R v AR (CA302/05)
[2006] NZCA 393
•15 March 2006
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST
PERMITTED.
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA302/05
CA309/05
THE QUEEN
v
AR (CA302/05) MR (CA309/05)
Hearing: 16 February 2006
Court: O’Regan, Goddard and Chisholm JJ Counsel: H F Croft for AR
L M Sziranyi and S L Ineson for MR E M Thomas for Crown
Judgment: 15 March 2006
JUDGMENT OF THE COURT
A The appeals are dismissed.
R V AR (CA302/05) AND ANOR CA CA302/05 15 March 2006
BOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.
REASONS
(Given by Chisholm J)
[1] The appellants face allegations of sexual misconduct against the complainant who has been deaf since birth. She is now 39 years of age. AR, the complainant’s father, faces 12 charges of indecently assaulting her between 1972 and 2000. MR, her uncle, faces a charge of sexual violation and two indecency charges, it being alleged that this offending occurred between 1983 and 1986.
[2] Both appellants appeal against a District Court pre-trial ruling allowing the complainant’s evidence in chief to be given by way of videotaped interviews. They do not appeal against an associated ruling that any supplementary evidence in chief, cross-examination and re-examination of the complainant is to take place in Court with the complainant being screened from the accused. MR also appeals against the Judge’s refusal to grant severance.
Background
[3] The complainant did not learn sign language until she was in her early twenties. Before that she was unable to initiate conversations. Between 1998 and
2001 the complainant disclosed the alleged offending to Freda Pearce, a sign language interpreter and translator. Subsequently Ms Pearce helped the complainant to communicate with the police.
[4] On 30 October 2002 the police conducted two videotaped interviews with the complainant. The first interview concerned allegations against her father and the second allegations against her uncle. At each interview Wenda Walton, a sign
language interpreter and translator, translated the police officer’s questions and the complainant’s answers. At that time the complainant was 35 years of age.
[5] Immediately before the depositions hearing was due to commence the Crown applied for an order that the complainant’s videotaped interviews be accepted as her evidence. The hearing was adjourned to enable the Crown to instruct Professor Leathem, the clinical director of psychology at the department of neuro-psychology, Massey University. Professor Leathem provided a report and then gave evidence before Judge Behrens QC who decided that the depositions hearing should proceed on the basis that issues concerning the videotaped interviews would be determined pre-trial. The depositions hearing took place on 1 September 2004.
[6] A further hearing was convened before Judge Davidson on 20 June 2005 for the purpose of determining the mode by which the complainant’s evidence was to be given at trial. The Crown sought to have the videotaped interviews admitted on the basis that the complainant was “mentally handicapped” in terms of s 23C(b)(ii) of the Evidence Act 1908. Reports produced by Professor Leathem and by Jo Scott, an occupational therapist, were before the Court. Professor Leathem also gave evidence and was cross-examined. However, during the hearing it became apparent that the sign language developed by the complainant was of a “hybrid” rather than a mainstream nature and that potentially there was a significant problem in relation to the complainant’s ability to communicate by sign language with an independently appointed Court sign interpreter.
[7] Faced with this development Judge Davidson decided that he was obliged to adjourn the matter to enable the Crown to apply pursuant to s 344A of the Crimes Act 1961 for orders concerning the competence of the complainant to give evidence through an independently appointed sign interpreter and the admissibility of her videotaped interviews. Several issues were flagged by the Judge: whether there had been compliance with Regulation 5 of the Evidence (Videotaping of Child Complainants) Regulations 1990; whether in view of the complainant’s alleged hybrid sign language, the videotapes were accurate and reliable; and whether the roles of Ms Pearce and Ms Walton had compromised the admissibility of the videotaped interviews.
[8] When the hearing resumed on 21 July 2005 three sign language interpreters gave expert evidence to the effect that a deaf relay interpreter would potentially enhance the reliability of the complainant’s understanding of questions put to her and the ability to translate those responses. A deaf relay interpreter is a deaf person who has particular skills in communicating with other deaf persons and greater familiarity with the idiosyncrasies of deaf persons’ language. One of the interpreters, Shannon Notts, explained:
… hearing people … don’t experience the world in the same way that deaf people do so a deaf relay interpreter is somebody who … can communicate with a deaf person who has a similar life experience to them and would express themselves visually more appropriately or more successfully than a hearing person can who’s never experienced what it is to be deaf and to experience the world as a deaf person.
The interpreters noted that the complainant had been unable to answer some questions, had given what appeared to be inappropriate responses to others, and had difficulty in comprehending abstract concepts.
District Court ruling
[9] For the purposes of these appeals it is only necessary to refer to three sections of the ruling: admissibility of the videotaped interviews; whether they should be used at trial on the basis that the complainant was “mentally handicapped” in terms of s 23C; and whether there should be severance.
[10] The Judge rejected the appellants’ contention that Regulation 5(1)(c) had been breached. In reaching that conclusion he noted that the Regulation, as interpreted in R v Tohi CA244/98 5 August 1998, required the interviewer to take three steps: satisfy herself that the complainant knew the difference between truth and lies; that the complainant understood the importance of telling the truth; and obtain from the complainant a promise to tell the truth. Having analysed the videotapes the Judge was satisfied about these matters and could see no reason for substituting his own view for the view of the interviewer. The Judge also decided that although the failure to conduct the interview with a deaf relay interpreter was regrettable, it did not render the interview inadmissible. He ruled that both videotaped interviews were admissible.
[11] In relation to the question whether the complainant was “mentally handicapped” within the meaning of s 23C(b)(ii) of the Evidence Act, the Judge approached the matter on the basis that it was necessary for him to adopt a “common sense and pragmatic approach”. He reasoned that:
[46] The combined effect of Professor Leathem’s deposition and pre-trial evidence, including her letter of 16 June and Ms Scott’s occupational therapy assessment must be that the complainant has a below average IQ. Her verbal intelligence skills are significantly subnormal; her performance task skills are somewhat better. Professor Leathem was of the view that she met the criteria for intellectual disability under s 7 Intellectual Disability Compulsory Care and Rehabilitation Act 2002. Although, of course, a separate piece of legislation it is hard to ignore the practical reality that if the complainant suffers from intellectual disability under that Act, then in all likelihood she should be regarded as being mentally handicapped for the purposes of s 23C Evidence Act.
His Honour concluded that the evidence was “all one way” and that no significant evidentiary challenge had been raised. He found that the complainant was mentally handicapped for the purposes of s 23C and directed that her evidence in chief be given by way of the videotaped interviews.
[12] On the severance issue the Judge considered that there were a “plethora” of special features warranting a joint trial, namely:
(a) Difficulty and stress for the complainant, who is deaf and intellectually impaired, in giving evidence on more than one occasion.
(b)The intermingling of charges faced by each accused covering, in part, the same time period and occurring, once again in part, at a similar location at the family home in Petone.
(c) The Crown also point to a similar course of disclosure and complaint through Freda Pearce to the police.
(d) Significant number of common witnesses.
While the Judge acknowledged that there would be prejudice, he considered that this could be cured by “forceful” directions to the jury.
Grounds of appeal
[13] Three grounds of appeal are advanced by both appellants in relation to the admission of the videotaped interviews:
(a) The Judge erred in finding the complainant “mentally handicapped”
in terms of s 23C(b)(ii);
(b)His conclusion that Regulation 5 had been complied with was also wrong; and
(c) Given that deaf relay interpreters had not been used for the videotaped interviews the admission of those interviews would be unfair to the appellants..
Ms Croft and Ms Sziranyi developed each of these grounds of appeal.
[14] With reference to the first ground of appeal counsel emphasised that the complainant is able to live in her own home with one of her daughters, care adequately for herself, attend social functions, use public transport, do her own shopping and pursue her interest in handcraft. They claimed that this ability to live a reasonably independent life indicates that the complainant is not the kind of person at which s 23C(b)(ii) is aimed. They also raised whether the complainant’s limited verbal skills might be masking her true mental capacity.
[15] In relation to Regulation 5(1)(c) counsel submitted that the interviewer had failed to satisfy herself that the complainant knew or understood the necessity to tell the truth, had failed to determine that the complainant understood the necessity or importance of telling the truth, and had not obtained from her a promise to tell the truth. They argued that to the extent that there was any promise to tell the truth, it was meaningless because the first two steps had not been satisfactorily covered.
[16] The third ground of appeal was based on the expert evidence that the use of a deaf relay interpreter would enhance the accuracy and reliability of the
complainant’s evidence. Counsel argued that under those circumstances a deaf relay interpreter should be used for the whole of the complainant’s evidence and that it would be unfair to the appellants for the videotaped interviews to be used.
[17] Finally, in relation to severance Ms Sziranyi submitted that that the Judge had wrongly exercised his discretion. She claimed that the prejudice to MR if there was a joint trial would be so significant that it could not be cured by directions to the jury, no matter how forceful. Ms Sziranyi noted in particular: MR was only facing offending relating to a three year timeframe whereas his co-accused was facing a timeframe of almost 30 years; there was no common enterprise or common incident; stress for the complainant needed to be balanced against other factors; strong sympathy for the complainant is likely to be bolstered by the appearance of a father and uncle jointly charged in the same trial; and the accused has a right to a fair trial under the New Zealand Bill of Rights Act 1990.
Section 23C of the Evidence Act
[18] Sections 23C to 23I of the Evidence Act were introduced in 1989 for the purpose of making special provision for the evidence of complainants in cases involving offences of a sexual nature where the complainant has not reached the age of 17 years. In 1993 s 23C was amended by the addition of subparagraph (b)(ii) which extends those provisions to cases where the complainant has reached the age of 17 years and “is mentally disabled”. That expression is not defined.
[19] Despite the arguments on behalf of the appellants we have formed the clear view that the Judge’s finding that the complainant is “mentally disabled” in terms of s 23C(b)(ii) was open to him on the evidence. Professor Leathem’s evidence reflected tests that she had administered which she believed would not be invalidated by the complainant’s hearing and speech difficulties, such tests having been used in the past for deaf and hearing impaired people. The professor also had the benefit of a report from Jo Scott.
[20] On a test of adult intelligence the complainant’s verbal IQ was in the range
49-58 and her performance IQ in the range 77-85. This produced a “full scale” IQ in
the range of 58-67 (the average being 100 and the standard deviation 10). After allowing for age correction the Professor concluded that the complainant was “functioning at an extremely low level … on all verbal measures despite appearing to understand the question/s being asked”. Her scores on performance tasks were closer to the lower end of the average range. Professor Leathem considered that independent of hearing difficulties the complainant had a “very low” verbal ability.
[21] By the time Professor Leathem prepared her final reports and gave evidence before Judge Davidson the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 had come into force. Section 7 of that Act provides an extended definition of “intellectual disability” and Professor Leathem derived assistance from that definition. While we acknowledge that the definition of “intellectual disability” could not be determinative, we agree with the Judge that it is capable of offering useful guidance in determining whether a person is “mentally disabled” for the purposes of s 23C(b)(ii).
[22] The appellants claim that the complainant is outside the scope of s 23C because she is capable of living a reasonably independent life. In our view that proposition is contrary to the evidence. When undertaking her analysis Professor Leathem expressly noted that the complainant was able to undertake household tasks, keep track of outgoings and do handcrafts. The professor also noted that the complainant was able to undertake those tasks confidently and apparently competently. And under cross-examination she accepted that in some respects the complainant was able to live an independent life. But she did not at any stage resile from her conclusion that the complainant was intellectually disabled. On our reading of the evidence the complainant falls squarely within both the scope and purpose of s 23C(b)(ii).
[23] Finally, we do not consider that there is any merit in the suggestion that the complainant’s limited verbal skills might be masking her true mental capacity. As the Judge said, the evidence about whether the complainant is mentally handicapped for the purposes of s 23C is all one way, no significant evidentiary challenge having been raised. There is no evidence to support the contention that Professor Leathem may have failed to accurately assess the complainant’s true mental capacity.
Regulation 5 of the Evidence (Videotaping of Child Complainants) Regulations
[24] These regulations apply to cases described in s 23C of the Evidence Act where the complainant’s evidence is to be admitted in the form of a videotape. Regulation 5 relevantly provides:
Matters to be recorded
5(1) The videotape shall show the following matters:
…
(c) The interviewer-
(i) Determining that the complainant understands the necessity to tell the truth; and
(ii) Obtaining from the complainant a promise to tell the truth, where the interviewer is satisfied that the complainant is capable of giving, and willing to give, a promise to that effect:
…
(2) No particular form of words shall be necessary for the purposes of subclause (1)(c)(ii) of this regulation (either by the interviewer or the complainant) so long as the overall effect is a promise by the complainant to tell the truth.
…
As the Judge noted, this Regulation was considered in R v Tohi. It was also considered by this Court in R v Stevens CA213/97 16 July 1997.
[25] In R v Tohi the Court accepted at 2 that it is for the interviewer to determine that the complainant understands the necessity to tell the truth and it is the process rather than the determination which must be apparent from the videotape itself. The Court also described at 3 the three stage process that is involved:
(a) The interviewer must first satisfy herself that the complainant knew the difference between truth and lies; and
(b)The interviewer must determine that the complainant understands the necessity (or importance) to tell the truth; and
(c) The interviewer obtains from the complainant a promise to tell the truth. A pre-requisite of this requirement is that the interviewer is
satisfied that the complainant is capable of giving and willing to give a promise to that effect.
At 6 it was observed that the trial Court should only substitute its own view if the interviewer could not, on any reasonable basis, have been satisfied in terms of the Regulations. And it was also noted that on appeal this Court will only interfere on a matter of this nature where the ruling has been shown to be plainly wrong.
[26] It has not been demonstrated to us that Judge Davidson’s ruling was plainly wrong. When he was considering whether there had been compliance with Regulation 5 the Judge clearly adopted the approach indicated by R v Tohi. Having viewed the videotapes he accepted that the complainant had difficulty with conceptual matters but decided that notwithstanding that problem she was able to respond readily on concrete issues. In the end result he was satisfied that the interviewer had undertaken the requisite determining process and that there was no basis upon which he would be entitled to substitute his own view. This ground of appeal has not been made out.
Failure to use deaf relay interpreters
[27] We do not accept that the failure to use deaf relay interpreters for the videotaped interviews obliged the Judge to exclude the tapes. He specifically turned his mind to this issue and concluded that while the failure to conduct the interview with a deaf relay interpreter was regrettable, it did not render them inadmissible.
[28] The evidence indicates that deaf relay interpreters were probably not available in New Zealand at the time the interviews were conducted. It also indicates that the complainant was able to express herself clearly through conventional sign language and there is no suggestion that the sign language interpreter was in any way inaccurate in her interpretation. Moreover, to the extent that either accused might believe that the complainant has misunderstood any matter, those matters can be explored during cross-examination with the benefit of a deaf relay interpreter. This ground also fails.
Severance
[29] As Ms Sziranyi acknowledged, MR’s appeal against the Judge’s refusal to grant severance constitutes an appeal against the exercise of a discretion. Section
340(3) of the Crimes Act 1961 confers a wide discretion to grant severance “If the
Court thinks it conducive to the ends of justice”.
[30] In this case it was necessary for the Judge to weigh competing considerations. We accept that the five features that persuaded the Judge that there should be a joint trial were all legitimate considerations. Moreover, the Judge was entitled to adopt the view that any prejudice to the accused could be overcome by directions to the jury. We have not been persuaded that the Judge has erred in the exercise of his discretion. This ground of appeal also fails.
Outcome
[31] The appeals are dismissed.
Solicitors:
Helen Croft, Wellington for AR
Thomas Dewar Sziranyi Letts, Lower Hutt for MR Crown Law Office, Wellington
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