R v C
[2024] NZHC 3
•8 January 2024
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF
APPELLANT/RESPONDENT/ACCUSED/DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-0044
[2024] NZHC 3
BETWEEN THE CROWN
Appellant
AND
C
Respondent
Hearing: 8 November 2023
(Further submissions 15-16 December 2023)
Appearances:
I S Auld and Z Zhang for Appellant A Hill for Respondent
Judgment:
8 January 2024
JUDGMENT OF HARVEY J
R v C [2024] NZHC 3 [8 January 2024]
This judgment was delivered by me on 8 January 2024 at 11 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Crown Law Office, Wellington A Hill, Barrister, Rotorua
Introduction
[1] On 31 March 2023, C was acquitted of 10 charges of sexual offending by Judge A J S Snell following a judge-alone trial at Rotorua. He found C not guilty on all charges because the high standard of ‘beyond reasonable doubt’ had not been met.1
[2]The Crown appeals that decision on the grounds that the Judge erred by:
(1)advising counsel for the defendant in chambers during the defence case that it would not be necessary or advisable to call a number of witnesses to give evidence, despite their evidence forming the basis of propositions put to Crown witnesses in cross-examination;
(2)relying on counsel’s questions in cross-examination of Crown witnesses concerning evidence that defence witnesses would purportedly give, and the answers to those questions, despite the fact those witnesses were not called as a result of the Judge’s intervention in the defence case; and
(3)improperly adopting the misconception that it was “unusual” that the sexual violation alleged by the complainant did not result in injuries and relied upon that misconception to negatively assess the complainant’s credibility.
[3] The respondent accepts the in-chambers discussion was “slightly unorthodox” but submits the integrity of the ultimate decision was not undermined, and the appeal should be dismissed. He emphasised the importance of finality in criminal matters.
[4] On 4 December 2023, I issued a minute seeking submissions from counsel on first, whether the Judge’s chambers discussion involved a “ruling” per s 296 of the Criminal Procedure Act 2011. Secondly, whether s 296 provided jurisdiction if the Crown’s second and third appeal points amount to an appeal against an acquittal. Counsel responded with memoranda filed on 15 and 16 December 2023 respectively. I am satisfied, having considered those additional submissions, that the matter can properly be dealt with in this appeal.
1 R v [C] [2023] NZDC 7084.
Background
[5] Sometime between 1 January 2010 and 25 October 2020, the complainant was residing with C, his biological father. He was approximately five years old when he moved in with C. The 10 charges against C arose from alleged incidents between 2010 and 2020 as follows:
(a)Charge 1, indecent act on a child (representative):2 The respondent climbed into bed with the complainant, pulled his pants down, pushed his penis between the complainant’s buttocks, and rubbed back and forth.
(b)Charge 2, attempted sexual connection with child (representative):3 The respondent occasionally tried, without success, to penetrate the complainant’s anus with his penis.
(c)Charge 3, indecent act on a child (representative):4 The respondent removed his clothing, approached the complainant whilst he was in the shower, and told the complainant to grab his penis and rub it up and down as hard as he could. The complainant complied. On other occasions, the respondent grabbed the complainant’s penis in his hands and masturbated him.
(d)Charge 4, indecent act on a young person (representative):5 The respondent approached the complainant either while he was in the shower, lying in his bed, or in the lounge, and would cuddle up beside him. The respondent would put his hand down the complainant’s pants and rub his penis. Other times, the respondent rubbed the cheeks of the complainant’s buttocks with his hands. Sometimes the respondent tried to kiss the complainant on the lips and was met with resistance.
2 Crimes Act 1961, s 132(3). Maximum penalty: 10 years’ imprisonment.
3 Section 132(2). Maximum penalty: 10 years’ imprisonment.
4 Section 132(3). Maximum penalty: 10 years’ imprisonment.
5 Section 134(3). Maximum penalty: 7 years’ imprisonment.
(e)Charges 5 and 6, sexual violation by unlawful sexual connection and indecent act on young person (representative):6 The respondent’s offending escalated to forcibly penetrating his penis into the complainant’s anus when the complainant was alone in his room, the shower, or lounge. When penetration was unsuccessful, the respondent rubbed his penis between the complainant’s buttocks.
(f)Charge 7, sexual violation by unlawful sexual connection (representative):7 The respondent entered the shower with the complainant, grabbed his penis and put it into the complainant’s mouth. Other times, the respondent performed oral sex on the complainant.
(g)Charge 8, sexual violation by unlawful sexual connection (specific):8 Sometime between 1 December 2019 and 1 March 2019, the respondent took the complainant to Waikite Hot Pools. The respondent got into the shower cubicle with the complainant and locked the door from the inside. He grabbed the complainant by the hips, pushed him up against the shower wall, and inserted his penis into the complainant’s anus. The intercourse lasted for a short period of time.
(h)Charge 9, sexual violation by unlawful sexual connection (specific):9 Sometime between 1 March 2019 and 1 May 2019, the respondent took the complainant to the Rotorua Aquatic Centre. As in the Waikite Hot Pools incident, the respondent again anally raped the complainant in one of the changing room cubicles. After the intercourse the respondent removed his penis and ejaculated on the complainant’s buttocks.
(i)Charge 10, indecent act on young person (specific):10 On 25 October 2020, the respondent and complainant were at their home address. The respondent climbed into bed with the complainant and laid close up against him. The
6 Sections 128(1)(b), 128B, and 134(3). Maximum penalty: 20 years’ imprisonment, and 7 years’ imprisonment.
7 Sections 128(1)(b) and 128B. Maximum penalty: 20 years’ imprisonment.
8 Sections 128(1)(b) and 128B. Maximum penalty: 20 years’ imprisonment.
9 Sections 128(1)(b) and 128B. Maximum penalty: 20 years’ imprisonment.
10 Sections 134(3). Maximum penalty: 7 years’ imprisonment.
respondent pulled the complainant’s pants down, inserted his penis between his legs and began to thrust back and forth. Shortly after, the respondent removed his penis and left the room. Upset that this conduct had carried on for so long, the complainant wrote down on a note describing what the respondent had done to him over the years. The respondent located the note and destroyed it.
District Court decision
In-chambers discussion
[6] The Judge recorded in a separate minute that on 30 March 2023, at the conclusion of evidence of the first defence witness, Ms F, he asked to speak with counsel in chambers. Defence had indicated they would call five witnesses, including the younger and older brothers of the complainant as well as others who had lived in the house with the complainant. The Judge expressed his views that the real contest in the case was between the adamant claim by the complainant that the events giving rise to the charges happened, supported by the other Crown witnesses, and the denial of those events by the defendant’s out-of-court statement to Detective Bergman.
[7] The further defence witnesses, according to the Judge, were to give evidence that they had not seen anything or observed any sexually inappropriate behaviour and observed arguments “that seem to have been ongoing”. He did not consider this evidence would assist and noted that observation was in line with counterintuitive type directions that judges are entitled to take into account. In light of that discussion, the defence elected not to call any further evidence.
Acquittal decision
[8] The Judge began by reminding himself of the burden of proof and the elements of the charges, including setting out the meaning of attempts and representative charges. The Judge reiterated that the defence case was a total denial of all allegations. He also reminded himself of standard directions relating to mode of evidence. He then elaborated on the defence decision not to call further witnesses:
[22] I note here that the defence were potentially calling four other witnesses. They included the defendant’s younger brother [S], his stepbrother
… and others who had lived in the home at various stages. I understand from defence counsel’s opening address that those witnesses were essentially to explain that during their periods in the home they saw nothing inappropriate from the defendant towards the complainant and other evidence to describe what was a busy household.
[23] I noted after the first of the defence witnesses that the complainant in this trial had already accepted that he did not believe anybody had seen any of these events happening and that there is counterintuitive evidence that the Court takes into account noting that even in the busiest households with many people present, sexual offending can and does happen. In those circumstances, the defence elected not to call further evidence along those lines, noting that the position had been accepted already by the complainant. They had called one witness which was simply confirming what the complainant had already confirmed himself.
[24] I note as a matter of fact that sexual abuse can occur in busy households. It can occur with many people living in a household and with many around and with limited opportunities. We know that from experience in this court and the real contest as far as I can tell in this trial is between the version of events given by the complainant and the version of events given by the defendant. One says these allegations all happened, the other denies that they happened at all.
[9] The Judge then turned to summarise the evidence, noting that if he believed the complainant’s evidence, which canvassed sexual touching and violation of him by his father on various occasions, it would satisfy the elements of the charges. The complainant also gave evidence that in 2020 he wrote in a notebook alleging sexual misconduct by his father. This accompanied his alleged suicide attempt. After the notebook was found he was asked about it by C’s then-partner; he shut down and could not confirm or deny the notebook’s contents. When he was asked about these matters by Ms F, an adult with whom he had a positive relationship, he denied those matters to her and effectively retracted his statements.
[10] The complainant also gave evidence that he knew his father had a Ford tattoo on his penis. He gave evidence that there had been a dysfunctional relationship with his father, particularly in recent years because he had prevented him from seeing his biological mother and the complainant alleged significant favouritism in favour of his younger brother. He also acknowledged having behavioural issues.
[11] Turning to C’s ex-partner’s evidence, the Judge noted she was “clearly somewhat hostile towards the defendant”. She gave evidence: that the complainant
was treated very differently by his father than the younger brother S, about the living arrangements and that she never saw anything untoward of a sexual nature. She confirmed the interaction in 2020 with the notebook. The final Crown witness, Detective Bergman, gave evidence about the defendant’s police interview.
[12] Ms F’s evidence for the defence was summarised as follows. She had known the defendant for a long time but had never been in a relationship with him. She lived at the address for a few years and frequently visited although was overseas for some time. She has had a friendly relationship with the complainant who at one time ran away to her address. Ms F also addressed the 2020 note and recounted the complainant saying if something had happened he would have done something to the defendant. He never raised anything with her even when he lived at her address briefly. She never observed any inappropriate sexual behaviour.
[13] Next the Judge assessed the evidence. He noted that when asked about why the complainant made his allegations, the defendant raised in his interview a variety of reasons in terms of the complainant having “gone off the rails” including behaviour, stealing, misbehaving at school and leaving school. He acknowledged the family dysfunction which he attributed to the issues of the complainant’s biological mother and perceived favouritism. The issue of the penis tattoo was raised and he said it was common knowledge and everyone knew he had it. The Judge noted this was supported by Ms F who had not seen the tattoo but knew of it.
[14] The Judge noted that the defendant appeared to act in an “exaggerated” way but did not place much weight on this demeanour. He ultimately found that the main conclusion he could draw from the defendant’s evidence was that there was unequivocal denial that any of the events in question occurred.
[15] Moving to the complainant’s evidence, the Judge observed that no conclusions could be drawn from the fact the complainant made a delayed complaint, made a partial and less detailed complaint by what he wrote in the notebook in 2020, made a more detailed complaint in 2021, or his responses to being confronted about the notebook entry.
[16] The Judge accepted that it was a busy home, that the complainant shared a bedroom with his stepbrother, and on some limited occasions he had a room of his own. The household had a high level of dysfunction between a number of occupants and in particular increasing dysfunction between the defendant and complainant. Further, there were no eyewitnesses to the offending, which the complainant accepted. Because of this the Judge noted that the case turned on the credibility and reliability of the complainant’s evidence. The Judge acknowledged independent corroboration of the allegations was not required. He noted:11
If I was sure that the complainant was telling the truth and I did not accept the defendant’s denial as a reasonable possibility, then I would be quite entitled to enter convictions based solely on the complainant’s evidence in relation to any of the charges that I found to have been proven beyond reasonable doubt.
[17] The Judge, in assessing the complainant’s evidence, raised a concern about the absence of evidence of any injury. This was particularly in relation to the full anal intercourse that was alleged of an adult male with a child. The Judge noted that there is no evidence of lubricant being used, which makes the absence of injury slightly unusual. The Judge accepted that this did not rule out the allegations.
[18] As to the evidence about the Waikite Hot Pools and Aquatic Centre, the Judge was concerned about the alleged presence of S in the changing shed and his age at the time. The Judge noted that S would have been aged 11 or 12 at the times of the alleged incidents, so to his mind, it seemed implausible that S would not be wondering why his father and older brother were in the changing room for periods of time that were significantly longer than would be required to get changed (15 minutes or more). The Judge drew a distinction between these events and those earlier alleged incidents when S may have been too young to understand what was going on.
[19] Relatedly, the Judge raised plausibility concerns as to the inferential presence of others. He raised a concern about the venue suggested, the risks surrounding it and the number of people that would have been present and around at that time, including the accepted attendance of S. The Judge emphasised this was “not determinative of whether I accept or do not accept the complainant’s evidence”.
11 R v [C], above n 1, at [47].
[20]After noting a few other evidential points, the Judge stated:
[58] When I review all of those things that give me concerns about his evidence, there is nothing decisive here one way or the other. There is nothing that says that I should disbelieve him. There is nothing that says that I should particularly believe him in terms of the charges.
[21] Addressing the issue of the penis tattoo, the Judge stated that evidence of that type might ordinarily be very strong evidence, for instance, in the case of an allegation of rape by a stranger. However, the Judge accepted there was common knowledge of the tattoo, so this piece of evidence also did not point one way or another.
[22]The Judge’s determinative reasoning for convenience is set out in full below:
[63] I look at the context that the overall allegations came out in. It is in circumstances where the complainant accepts that he hates his father. It is in circumstances where there are various reasons for that and I ask myself does he hate his father because of the alleged sexual abuse against him throughout the years or does he hate his father because his father will not let him see his biological mother, because he believes his father treats him very differently than his younger brother [S], or because of the general dysfunction within the family? That type of consideration again goes both ways. There are arguments that I consider go both ways.
[64] I turn then to what is accepted general behavioural issues of the complainant. Are those general behavioural issues as a result of the defendant sexually abusing him over a protracted period of time and that is why he has misbehaved and done various things as alleged, or are those behavioural issues as a consequence of the dysfunction within the family and is that dysfunction and that hatred of his father what has led to these allegations? They are competing arguments.
[65] I am left at the end of the day in my assessment of all of this evidence in the following way. I find that there is nothing that is so compelling one way or the other about these arguments that I would reject the complainant’s evidence and I do not reject the complainant’s evidence, nor do I unreservedly accept the complainant’s evidence. I conclude that the complainant’s evidence could well be true. It may be that the defendant has offended against the complainant as has been alleged and that offending evolved over time and involved a change in style where it involved greater risk taking and much more serious offending as it went on. That may be the case. But I am left in the final analysis that, while I accept the complainant could be telling the truth, is possibly likely telling the truth, I just do not know whether I am sure that they are telling the truth.
[66] The standard of beyond reasonable doubt is a very high standard. It is not met if I think it is likely that the defendant has done the things alleged, not even if it is probable or very likely. I am left thinking it is a distinct possibility that he has done things and the complainant could be truthful, but I cannot be sure about that.
[67] The law requires me to be satisfied beyond reasonable doubt, that is sure that the events have happened. I consider that in this case, I am not sure that these events have happened. I accept that they could have and potentially likely have happened, but I am not sure that they have happened.
[68] I also cannot exclude the reasonable possibility that the defendant’s denial might be true and that this complaint has its genesis for reasons other than the events alleged.
[69] I do not know the true position. As a judge, I find these types of cases some of the most difficult to deal with. I cannot say I am persuaded on these charges beyond reasonable doubt. On that basis, I find the defendant not guilty on all of these charges on the basis I cannot be sure that they have actually happened.
[70] In saying that I find him not guilty, that verdict does not mean that he did not do these things. It simply means that in court in this case, it has not been proven beyond reasonable doubt that he did so. That is the position that I reach.
Legal principles
[23] Section 296 of the Criminal Procedure Act 2011 (CPA) allows a prosecutor or defendant, with leave of the first appeal court, to appeal on a question of law. The question of law must arise in proceedings that relate to or follow the determination of the charge or in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).12
[24] Leave to appeal will generally be granted if there is an arguable question of law identified.13 This Court may make any ordered that the Court considers justice requires, including directing a new trial where the trial court’s ruling resulted in a miscarriage of justice.14 In Brown v R the Court of Appeal identified that “questions of law” must raise one of three standard errors:15
(a)a misdirection of law apparent in the decisions;
(b)oversight of a relevant matter, or consideration of an irrelevant matter;
12 Criminal Procedure Act 2011, s 296(3).
13 Police v Neutze [2018] NZHC 1510 at [2].
14 Criminal Procedure Act 2011, s 300(1)(b)(ii).
15 Brown v R [2015] NZCA 325, [2015] 30 FRNZ 471 at [16].
(c)or a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[25] This appeal falls within (c) above. The absence of probative evidence logically supporting a finding of fact is a well-established error of law.16 The Crown seeks an order for a retrial. For this Court to order a retrial, the Judge’s ruling must be erroneous and have resulted in a miscarriage of justice. This high standard is particularly important in the context of a Crown appeal against an acquittal.
Judge’s intervention in defence case and reliance on evidence given in response to propositions by witnesses not called
[26]These two grounds of appeal are intertwined and are dealt with together.
Submissions
[27] Mr Auld for the Crown submitted that it is axiomatic that trial judges must take care not to enter the fray during trial. Counsel referred by analogy to case law on witness questioning: judges may intervene if it is in the interests of justice to do so but must retain the appearance of impartiality to the reasonable observer.17 He contended that here the Judge went beyond his inherent power by advising the defence on whether to call a witness. Although Mr Auld acknowledged the Crown does not enjoy the right to a fair trial, he submitted that the Crown has a role in achieving the public interest in effective administration of criminal justice. Counsel argued the nature of the judicial intervention transcended the acceptable boundaries of the Judge’s role and was an error of law in itself that caused the trial to miscarry.
[28] Mr Auld also submitted that as a result of the intervention, the Judge made findings that were without a proper factual basis – namely that S was in the changing sheds at Waikite Hot Pools and that it would be “implausible that he would not be wondering where his father and older brother were and would not have made enquires as to why they were for that long within one changing room and he was waiting”.
16 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] NZLR 721 at [26].
17 Tahere v R [2013] NZCA 86 at [28]-[32].
[29] Counsel submitted that it was unclear from the cross-examination whether the complainant did in fact accept that S was in the changing sheds at Waikite Hot Pools at the time of the alleged violation. He argued that, due to the Judge’s intervention in the defence cause, there was no evidence that S was present in the changing shed. The Crown accepted that there was sufficient evidence for the Judge to find that S was in the changing rooms when the alleged offending occurred at the Aquatic Centre (but not at Waikite Hot Pools).
[30] Mr Auld argued for both Waikite Hot Pools and the Aquatic Centre incidents, that the Judge speculated as to what S would have been thinking in those circumstances. Counsel contended that the mere fact that S was present does not allow speculation as to what he may or may not have done, in circumstances where he was available to give evidence. Due to the Judge’s intervention, Mr Auld argued there was no evidence before the Court that S had in fact wondered why C and the complainant were taking a particularly long time in the changing room.
[31] It was unfair, in counsel’s submission, for the Judge to take into consideration cross-examination of the complainant based on evidence that S might have given. This was outlined in R v Lintott and R v Grieg which, although involving cross-examination of an accused, indicated the policy rationale that it is unfair to introduce the evidence of another witness by way of cross-examination if that witness is not themselves called and cross-examined.18 Mr Auld contended that by considering components of the complainant’s cross-examination relating to propositions by defence counsel about what S would purportedly say in evidence, the Judge erred, given S did not give this evidence.
[32] Mr Hill for the respondent submitted that the Judge correctly identified the complainant’s evidence that no one else saw any of the alleged offending. The main thrust of the remaining witness’s evidence was to be that they never saw anything untoward. Counsel contended the Judge accurately identified the counterintuitive directions regarding this kind of evidence. He argued that although the frank discussion in chambers was unusual, the Judge made his determination on a legitimate
18 R v Lintott CA168/95, 25 September 1995; and R v Greig CA375/01, 2 May 2002.
analysis of the admissible evidence, and there was no point in calling further defence witnesses who were not going to alter that position one way or another.
[33] Mr Hill strongly disagreed with the Crown’s claim that it was unclear whether the complainant agreed with the propositions put to him in cross-examination regarding the presence of S in the changing room at the time of the alleged sexual violation. Counsel highlighted the complainant’s evidence regarding Waikite Hot Pools that the respondent had his hands over the complainant’s mouth and told him to “be quiet” which, he submitted, logically implied that S was in the changing room. Mr Hill pointed to the complainant’s evidence that after the alleged violation occurred, S came in to use the shower, which implied S was in the changing shed at the time.
[34] Counsel submitted, given the complainant’s own evidence and his answers under cross-examination, the Judge was entitled to have some concerns about the plausibility of this alleged offending, and he was entitled to draw the inference that the pool and changing room would have been well populated at that time.
Discussion
[35] Mr Auld accepted in his subsequent submissions that the Judge’s intervention was not in itself a “ruling” that could be challenged, in itself, on appeal. Rather, he argued that the intervention led to the Judge making his acquittal determination on the basis of factual findings that were not supported by evidence.
[36] On its face the intervention was somewhat unorthodox, although in managing hearings it is unremarkable that the trial judge may need to have frank discussions on a range of matters with counsel concerning the trial’s progress. I do not accept the submission that the Judge was in any manner acting in a partial way or a manner that a reasonable observer would perceive to be partial, once they took account of the circumstances and the Judge’s explanation in his minute. At first blush, it seems somewhat unusual. However, from the Judge’s understanding, the remaining witnesses were only to give evidence that would be contrary to a counterintuitive direction about opportunity to offend. As such, their evidence could not add much, if anything, to either party’s case as it stood, and would only unnecessarily prolong the trial. Although the Judge did not mention it, he would have been alive to the fact many
of the remaining witnesses were children or young people who would have to give evidence on distressing material.
[37] The problem is that, on a close reflection on the evidence given at trial, and with the benefit of time and hindsight, S’s proposed evidence was more significant to the issues than expressed in the Judge’s minute. S was to give evidence about whether he was or was not in the changing rooms during the alleged violations – both the Waikite Hot Pools and Rotorua Aquatic Centre incidents. He would have given more detail about those two specific alleged incidents. Additionally, had S given evidence, his credibility and the equivocalness of his evidence could have then been assessed.
[38] The complainant did not accept the proposition that S was in the changing rooms during the Waikite Hot Pools incident. The relevant exchanges are as follows:
Q. I just want to concentrate on the Waikite Valley one to start with. [S] was there swimming that day, wasn’t he?
A. Mhm.
…
Q. He’s going to give evidence that [C] more or less spent the day swimming with him because he wasn’t a very good swimmer. Would you agree with that?
A. Yep.
Q. And that afterwards you guys all went into the changing rooms as normal, so that[‘s] you, your dad and [S], okay?
A. Mmm.
Q. And that he never witnessed your dad going into the shower cubicle with you. That’s going to be his evidence, okay.
A. Mhm.
Q. Are you sticking to your story?
A. Yeah, I’m sticking to my story.
Q. [S]’s going to tell the Court that everyone just got changed as normal and left.
A. Yeah, okay, that’s his story.
Q. You’re sticking to –
A. Yeah I’m sticking to my story.
Q. – Dad raped you for 15 minutes in the shower?
A. Yes.
…
[39] Mr Hill argued that by answering “Mmm” the complainant was agreeing with the proposition that S was in the changing rooms during the Waikite Hot Pools incident. He said that, having been trial counsel, he is certain the statement recorded as “Mmm” was an affirmative response.
[40] It may be the case that the complainant was affirmatively responding. However, the passage of cross-examination needs to be considered as a whole. It is likely that the complainant was simply agreeing, not with the propositions in substance, but with the proposition that S would give evidence to that effect. That is, the complainant agreed with counsel’s proposition that S would give evidence that (a) he spent the day swimming with C and (b) he went into the changing rooms with C and the complainant. This is then emphasised by the complainant stating that “that’s his [S’s] story” and that he would stick to his own story — indicating he did not agree with S’s alleged account.
[41] The Judge found that S was in the changing rooms during the Aquatic Centre incident. That finding was supported by the complainant’s EVI where he stated S would have been in another changing bay at the time. However, the complainant’s EVI was ambiguous as regards S’s presence during the Waikite Hot Pools incident, merely stating that after he went out of the shower after the alleged violation S “went in”. During further examination in chief the complainant confirmed he did not know where S was while he was in the shower with the complainant during the Waikite Hot Pools incident.19 There was a, at best, ambiguous response in cross-examination (if not a denial of the position). In sum, there was no evidence to substantiate a finding that S was present during the Waikite Hot Pools incident.
[42] Notwithstanding that analysis, I disagree with Mr Auld that the Judge conflated the two incidents regarding the presence of S. He noted that it was “alleged” S was present during both incidents.20 He then turned to the Aquatic Centre incident and said it was suggested S entered into the changing rooms with C and the complainant.21 The Judge then turned to the Waikite Hot Pools incident and referred to S being “in
19 Notes of Evidence at 6.
20 R v [C], above n 1, at [49].
21 At [49].
attendance”, by which he clearly meant at the hot pools generally.22 At [51] the Judge then refers to “the younger brother who was said to have been in the changing room on one of the occasions”.23 Although it is not specified, this must have referred to the Aquatic Centre incident where the complainant accepted S was present in another cubicle. In light of that finding, that S was present during “one” of the occasions, the statement in the following paragraph referring to “the accepted presence of [the complainant’s] younger brother” is clearly a reference only to the Aquatic Pools incident where, again, the complainant accepted S was present. While the distinction could have been put more clearly, the Judge was concerned about the presence of others, namely the public in relation to both venues and S in relation to the Aquatic Centre venue.
[43] However, I agree with Crown counsel that it was improper reasoning to speculate about what S would have or must have been thinking when there was no factual basis for those findings, given S did not give evidence. The finding that S did not wonder where his father and brother were and why they were in a changing room for a long time is mentioned at [51] and [52]. It forms part of the reasoning for assessing the complainant’s credibility regarding the Aquatic Centre complaint.
[44] The Judge couched his use of this evidence in that it was “not determinative”.24 However, as he acknowledged, the case was largely, if not totally, reliant on the complainant’s credibility. Evident from the Judge’s reasoning set out at [22] of this judgment, this was a very finely balanced case. As such, points resulting from an analysis of the evidence which were by themselves not determinative would have had significant influence over the overall evaluation of the complainant’s credibility.
[45] Accordingly, there is an error in relying on a fact without evidential basis, however minor that reliance might have been, in the circumstances of this particular case. The next question is whether there is a real risk a different outcome may have been reached and whether as a result a miscarriage of justice has occurred.
22 At [50].
23 Emphasis added.
24 At [52] and [54].
[46] Had S been called as a witness, the question of what was on his mind during the incidents should have been tested during cross-examination. Without further information it is difficult to know what evidence S may have given. There was no written statement or will-say statement before me on appeal. It is therefore speculation either way as to what S might have said, how that may have withstood cross-examination, and whether it enhanced or detracted from the prosecution case. Yet the possibility remains that he may have given evidence that supported the Crown case which may then have affected the verdict. Alternatively, his evidence may have strengthen the defence case. The problem is that, but for the Judge’s intervention and its consequences regarding the calling of witnesses, it is difficult to know what might have occurred. Nonetheless, there is a real risk the verdict was affected.
[47] Another issue arising from the Judge’s intervention is that the complainant was cross-examined on material that was not in evidence because the witnesses who were to give that evidence were not called.
[48] R v Lintott was an appeal against a conviction of dishonestly using a document in the context of the appellant receiving Accident Compensation payments.25 The appellant was cross-examined on the basis that a Mr Miller would give evidence of the appellant undertaking various physical labour activities inconsistent with his injury. The contentions were flatly denied. In the event, Mr Miller could not be found and was not called as a witness. The Court of Appeal found:26
Questioning in this form, suggesting as it does to the jury that there is a witness available to give such evidence, is inappropriate and should not have been allowed. It is a breach of the procedural note on use of hypothetical questions in cross examination.
[49] The Court went on to observe that although the propositions were rejected by the appellant, they related to a significant area of the trial, because of the need to resolve the credibility conflicts between the prosecution witnesses and the accused. There was no record of any comment by the Judge on the inadmissible form of questioning and no reference in the summing up. Therefore it was possible the jury regarded the material as reinforcing the evidence of other prosecution witnesses.
25 R v Lintott, above n 18.
26 At 11 (citation omitted).
[50] However, the Court of Appeal held that by itself this was not sufficient to amount to the then-test of “radical mistake”. It was only in combination with other errors in the trial that the Court considered there was a strong risk of miscarriage of justice.
[51] In R v Greig, the appellant was cross-examined with close reference to a statement made by his nephew resulting from discussions the two had while in prison.27 The Crown had advised pre-trial that the nephew would not be called as he was considered “totally unreliable”. The Court held that the technique was “improper”. Although the appellant’s prior oral statement to the nephew was admissible, if it was denied, the prosecutor was required to prove such a statement. Without the nephew being called, this was not possible. Additionally, and more significantly for present purposes, the Court was concerned about the introduction of the nephew’s statement to the jury in this manner:28
[25] Also of concern is the way in which the nephew’s statement was employed before the jury. It is one thing for a prosecutor to question an accused on the basis of information available to the Crown, albeit not established by evidence given at the trial. But here the cross-examination was conducted with close and obvious reference to the statement itself as if its contents were established in evidence. Both the cross-examiner and the appellant had copies of the document. Particular passages in it were put to the appellant. The effect was to highlight aspects of the nephew’s version of the relevant conversations when the Crown had made a deliberate election not to call him. Hearsay evidence was thereby introduced. That it is irregular to directly cross-examine an accused on the basis of a statement from someone not called as a witness was recognised, for example, in R v Gillespie and Simpson and R v Cross. As in the case of a hostile witness the risk is that material not proved in evidence will nonetheless influence the jury.
[52] Again, as was the case in Lintott, although this was cause for concern it was not sufficient to establish a miscarriage of justice, firstly, because the appellant successfully denied the propositions, and secondly, because the trial Judge referred to the matter “extensively” in his summing up. In contrast of outcome is the case of R v McKenzie.29 The appellant was cross-examined by both co-accused’s and prosecuting counsel with close reference to and identification of the co-accused’s statement, which
27 R v Greig, above n 18.
28 Citations omitted.
29 R v McKenzie CA7/03, 12 June 2003.
was inadmissible against the appellant. The Court of Appeal referred to R v Cross,30 R v Lintott31 and R v Greig32 and summarised the effect of those cases as being that “cross-examination was found to be irregular because of the introduction of material attributed to a defined source which was not otherwise in evidence”.33
[53] The Court went on to consider cases specifically relating to co-accused’s statements before concluding that it is improper for counsel to cross-examine with explicit reference to such statements but acceptable to cross-examine on the substance of those statements without explicit reference.34 The trial Judge made a clear and firm direction about the cross-examination. However, as a result of the questioning the appellant was led to asserting there was a conspiracy between co-accused and Police. The Court found that this must have harmed his credibility and resulted in a miscarriage of justice. Accordingly, a retrial was ordered.
[54] It follows from the principles laid out in the above cases that the cross-examination relying on S’s evidence became improper or at least irregular once it was decided that S would not be called to give evidence. What these cases also demonstrate, however, is that whether such an error or irregularity has led to a miscarriage of justice is an intensely fact-specific analysis.
[55] As foreshadowed, the Judge relied on the finding that S did not wonder where his father and brother was during the Aquatic Centre incident. The only possible source of this finding would have been the following passage of cross-examination:
Q. Again, S is going to come and he remembers going on [sic] the Aquatic Centre and his evidence is going to be that normally the changing regime would be that you boys would go into your own cubicles and get changed by yourselves, right?
A. Mhm.
Q. He has never seen your dad go into a cubicle with either him or you, but you’re sticking to your story that your dad went in there?
A. Mhm.
30 R v Cross (1990) 91 CR App R 115.
31 R v Lintott, above n 18.
32 R v Greig, above n 18.
33 R v McKenzie, above n 29, at [20].
34 At [34].
[56] As with the Waikite Hot Pools questioning, it is not clear whether the complainant is accepting the propositions that are said to be contained in S’s evidence or simply that S will be giving evidence of that nature. Nonetheless, reliance on the complainant’s answers and reasoning by inference S did not wonder what was happening was improper because S was not called to confirm those statements. In my view this is another aspect of the first error.
[57] In conclusion, on these two grounds of appeal, I find that there was a miscarriage of justice resulting from the Judge’s reliance on S’s state of mind with no evidential basis for that factual finding. Had S given evidence, this could have impacted the finely balanced credibility findings, particularly in relation to the Waikite Hot Pools and Aquatic Centre incidents.
Lack of injury reasoning
Submissions
[58] Mr Auld submitted that the Judge’s finding that the complainant’s lack of injuries was “unusual”, which impacted negatively on the credibility of the complainant’s evidence, was rooted in a misconception that sexual assault usually results in injuries. Counsel contended that there was no evidential foundation for the Judge to find that it is “usual” for sexual violation of this type to result in injuries.
[59] Mr Auld argued that the recent enactment of s 126A of the Evidence Act 2006, which implements the Law Commission’s recommendations, further underscored this submission.35 Of relevance is s 126A(2)(d) which outlines the misconception “that sexual offending always involves force or the infliction of physical injuries”. Counsel pointed to Te Kura Kaiwhakawā which examined this misconception in detail.36 Regarding children specifically, the Institute said that “sexual abuse of a child does not often result in physical injury that can be detected by a medical examination. Absence of physical injury is not evidence that the sexual abuse did not occur.”37
35 Although it is accepted that this provision was not in force at the time of trial.
36 Te Kura Kaiwhakwā Institute of Judicial Studies Responding to Misconceptions About Sexual Offending (2023) at 26.
37 At 45.
[60] Counsel raised an issue with the Judge’s reference to “no evidence of lubricant being used”. First, because there was no evidential foundation for that finding as the topic of lubricants was never raised in cross-examination of the complainant. Second, because it suggests that the Judge was operating under the misapprehension that if the allegations were true, C would have used lubricant to facilitate the offending and that, without lubrication, the lack of physical injuries is inexplicable, rendering the complainant’s account less believable.
[61] Mr Auld submitted that the Law Commission has recently noted that current research literature tells us that the absence of injuries is unhelpful in determining the credibility of complainants in cases involving sexual violation.38 Counsel argued that the absence of injuries is characterised as a neutral factor in that credibility inquiry, consistent with the established proposition that credibility of the complainant is to be assessed “on a neutral basis”, free from misapprehension.39
[62] Mr Hill submitted that the Judge followed a perfectly acceptable line of reasoning. Counsel drew attention to the complainant’s evidence that he was forcefully raped at the Waikite Hot Pools and the Aquatic Centre. Mr Hill argued that, on the evidence of the complainant, this was an adult male raping a 13- or 14-year-old boy for a prolonged period. The lack of injuries is an obvious cause for concern that the Judge was entitled to take into account. Similarly, beyond these specific events, the complainant alleged multiple other incidents of anal rape when he was much younger. Despite this offending allegedly occurring on a regular basis, the complainant agreed that he was never injured and never sought medical treatment.
[63] Mr Hill submitted that similar reasoning to that taken by the Judge is often used in domestic violence cases where the complainant alleges serious assaults but there are limited/no visible injuries. Counsel contended that what the Law Commission has said about the absence of injuries can only take the issue so far because each case will be different and credibility assessments need to be individualised to the evidence before the factfinder. In this case, the complainant
38 See Law Commission The Second Review of the Evidence Act 2006 (NZLC R142, 2019) at [12.79]– [12.88].
39 Nancarrow v R [2020] NZCA 636 at [45] and DH (SC 9/2014) v R [2015] NZSC 35, [2015] 1
NZLR 625 at [22].
alleged multiple rough and painful instances of anal rape by a grown man against a young child and teenager. As such, Mr Hill argued the Judge was entitled to have concerns about the nature and extent of the alleged offending and the lack of injuries.
Discussion
[64] In the report of Te Kura Kaiwhakawā Responding to misconceptions about sexual offending: example directions for judges and lawyers noted that abnormal medical examinations are rare: in a study of 2,384 children referred for suspected child sexual abuse, only 4 percent had abnormal medical examinations, and the rate of abnormal medical findings was still only 5.5 percent for children with a history of severe abuse such as anal or vaginal penetration.40 It went on to recommend a direction that sexual abuse of a child does not often result in physical injury that can be detected by a medical examination, and absence of injury is not evidence that sexual abuse did occur.
[65] As acknowledged by Crown counsel, s 126A of the Evidence Act was not in force at the time of the trial. Te Kura’s report was not before the Judge. However, nor was any expert evidence as to the likelihood or not of any injury. It has also been available under the common law for judges to direct themselves as to misconceptions before that provision.41 Ultimately, the Judge’s conclusion that the lack of injury was unusual was based on a misconception that children that suffer sexual abuse are likely to suffer an associated injury. As studied by the Institute, in fact over 9 in 10 children do not suffer any injury at all. It was therefore a finding not established by the evidence.
[66] The Judge did not appear to place much weight, if any, on the lack of injury, stating, “However, in saying that, I accept that it does not rule out those allegations. It might happen that way. It just seems slightly unusual but does not rule out that evidence.” Nonetheless, as I found in relation to the first and second issues, because the credibility assessment was finely balanced, even matters that in themselves did not garner much weight would have had a significant overall impact in the assessment.
40 Te Kura Kaiwhakwā Institute of Judicial Studies, above n 36, at 45.
41 Keats v R [2022] NZCA 149.
[67] I also accept the Crown’s submission that the Judge’s reference to “no evidence of lubricant being used” was problematic. Although strictly true there was no evidence to this effect, the Judge then makes the inference that no lubricant was used and therefore injuries would be more likely. There was no factual basis for that inference and it compounded the reasoning above that relied on a misconception.
[68] I have already found that the first and second grounds of appeal establish that a miscarriage of justice occurred. This error also contributes to the overall miscarriage because forms part of the Judge’s assessment of the complainant’s credibility, which again, was a difficult assessment.
Conclusion
[69] S’s evidence does not directly affect the remaining verdicts beyond the Aquatic Centre incident. However, the overall case, to a large degree, turned on the complainant’s credibility. The Judge could not exclude the possibility that the complainant had fabricated all of the complaints due to his animosity towards his father. Thus, any evidence that went to the complainant’s credibility would have been highly relevant to all charges. Additionally the lack of injury reasoning error (although it is more directly relevant to the sexual violation charges) goes generally to the complainant’s credibility. Accordingly, I consider a retrial on all charges is required.
Suppression
[70] C’s name must be supressed to prevent the identification of his son, the complainant.42 As the Judge noted in his final suppression judgment, one option could be to remove reference to the father-son relationship.43 However, given the relevant facts, this would be difficult. The suppression of C’s name is interim and should be reconsidered in the District Court per Judge Snell’s judgment at [16]–[18] in relation to a new trial being ordered.
42 The complainant’s identity is automatically suppressed under s 203 of the Criminal Procedure Act 2011.
43 R v [C] [2023] NZDC 10108.
[71] In addition, although S did not in the end give evidence, it is consistent with the automatic suppression of child witnesses that his name be suppressed, and as the complainant’s brother, publication could also identify the complainant. I order accordingly.
Decision
[72]Leave to appeal is granted.
[73]The appeal is allowed. A retrial is ordered.
Harvey J
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