuitive explanations for the delay in reporting the rape.
[51]The relevant passage from the judgment provides as follows:29
Issues of delay in complaining have been raised. The sometimes counterintuitive explanations for delayed complaint are well understood by the Courts and are reflected in s 127 Evidence Act 2006. Here plausible and cogent explanation for delay has been given. ZS thought that by complaining she could get the young man she loved in what she described as “major trouble”. Simply put, she wanted to protect him. She also had a high regard for his family and she loved his mother. In her evidential video interview she described MG’s mother as “an awesome person”. ZS went on to explain that she feared, even at the time of her evidential video interview, that MG would try to hurt her or her sister or that his friends would do the same or that she would get threatening messages from everyone at college. In my view, the
28 New Zealand Police v MG [2017] NZYC 417 at [63].
29 At [71].
delay in complaining does not adversely affect my assessment of ZS’s credibility.
[52] Mr Lance submits the explanation for the delay is not credible as none of the common counterintuitive reasons for delay in complaint (such as violence, or living under the same roof) were present. He submits that it is simply implausible to believe ZS’s explanation that she did not want to get MG into trouble when she did exactly that a year later. He also questions how someone can continue to “love” someone who has been continually raping them. Mr Lance submits that a more plausible explanation for the delay in complaint is jealousy, and/or psychological issues that stem from ZS’s role in a play about sexual abuse.
[53] To the extent that Mr Lance’s criticisms are directed at the absence of counterintuitive evidence called by the Crown, then they must be rejected. The purpose of adducing expert counterintuitive evidence is to correct erroneous beliefs that a jury might hold about the likely conduct of a victim of sexual abuse.30 This was not a case which required counterintuitive evidence to be called. The issue for the Judge was whether to accept the explanation offered by ZS as to the delay.
[54] The Judge did accept ZS’s explanation, and I consider that it was open to him to do so. ZS’s young age, her confusion about what she had experienced, her love for MG, her desire not to get him in trouble, and her attachment to his mother, are all plausible explanations for the delay in making a complaint. The Judge was entitled to reach the view that he did on the evidence and there is no error in that approach.
Other alleged errors
[55] Mr Lance says that the Judge erred by relying on extraneous matters in assessing ZS’s credibility. These extraneous matters were the fact that the physical acts took place and ZS’s “clear willingness to concede the good qualities that she saw in MG … without being pressed to do so”.31
30 DH (SC9/2014) v R [2015] NZSC 35, [2015] 1 NZLR 625 at [2] and [30](a).
31 New Zealand Police v MG [2017] NZYC 417 at [68].
[56] Further, Mr Lance submits that the Judge did not properly assess acts surrounding some of the incidents which, on their face, would appear inconsistent with allegations of continuous rape. He refers to the presence of the others in the house, the sexual position described during the office rape, and the “sneaking” down at midnight to the painting room, as being inconsistent with an allegation of rape.
[57] I do not consider the Judge erred in any of the ways contended for by Mr Lance. All of the circumstances surrounding the alleged rapes were before the Judge. He was entitled to take into account ZS’s concessions about MG’s good qualities in assessing her credibility. Further, he expressly referred to the sexual position described during the office rape in his analysis, observing that the fact that ZS may not have “physically resisted or put up some kind of physical fight on every occasion does not provide a complete answer”.32
[58] The Judge’s factual finding that ZS had said “no” or else made it plain that she was not consenting to the penetrative or oral sex, means that the enquiry into whether her conduct could be regarded as consent did not arise. The fact that others may have been present in the house, or there was an element of sneaking around, is not inconsistent with ZS consenting to kissing and touching, but not consenting to the penetrative or oral sex itself. In this case, the Judge weighed up all the relevant circumstances and found ZS’s evidence that she made it plain she was not consenting credible.
[59] Finally, Mr Lance submits that the Judge erred by finding that ZS’s demeanour in making the complaint showed consistency in her evidence. Mr Lance submits that this was in breach of s 35(1) of the Evidence Act 2006. That section provides that a previous statement of a witness is not admissible unless subsection (2) applies, which provides:
35 Previous consistent statements rule
…
(2)A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement—
32 New Zealand Police v MG [2017] NZYC 417 at [69].
(a)responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b)forms an integral part of the events before the court; or
(c)consists of the mere fact that a complaint has been made in a criminal case.
…
[60] I do not consider the Judge’s reference to ZS’s previous demeanour engaged s 35 in this case. That is because a “statement” is defined in the Evidence Act to include non-verbal conduct of a person if it is intended by that person as an assertion of any matter. There is no evidence that ZS’s demeanour was intended to be an assertion of any matter.
[61] To the extent this submission extends to the evidence of the complaint more generally, then I note that there was no objection to the evidence of the friend, or the drama teacher, or to ZS’s evidence about the complaint, taken at trial. If there had been, the evidence may well have been admitted pursuant to s 35(2)(a). That is because the defence was challenging the veracity of ZS’s evidence that the sexual acts were non-consensual on the grounds of invention.33 I do not consider the admission of this evidence gave rise to a real risk of a miscarriage of justice in the circumstances.
Summary
[62] In summary, I do not consider the Judge erred in his assessment of the evidence. The conclusions that he reached were open to him on the evidence before him. There is no risk that a miscarriage of justice occurred based on the Judge’s assessment of the evidence.
33 Hart v R [2010] NZSC 91, [2011] 1 NZLR followed in Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23 at [3].
Should BN’s evidence be admitted?
BN’s evidence and ZS’s response
[63] BN swore an affidavit for the purposes of the appeal, and ZS swore an affidavit in response. Both appeared and were cross-examined at the appeal hearing.
[64] BN said she and ZS had been good friends since they were approximately nine or 10 years old and became “best friends” when they attended the same high school. When ZS changed schools, they remained in contact and would regularly message each other and speak to each other on the phone.
[65] The key parts of BN’s evidence relate to what ZS told BN about her relationship with MG after it had commenced in early 2015. In brief, BN says:
(a)ZS had told her that she had lost her virginity whilst they were watching a Disney movie. They had tried to have sex before this occasion but it did not work out. On that occasion ZS had told MG that it hurt, so he stopped and they cuddled. After losing her virginity watching the Disney movie, ZS said that she loved having sex and was excited about losing her virginity. BN described ZS as boasting how she had won a bet about who was to lose their virginity first.
(b)ZS said they had sex when people were at home and in risky places such as her dad’s office. ZS said that she liked it because it was risky and that she couldn’t wait for BN to have sex and lose her virginity too.
(c)ZS gave MG oral sex and said that she was fine with “swallowing”.
(d)ZS looked forward to catching up with MG in the weekends and they would have sex whenever they could. ZS said that when she stayed at MG’s house, she slept in his bed which is where they had sex most of the time.
(e)After the ball, ZS said she went back to the house and had sex with MG. She gave the impression that she was very happy to be with MG and said that she loved having sex with him.
(f)When ZS and MG broke up, she said that she would miss the sex.
[66] BN’s evidence is that ZS did not say that she had said “no” prior to having sex and that MG would continue on regardless. ZS had never indicated that she felt pressured or forced into having sex during this time. The only negative comment ZS had made was that she said on an occasion when they were having sex that MG grabbed her hair and she did not like it.
[67] BN was cross-examined about whether she could have confused statements made by ZS to the effect that she loved MG, with statements about loving sex. BN remained firm, saying that while ZS did talk about loving MG and loving cuddling, she also mentioned loving sex.
[68] In the course of cross-examination, BN said that ZS had first told her about the rape allegations some time before the play commencing. During this conversation, BN said ZS told her that she had been raped on one occasion.
[69] In ZS’s evidence in response, she accepted many of the statements made by BN. For example, she accepted that there was a joke about losing their virginity, and that she told BN about losing her virginity whilst watching a Disney movie. She also accepted that she told BN about each sexual occasion the subject of the charges, but she denied bragging about it. She also denied saying that they would have sex whenever they could, although she admitted that she told BN that they slept and had sex in MG’s bed.
[70] In relation to the oral sex, she accepted that she told BN that she “swallowed” but denied saying that she was fine with it. She said that she did tell BN that she did not like it when MG grabbed her hair one time.
[71] ZS denied telling BN that they had tried to have sex but that it did not work out and denied that this ever happened. She says the first time she heard about this was during her cross-examination when MG’s lawyer brought it up. She also denied telling BN that she was excited about losing her virginity and that she loved having sex with MG. She says she tried not to make it seem like she was “super into having sex” because she was not. However, ZS accepted that she said that they were having sex, and that she loved MG.
[72] ZS also denied stating that she liked having sex in her dad’s office because it was risky. She did not recall saying that she could not wait for BN to lose her virginity but did not think she would have said that given that “the sex that I was having wasn’t something you would wish on anyone”. She said she did not recall saying that she would miss the sex when they broke up.
[73] In relation to the ball incident, ZS said that she lied to BN about the sex after the ball because she did not know how to tell her it was not sex, but rape.
[74] By way of explanation as to why she did not say anything to BN about the sexual activity being non-consensual, ZS said that she was scared that BN would tell her parents and thought BN would say something. She did not want BN to tell her parents or the police because she loved MG and did not want to ruin his life.
[75] ZS also said that she may have told BN about the rapes before the play but she did not think she told her that it was “rape”. She said that after the play was the first time she told someone she had been raped. She also recalled telling BN that MG had raped her in the office during one of their telephone conversations after the play.
Relevant legal principles
[76] The principles upon which new evidence will be admitted on appeal are set out in Lundy v R and R v Bain and were recently summarised in Ahmad v R.34 Those authorities establish that a “sequential series of tests” is to be applied before a court will admit fresh evidence on appeal. The first step is for the appellate court to assess
34 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at
[24]; Ahmad v R [2017] NZCA 320.
whether the new evidence is both credible and fresh. The approach was described by the Privy Council in Lundy v R as follows:
The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[77] If the evidence is admitted, then the court must then consider the effect of the new evidence. The question is whether its existence demonstrates that there has been a miscarriage of justice or a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the decision-maker who convicted the appellant. A real risk will exist if the new evidence, when considered alongside the evidence given at the trial, might reasonably have led to a verdict of not guilty.35
Is the evidence credible?
[78] There was no real contest around the credibility of BN’s account. ZS said she did not consider BN was lying, but had misunderstood a lot of what ZS said. That raises issues about the reliability of BN’s evidence, but does not raise issues about credibility. For the purposes of admitting the evidence, I consider it to be credible.
Is the evidence fresh?
[79] The Crown says that BN’s evidence is not fresh. Evidence is fresh if it could not have been obtained for the trial with reasonable diligence.36
[80] The fact that BN was ZS’s best friend, and was in a position to give evidence at the trial was known by MG prior to the first trial. After the charges were laid, but
35 R v Bain [2004] 1 NZLR 638 (CA) at [24] cited in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at 143.
36 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
before the hearing, MG bumped into BN at a shopping mall. She told him that she knew about the charges, and MG asked whether she would be willing to be a witness, to which she replied “maybe”. In that sense, the evidence was available, could have been obtained with reasonable diligence, and was not fresh.
[81] However, I accept that MG is unlikely to have known what BN would have said at trial, and may not have known about the content of the conversations between BN and ZS. MG did not tell his counsel about the encounter with BN or that she might have relevant evidence to give. He cannot be criticised for not doing so given his relative youth and inexperience in criminal matters. In that sense the evidence is fresh. But either way it is necessary to go on and consider whether the evidence is cogent.
Is the evidence cogent?
[82] The Crown submits that the evidence is not cogent because it is not probative of whether or not the rapes occurred. The Crown submits that it is in the same category as the Facebook messages in that what one teenager says to a friend, or writes in Facebook messages, may be completely at odds with what happened on any particular occasion.
[83] As a general proposition, I accept that it would be open to a Judge to find BN’s evidence was not probative of whether the sexual activity was consensual. It is entirely plausible for ZS to have told her friend one thing, but for the reality to be quite different. But that is a question of fact to be determined by a trial judge. It relies on the trial judge accepting ZS’s explanation for what she told BN, and, at least in respect of the rape after the ball, why she lied to her friend about the nature of the sexual activity. In that respect, I consider BN’s evidence is relevant to the assessment of ZS’s credibility and reliability. It calls into question ZS’s testimony that she said “no” on each and every occasion of sexual activity. To that extent at least the evidence is cogent and I consider it should be admitted.
Is there a risk of a miscarriage of justice?
[84] The final stage is to consider the effect of the new evidence and whether its existence demonstrates that there has been a miscarriage of justice or a real risk of miscarriage.
[85] Ascertaining the effect of the new evidence is not without difficulty in this case. The credibility and reliability of a witness’ account is the province of the trial judge who has the advantage of seeing and hearing all the witnesses give evidence at trial.
[86] Although I have seen and heard both BN and ZS give evidence, that was for the purpose of determining whether or not the evidence should be admitted. It was not for the purpose of assessing credibility and reliability more generally. In any respect, it is not the function of the appellate court to engage in a retrial of the evidence on appeal.
[87] As I have already noted, it is reasonably possible that the same reasoning which the trial judge adopted in relation to the Facebook messages would be applied by him to BN’s evidence, and the convictions would stand. However, it is also reasonably possible that the weight of both the Facebook messages and BN’s evidence combined, could have caused the Judge to reach a different conclusion – if not in relation to all of the charges, then perhaps in relation to some.
[88] BN’s evidence regarding ZS’s complaint prior to the play may have some significance in that respect. BN’s evidence is that ZS only mentioned being raped once, and not multiple times, in that conversation. That raises a reasonable possibility that ZS may have said “no” on some occasions, but not on others. To be sure of MG’s guilt on each and every charge, a trial judge would need to discount this as a reasonable possibility. Faced with that evidence, I cannot be sure that the Judge would have reached the same conclusion on each and every charge.
[89] It follows that I consider that BN’s evidence gives rise to a reasonable possibility that had the Judge heard BN’s evidence, he may have reached a different conclusion, if not on all charges then at least on some. In that sense, the new evidence
poses a real risk of a miscarriage of justice. In the circumstances, I consider the convictions should be quashed and a new trial ordered.
Result
[90]The application to adduce the evidence of BN on appeal is allowed.
[91] The appeal is allowed. The convictions are set aside and I direct that a new trial be held.
Edwards J
Solicitors: S J Lance, Auckland
Meredith Connell, Auckland
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