Pasikala v The Queen

[2005] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND

CA438/04

THE QUEEN

v

AFELE PAEA PASIKALA

Hearing:21 February 2005

Court:O’Regan, Robertson and Panckhurst JJ

Counsel:M J Knowles for Appellant

B J Horsley for Crown

Judgment:25 February 2005 

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by Robertson J)

Introduction   

[1]       This is an appeal against conviction on three charges of sexual violation and one of abduction following a trial in the District Court at Christchurch in October 2004.  The sole ground of appeal is the pre-trial decision not to grant leave for cross-examination of the complainant pursuant to the provisions of s 23A of the Evidence Act 1908. 

[2]       There was a preliminary hearing before Judge Doherty on 23 September 2004. In a reserved ruling of 1 October 2004, he held that there could be no cross-examination in respect of the alleged sexual activities of the complainant with four identified men. The appeal relates only to the ruling as it refers to what was described as an incident with a “short, fat Samoan”.

[3]       Section 23A(2) and (3) provides:

(2)        In any case of a sexual nature, no evidence shall be given, and no question shall be put to a witness, relating directly or indirectly to-

(a)the sexual experience of the complainant with any person other than the accused; or

(b)     the reputation of the complainant in sexual matters, -

except by leave of the Judge.

(3)      The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to-

(a)facts in issue in the proceeding; or

(b)the issue of the appropriate sentence,-

as the case may require, that to exclude it would be contrary to the interests of justice.

[4]       The appeal is advanced on the basis that cross-examination about this prior incident with this Samoan man would have had direct relevance to three issues at trial –

·        consent

·        credibility, and

·a specific issue as to whether a particular scene was visible from the roadside which was said to be relevant in a conflict between the appellant and the complainant as to what occurred.

Factual framework

[5]       The appellant and complainant were members of the Tongan community in Christchurch. They knew each other because of a previous relationship between the complainant and the appellant’s son.

[6]       The complainant said that, on 27 October 2003, when she was 13 years of age, the appellant stopped at a bus stop where she was waiting near a suburban shopping centre.  He led her to believe that buses were not running and offered her a ride to the bus exchange.  When she got into the car, the doors and windows were locked using the central locking system and she was driven off in a different direction to a relatively secluded location.

[7]       The complainant’s evidence was that, at the roadside area, the appellant forcibly removed her trousers and digitally penetrated her vagina. They were disturbed by a passer-by so he drove to a more secluded place. She said she was told to get out of the car and was both anally penetrated and raped.  She said that, in the course of all this, the appellant picked up a stick and held it at her in a threatening manner.  She said that he had ejaculated while violating her. Afterwards the appellant told her she had to keep her mouth shut about what had happened. He drove her back to the suburban area from where he had picked her up. She immediately made a complaint.

[8]       When interviewed by the police four days later, Mr Pasikala denied that he had ever been to the reserve with the complainant, and said that at the time he was home alone and asleep. 

[9]       At trial (by which time there was DNA analysis of staining on the complainant’s underclothing which almost certainly emanated from the appellant) Mr Pasikala gave evidence agreeing that he had gone with her to the secluded place. He said this was after she had propositioned him at the shopping centre on that day for sex as she had done on other occasions in previous weeks.  His evidence was that he masturbated himself in the car at the reserve in the complainant’s presence, and that she climbed on top of him in the car which would explain why there were specimens containing his DNA on her clothing.  Mr Pasikala agreed that he later dropped her back in the suburb from where she had been picked up.

[10]     The District Court Judge noted that, as the case was to be conducted, the issue was whether the complainant consented to sexual activity or whether Mr Pasikala had reasonable grounds to believe that she had consented.

The basis for s 23A leave

[11]     The s 344A application in respect of the “short, fat Samoan” was advanced in regard to a filenote of a mental health nurse from the Pacific Trust who, after a telephone conversation with the complainant on 13 September, had recorded:

“X told me she had been approached by a Samoan guy she did not know.  X said he asked her to go for a ride.  X told him she had to get home but he continued to coerce her.  X said this happened near the Halswell shopping centre.  X said she got into the car and the man drove to a ‘forest’.  He parked in front of the park. He asked X to go for a walk in the forest.  They walked for about 2 minutes and were near a pool.  He began to take X’s top off.  X said no and he grabbed her hand and  took her home.  X said he asked for her phone number.  He drove a four wheel drive 4WB truck and had short hair, same height as X.  X described him as ‘fat’.  He tried to pick X up again on Monday morning, by Hoon Hay Park.  She has seen this man at another friend’s home.

[12]     The argument before the District Court Judge, and in this Court, was that there were such similarities between these two scenarios that, in the interests of justice, there should be an opportunity to cross examine the complainant about the “short fat Samoan man” and her reported encounter with him.

[13]     Particular emphasis was placed on the decision of this Court in R v Accused [1993] 1 NZLR 553 (CA) where the Court noted the similarity of allegation on another occasion to that in issue in the case and referred to the general statement of the principle in R v Duncan [1992] 1 NZLR 528 at 535:

Section 23A, as is well known, was enacted to severely limit previous practice under which complainants in rape cases were freely cross-examined as to their real or imagined sexual relationships with other persons, in something which essentially was a character-blackening exercise often with little direct relevance. The section is phrased in very wide terms indeed.  It is wide enough to catch questions such as occurred in this case before objection was made, but was not primarily aimed at such a special category.  It can be very relevant, particularly in child abuse cases, to explore the possibility of fabrication to gain attention or through malice, or transferred attribution from actual offender to present accused. Habitual or false previous complaints can be an indicator.  There can be occasions when questioning along these lines far from being a character-blackening exercise of little relevance, is well justified in the overall interests of justice.  In such situations, Courts will not be unduly reticent over granting leave for examinations which are beyond mere fishing expeditions.  If letters of the character asserted existed, such might well have been the case here.

[14]     The Crown directed us to the subsequent decision of this Court in R v Willing [1997] 15 CRNZ 340 where it was said:

Section 23A therefore provides a “strong test” which must be met before leave can be granted to adduce evidence or ask questions relating to the sexual experience relating to the sexual experience or reputation of a complainant.  The Judge must be satisfied that the evidence or questions are of “such direct relevance” to “facts in issue in the proceeding” that “to exclude it would be contrary to the interests of justice”.  The proviso then stipulates that evidence and question shall not be regarded as being of direct relevance by reason only of an inference it may raise as to the general disposition or propensity of the complainant in sexual matters”.  Judges are, of course, obliged to give effect to the section with the fidelity which its terms demand.

The appellant’s case

[15]     Mr Knowles, in both his written and oral material, carefully assessed the particular circumstances of this case which are of course the touchstone against whether s 23A must operate.  He identified consent and credibility as two separate bases for cross-examination, although they were but different aspects of the same issue.

[16]     He contended that the defence case for trial was not merely that the complainant had consented to the sexual activity, but she had been the instigator of it. Any suggestion of her being taken away against her will and then used sexually without her consent was “extremely remote if not preposterous”.

Discussion

[17]     Counsel submitted that it was a necessary inference that the place which the complainant was reported as having spoken to the health nurse about involving  the ‘short, fat Samoan’ must have been the same place she went with the appellant. The two incidents were within a six week timeframe of each other.

[18]     On thorough analysis, we are not persuaded that the defence theory that either the complainant was habitually propositioning men, or had a proclivity for older men, has substance.  On the latter, there is no evidence about the age of the unidentified Samoan.

[19]     As to the suggestion that there was a commonality of the complainant alleging being taken away against her will does not stand up to analysis.  In the report involving the Samoan, it was recorded that she had said she was coerced into the car of a stranger, whereas in the present case the evidence was that she had willingly got into the car of a man she knew (he being the father of her former boyfriend). Any aspect of holding against her will only arose when the appellant set off in the opposite direction from that anticipated and he activated the central locking system so she could not exit the car.  Those are two quite different situations.

[20]     As importantly, the incident she reported to the health nurse involved, having arrived at the destination, she persuaded the Samoan to desist from the sexual activity he wanted and she did not.  Her evidence involving the appellant was his forcing sexual activity against her will.

[21]     If the case had been advanced on the basis that the incident with the appellant had never occurred at all, there might have been an argument for saying that her having reported another incident about an unwanted sexual encounter six weeks earlier, could have been of probative value and it may have been necessary to permit cross-examination about it in the interests of justice.

[22]     But that was not this present case as it developed after the receipt of the DNA evidence.

[23]     We accept the Crown’s argument that, however this is looked at, it was in effect an endeavour to “serve to blacken the complainant’s character which is exactly the impermissible line of reasoning”.

The stand alone evidential point

[24]     The third discrete issue raised was based on the fact that the police officer in charge of the case had indicated that the pool area at the scene (which it was contended was the place the complainant spoke of with regard to the Samoan man and was where she had undoubtedly been with the appellant) was not visible from the roadside where the appellant’s car was parked.  The defence wanted to establish that the complainant knew of the locale because she had previously been there with the Samoan man.  Hence her knowledge of the place was not necessarily inconsistent with the appellant’s version (that the two remained in his car).

[25]     But there was never any impediment to the complainant being asked if, on a previous occasion, she had been to the place where she alleged she went with Mr Pasikala.  As Mr Knowles realistically accepted, it was a collateral issue, so he would have been bound by the answer he received. However, for counsel to seek to negative the fact of her knowledge of the location there was no need for the Samoan man to be mentioned at all.  It could not have been a basis for leave being granted under s 23A.

Conclusion

[26]     We are satisfied that the decision of the Judge was correct.  The high threshold for leave was not reached.

[27]     The appeal against conviction is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington