R v Barlien

[2008] NZCA 180

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NOTE:  PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA505/2007 [2008] NZCA 180

THE QUEEN

v

EIVIN BARLIEN

Hearing:         26 May 2008

Court:            Glazebrook, Chisholm and Cooper JJ Counsel:           L C Rowe for Appellant

M D Downs for Crown

Judgment:      24 June 2008         at 10.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

R V BARLIEN CA CA505/2007  24 June 2008

Table of Contents

Para No

Introduction  [1] Background  [5] The trial  [18] The legislation  [21] History of s 35 of the Evidence Act  [28] Common law position  [32] The parties’ contentions  [40] Was evidence given of inadmissible previous consistent statements?   [46] What is the consequence of any inadmissibility?  [57] Result  [63] Postscript  [64]

Introduction

[1]      Mr Barlien was convicted, following a jury trial before Judge Clapham in the Wanganui District Court, of five counts of sexual offending against three young girls.  Two are sisters (R and S).  The third complainant, O, was not related to R and S but she had met them.  The offending against O took place at different times from that against R and S.

[2]      The appeal focuses upon s 35 of the Evidence Act 2006 and, in particular, whether the Judge was correct to admit evidence of R and S’s previous consistent statements.  Mr Barlien’s position is that the evidence should not have been led and that therefore his convictions in relation to R and S should be set aside.

[3]      There is no such issue arising in relation to the remaining complainant, O, but the Crown did rely on propensity evidence, citing the strong similarities between the alleged offending against O and against the sisters, R and S.  Mr Barlien’s position is that  his  conviction  for  the  offending  against  O  is  tainted  by  the  inadmissible evidence led in relation to R and S.

[4]      We propose to deal with the appeal under the following headings:

(a)       Background

(b)      The trial

(c)       The legislation

(d)      History of s 35 of the Evidence Act

(e)       Common law position

(f)       The parties’ contentions

(g)      Was evidence given of inadmissible previous consistent statements? (h)       What is the consequence of any inadmissibility?

(i)       Result

(j)       Postscript

Background

[5]      The alleged offending against R and S took place on two separate occasions. The first was on 9 and 10 January 2006 when R stayed at Mr Barlien’s mother’s house.  R’s sister, S, also stayed on 10 January 2006.   The allegation was that, at some stage on that day and in the guise of massaging her leg, Mr Barlien touched R’s vagina while she was playing a computer game.  It was unclear whether S was present or playing outside at the time.  S gave evidence of a similar event happening to her.  She said Mr Barlien put his hand under her underpants while she and R were in Mr Barlien’s bed playing a computer game.

[6]      On 13 January 2006, Mr Barlien babysat both girls.   R gave evidence that, while giving her a goodnight kiss, Mr Barlien put his tongue in her mouth.  She told him to “piss off” and immediately called a close family friend, Mr P.  Mr P testified that R was hysterical on the phone and asked him to come straight away.  He did so, accompanied by R and S’s father, Mr S.

[7]      When  they  arrived,  Mr Barlien  was  in  the  driveway.     Mr P  said  that Mr Barlien appeared nervous when they got there and was pacing up and down the drive.   After being introduced to Mr Barlien by Mr S, Mr P went inside.   Mr S remained outside talking to Mr Barlien.   Mr S said that Mr Barlien seemed “a bit uptight”, that he seemed to be shaking and that he talked in a nervous manner with a stutter he did not normally have.

[8]      When Mr P went inside, R told him what Mr Barlien had allegedly done to her that night and to her and S three days earlier.  It seems that S herself did not say what had earlier happened to her but Mr P said that he was not listening as much to S because R was talking to him and he was “getting it from both sides”.  The girls were described by Mr P as being “in hysterics”, “crying and shaking”, “terrified” and “extremely distraught”.

[9]      R and S’s mother, Mrs S, was at work.  It appears that Mr Barlien had called her about the same time as R called Mr P and told her that R had had a bad dream that had “got out of hand”.  Mrs S immediately went home.  At that stage both girls were hysterical and she “couldn’t make any sense of what was going on”.  R was looking at her with “piercing eyes of pure hatred” and she could not calm her down.

[10]     Mr P asked Mrs S to “Go and get the f… c… out of there before I hurt or kill him”.    She  went  outside  and  told  Mr Barlien  to  “F…  off”.    She  also  asked Mr Barlien what he had done to her girls.  She told him what the girls had told Mr P and herself – ie that Mr Barlien had touched them and kissed R.  She believed that Mr Barlien’s response was that it was a bad dream that had got out of control.  She also said that Mr Barlien said “[d]o you think I would still be here if I’d done anything wrong”.

[11]     Mr S also gave evidence as to Mrs S’s confrontation with Mr Barlien.   He said that Mrs S “hit him [Mr Barlien] up about touching [R]”.   Mr Barlien had replied that he would not be standing there if he had.  Mr S then, at Mr P’s request, moved Mr P’s car so that Mr Barlien could leave.

[12]     After Mr Barlien left, Mr S talked to R and told her that she could ruin a man’s life if she was not telling the truth.  R’s continued response was “I’m not lying Dad I’m not lying”.  Mrs S also talked to the girls.  R told her mother, Mrs S, that night that Mr Barlien had “touched her fanny and kissed her like a grown up”.  Mrs S then went back to work.

[13]     The following morning (14 January 2006), Mrs S, over R’s objections (as she did not want to get Mr Barlien into trouble), called the police.  The police came to the house and at that stage S recounted what had happened to her (that Mr Barlien had touched her vagina in the morning and at night time when she had her pyjamas on).   A formal complaint was laid in relation to both sisters.   R and S were interviewed evidentially on 20 January 2006.   Those evidential interviews were played as their evidence-in-chief.

[14]     Mr Barlien was interviewed on 30 June 2006 about R and S’s allegations. With regard to the 13 January 2006 allegations, he said that S had got upset and wanted her mother.  R had asked him to ring Mrs S and so he had done so.  He said that before then he had leaned on R’s legs to tickle S for a “bit of a giggle” and then given them goodnight kisses.  The following exchange took place:

Q.     What sort of kiss did [R] get?

A.      Oh they were just a couple of little smoochy ones around the face, and I admit she got one smack on the lips which lasted all of a second.  I jerked out of it, and …

Q.      Did you put your tongue in her mouth, did you try and put your tongue in her mouth?

A.     Not that … not that I remember that part of it, no.   No.   That I wouldn’t have tried.   Like I said there was a quick … it lasted a second or two and that was it.  Then probably … might have been five minutes afterwards, they … I went out of the room, and went and sat out on the front porch, had a smoke, and … um … you know, came back into the room again, had the TV going.  And … um … the next thing I heard [R] saying, I want my mummy.

Q.     Did she give you any explanation as to why she wanted her mum?

A.No.  I just stuck my head back in … I pushed the door open and stuck my head in and said what’s wrong, she just said, I want my mummy, I want my mummy.  Where’s my mum.  So I did.  But I’m guessing it

was … that she felt that it was too much of a kiss.   But  it  was definitely accidental if anything happened over that.

[15]     With  regard  to  the  earlier  allegations,  Mr Barlien  admitted  giving  R  a massage on the top of her leg half way up from the knee because she said her leg was sore.  He denied touching R on her vagina.  He also denied touching S on her vagina but said that he may possibly have touched her arms and legs in a playfight.   He admitted being confronted by Mrs S in the  driveway  on  13  January 2006.    He confirmed that he had denied the offending but said that he did not say anything about dreams.

[16]     Turning to the complainant, O, she described two forms of representative offending: touching her vagina under her underpants (so that it felt “sore”) while she was playing a computer game and the licking of her vagina.  The alleged offending occurred while she was staying with Mr Barlien and his mother between 11 June

2003 and 31 December 2004.  Mr Barlien denied both forms of offending in relation to O, although he admitted occasionally sharing a bed with her at his mother’s house.

[17]     While O had met R and S, her evidence was that she had not told them what

Mr Barlien had allegedly done to her.

The trial

[18]     Mr Barlien’s trial started on 6 August 2007, five days after the Evidence Act came into force.  Halfway through O’s evidence, the Crown applied to lead evidence of R and S’s complaints on the evening of 13 January 2006 and the morning of

14 January 2006.   Judge Clapham held that the evidence of the complaints was admissible.

[19]     In summing up, the Judge gave the old standard direction on recent complaint evidence:  that prior statements are not proof of the contents of the complaint but may show consistency.   Judge Clapham also pointed out that, merely because a person has consistently told ten people that “Joe Blow hit me”, does not necessarily mean that it occurred.

[20]     If the evidence was in fact admissible in terms of the exceptions to s 35, the Judge was being overly conservative in directing that the statements were not proof of their contents.   Although some commentators have expressed doubt about this point, we agree with the view, expressed in Mahoney and others The Evidence Act

2006: Act and Analysis (2007) at [EV35.04(1)], that, if the statements are admissible under s 35, they are admissible to prove the truth of their contents.

The legislation

[21]     The issue is whether the Judge was correct to admit evidence of what R and S said on 13 and 14 January 2006 about the offending against them.   As indicated above, whether this is so turns on s 35 of the Evidence Act.

[22]     Section  35(1)  of  the  Evidence  Act  renders  inadmissible  all  previous statements of a witness that are consistent with the witness’ testimony.  Section 4 of the Act describes a previous statement as “a statement made by a witness at any time other than at the hearing at which the witness is giving evidence”.  The exceptions to the rule in s 35(1) are contained in s 35(2) and (3).  In full, s 35 provides:

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.

(3)     A previous statement of a witness that is consistent with the witness’s evidence is admissible if–

(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b)the statement provides the court with information that the witness is unable to recall.

[23]     The effect of s 35(2) as enacted is that a previous consistent statement of a witness will only be admissible if there is a challenge to the witness’ veracity or

accuracy.  That challenge must be based on either a previous inconsistent statement of the witness or a claim of recent invention on the part of the witness.  Proof of the previous consistent statement is then allowed to the extent necessary to respond to the challenge.

[24]     Some further legislative context is required.  Section 6 sets out the purpose of the Act which is to help secure the just determination of proceedings by, among other things, providing for facts to be established by the application of logical rules and promoting fairness to parties and witnesses.   Section 7(1) of the Act provides that all relevant evidence is admissible in a proceeding except if it is inadmissible or excluded under the Evidence Act or any other Act.  Under s 7(3) evidence is relevant if it “has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”.   Under s 8, there is a general power to exclude evidence if it would have an unfairly prejudicial effect on the proceeding or needlessly prolong it.

[25]     Section  10  provides  that  the  Act  must  be  interpreted  in  a  manner  that promotes its purpose and principles.  It may also be interpreted having regard to the common law but only to the extent that the common law is consistent with the Act, its purpose and principles and s 12.  Sections 10 and 12 provide as follows:

10   Interpretation of Act

(1)   This Act—

(a)must  be  interpreted  in  a  way  that  promotes  its  purpose  and principles; and

(b)is not subject to any rule that statutes in derogation of the common law should be strictly construed; but

(c)may be interpreted having regard to the common law, but only to the extent that the common law is consistent with—

(i)    its provisions; and

(ii)  the promotion of its purpose and its principles; and

(iii) the application of the rule in section 12.

(2) Subsection (1) does not affect the application of the Interpretation Act

1999 to this Act.

12   Evidential matters not provided for

If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence—

(a)must be made having regard to the purpose and the principles set out in sections 6, 7, and 8; and

(b)to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

[26]     Section 12A is relevant when assessing the reach of ss 10 and 12.  This was added because there was debate as to whether s 27(1) of the Act had mistakenly abolished the so-called co-conspirators’ rule.  Section 12A provides as follows:

12A   Rules of common law relating to statements of co-conspirators, persons involved in joint criminal enterprises, and certain co-defendants preserved

Nothing in this Act affects the rules of the common law relating to—

(a)     the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises; or

(b)     the admissibility of a defendant's statement against a co-defendant in circumstances where the defendant's statement is accepted by the co- defendant.

[27]     Section 27 relates to the admissibility of defendants’ statements.   The Law Commission noted that a significant reform in the area was that what became s 27 applies to all statements made by defendants and not just admissions and confessions

–  see  New  Zealand  Law  Commission  Evidence  (NZLC R55(1) 1999) at [94]. Section 27 provides as follows:

27   Defendants' statements offered by prosecution

(1)   Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.

(2)   However, evidence offered under subsection (1) is not admissible against that defendant if it is excluded under section 28, 29 or 30.

(3)   Subpart  1  (hearsay  evidence),  subpart  2  (opinion  evidence  and expert evidence), and section 35 (previous consistent statement rule) do not apply to evidence offered under subsection (1).

(4)   To avoid doubt, this section is subject to section 12A.

History of s 35 of the Evidence Act

[28]     Section 35 as enacted took a different form from that recommended by the Law Commission.   Under the Law Commission’s code, the first exception to the prohibition against previous consistent statements (now contained in s 35(2) of the Act) made previous consistent statements of a witness admissible “to the extent necessary to meet a challenge to that witness’ truthfulness or accuracy”.

[29]     It  was  intended  that  this  provision  replace  the  law  on  recent  complaint evidence in sexual cases.  Under the common law, recent complaint evidence was admissible as a matter of course but only if it was “recent”.  It was not admissible as truth of its content.  Under the Law Commission’s code, recent complaint evidence was to be treated in exactly the same way as any previous consistent statement.  It was to be admissible to the extent that was necessary to meet a challenge to the complainant’s truthfulness or accuracy.  The complaint, however, did not have to be “recent” and could be used to prove the truth of the contents of the statement – see Law Commission report R55(1) at [143] – [144] and New Zealand Law Commission Evidence (NZLC R55(2) 1999) at [C168].

[30]     The Law Commission’s rationale behind what became s 35 was to prevent the  parties  from  inundating  the  courts  with  voluminous  amounts  of  repetitive material in order to shore up a witness’ consistency.   It said that, if the witness’ testimony is silent on a matter that is the subject of a previous statement or if the witness’ testimony is different from the content of a previous statement, s 35 will not exclude that evidence.  The Commission noted that consistent does not mean simply the lack of inconsistency.  There must be something in the witness’ testimony with which the previous statement is consistent – see Law Commission report R55(2) at [C167].

[31]     Section 35 was narrowed to the current wording at Select Committee stage. The Select Committee considered that the proposed exception was “unworkable and too broad”.   It recommended limiting the admissibility of previous consistent statements to the extent necessary to respond to challenges to a witness’ accuracy or

veracity based on a previous inconsistent statement or to claims of recent invention on the part of the witness.  The Select Committee noted that the narrowing would ensure a workable rule and limit the circumstances in which previous consistent statements could be used to those available under the current law – see Evidence Bill, no. 256-2, Commentary, p5.

Common law position

[32]     The  Select  Committee’s  assertion  that  the  reworded  s  35  mirrored  the common law is not correct.  At common law, there were three exceptions to the rule relating to previous consistent statements: (a) complaints in sexual cases (recent complaint),  (b)  statements  rebutting  an   allegation  of  recent  fabrication  and (c) statements forming part of the res gestae.

[33] There was a statutory exception to the rule relating to previous inconsistent statements under the Evidence Act 1908. Under s 22A, a witness’ previous description of the defendant was admissible to show consistency. The Law Commission did not carry this exception through into its draft code as, under its version of what is now s 35, the description would only be admissible if the witness’ veracity or accuracy was challenged – see Law Commission report R55(1) at [145].

[34]     There was also the “exception” now embodied in s 35(3).  See Doe v Perkins (1790) 3 T R 749; 100 ER 838; R v Naidanovici [1962] NZLR 334 (CA), and R v Bennet CA457/03 23 September 2004 at [37] – [51].  We put the word exception in inverted commas because the pre-requisite for admission is that the witness is unable to recall the information in the statement.   The previous statement will therefore not strictly be consistent with the testimony of the witness.

[35] The Select Committee’s version of s 35 covered the common law exception set out at [32](b) above. It left out those at [32](a) and (c) altogether. It did, however, add the ability to introduce a previous consistent statement where the challenge to the witness’ veracity or reliability was on the basis of a prior inconsistent statement. The Select Committee’s version did not cover prior descriptions of the defendant, dealt with previously under s 22A of the old Act.

[36]     It appears that the Select Committee’s refusal to retain the common law exception in relation to recent complaint evidence might have been deliberate.   A submission by the Law Society that the law relating to recent complaint in sexual offences be codified was not adopted – see Mahoney at [EV35.04].   There was, however, no explanation in the report as to why the Society’s suggestion had not been adopted.   In the United Kingdom, the rules on recent complaint in sexual offences have been codified in the Criminal Justice Act 2003 – see Tapper Cross and Tapper on Evidence (11ed 2007) at 616.

[37]     Equally, there was no explanation as to why the res gestae exception was not included.  This also has been preserved under the Criminal Justice Act (UK) – see Cross and Tapper at 607.   We are not aware of any submissions made on that subject.  It appears likely that it was just overlooked.  This is perhaps not surprising as it was often considered an exception to the hearsay rule rather than to the rule excluding previous consistent statements.  See R v M (CA17/97) CA17/97 17 March

1997 and Cross and Tapper at 606.

[38]     Res gestae is a  Latin phrase that has no  exact English translation.   The expression is used in the common law to refer to the events at issue or others contemporaneous with them but its exact compass was somewhat unclear – see Malek (Ed) Phipson on Evidence (16ed 2005) at [31-01].  One aspect of the rule was to allow the admission of “excited utterances”.   The rule was that a relevant spontaneous statement made during the drama of an event is admissible in evidence to prove the matter stated.  This was based on the theory that statements made under the immediate and uncontrolled emotions during or directly after an event may be taken as particularly trustworthy because they are made before there has been an opportunity to devise or contrive anything to the speaker’s advantage – Phipson at [31-04] - [31-05].

[39]     Another  aspect  of  the  res  gestae  rule  was  to  allow  the  admissibility  of statements accompanying a relevant act that were so tied up with the act that it could not be evaluated as evidence unless it was considered in conjunction with the statement.  See Cross and Tapper at 608 - 609.  The third aspect of the rule was a statement relating to a witness’ contemporaneous physical sensations or mental state.

See Cross  and  Tapper  at  609 – 615,  Heydon  Cross  on  Evidence  (7ed  2004)  at [37085] and [37130] and see Heydon at Chapter 19 for a general discussion of res gestae.

The parties’ contentions

[40]     Mr Rowe, for Mr Barlien, accepts that it was appropriate for evidence to be given  that  Mr P  and  Mr and  Mrs S  had  been  called  home,  that  the  girls  were hysterical, that they wanted Mr Barlien to leave the premises and that he was asked to do so and did.  He also accepts that possibly even the bare fact that R and S made a complaint might be admissible but says that s 35 prevented the content of those complaints being given in evidence.   The statements were previous consistent statements and none of the exceptions in s 35 applied.

[41]     Mr Rowe points out that the Crown invited the jury to regard the “recent complaint” evidence as assisting in assessing R and S’s credibility, based on the consistency between their complaints and the evidence they had given.  The Judge dealt with this in traditional terms in his summing up.   R and S’s credibility thus risked being wrongly supported by inadmissible evidence.  It follows, in Mr Rowe’s submission, that the convictions with regard to R and S cannot stand.

[42]     In addition, Mr Rowe submits that, while the “recent complaint” evidence that was led in respect of R and S had no direct connection with the evidence of O, it indirectly impacted on the jury’s assessment of O’s credibility.  The jury were told that the evidence of R and S could be regarded as supporting the evidence of O and hence her credibility.  It is not known what reliance the jury placed on the credibility of R and S (bolstered as it was by the inadmissible “recent complaint” evidence) when  assessing  the  evidence  of  O.    In  Mr Rowe’s  submission,  the  wrongful admission of the “recent complaint” evidence may, however, have influenced the verdicts in respect of O and deprived Mr Barlien of a chance of an acquittal.

[43]     Mr  Downs,  for  the  Crown,  acknowledges  that  evidence  of  R  and  S’s statements to Mr P and their mother on 13 January 2006 can in one sense be seen as prior consistent statements in terms of s 35.   In his submission, however, they are

better  regarded  as  independently admissible,  either in  terms  of  being  legitimate contextual material or as evidence of victim conduct.  As such, they would have been admissible at common law and should continue to be admissible under the Evidence Act.     To  hold  clearly  relevant  evidence  inadmissible,  risks,  in  Mr Downs’ submission running counter to the fundamental principle of the Evidence Act, that all relevant evidence is admissible – see s 7 of the Act.

[44]     Mr  Downs  submits  that  what  was  said  by  R  and  S  on  the  evening  of

13 January 2006 was inextricably linked with their then more immediate purpose of getting rid of Mr Barlien from the house so as to feel safe.  It is submitted that this conduct was plainly relevant and  cogent to the jury’s determination of  whether Mr Barlien had done what the girls said he had.  Further, Mr Downs submits that the narrative of the events of the evening of 13 January 2006 would not have made sense without the jury learning what it was the girls were actually complaining of at that time.  It would not have explained why the adults were so insistent that Mr Barlien had  to  leave  immediately.    It  would  not  have  explained  what  he  was  being confronted about.  Nor would it have explained what R was said by Mr Barlien to be dreaming of.  Also it would not have explained why both girls were so upset and acting as they were.

[45]     Mr Downs argues in his written submissions that, even if the evidence was wrongly adduced, the evidence was sufficiently limited that the Court could safely conclude that the appellant has not suffered a miscarriage of justice.  He also submits that the conviction in relation to O is not sufficiently related to the inadmissible evidence to mean that there is a risk of a miscarriage of justice in relation to the offending against O.

Was evidence given of inadmissible previous consistent statements?

[46]     We agree with Mr Downs that the evidence of what R and S said on 13 and

14 January 2006 was clearly relevant to the case.  It was necessary to explain why the girls were distressed, why they wanted Mr Barlien off the premises and, indeed, why Mr P asked Mrs S to get rid of Mr Barlien in such strong terms.  The evidence was also relevant to the jury’s assessment of R and S’s credibility, particularly given

the proximity to the alleged kiss and the circumstances in which the complaint about sexual misconduct was made, including the girls’ distress.

[47]     The fact that the same account has been given immediately after the event and at trial does not of course rule out the possibility that it was a consistently inaccurate account or a consistent lie.  However, it must nevertheless be relevant to (if not conclusive of) the assessment of veracity and reliability that the same account was given just after the event and consistently since, in the same way as it is relevant to (but not conclusive of) veracity and reliability that nothing was said at the time or that an inconsistent account was given.  We take an example unrelated to this case. If a witness to a robbery gives evidence at trial that the getaway car was red, it must be just as relevant to an assessment of that witness’ veracity and reliability that he or she said at an earlier time that the car was red as if he or she had said that it was blue.

[48]     If the statement was given immediately after the robbery, this is likely to be particularly cogent.  Memories can change as a function of time; they can fade or change due to intervening experiences, rehearsal of the event and exposure to other information about the event – see New Zealand Law Commission Evidence: Total Recall? The Reliability of Witness Testimony (NZLC MP13, 1999) at [13] – [14]. Therefore in general memories are more reliable nearer the event.  The importance of memory  being  fresh  is  recognised  in  the  Act  itself  at  s  90(5)  in  limiting  the documents that may be used in the witness box to refresh a witness’ memory.

[49]     We  therefore  accept  Mr Downs’  submission  that  the  exclusion  of  this evidence  would  run  counter  to  the  fundamental  s  7  principle  that  all  relevant evidence is admissible.  It might also be thought to run counter to the s 6(c) purpose of promoting fairness to parties and witnesses.  It cannot be fair to exclude evidence that is so clearly relevant to the assessment of R and S’s credibility and which would serve to explain both their distress and their wish to see Mr Barlien leave.

[50]     We also accept Mr Downs’ submission that the evidence of what was said on the evening of 13 January 2006 would have been admissible at common law as contextual  evidence  to  explain  the  actions  of  both  the  girls  and  the  adults.  In addition, it would have been admissible under the “excited utterance” exception to

the hearsay rule – see above at [38]. The evidence of what was said on the morning of 14 January 2006 would have been admissible as recent complaint evidence.

[51]     In light of the above factors, Mr Downs urges us to hold that the evidence is admissible under the Evidence Act.  The difficulty his submission runs into is the wording of s 35.  Section 35 is clear.  A previous consistent statement is inadmissible unless  the  exceptions  in  s  35(2)  or  (3)  apply  (and  they  do  not  in  this  case). Mr Downs submits that the words uttered by R and S are so inextricably linked to conduct that they must be regarded as conduct.   We do not consider Mr Downs’ submission sustainable.  It does not seem possible to characterise what is clearly a statement as conduct in light of the definition of “statement” in s 4.

[52]     Mr Downs relies on the decision of this Court in R v Turner [2007] NZCA

427 for his submission that statements can be construed as conduct. In that case, the complainant went to visit the appellant who was staying in Napier. Her evidence was that the appellant forced her to have sex with him. Following this, the complainant left the property and drove straight to a friend’s home in Wellington with a brief stop at a petrol station on the way. The evidence was that she had told her friend what had happened (but gave no details) and that the incident was reported to the police the next day. This Court held that, since no evidence of words had been adduced, the fact that the complainant had told her friend about the incident was evidence of conduct and not recent complaint evidence. Leave to appeal was refused by the Supreme Court – [2008] NZSC 11.

[53]     We accept  Mr Rowe’s  submission  that  the  evidence  in  Turner  was  of  a fundamentally different character.   In this case the actual words used by R and S were led in evidence.  In Turner, it was the fact of a complaint, rather than the actual words, which was led and the issue was whether an adequate direction had been given.  That no details of what was said were given in Turner made it much easier to characterise the complaint as conduct, although, given the context, the content of the complaint was evident by implication.  Turner was decided before the new Evidence Act came into force and we leave open the question of whether it would be decided the same way now.  It might be that evidence as to the fact of a complaint is covered

by s 35, where it is clear from the context what that complaint must have consisted of and this is consistent with a witness’ evidence.

[54]     It is true that our interpretation of s 35 creates what can be seen as an illogical distinction between conduct and words (contrary to s 6(a) of the Act).  It is, however, a distinction that the wording of ss 4 and 35 inexorably leads to.  We accept that, under s 10, the Act must be interpreted in a manner that promotes its purpose and principles but this cannot override explicit exclusionary wording in the Act itself.  It is also true that our interpretation leads to the exclusion of relevant evidence.  The fundamental principle in s 7, that all relevant evidence is admissible, is, however, subject to an exception for evidence that is inadmissible under the Act.

[55]     Neither is it of assistance that the evidence would have been admissible at common law.  Under s 10, the Act may be construed having regard to the common law  but  this  is  only  to  the  extent  that  the  common  law  is  consistent  with  its provisions.  Again this runs into the difficulty that the wording of s 35 is clear.  No previous consistent statement is admissible except in two limited circumstances. That  s  10  should  not  be given  an  expansive  interpretation  in  the  face  of  clear wording in the Act is backed up by the fact that it was considered necessary, in the face of the clear wording in s 27(1), to amend the Act by the introduction of s 12A in order to preserve the common law co-conspirators rule.

[56]     In summary, we are compelled by the clear wording of s 35 of the Act to conclude that the evidence of what R and S said on 13 and 14 January 2006 was inadmissible (at least in that form – see below at [60] - [62]).

What is the consequence of any inadmissibility?

[57]     Mr Rowe submits that evidence of complaints in sexual matters admitted despite the s 35 prohibition and where the exceptions in s 35(2) and (3) do not apply, should lead to an appeal being allowed.

[58]     In the past, a finding that recent complaint evidence has been wrongly led usually led to convictions being overturned because anything that wrongly bolsters a

complainant’s credibility (where the complainant’s credibility is important) must risk this having affected the jury’s decision.   We consider it likely that the outcome should be the same under the new Evidence Act but we leave the point open as it is not necessary to decide it in this case, because of the issue discussed below at [60] - [62].

[59] Had the appeal in relation to the convictions for the offending against R and S been allowed, we accept Mr Rowe’s submission that the decision in relation to O would likely also have been tainted for the reasons Mr Rowe gives – see above at [42].

[60] In this case, however, the essential allegations made by R (above at [6] - [12]) on 13 January 2006 would have been before the jury in any event. This is because Mrs S confronted Mr Barlien in the driveway on 13 January 2006 just after the allegations had been made and put the allegations to him – see above at [10]. Mr Barlien’s statements in reaction to the allegations put to him by Mrs S were clearly admissible – see s 27(1) of the Act (set out above at [27]). His reaction is so tied up with the allegations (being effectively an answer to those allegations) that what Mrs S put to Mr Barlien must be seen as part of Mr Barlien’s statements and therefore admissible, in the same way that the allegations put to an accused in a police interview (as required by the Chief Justice’s Practice Note [2007] 3 NZLR

297 at [4]) would be admissible.  Section 27(3) provides that the rule in s 35 relating to previous consistent statements does not apply to defendants’ statements offered by the prosecution.  This exclusion must encompass the allegations put.

[61]     What this means is that the substance of the statements made both on 13 and

14 January 2006 by R and S would have been before the jury, albeit in a different form.  It is true that the Judge gave a standard recent complaint direction allowing the jury to take into account the consistency between what the girls said on 13 and

14 January  2006  and  their  evidence  at  trial.    However,  as  Mr Rowe  concedes, evidence of their conduct on the night of 13 January 2006 would have been admissible and the Crown would have been entitled to rely on the consistency of that conduct with the girls’ evidence.  Once the substance of the allegations made by the girls  was  legitimately  before  the  jury  (as  part  of  Mr Barlien’s  reaction  to  the

allegations as put to him by Mrs S) then the reason for the girls’ conduct would have been clear.  No sensible direction could have been given to the jury to divorce the two.

[62]     As the evidence would have been before the jury anyway, we consider that the proviso to s 385(1) of the Crimes Act 1961 can be applied.  We are bolstered in that view by the fact that the case against Mr Barlien was strong, given his reaction on the night of the allegations, what can be seen as partial admissions in his police interviews  and  the  separate  allegations  of  O  (which  showed  some  striking similarities to the offending against R and S).

Result

[63]     The appeal is dismissed.

Postscript

[64]     This case has highlighted some issues with s 35 of the Evidence Act and the changes to the Law Commission draft code made at Select Committee stage.  The changes were made because the Select Committee considered the original Law Commission section “unworkable and too broad”.

[65]     Some  might  even  argue  that  the  Law  Commission  draft  code  was  too restrictive in that it perpetuated what some might see as an illogical distinction between conduct and statements.   This is particularly the case where words are inextricably intertwined with conduct – see Cross and Tapper at 608.  In addition, it excluded potentially relevant evidence.  This was on the basis that parties should not, without good reason, inundate the court with voluminous repetitive material. However, s 8(1)(b) already gives judges control over this.

[66]     Further, the Law Commission draft code required a challenge to be made to veracity or accuracy before previous consistent statements became admissible.   A jury is still, however, able to reject evidence that has not been challenged given that they are the fact finders – see R v Munro [2008] 2 NZLR 87 at [25] (CA) and R v E

[2007] NZCA 404 at [134]. Limiting admissibility to evidence that has been challenged could deprive a jury of potentially relevant material upon which to base their decision. Further, limiting admissibility to cases where there has been a challenge to the evidence means that it can usually only be admitted after such a challenge. This might interrupt the orderly conduct of trials and could inconvenience witnesses who might have to remain on standby, uncertain if they would be called (or recalled). It may also mean that, where words were inextricably tied in with conduct, a disconnection between the evidence as to conduct and the words that accompanied them might arise. There is also the difficulty in assessing admissibility if a witness is yet to testify – see Mahoney at [EV35.03].

[67]     All of these problems remain, however, with s 35 as enacted and further problems have been introduced.   We identify a number below but there may be others.

[68] While the Select Committee said that it was restricting admissibility to those situations where previous consistent statements would have been admissible under current law this is not the case – see above at [35]. The disinterested observer might well think it odd when evidence that would have been admissible under the more restrictive common law rules is no longer admissible under the more expansive Evidence Act provisions.

[69]     There appears to have been a mistake in not including, in the exceptions to s 35(1), the res gestae exception – see above at [37] - [39]. In addition, the rules relating to recent complaints were not retained – see above at [36]. Such evidence has previously been regarded as being of probative value. While the omission of provision for recent complaint evidence may well have been deliberate (although unexplained), it does deprive juries of relevant information - see our comments at [47] - [49] above. It also deprives them of evidence which they appear to find helpful – see Dr S Blackwell Child Sexual Abuse on Trial (Thesis submitted for Doctor of Philosophy in Psychology, University of Auckland, 2007) at 216. There is also a possible difficulty with the admission of previous descriptions of the accused, in that s 22A of the Evidence Act 1908 was not brought forward into the new Act – see above at [33].

[70]   In addition, even more than under the Law Commission version, the admissibility or otherwise of relevant evidence in the form of previous consistent statements depends on how the accused decides to run his or her case.  The Right Honourable Ted Thomas has recently commented that in his view this is unfair to victims of sexual offending – see “The Evidence Act 2006 and women” [2008] NZLJ 169 at 170.  We note that, even if defence counsel does not raise the issue of recent invention, this does not prevent the jury from surmising as to why the complaint  is  delayed  and  perhaps  considering  the  prospect  of  recent  invention. Dr Blackwell’s  thesis  suggests  that  juries’  decision-making  usually  involves  the “story construction” model whereby personal knowledge or experience about similar events is used, along with evidence at trial, to create a complete story of events – see Dr Blackwell’s thesis at 56 - 57.

[71]     Section 35(2) also creates a dilemma for defence counsel.  The Law Society seminar on the Evidence Act, pointed out that s 35 makes cross-examination based on  previous  inconsistent  statement  or  recent  invention  a  difficult  and  delicate exercise – see Hon Justice William  Young and  Hon  Justice  Chambers  (Chairs) Evidence Act 2006 (NZLS Intensive June 2007) at 117.   Inroads made on certain aspects   of   the   evidence   may   be   countered   and   indeed   marginalised   by re-examination on this and on the production of a prior consistent statement. Moreover, evidence given after a challenge may assume more importance than if elicited in the normal course of the evidence.   Failure to cross-examine on those aspects could, however, be equally fatal to the defence.

[72]     Finally, there are issues with the interface of ss 35 and 45 in relation to identification evidence generally.   In Mahoney, at [EV45.02], it is noted that the better view is that s 35 will apply even where the requirements of s 45 are met.  The authors state that a witness will only be able to support the identification of the defendant by way of a previous consistent assertion identifying the defendant where there is a challenge to the witness’ accuracy or veracity (for example on the basis of poor eyesight).  However, this comment must have been based on the old version of s 35  because  the  prior  consistent  identification  would  only be  admissible  under s 35(2) if the challenge was on the basis of a prior inconsistent statement or recent fabrication (and poor eyesight would not come within those exceptions).

[73]     The Registry should refer this judgment to the Ministry of Justice and the

Law Commission, drawing their attention in particular to this postscript.

Solicitors:

Armstrong Barton, Wanganui for Appellant

Crown Law Office, Wellington