R v G

[2003] NZCA 104

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL TRIAL.  THEREAFTER PUBLICATION OF NAME IDENTIFYING PARTICULARS OR COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985.

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA400/02

THE QUEEN

v

G (CA400/02)

Hearing:10 June 2003

Coram:Anderson J
Baragwanath J
Doogue J

Appearances:  R Wade for Appellant

B R Northwood for Crown

Judgment:16 June 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1]        The appellant was tried before a District Court Judge and jury on an indictment alleging six counts of sexual offences against his half brother over a period ranging from mid 1986 to mid 1997.  There were representative counts of indecent assault, inducing an indecent act, sexual violation by connection between mouth and penis and a single count of sexual violation by penile penetration of the complainant’s anus.  The appellant was convicted and sentenced to eight years imprisonment with a minimum period of imprisonment of five years.  He now appeals against conviction and sentence.

[2]        The Crown case was that the appellant, who is fifteen years older than his half brother, began the sexual abuse when the younger brother was only about five years old.  They were often in each other’s company and the older brother used his authority, bribery, attention and family empathy to suborn his young brother into compliance with and silence about the abuse.  When the complainant was fifteen years old and confident enough to reject the unwelcome advances the abuse stopped.  The appellant, with encouragement from his stepfather, voluntarily attended a SAFE programme for about a year.

[3]        The grounds of appeal against conviction relate to evidence which the Crown led at trial in support of the younger brother’s testimony.  Challenges to this evidence were made on the very morning of the trial, in consequence of an improvident necessity for new counsel at a late stage.  The Judge allowed the evidence to be admitted, indicating that he would give written reasons later if required.  No request was made and it seems no written reasons have ever been given.

[4]        When the appellant’s stepfather was giving evidence the Crown led from him that the appellant had attended the SAFE programme and that it was a programme for sex offenders.  The transcript discloses the following:

What’s the first serious indication you got that something was amiss:…..When W decided to go to the Safe Course.

Do you know why W was going to the Safe Course?…..Well when he was arranging it I knew there were problems, and I didn’t know totally who was involved at that point.

Did you speak to W about the programme?…..Well yes because he asked me to be a support person.

So did he tell you why he was going to go to it?…..Not really, a lot of what passed was once I was his support person I was bound by confidentiality and so a lot of what was said and went on at and about the course I’m not free to speak of.

I don’t want you to speak of that.  But just in that early stage, before you’d actually gone to the course as his support person, had he said why he was going to do that?

COURT RESUMES:             11.54 AM

EXAMINATION CONTINUES BY MR GLUBB

Before W went to the programme, Safe I think you called it, had you become aware of any sort of problems between G and W?…..Just several days before I think it was and that was with some thought after we were discussing it before.

And this programme that he went to, what was that?…..It was a programme for sex offenders, I don’t know exactly fully how it works but –

And did you have a role to play in that programme, without telling us what might have been said?…..I was asked to be a support person for W and that sort of involved if necessary keeping in touch with sort of both sides of any developments.

Did he complete that course?…..No.

[5]        The argument in respect of this ground is that it should have been excluded for a number of reasons.  First, it did not relate to any fact in issue.  Second, it was no more than simply evidence of propensity.  Third, it involved the witness breaching a confidence and should have been excluded pursuant to s35 of the Evidence Amendment Act (No 2) 1980.  Fourth, it should have been excluded on public policy grounds because the possibility of disclosure in support of a prosecution would deter those who would benefit from the SAFE programme from voluntarily enlisting in it.

[6]        The other major ground of appeal against conviction is concerned with admissions made to Detective P R Wood of the Waitakere Criminal Investigation Branch.  The detective’s evidence showed that he went to the appellant’s residence at about 10.40 p.m. to discuss the brother’s complaint and asked him if they could talk in private away from the appellant’s family.  The appellant then asked whether he was under arrest and having been told he was not, he replied that if he was not under arrest he was not going anywhere.  This prompted his immediate arrest and removal to the Waitakere Police Station where, at about 11.07 p.m. the detective began an interview which concluded about 40 minutes past midnight.

[7]        The argument for the appellant in respect of the admissions to Detective Wood is that although the appellant indicated at the outset that he wished to exercise his right to silence and indeed made this plain throughout the interview, the detective persisted, unfairly, in his questioning.  It was submitted that, as in R v Taliau CA99/99, 30 June 1999, and R v Read CA438/00 14 February 20001, the evidence of admissions should have been excluded and was wrongly admitted.  The weight of that argument is best considered with reference to the transcript of Detective Wood’s evidence in chief which, with our emphasis indicated, was in these terms:

About what time did you get back to the police station?…..We arrived at the police station about five minutes to eleven in the evening.

And what did you do from there?…..I supplied the accused a cigarette, after having the cigarette I showed him to the toilet.  At about seven minutes past eleven I gave him a cup of tea in the interview room.

And did you then conduct an interview with him…..Yes I asked him a series of questions and recorded these and his answers in my notebook at the time.

Please read to the Court as to the nature of that conversation?…..I prefaced each question with a noting question Q and his answer A.  Question, W what happened between you and G.  Answer, I don’t really want to describe any of it really.  Question, all I want is the truth, just honesty.  Answer, I got it out at SAFE, we spoke about it heaps.  Question, did you have a problem with G.  Answer, what, you mean recently, no he seemed distant.  Question, are you attracted to him sexually or were you.  Answer, at the time I suppose, yes.  Question, when did it start with G.  Answer, years ago, I can’t remember dates.  Question, how old was he.  Answer, I think he was 13.  Question, and what happened with G.  Answer, I’m sorry, I’ve done the programme, it’s bringing out the past.  Question, you had sex with G eh.  Answer, no we didn’t have sex.  Question, what then.  Answer, I don’t really want to talk about it don’t think.  Question, it started when G was pretty young.  Answer, yeah he was pretty young.  Question, you molested G did you.  Answer, yeah that’s the word.  Question, how long for.  Answer, I don’t know, probably went on for a couple of years.  Question, what did you do to him.  Answer, I’m sorry I don’t want to talk about specifics.  Question, G says it started when he was about six.  Answer, no he was about thirteen, I think actually it only happened for about a year because he met a girl.  Question, did you have oral sex with G.  Answer, no.  Question, so when we talk about molesting, what is it.  Answer, touching or groping someone or could be getting someone to do indecent stuff, it’s all in the maual.  Question, what maual is that.  Answer, the manual from SAFE.  Question, is SAFE for sex offenders.  Answer, yes.  Question, you had anal sex with G eh.  Answer, no I didn’t.  Question, are you sure.  Answer, yes.  Question, what then.  Answer, well he’d give me blow jobs and that.  Question, well that’s oral sex.  Answer, oh is it.  Question, yes so was it just the blow jobs and that.  Answer, yes.  Question, did you put your penis inside G’s bottom, his backside.  Answer, no I didn’t.  Question, did you masturbate G’s penis when he was young.  Answer, well yes officer, I don’t want to say any more.  Question, I want to ask you more questions, will you take part in a video interview.  Answer, no I’m sorry.  At about 2348, at about 12 minutes to midnight, the accused requested a cigarette which he was supplied.  Whilst outside he said to me I’m not proud of what I’ve done, I have to sleep with it.  I continued asking him questions.  Question, do you recall when I first came to your house tonight.  Answer, yes.  Question, I spoke to you and asked you to come back to the station.  Answer, yes.  Do you recall I arrested you just after that.  Answer, yes.  And do you remember after that I gave you your rights.  Answer, yes.  Question, I said you’re not obliged to say anything and anything you say may be used in evidence, you have the right to consult and instruct a lawyer without delay in privacy and you have the right to refrain from making a statement, do you remember that.  Answer, yes.  Question, I asked you if you understood and you said yes.  Answer, yes.  He said, I would like to say that this is ten years ago when this all happened and also I put myself through a SAFE programme.  Question, would you give money or stuff to G to do things to you.  Answer, yeah like I bribed him, I used my power and I broke his trust okay, and that’s hard, you can’t put it back.  Question, did it happen with G before you got married.  Answer, yeah, years before that.  Question, how old were you.  Answer, no you do this graph at SAFE, from what you’ve done with kids, I couldn’t get the dates right then.  Question, could G have been younger, maybe six or seven.  Answer, he could have.  Question, can you try and remember.  Answer, he might have been six or seven, might have been seven, I’m not sure sorry.  Question, if G was six or seven then you would have been about 23 or so, does that sound right.  Answer, yeah about right.  At 17 minutes past midnight the accused requested a phone as he wished to call his parents.  He was supplied a phone.  At about 20 minutes past midnight the accused requested to speak to a lawyer.  At that point I obtained the phone number for him, provided the phone and left him in private with that phone.  At about 30 minutes past midnight the phone call had concluded and I went back into the interview room.  Question, do you wish to answer any more questions.  Answer, I think I’ve answered sufficient questions and I’ve put in place where I can go and talk about things.  Question, do you mean so you don’t offend again.  Answer, no just so you feel happy I’ve had no bad thoughts or actions, I’ve been busy doing my work.  At about 40 minutes past midnight the accused was supplied another cigarette and a cup of tea.

After that, did you then formally charge him with a series of offences and ask him if he had any comment in relation to those?…..Yes I did.

And is it fair to say that he had nothing further to say about that?…..Yes it is.

[8]        In the course of cross-examination and re-examination Detective Wood described the appellant as “certainly quite happy to talk to me” and “certainly he was very quick to volunteer information to me as we talked” and that he was fairly relaxed in his demeanour.  The exchange was said to be “reasonably free-flowing” and the appellant’s responses “forthcoming”. 

Crown arguments

[9]        The Crown submitted that although s35(3) of the Evidence Amendment Act (No 2) 1980 allows a Court to excuse a witness from answering questions in breach of confidence, no application was made in reliance on that statutory provision at any stage.  Moreover, the appellant’s stepfather was aware of the significance of confidence when, although testifying that the appellant had attended a SAFE programme, he did not feel free to speak about what passed between him and the appellant because there was a bond of confidentiality.  The Crown further submitted that in the light of the detailed directions given to the jury by the trial Judge with respect to the legal tests that needed to be met before finding the appellant guilty, there was no real likelihood that the jury would infer propensity to the detriment of the appellant.  On the other hand, said the Crown, there was a probative significance in the fact that the appellant referred himself to the SAFE programme soon after and in response to disclosure of the offending by the complainant to his parents.

[10]     As to the issue of unfairness in the course of the Police interview, the Crown submitted that the test was whether, in the circumstances of the particular case, there was established unfairness to a degree where the proper exercise of a discretion to exclude the evidence required its rejection, and it would always be a matter of degree whether an interview had exceeded the proper bounds which are now established in principle.  This submission reflected observations to that effect by this Court in R v Taliau and R v Read cited in support of the appeal.  In the Crown’s submission the case did not have that degree of unfairness, that the trial Judge had in fact exercised a discretion not to exclude and that this Court should not differ from that exercise of discretion.

Discussion

[11]     In our view the admissibility of the reference by the appellant’s stepfather to attendance at the SAFE programme depends on the admissibility of the admissions made by the appellant in the course of his interview with Detective Wood.  In the absence of a logical link with those admissions, the fact of attendance at the SAFE programme indicates no more than a propensity for unspecified sexual offending.  To the extent that the facts of a complaint and a voluntary involvement in the nature of a response might in some cases amount to an admission by conduct, there would have to be a close relationship between the two to support such an inference.  Here, the evidence does not support the Crown’s submission that the appellant self-referred to a SAFE programme soon after and in response to disclosure of the offending by the complainant to his parents.  The complainant’s evidence is that this happened “quite a bit after” and the stepfather’s evidence is that he was unaware that anything was seriously wrong until the appellant in fact undertook a SAFE programme.  In the absence of a connection with the later admissions the evidence has a prejudicial quality outweighing any probative value.

[12]     Linked with the admissions made to Detective Wood they may have some relevance and a limited probative value because they tend to confirm his admission that at SAFE he discussed what happened between him and the complainant.  But if the interview evidence were to be excluded, the evidence of attending a SAFE programme would cease to have any relevance and accordingly the two categories of impugned evidence may fall together.  In any event we have reservations about adducing evidence of such limited value in view of the public policy considerations referred to by Mr Wade.

[13]     As is well-known, there are available in the community, both within and outside of penal institutions, therapeutic programmes directed to the rehabilitation of offenders.  Some relate to drug and alcohol abuse, others to sexual offending.  These programmes are intended to benefit not merely the abusers and offenders, but society at large because they have the objective of preventing or reducing conduct which can and does bring acute misery to victims and has other significant social costs.  Crucial to the success of such programmes is the voluntary submission of offenders to them.  The risk that some may be deterred from seeking these rehabilitative avenues because the fact of involvement may be used in a prosecution of them is a matter for serious consideration.  The probative value of such evidence may be slight.  The benefit of them should not be depreciated without a clear justification.

[14]     As to the interview, we do not have the benefit of a videotaped record, because an interview of that nature was not conducted.  Nor do we have the benefit of any reasons from the trial Judge.  His decision was not in consequence of a voir dire but on the basis of the deposition statements, which are substantially similar to the evidence given in Court.  In the circumstances the trial Judge had no particular advantage over this Court in determining the issues of admissibility at first instance.

[15]     Because the depositions proceeded by way of hand-up brief, Detective Wood’s impressions of willingness on the part of the appellant to speak to him were not before the District Court Judge.  And because the ruling that the interview evidence was admissible was made immediately before the start of the trial the appellant could not effectively counter that evidence under the protection of a voir dire.  The question of a miscarriage of justice arising through the admission of an unfair interview is therefore also affected by aspects of process which constrained the appellant’s ability to challenge that evidence of Detective Wood with evidence of his own.

[16]     We are concerned about the fairness of the particular interview.  We do not know why it was considered necessary to interview the appellant at a late hour; nor why it was thought appropriate to interview him without offering him the opportunity of a videotaped interview.  Indeed, we express concern that although videotaping facilities were available, Detective Wood embarked on an interview and elicited damaging admissions before he even suggested that the interview be videotaped.  There does not appear to be any proper reason for delaying a video interview.  A Court would be severely critical if it were a tactic to induce admissions in the course of an oral interview by way of a rehearsal for a videotaped interview in which a suspect would be constrained by the prior admissions.  Whilst we could not fairly impute such a motive to Detective Wood, we must bear in mind the potential for improper exploitation that such a practice could generate.  In any event we think it clearly inferential that if the videotaped interview had been offered at the outset, it would have been declined and the appellant’s right to silence would more likely have been respected. 

[17]     Since Detective Wood considered at the beginning of the interview that he had sufficient evidence to effect the arrest of the appellant, we take the inference that the detective was determined to question the appellant in custody specifically in order to obtain admissions.  The tenor of his questions in the light of the appellant’s responses reinforces that inference.  At the outset the appellant said he did not want to describe any of it but Detective Wood was not prepared to accept that indication.  In the course of the interview his questions became cross-examining and accusatory in their tone.  It is significant that even after the appellant had already indicated on no fewer than five occasions that he did not want to answer questions the detective followed up with another question “Do you mean so you don’t offend again?”.

[18]     As this Court has previously mentioned, in R v Taliau for example, the evaluation of alleged unfairness will involve issues of fact and degree in the circumstances of a particular case.  In that case and in R v Mead CA438/00, 14 February 2001, for example, this Court endorsed the view expressed by Eichelbaum CJ in R v Dally [1990] 2 NZLR 184, at 188 line 30, that questions to a suspect in custody which in a sense may be called cross-examination may not be objectionable provided that they are not oppressive, overbearing or unfair. But R v Dally was determined before the passing of the New Zealand Bill of Rights Act, s24(4) of which affirms the right to silence of a person arrested or detained under any enactment.  Now tests for admissibility cannot fail to be coloured by the value of the rights so affirmed.  It has been remarked that “the right to silence is not to be demeaned by persistent questioning in order to get round the election not to talk” R v Donnelly High Court Rotorua T0014/99, 13 October 2000.

[19]     In this case the right was advised by Detective Wood at the appellant’s home at about 10.40 p.m.  At 11.07, about half an hour later, at the Waitakere Police Station, without any further warning Detective Wood began to interrogate the now arrested appellant.  Despite the hour, despite the assumed existence of evidential grounds for the arrest, despite the videotaping amenity, despite the indication that the appellant did not “really want to describe any of it really” the Detective continued interviewing and pressed for a response, as he did repeatedly throughout the interview.  He chipped away at the appellant’s right until it became meaningless. 

[20]     In all the circumstances we consider that the interview should have been excluded on the grounds of unfairness.  That is particularly so when parts of the interview should properly have been excluded under the principles expressed in R v Halligan [1973] 2 NZLR 158.

[21]     It follows that the evidence of the stepfather and indeed the complainant himself relating to the appellant’s attendance at a SAFE programme should also have been excluded.  The inclusion of these pieces of evidence has led to a miscarriage of justice.

[22]     In the circumstances there is no need to consider the merits of the appeal against sentence.  The appeal against conviction is allowed, the convictions quashed and a new trial ordered.

Solicitors:
Crown Solicitors, Auckland