R v Brown

[2007] NZCA 585

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

CA145/07 [2007] NZCA 585

THE QUEEN

v

ROBERT JOHN BROWN

Hearing:         19 November 2007

Court:            Glazebrook, Williams and MacKenzie JJ Counsel:     N Levy for Appellant

D J Boldt for Crown

Judgment:      17 December 2007         at 4pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Williams J)

R V BROWN CA CA145/07  17 December 2007

Table of Contents

Para No

Background  [1] Similar fact/severance  [3] W’s evidence inadmissible as prior consistent statement?          [23] Comment by prosecutor  [39] Recent complaint direction  [47] Conflict of evidence direction  [52] Other matters  [57] Result  [60]

Background

[1]      Following trial in the Napier District Court the appellant, Mr Brown, was convicted on four counts of indecent assault on W (three counts) and M (one count), one count of inducing W to masturbate him, four counts of unlawful sexual connection with W occasioned by connection between the appellant’s mouth and W’s penis and one count of unlawful sexual connection with T arising out of similar actions.   He was acquitted on one count of attempted sexual violation on W by attempted anal intercourse.

[2]      He has appealed to this Court against his convictions on various grounds which are discussed as this judgment proceeds.

Similar fact/severance

[3]      In a reserved judgment delivered 11 days before trial, Judge Rea dealt with applications by the Crown under s 344A of the Crimes Act 1961 concerning similar fact evidence and by the defence for severance of the counts relating to T and M from those relating to W.

[4]      During the  course of  that  hearing,  counsel  for  Mr  Brown,  who  was  not

Ms Levy, abandoned the severance application as far as it related to the T count.

[5]      The s 344A application was for orders that the evidence of C and three others should be ruled admissible in relation to all the W and T counts.  During the hearing the Crown abandoned its application in relation to two of those four and Mr Brown’s counsel conceded the evidence of C was admissible at trial.

[6]      The concession as far as C was concerned was of some importance given the appellant employed C carting hay in late 1995.   His evidence was that after some intimate conversation and a massage the appellant removed that young man’s shorts, grabbed his penis and asked if he could suck it.  C refused.  The appellant offered him money.  The appellant pleaded guilty to one count of indecent assault as a result of that incident.   The facts of the incident, but not the conviction, were given in evidence at the appellant’s trial.

[7]      Also, during the hearing the admissibility was challenged of the evidence of two of W’s younger brothers and two other witnesses.

[8]      Judge Rea summarised the evidence of the complainants and the proposed witnesses, ruled the evidence of the two brothers and the other two persons the subject of the late challenge inadmissible and then summarised the Crown’s submissions  that  the  remaining evidence  should  be  ruled  admissible  because  of consistent accounts of the appellant asking each boy sexual questions, supplying them with alcohol, offering them money for oral sex, advising them he was bisexual and then inappropriately touching them.  He also sent them obscene text messages. The Judge noted that none of the proposed similar fact witnesses, other than M, were complainants and there was no suggestion of sexual offending against three of the witnesses  because  the  accused  desisted  when  those  witnesses  objected  to  his conduct.

[9]      It is pertinent to note that Judge Rea was asked to deal with the applications solely on the basis of depositions by the proposed witnesses, including witnesses whose depositions were not presented at the preliminary hearing.  Further, since the appellant did not give evidence at the pre-trial hearing, the only indication before the Judge  of  Mr  Brown’s  likely  stance  at  trial  had  to  be  derived  from  his  Police

statement.  That, broadly, admitted mutual masturbation and fellatio on Mr Brown’s part, but claimed T was the instigator.  Thus the incident was said to be consensual.

[10]     Variations between depositions and evidence given at trial are commonplace and, though doubtless with some difficulty, the appellant could have changed his stance on the T complaint at trial.   Therefore, as so often happens, the s 344A hearing proceeded in something of a vacuum.

[11]     As a result, Judge Rea’s ruling was to the effect that M’s evidence was only admissible at trial in relation to the counts concerning W and T.   The ruling concerning M disposed of the severance application relating to him.   The other witnesses’ evidence was simply ruled generally admissible.

[12]     Evidence at trial broadly followed the depositions.  The appellant gave and called evidence.

[13]     It is accordingly pertinent to turn to the way in which the trial Judge, Judge Adeane, summed up on similar fact.  The Judge first directed the jury to consider the evidence on each of the 10 charges separately, noting different verdicts could be reached.   Then, after saying “you have heard … young men recounting allegedly similar experiences with the accused”, the Judge dealt with standard issues such as the elements of the offences, consent where it was applicable – highlighting the T count was the sole count where consent was directly in issue – and the effect of the accused giving evidence.

[14]     He then turned specifically to the issue of similar fact.  The Judge described the Crown’s assertion of similarities in the evidence of the complainants and the other witnesses and proceeded to direct the jury in usual terms that proof of similarities was for it and to guard against collusion and recent fabrication.  He then directed it as to the use they might make of the witnesses’ evidence in relation to proof of the charges should they find sufficient similarities.

[15]     In this Court, Ms Levy submitted the evidence of the other witnesses was inadmissible as far as the T count was concerned as the only issue on that charge was

consent or the appellant’s reasonable belief in consent.  That said, she acknowledged that, though unusual, similar fact evidence can on occasions be admissible in sexual cases  where  consent  is  the  only  issue:     R  v  Yum  CA54/01  16  May  2001, R v Nicholson CA250/00 5 February 2001.

[16]     For the Crown, Mr Boldt submitted this was a trial where the predominant issue was credibility.  The strong similar fact evidence was accordingly admissible across all charges.  He submitted the evidence showed a distinct pattern of offending by the appellant against boys in their mid-teens who worked for him.  There was a pattern of conduct leading up to, and following, instances of oral sex by the appellant on the boys, and consistency with the appellant’s offending against C about nine years earlier.

[17]     In response to Ms Levy’s submission that severance was wrongly refused, Mr Boldt relied on trial counsel’s abandonment of severance on the T count and submitted that, even had there been separate trials, similar fact evidence from other witnesses and complainants was almost certain to have been mutually admissible.

[18]     More particularly, he submitted W’s evidence supported T’s as to lack of consent and the appellant’s persistence despite that.  He also relied on the appellant’s concession during the pre-trial hearing that C’s evidence was admissible in relation to all complainants.

[19]     This was a case where, other than in relation to T, the appellant denied acting in any of the ways described by the other complainants and witnesses.  He simply denied what they said occurred in fact occurred.   In those circumstances the credibility of  the  complainants  and  other  witnesses  was  crucial  and  the  mutual support which similarities in their evidence might give others’ accounts was pivotal. The credibility of their evidence was capable of being enhanced by the high degree of similarity in the appellant’s actions described by each.   That was accordingly highly relevant to the critical issue as to whether each complainant’s account on each charge would be accepted by the jury.  That applied both to the counts where consent was not in issue and to the T count, where consent or reasonable belief in consent was the principal issue.

[20]     To put it another way, if similarity in the evidence of other witnesses and complainants assisted the jury in deciding on the credibility of the particular complainant in the count it was considering, that was material to proof of that primary issue – in most counts essentially the only issue.  On the T count, the jury could then apply the view it would already have reached concerning T’s credibility to its assessment of all the evidence on that count in relation to consent or reasonable belief.

[21]     The direction on similar fact did not expressly make the distinction we have just drawn, but the issues were sharply delineated by the Judge in other passages in the summing up.  We can see no possibility of a miscarriage of justice arising out of the way in which this issue was dealt with overall.

[22]     This ground of appeal accordingly fails.

W’s evidence inadmissible as prior consistent statement?

[23]     The  appellant’s  offending  in  relation  to  W  occurred  in  the  year  January

2004 - January 2005.  The offending in relation to T occurred on 16 April 2005.

[24]     W was present on 16 April 2005 when the appellant invited T to go with him in his truck for the excursion which, T said, culminated in the appellant acting in the way which led to the T count.

[25]     W’s evidence was that, before the appellant and T left, he was unhappy at the prospect of T going with the appellant “because of the incidents that had happened with me” and that “I tried to talk [T] out of going”.

[26]     The following passage occurred in T’s evidence-in-chief:

Q.         … You can’t tell us what he said but did [W] give you any idea whether he was happy about you going off on the trucks with [the appellant]?

A.        [W] seemed very nervous and really uncontrollable like he really wanted to tell me something but he couldn’t make himself do it.

[27]     Mrs W also gave evidence.  She said that when T returned from the excursion with the appellant T “seemed concerned over something, he sort of couldn’t sit down, he was walking about and pacing about” and that when W arrived later, T was bothered about him and “seemed to run to” him.  The admissibility of that evidence was also challenged by Ms Levy.

[28]     It  appears  all  that  evidence  may  have  been  thought  relevant  to  W’s credibility:   he became upset at the prospect of T going with the appellant in his truck in circumstances similar to earlier occasions which W had described in his evidence which gave rise to the W counts.  That may have been thought to add to the believability of W’s account of those occasions.   If so, the point that it might be inadmissible as a statement by conduct, prior to and consistent with his evidence at trial, was not raised at trial.  The admissibility of the evidence under consideration was not challenged and the passages in the evidence just reviewed  received no prominence during the hearing.

[29]     All that notwithstanding, Ms Levy submitted that W’s evidence as to his own demeanour prior to T going with the appellant was inadmissible on the basis we have just described unless, as proved to be the case, W was cross-examined on the basis his complaint was recent invention,   in that he disclosed the appellant’s actions relating to him after T made a complaint and the Police became involved.

[30]     Noting  the  point  was  not  taken  at  trial,  Mr  Boldt  said  the  appellant’s contention  was  incorrect.    Had  W  said  something  to  T  before  he  left  in  the appellant’s truck (or, if he had “tried to talk T out of going”, what he said had been given in evidence), that statement would have been admissible as demonstrating W’s then state of mind:   R v Baker [1989] 1 NZLR 738 at 741 (CA); R v D [2003]

1 NZLR 41 at [14] (CA).

[31]     More particularly, Mr Boldt submitted the correct position is as noted in Robertson (ed) Adams on Criminal Law: Evidence Vol 1 (looseleaf ed last updated at 16 November 2007) at [EC12.04(8)].   In discussing the admissibility of recent complaints under the sub-heading “Complainant’s distressed state – consistent conduct” the learned authors say:

The general rule prohibiting prior consistent statements is not applicable to evidence of conduct by the  witness  which is consistent  with  his  or  her eventual testimony:  See White v R [1999] 1 AC 210; [1999] 1 Cr App R

153 (PC), … .

[32]     In White, the prosecution attempted to rely, in a trial alleging rape and other offences,  on  the  complainant’s  statement  that  she  told  five  other  people  what occurred before she went to Police.  None of the five gave evidence.  The defence was consent or reasonable belief.  The trial Judge gave the jury no directions as to the use they could make of the evidence.  The Privy Council set the convictions aside on the basis that, because none of the recipients gave evidence, the complainant’s evidence of the five complaints was inadmissible as being previous consistent statements.

[33]     The passage in White at 217 which appears to have given rise to the summary in Adams reads:

Their Lordships accept that when the complainant herself is giving evidence, it  may  be  difficult  for  her  to  give  a  fair  and  coherent  account  of  her behaviour after the incident without allowing her to mention that she spoke to other people who may not be available to give evidence (within the sexual complaints exception) of what she actually said.  Their Lordships would not suggest that the mere mention that the witness spoke to someone after the incident was inadmissible.  In most cases it will be very difficult to draw any rational distinction between consistent conduct, which is plainly admissible (e.g. that the witness wept) and the fact that she spoke to someone such as a parent.  On the other hand, it is important to avoid infringement of the spirit of  the  rule  against  previous  self-consistent  statements  by  conveying indirectly to the jury that she had given a previous account of the incident in similar terms with a view to inviting the jury to infer, not merely that her subsequent conduct was not inconsistent with her complaint but that her credibility was actually supported by the fact that she had told the same story soon after the incident.   (Emphasis added.)

[34]     Thus, their Lordships’ observations in White go no further than to confirm that evidence of observations of demeanour, including later changed (or unchanged) behaviour towards an alleged abuser, have for a long time been admissible.

[35]     However, the position is now covered by the Evidence Act 2006 under which any re-trial of the appellant will take place.   Under s 4 of that Act “statement” is defined to include “non-verbal conduct of a person that is intended by that person as an assertion of any matter”. This was intended to cover non-verbal conduct clearly

designed to be understood as a statement of a particular matter, such as a nod or shake of the head:  New Zealand Law Commission Evidence Code and Commentary (NZLC R55(2) 1999)  at [C22] and [C121].  W’s conduct in relation to T does not come within that definition.

[36]     Section 35 of the Act reads:

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.

[37]     It was suggested that W’s statement to the Police was only made as a result of T’s complaint after his excursion with the appellant.  So, it would appear that s 35(2) would have made evidence of W’s reaction to the proposal that T accompany the appellant admissible, even were it a prior consistent statement.

[38]     The point taken before us was accordingly without substance and that ground of appeal fails, although we take the view that the purpose of W’s evidence should have been precisely defined at trial and the point now in issue determined.

Comment by prosecutor

[39]     Cross-examination of the appellant did not proceed smoothly.

[40]     No  doubt  anxious  to  get  his  point  of  view  across,  the  appellant’s  early answers were discursive, rambling and failed to respond directly to the questions put

to him.  His stance persisted despite comments by the Judge.  The atmosphere was plainly tense.   After exchanges which occupy about six pages of transcript, the appellant’s response to a question as to whether he had tried to “entice” one of his similar fact witnesses to work for him, was: “Yes I also stop and help old ladies fix their tyres but that doesn’t mean that I’m going to rape them”.

[41]     That drew the immediate response from the prosecutor that, “[w]e’ll have to accept your word for that”.  Following that the appellant refused to answer further questions.  The Judge invited the jury to retire.  After about half an hour, though it was only 4:18pm, the Judge adjourned the hearing for the day saying that, “[i]n light of the way things have developed I believe it would be wise to give Mr Brown [time] to consider his position in relation to this case”.

[42]     The cross-examination resumed uneventfully the following morning.

[43]     Ms Levy was critical of the prosecutor’s comment and submitted both its effect on the appellant and the Judge’s later remarks had the consequence of suggesting it was the appellant who was at fault and the jury may have taken that into account to his disadvantage.

[44]     Mr  Boldt  accepted  the  prosecutor’s  observation  was  inappropriate  but suggested the appellant over-reacted and the Judge defused the situation appropriately. We agree with those submissions. He also stressed that neither the Judge nor experienced trial counsel saw the incident as sufficiently grave to consider discharging the jury and ordering a re-trial.

[45]     This ground of appeal really criticises an incident during a trial which can be made to appear more significant in hindsight than at the time.  Where an experienced Judge and experienced counsel did not see the incident as sufficiently serious to consider whether a mis-trial should be considered, it would not be right for us to intervene.

[46]     This ground of appeal also fails.

Recent complaint direction

[47]     In directing the jury on recent complaint, the Judge said:

Generally a witness is not allowed to repeat in evidence something told to them by someone else.  But in this case you have heard evidence of what T told Mrs W, and the Crown is allowed to do that for one purpose and one purpose alone.  Mrs W has no independent knowledge of what happened to [T] down by the river, if anything.  She is only able to tell you what he said about it at the time he came back to the house, and that evidence is only important  in  one  way.    It  does  not  add  to  [T’s]  evidence  about  what happened to him, but it gives you a basis from an independent person to compare what he said at the time with what he said in the witness box earlier [sic] this week.

If you are satisfied that his complaint and account of matters given within minutes of it happening has been maintained and is consistent with what he has told you in evidence, that is to say that he has maintained a consistent version of events throughout, then you would be more likely to accept what he says than if the contrary was true.

So the purpose of Mrs W’s evidence is not to add to the boy’s evidence.  It [is] simply to give you an indication of what complaint the boy made at the time so that you can decide whether he has remained consistent in what he told you in evidence.

[48]     Ms  Levy  submitted  the  direction  was  in  error  as  stressing  consistency between evidence from Mrs W of the complaint and the complainant’s evidence rather  than  the  content  of  his  complaint,  drawing  on  R  v  Adams  CA70/05

5 September 2005 at [75] – [76] where this Court said:

Recent complaint

[75]     … While the Judge stated, both in his summing up and in the preliminary memorandum, that the recent complaint evidence was relevant to the jury’s assessment of the complainant’s credibility, his directions then referred to consistency of the matters described in the complaint with the evidence that the complainant gave, rather than focussing on the fact of the complaint having been made.  The consistency which is of relevance for the jury in recent complaint evidence, is of the complainant’s conduct at or near the time of the alleged event, and her subsequent evidence.  The fact that the complaint was made will be evidence relevant to assessing the credibility of the complainant even if she gives no particular details or description or what was alleged to occur.

[76]     The basis of recent complaint evidence was usefully summarised in the judgment of this  Court in  R v  T  [1998] 2 NZLR 257 delivered by Eichelbaum CJ at 270:

It is trite law that evidence of recent complaint is not evidence of its truth or of any other fact than that it was made.  In particular … it is not evidence of absence of consent.  Recent complaints are admitted only as showing consistency between the complainant’s conduct at the time and his or her evidence at the trial thereby supporting the credibility of the witness’s testimony,  (eg) see R v Nazif [1987] 2

NZLR 122 at p 125.

[49]     Mr Boldt accepted the direction might have been fuller in referring to the complainants’ conduct at the time of the complaint as well as the contents of the complaint itself but made the point the omission of reference to conduct assisted the appellant  rather than  the  reverse  because T  was  visibly distressed  and  thus  his conduct was consistent with his having undergone a traumatic experience.

[50]     Having examined the contested passage of the summing-up carefully, we take the view that the necessity for consistency between what T said and did at the time he spoke to Mrs W and his evidence at trial was sufficiently made clear to avoid any possibility of miscarriage of justice.

[51]     This point also fails.

Conflict of evidence direction

[52]     In relation to the T count the summing-up included the following passage:

… [T]here is simply a head-on conflict of evidence here particularly concerning who was the initiator and whether there was any circumstance which amounted to consent or would at least have given the accused a reasonable basis to believe there was consent present.  A head-on conflict of evidence, and I am afraid members of the jury that that is what we have you for.   That is the really hard work in the trial.   You are going to have to resolve that conflict bearing in mind the onus and standard of proof.

[53]     Ms Levy submitted that the directions as to “head-on conflict”, “that is what we have you for” and “that is the really hard work in the trial” risked misleading the jury into believing its task was to resolve the conflicts of evidence by deciding which witness was truthful rather than deciding whether the evidence as a whole satisfied the onus and standard of proof.

[54]     Mr Boldt pointed to earlier passages in the summing-up dealing with those issues and their recall to the jury’s mind in the final sentence of the passage under challenge.

[55]     As   earlier   mentioned,   the   earlier   part   of   the   summing-up   included conventional directions on onus and standard and the necessity for the Crown to prove each count separately.  The jury could hardly have been unaware of the “head- on conflict” between the appellant and T and the need to resolve it to the extent of considering whether the evidence overall satisfied the onus and standard of proof. Given its attention was immediately redirected to those topics after the Judge’s remarks  under  discussion,  in  our  view  the  direction  appropriately  brought  their minds back to the central issue for them to decide in relation to T:   whether the Crown had proved the T count beyond reasonable doubt.

[56]     This point also fails.

Other matters

[57]     Ms  Levy’s  submissions  raised  a  number  of  other  issues.  They  included evidence  of  witnesses  commenting  about  the  appellant’s  actions  in  relation  to non-witnesses, inappropriate comment in M’s evidence about his sister, copying of a trial  exhibit,  the  Judge’s  summary  of  the  respective  cases  and  the  lack  of  a propensity warning.

[58]     Mr Boldt responded to each of those issues.

[59]     We have examined the respective submissions and conclude that there is nothing of moment in the points raised by Ms Levy.

Result

[60]     In the overall result, the appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington