R v B (SC88/2010)

[2010] NZSC 160

For a Court ready (fee required) version please follow this link

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT]) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE SUPREME COURT OF NEW ZEALAND

SC 88/2010 [2010] NZSC 160

THE QUEEN

v

B (SC88/2010)

Hearing:         7 December 2010

Court:            Elias CJ, Blanchard, Tipping, McGrath and William Young JJ Counsel:        M D Downs and T Epati for Crown

A J Bailey and S G Bailey for Respondent

Judgment:      17 December 2010

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe ruling of Judge Farish as to the complaint evidence is reinstated.

REASONS

(Given by William Young J)

R v B (SC88/2010) SC 88/2010 [17 December 2010]

[1]      B faces six counts of committing an indecent act on K, a child under 12.  At the time of the alleged offending he was in a relationship with K’s mother.   The alleged offending came to light because of reports made to the Police by two people after they saw what they considered to be inappropriate conduct by B towards K in a park.   They did not know either B or K but took a note of the car which B was driving.  This led to the Police tracing K and, in mid-March 2009, she participated in an evidential video interview at which she made particular allegations against B.  By this time the relationship between B and the complainant’s mother had finished.

[2]      B was spoken to by the Police in mid-May 2009.   During the resulting interview, B acknowledged that there had been some cuddling and dancing between him and K.  He also acknowledged some physical interaction with K in the park in the course of the incident which resulted in the report to the Police already referred to. He denied, however, that there had been any indecency.   And by way of explanation  for  K’s  allegations  (which  went  distinctly  beyond  what  might  be involved in innocent but misunderstood cuddling), he claimed that if the allegations had been true she should have said something to her mother or somebody else.  He also  suggested,  at  least  by  implication,  that  the  allegations  made  by  K  were associated with the breakdown in the relationship between him and her mother.

[3]      On the evidence available to the Crown, K had, in fact, told two of her friends about the offending before the breakdown in the relationship between her mother and B.  The Crown accordingly wishes to lead evidence of what K told her friends ("the complaint evidence”).

[4]      At issue in the case are s 35(1) and (2) of the Evidence Act 2006 which provide:

35       Previous consistent statements rule

(1)       A  previous  statement  of  a  witness  that  is  consistent  with  the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2)       A  previous  statement  of  a  witness  that  is  consistent  with  the witness’s evidence is admissible to the extent that the statement is necessary  to  respond  to  a  challenge  to  the  witness’s  veracity  or

accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

[5]      The admissibility of the complainant’s evidence was the subject of a ruling made by Judge Farish in the District Court.1   In that ruling she stated that counsel for B had proposed editing out the relevant portions of B’s interview.   She recorded, however, that counsel (not Mr Bailey) had conceded that the defence at trial will be that K manufactured a false complaint when she was evidentially interviewed.  She held that on the facts of B’s interview alone there was a challenge to K’s veracity

based on recent invention and she concluded:

[25]       I have come very firmly to the view that here there is a challenge to the veracity of the complainant and it is based on recent fabrication.  I do not accept [counsel’s] contention that I should simply edit out the accused’s statement.  On the face of it, even if that statement was not in, I cannot see how it can be suggested to the complainant that this is a made up allegation without it being recent, given the particular facts of the case. ...

[6]      B appealed against this ruling to the Court of Appeal.2

[7]      By the time the Court of Appeal released its judgment, the decisions of this Court in Rongonui v R3 and Hart v R4 had been released.  The primary significance of the evidence as to K’s complaints to her friends is that they pre-dated the breakdown in the relationship between B and her mother.  The evidence as to these complaints thus undermines very directly the cogency of the contention that the allegations were a product of the relationship breakdown. This is very much the way in which Judge Farish had dealt with the issue.  But the judgments in Rongonui and Hart established that the s 35(2) “recent invention” exception to s 35(1) goes beyond

the circumstances in which previous consistent statements were admissible at common law to rebut an allegation of recent fabrication.  In particular:

(a)      a claim of “recent invention” can extend to a contention that false

evidence  has   been   given  even  where  a  particular  motive  for fabrication is not proposed;  and

1      R v B DC Christchurch CRI 2009-009-7224, 10 May 2010 and 21 June 2010.

2      B(CA313/2010) v R [2010] NZCA 326.

3      Rongonui v R [2010] NZSC 92, (2010) 24 CRNZ 946.

4      Hart v R [2010] NZSC 91, (2010) 24 CRNZ 924.

(b)a previous consistent statement may (depending on the circumstances) be  a  legitimate  response  to  such  a  claim  even  if  the  previous consistent  statement  did not  necessarily precede the point  in  time when any proposed motive might have arisen.

[8]      The Court of Appeal allowed B’s appeal.  It concluded that a “challenge to a witness’s veracity or accuracy” made by a suspect in the course of the Police investigation and before a charge is laid does not trigger s 35(2).  This conclusion rested primarily on a literal interpretation of the word “witness” by reference to the definition of that word in s 4 of the Evidence Act:

witness   means   a   person   who   gives   evidence   and   is   able   to   be cross-examined in a proceeding.

The Court reasoned that because K was not a “witness” in that sense either when B was  interviewed  or  at  the  time  of  the  ruling  of  Judge  Farish,  there  was  not  a challenge to her veracity qua witness and thus s 35(2) was not engaged.  The Court also considered that important rights under the New Zealand Bill of Rights Act 1990 would not be promoted if a statement to the Police by a suspect might trigger s 35(2) and thus render admissible what would otherwise be inadmissible evidence of previous consistent statements.

[9]      For the reasons which follow, we are of the view that the Crown appeal from this judgment should be allowed.

[10]     A  ruling  given  under  s 344A  of  the  Crimes  Act  1961  is  necessarily provisional in the sense that it can be revisited at trial.5   The ruling given by Judge Farish was on the basis and assumption that K would give evidence and that the statement made to the Police by B would also be in evidence.  If, for some reason (and it is difficult for the moment to foresee one) those assumptions are not realised, then the ruling plainly would have to be revisited.  Once this point is recognised, the timing issue which was so critical in the Court of Appeal largely falls away.  It does

not matter that K is not presently a witness in the s 4 sense because she will be a

witness when the ruling comes to be applied.  And it likewise does not matter that

5      R v Watson [1999] 3 NZLR 257 (CA) at [7].

the relevant challenge to her veracity has so far only been advanced at interview provided that challenge will be before the jury.

[11]     As noted, in the District Court counsel for B suggested that the Crown should simply edit out of the Police statement B’s recent invention assertions.   Similar proposals were made in the Court of Appeal and to us.   We have reservations whether a suspect/defendant who has asserted invention can seek to revise history by withdrawing the assertion.  This is particularly so where, as here, the defendant at trial   will   almost   inevitably   be   asserting,   at   least   by   implication,   that   the complainant’s evidence is a recent invention in the more general sense explained in Hart and Rongonui.   We are, however, satisfied that irrespective of those considerations, it would be misleading for the statement to be edited in the manner proposed.

[12]     Based on the dynamics of the case as a whole, we think that the defence at trial will indeed proceed at least in part on the basis that K has made up the details of her allegations.  To that extent, the defence will include a claim of recent invention, to which the complaint evidence will be a relevant and necessary response.  But in argument Mr Bailey suggested that the defence may include the contention that innocent contact and cuddling has been misinterpreted and misreported by K (and possibly by the people who observed what is said to have happened in the park).  We accept that this may be so and we also recognise that to the extent that the defence is based on misinterpretation it will probably not engage s 35(2).

[13]     Leaving aside for the moment the problem (for B) that we think it almost inevitable that the defence at trial will at least in part involve a claim of recent invention, the editing of the statement as proposed would be wrong.   The misinterpretation line of defence will likely require B to identify some innocent activity on his part which goes beyond what he referred to at interview and could plausibly have been misinterpreted by K.   In evaluating this defence and any associated explanations, it will be material for the jury to know that when first confronted with K’s allegations, B’s response was not that particular actions (other than those in the park) had been misinterpreted but rather that she was making the allegations up.  This might be taken by the jury as indicating that when interviewed

he could not remember particular actions on his part which were susceptible to misinterpretation.

[14]     The result of all of this is that it is highly likely, to the point of being practically certain, that at trial the jury will have before it K’s evidence and, as well, the statement made by B to the Police in which he asserted recent invention associated with the break-up of his relationship with K’s mother.  There will thus be, in evidence, a challenge to K’s veracity on the basis “of recent invention” on her part and s 35(2) will thus apply.

[15]     Does it matter that in the ordinary course of events, the evidence of what B said at interview will come after K’s evidence?  Does this mean that the complaint evidence cannot be given in evidence-in-chief but only in re-examination (providing that K is cross-examined in such a way as to engage s 35(2)) or later in the trial after the jury hears evidence of what B told the police?

[16]     A broadly similar issue was addressed in Rongonui. There Elias CJ observed:

[4]     ... I do not repeat the views I expressed in Hart, which I apply here. Two considerations are of particular importance to the conclusions I reach on application of s 35 in the present appeal. First, the policy of s 35(1) in excluding superfluous repetition of evidence does not apply to speech which is relevant to prove directly a fact in issue (here, non-consensual sexual assault). Secondly, as indicated in Hart, I consider that a defence challenge to a complainant’s evidence, particularly on the question of consent, will generally amount to a claim of recent invention and therefore come within the exception provided by s 35(2). In some cases, the challenge to veracity on the grounds of recent invention may not emerge until the complainant is cross-examined. In the present case, however, the challenge to be made to the complainant’s veracity was acknowledged through pre-trial confirmation that the defence was consent before the judge ruled on the admissibility of the evidence. The evidence as led went no further than was necessary to answer the claim of recent invention. On the view I take, it is not necessary to consider the application of the proviso to s 385(1) of the Crimes Act 1961, the basis on which the other members of the Court would dismiss the appeal on this ground.

The same point was discussed in the reasons of the other members of the Court in this way:

[43]   A procedural consequence is that whereas recent complaint evidence was historically given by the complainant in evidence-in-chief, now, under the recent invention limb of s 35(2), the admissibility of responding evidence

will normally depend, as at common law, on the nature of the defence and the cross-examination of the complainant. If permitted, the responding evidence will be given in re-examination. Most defences in sexual cases involve the proposition either that the alleged offending did not occur at all or  that  the  conduct  involved  was  consensual.  The  very  nature  of  such defences must, at least implicitly, involve a challenge to the complainant’s veracity, on the basis of invention; that is a contrivance later in time than the events in issue.  Thus in most cases of this kind it is likely that the evidence which the complainant would have been able to give in evidence-in-chief, as recent  complaint  evidence  at  common  law,  will  now  be  admissible,  in re-examination, as a previous consistent statement under s 35(2).

[44]    There may be cases in which the required challenge to the complainant’s veracity or accuracy has become apparent in a sufficiently clear way before trial or during counsel’s opening addresses to enable the Judge to rule that the complainant may give responding evidence as part of her evidence-in-chief. Indeed this process may be fairer to the accused because,  if  the  complainant’s  evidence  is  given  in  re-examination,  the accused would require permission under s 97 to be able to cross-examine on it. While permission would likely be granted, the cross-examination could be followed by further re-examination; altogether a rather untidy process and one which may operate to the disadvantage of the accused by effectively splitting cross-examination. The practical implications of bringing “recent complaint” evidence within the law relating to previous consistent statement evidence do not appear to have been given much attention in the formulation of the change.  (footnotes omitted)

[17]     We  are  satisfied  that  the  circumstances  of  this  case  are  well  within  the category of cases contemplated in [44] of Rongonui so that it will be legitimate for K to give evidence of what she told her friends when she gives her evidence-in-chief.

[18]     We note that whether it is necessary for the Crown to call K’s friends to give evidence will depend on the stance taken by the defence at trial.  It may be that their evidence can be dispensed with if there are appropriate concessions at trial from B.

Solicitors:

Crown Law Office, Wellington