R v DC

[2016] NZHC 1881

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985 AND S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANTS PURSUANT TO S 139 OF THE CRIMINAL PROCEDURE ACT 1985 AND S  200 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-6715

CRI-2015-092-6508 [2016] NZHC 1881

THE QUEEN

v

DC, ST AND MT

Hearing:

9-25 July 2016

Appearances:

G Kayes and SBT Belk for the Crown M Goodwin and G Ghahraman for MC M Allen and G H Vear for S T

P Leʼauʼanae and M E Motuliki for M T

Ruling:

11 July 2016

Reasons:

15 August 2016

JUDGMENT OF WOODHOUSE J [Hostile Witness Ruling]

This judgment was delivered by me on 15 August 2016 at 11 a.m.

Pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

………………………………………………………..

R v DC, ST AND MT [2016] NZHC 1881 [11 July 2016]

[1]      On an application by the Crown in the course of the trial I determined that a witness called by the Crown, the complainant J, was a hostile witness, and gave permission to the Crown to cross-examine J on specified topics.  My reasons were to follow. These are my reasons

[2]      All three defendants faced separate charges of sexual offending against sisters J and C.  Two of the defendants are older brothers of J and C.  The third defendant is a cousin who also is older than J and C.  The alleged offending against C, who is the older sister, was between 9 March 2003 and 8 March 2008 when she was aged between five and ten.  The alleged offending against J was between 30 April 2007 and 29 April 2014 when J was aged between five and twelve.

[3]      J’s primary evidence for the Crown was provided through three evidential video interviews (EVIs); one in respect of each defendant.   There had been three separate interviews on 28 April 2015, 29 April 2015 and 4 May 2015.  Videos were played to the jury with J watching from a separate room.   Her further evidence, including cross-examination, was to be conducted over closed-circuit television.

[4]      After the EVIs had been played to the jury I was advised by the Crown, following an adjournment for lunch, that J had asked to speak to the officer-in- charge (or one of the appropriate police officers) and that she had told the officer that the allegations she had made in the EVIs against all three defendants were false.  The jury was excused for the rest of the day (a Friday) and the trial was adjourned to enable a full statement to be obtained from J.

[5]      I was provided with a copy of J’s new statement when this was completed towards the end of the day, and copies were provided to defence counsel.   It is a detailed   statement   that   had   resulted   from   an   interview   over   a   period   of approximately two and a half hours.  In this statement J said that everything that she had said in the EVIs about the defendants “doing things” to her was not true.  She said, in essence, that she had been forced to make false allegations by another witness for the Crown, SW, that this had occurred in the presence of J’s sister C, and that there had been threats of harm by SW if she did not make the allegations which

SW told her to make.  This was against a background of other evidence about SW to the essential effect that she had, by various means, engineered false allegations by C and J against the defendants.

[6]      When the trial resumed, on the following Monday, the Crown led further evidence from J based on the central aspects of her new statement.  Her evidence to the jury contained the essential matters from the new statement, recorded above – the recantation  -  with  additional  information  which  it  is  unnecessary  to  outline. Following this, in the absence of the jury, the Crown made its application to have J declared hostile and for permission to cross-examine her on four specified topics. After  hearing  the  parties  I made  the  ruling  and  the  Crown’s  cross-examination followed.

[7]      I concluded that J was hostile in terms of two of the three definitions of a hostile witness in s 4 of the Evidence Act 2006 (the Act); namely a witness who –

(a)      exhibits,  or  appears  to  exhibit,  a  lack  of  veracity  when  giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have had knowledge; or

(b)gives  evidence that is inconsistent with  a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness ...

[8]      Putting those definitions into terms applicable to the facts of this case, I

concluded that:

(a)      J exhibited, or appeared to exhibit, a lack of veracity when giving evidence unfavourable to the Crown, the party who called her, on matters about which she may reasonably be supposed to have had knowledge.

(b)J gave evidence that was inconsistent with the statements she made in the EVIs and did so in a manner that exhibited, or appeared to exhibit, an intention to be unhelpful to the Crown, the party who called her.

[9]      In respect of alternative (a), J undoubtedly exhibited a lack of veracity: either what she had said in EVIs was untruthful, or the recantations in the new statement were untruthful.  This was not a case where there were other possible explanations for the difference.

[10] The definition refers to “a lack of veracity when giving evidence unfavourable to the party who called the witness.” I do not interpret that expression as a requirement that the apparent lack of veracity must relate to the evidence that is unfavourable to the party calling the witness. That is to say, on the facts of this case, I do not interpret the words as requiring a determination that there was a lack of veracity exhibited in respect of the recantation; that it appeared that the recantation was untruthful. What was required was that, when J gave the further evidence to the jury, and which evidence was unfavourable to the Crown, a lack of veracity on the part of J was exhibited. A lack of veracity was exhibited for the reason noted at [9].

[11]     Ms Vear, for the defendant ST, submitted that it was inappropriate in the circumstances of this case to assess whether there was a lack of veracity by comparing what was said in the EVIs and what was said in the new evidence.  As I understood the submission, it was that, when J came to give her new evidence, she effectively had no option but to say that she had lied in the EVIs because the EVIs were already before the jury in  evidence; the focus, when  considering veracity, should therefore only be on what she had said in Court in evidence led by counsel.

[12]     I do not agree.   This would introduce a major modification of the plain meaning of definition (a) simply arising from the way in which some of the evidence was given.   There is no justification for such an approach to interpretation of the words in the Act.  And the manner of recording the statements made earlier in time suggests  the  opposite.    The  fact  that  the  statements  made  earlier  in  time  were recorded and able to be viewed and listened to, and not simply read, provided an advantage in assessing the question of veracity which  usually is not available.

[13]     The  alternative,  in  (b),  was  also  established  in  my  judgment.     The inconsistency between the new evidence from J and the earlier statements in the EVIs  was  plain.    This  point  was  not  in  issue.    The  question  was  whether  the “manner” in which J gave the new evidence exhibited, or appeared to exhibit “an intention to be unhelpful” to the Crown.  This was the focus of submissions for the Crown and for defendants.

[14]     In Penney v Police, Priestley J said the assessment of the “manner” in which the witness gives evidence is not confined to demeanour.1    In Penney, Priestley J suggested  that  the nature of the inconsistencies  is  relevant  to  an  assessment  of manner, as is the frequency of inconsistencies and their centrality to a party’s case.  I agree with Priestley J’s observations in Penney, as have other judges.2

[15]     When the application is made under paragraph (b), the asserted intention of the  witness  to  be  unhelpful  will  have  arisen  because  there  is  an  inconsistency between  the evidence and an  earlier statement.   If there is no  indication of an intention to be unhelpful other than the fact of inconsistency, the practical enquiry is whether  the  inconsistency  arises,  or  appears  to  arise,  from  an  intention  to  be unhelpful or from something else.  Contrasting conclusions may be seen in the facts of Penney and the facts of Weenik.  In Penney the Judge concluded that there was an intention to be unhelpful because the witness “was taking an axe in her evidence to attack her previous statement, root and branch, in its entirety.”   The witness was declared hostile.   Similar conclusions were reached in Keen and Foreman.   The conclusion in Weenik, on the facts, was that the inconsistency did not make the

witness’ evidence  “diametrically  at  odds  with  the  earlier  statement.”3      J’s  new

evidence falls squarely within the Penney group.

[16]     The preceding conclusion was sufficient to declare J hostile.  But there were added considerations going beyond the unequivocal assertion by J that her EVI

statements were false; in particular:

1      Penney v Police HC Auckland CRI-2008-404-0301, 4 December 2008 at [32].

2      Keen v Police HC Christchurch CRI-2011-409-00039, 15 June 2011 at [24]; R v Weenik [2012] NZHC 2696 at [9]. See also R v Foreman (No 8) HC Napier CRI-2006-041-1363, 28 April 2008 (discussed in Weenik at [10]).

3      R v Weeniki above n 1, at [15].

(a)      Unlike   numbers   of   other   cases,   including   Penney,   the   earlier statements of J were contained in EVIs.  I had the benefit of watching a contemporaneous record of her interviews, as well as listening to what she said and reading the transcript.  There was no indication of relevant hesitation on her part in making the statements which she later retracted.  Nor was there any indication of pressure put on her; the interviewers were trained interviewers of children or young people in cases of alleged sexual abuse.

(b)There   was   no   indication   of   uncertainty   of   recollection   or forgetfulness, or other human error, which might have indicated that the new statement, withdrawing the allegations, was from clearer recollection or genuinely refreshed memory.

(c)      J, in her recantation, referred to threats from SW and being coached in what to say.  That was, in effect, J’s explanation for her new evidence that she lied in the EVIs.   This had to be weighed  against other evidence of the possibility of a different kind of pressure on J; that is pressure from her family to withdraw the allegations.

[17]     In my judgment this was a clear case for a ruling declaring J hostile and permitting the cross-examination.

Woodhouse J