R v H (CA263/03)
[2003] NZCA 426
•6 October 2003
ORDER PROHIBITING PUBLICATION OF NAMES ADDRESSES OR PARTICULARS IDENTIFYING APPELLANT OR COMPLAINANT
IN THE COURT OF APPEAL OF NEW ZEALAND
CA263/03
THE QUEEN
v
H(CA263/03)
Hearing: 25 September 2003
Coram: Blanchard J Goddard J William Young J
Appearances: D G Slater for Appellant
L M B Lamprati for Crown
Judgment: 6 October 2003
JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J
[1] The appellant appeals against his conviction on four representative counts of sexual violation by rape, unlawful sexual connection (oral sex and digital penetration) and indecent assault on a girl under the age of 12 years (french kissing). Each count related to the period between 1 March 2001 and 20 December 2001.
[2] The complainant’s parents had separated. Her mother had been unable to cope with the care of the children. She had asked for assistance from CYFS who had
placed the children with the appellant and his partner. The appellant is the
R V H(CA263/03) CA CA263/03 [6 October 2003]
complainant’s uncle, the brother of her father. Both the mother and the father continued to see the complainant and the other children from time to time. She stayed with her father on alternative weekends.
[3] On 20 December 2001 the children returned to their mother for the holiday period. Shortly thereafter the complainant, aged 11, told her mother of soreness in her genital region and her mother noticed that her vagina was slightly swollen and there was some blood in her knickers. The mother assumed this to be the onset of menstruation.
[4] On 16 January 2002, during the course of a car journey, the mother noticed that the complainant had a powerful body odour which was something that, from past experience, the mother had observed when the complainant was scared. When she was asked what was wrong the complainant became distressed and said that her uncle had “touched” her. The mother pulled the car over to the side of the road and asked the complainant to repeat what she had said. The complainant did so, indicating that she had been touched in the groin area and that the appellant had pulled his pants down and made her touch his “dick”.
[5] When the complainant was medically examined on 17 January 2002, at the request of the police, by a doctor accredited for the examination and treatment of alleged sexual abuse victims, the doctor observed that the appearance of the complainant’s external genitalia was consistent with her not having started menstruating. Internal examination revealed that her hymen had been torn through, right down to its base. The doctor gave evidence at the trial and said that this was consistent with a blunt force penetrating into the vagina, the most likely cause being penile penetration. It is accepted on behalf of the appellant that the complainant has been subjected to sexual abuse of this nature. The question at trial was whether it was the appellant who was responsible and whether particular events of abuse recounted by the complainant in a video interview shown to the jury and in cross- examination had actually occurred.
[6] The appellant maintained a denial of committing any sexual abuse of the complainant. It was not for him, of course, to identify any other perpetrator or to
suggest a motive for the complainant to have said that he was her abuser. It is, however, to be noted that the only motive which even now can be suggested was a desire on the part of the complainant to live with her father rather than the appellant. Given that the complainant was undoubtedly being sexually abused by someone, it would be strange indeed if, on account of such a motive, she directed her accusations against the wrong person. There was no other adult male in the household of the appellant. And no other perpetrator has ever been suggested.
[7] In her evidence, the complainant said that the first abuse occurred in March or April of 2001. She had been asleep when the appellant came in, drunk, pulled the blankets off her, took her pants down and licked her genital area. She said that he had afterwards done this sort of thing to her “heaps of times”. She also described how on more than one occasion he had tried to kiss her “in a bad way” by putting his tongue into her mouth. On another occasion he had taken her into his bedroom, removed his pants and underwear and got into bed with her and then licked and sucked her genital area and placed his finger in her vagina. She described this as having happened on a Sunday before going out to a pub for dinner but said that he had done that kind of thing to her on more than one occasion. She also gave evidence of how on “lots of days” the appellant had penetrated her vagina with his penis.
[8] The complainant said that the last time anything had happened to her was on a Wednesday, which from other events could be identified as 19 December 2000.
[9] There was evidence from [employers] for whom the appellant had worked over the months in question as a [occupation redacted]. Their evidence concerned the appellant’s working hours and days off. This evidence showed the opportunity available to the appellant for the offending. On six occasions, also, he had failed to turn up to work.
[10] The manager of a local hotel [Hotel W] gave evidence about patronage of the hotel by the appellant and his wife. This had particular relevance to the incident late in the year on the day on which the appellant and his wife (he had married his partner on [X] December) had come to the hotel for dinner with the children.
[11] The basis for the appeal is the submission that the convictions are unsafe because of doubt said to be created by the combination of three evidentiary matters.
[12] The first relates to the mother’s statement to the police that on the occasion when her daughter initially made a complaint against the appellant in the car she had been told by the complainant that the first incident of sexual abuse had occurred “at or after the races”. There was unchallenged evidence that the appellant had not been to the races for many years. No-one else in the household had attended racing. The reference was unlikely to have been to any form of racing other than horse races. The complainant did know about horse racing from seeing it on television. But, perhaps significantly, she had not mentioned races in her video interview. When asked in cross-examination about what she had told her mother, the complainant at first appeared to accept that there had been something about races but, on a reading of the transcript, does appear to have been confused about what she was being asked. And she stated in response to further specific questions that she had never told her mother anything about races.
[13] Under cross-examination, the mother said that she was not too sure about the word used by the complainant but “it sounded like races”. She said she might have picked the word up wrongly. The complainant had been crying while speaking to her. The mother said that the complainant might have said [“Hotel W”], which was the name of the hotel. She denied a suggestion from counsel that it was she who had mentioned races to her daughter.
[14] Mr Slater advanced the submission that the fact that the complainant did say or may have said that the first incident had occurred at or after the races cast doubt upon the entirety of her complaints because of the evidence that no one in the household, including the appellant, had any interest in races.
[15] This, like the other matters to be mentioned, was an issue ventilated before the jury. Obviously it did not raise any reasonable doubt in their minds. It is likely that they would have concluded that what the mother originally said to the police concerning races resulted from a misunderstanding of what her daughter had said in a distressed voice.
[16] The second matter concerned the date on which the family had eaten a meal at the [Hotel W]. The prosecution case put that as happening on Sunday
[Y] December 2000 which was on the weekend following the marriage of the appellant and his partner. The complainant had described a sexual assault occurring before she, the appellant and his wife and the other children had driven to the hotel for dinner in the family’s [GM] motor vehicle. The wife’s evidence was also to the effect that the visit to the hotel on that occasion had been made in the [GM]. However, other evidence suggested that during the weekend in question the [GM] was parked in the car park of the hotel because, after the wedding, the appellant and his wife had not felt in a proper condition to drive and had given the keys to another person who had gone away with them. Until the keys could be retrieved the car stayed in the car park. It was therefore suggested that the visit to the hotel, if it occurred in the [GM], could not have taken place on that Sunday evening.
[17] But there was evidence that another vehicle belonging to a Miss H, a yellow car, had been made available to the appellant on that evening. It was submitted on behalf of the Crown that the trip to the hotel was made in Miss H’s car and that, when giving evidence, some 17 months after she had first complained, about the car in which they travelled the complainant had understandably failed to recall that on that occasion the family car had not been used.
[18] As we have said, the issue has been raised in an attempt to show that the incident of sexual abuse which the complainant said occurred prior to the dinner at the hotel could not have occurred on Sunday [Y] December, thereby undermining the credibility of the complainant’s evidence as a whole. Again, however, this matter was placed by counsel in their submissions squarely before the jury which could well have taken the view that the complainant and the appellant’s wife were simply mistaken about which car had been used. It was a detail which, from the complainant’s perspective, was peripheral to her story.
[19] The third matter raised by Mr Slater concerned an incident which the complainant said happened on Wednesday 18 December in the lounge of the home. She said it was the last time something happened. In her video interview she described being on a bed by herself at night when everyone else was sleeping. The
appellant had returned from the pub. She said he “just licked my pussy” and then he went to bed. Her siblings had been in the room but had been asleep. There were two trials. At the first trial, which resulted in a jury disagreement, the complainant appears in relation to this matter to have told essentially the same story as on her video interview. But at the second trial she said that the incident had happened during daylight hours when her uncle came home from work and that the other children were in the lounge but had their backs turned. They were engaged in doing a puzzle. When asked about the licking of her vagina she said “I’m supposed to say he grabbed my head and put it around his dick”. When asked about what she meant by “I’m supposed to say”, she confirmed to appellant’s counsel that her meaning was that she had meant to say that the appellant had grabbed her head etc. But, accepting that explanation, what she was now describing was a quite different occurrence - during daylight hours with other children present in the room and a different form of sexual abuse.
[20] Mr Slater’s submission was that this change of story had made the whole of her evidence unworthy of belief. Counsel suggested also that the incident now described was improbable, because of the alleged presence of the other children who must surely have seen something.
[21] We deal with the element of improbability first. As Mr Lamprati pointed out, the incident may not be quite as improbable as appears at first blush. Mr Lamprati said that the allegation was made against someone who, if the rest of the complainant’s evidence was accepted, had been taking sexual advantage of his victim for many months. He may have been arrogant enough to have the confidence that brief sexual activity of this kind, which could be performed while the appellant’s back was turned to the other children and his body was screening what was occurring from their view, was not over risky. Perhaps, too, the running of the risk may have been a part of the attraction.
[22] It seems to us very possible that under the stress of cross-examination the young complainant may have been confusing different incidents. It would also have been open to the jury to take the view that, if indeed the complainant had embroidered her story with this account, there was nevertheless no reasonable doubt
that on other occasions offending as charged in the representative counts had occurred. It is to be remembered that she had undoubtedly been raped and, upon the evidence, there is no reason to think the offender was anyone other than the appellant. Again, the issue was put squarely before the jury and it concluded that the prosecution had proved its case.
[23] Standing back and looking at the combination of the three matters raised by Mr Slater in the context of the evidence as a whole, we do not consider that the jury had to have a reasonable doubt about the appellant’s guilt or that its verdicts were unsafe.
[24] There was also an appeal against the sentence of 12 years imprisonment, with a minimum non-parole period of six years, imposed on the rape charge. We are unpersuaded that the sentence was not available to the Judge. The starting point after conviction at trial on a count alleging a single rape is of course eight years. This offending involved multiple occasions of rape of a young girl who was in the care of the appellant and his partner/wife. There was a gross breach of trust involved in all of the offending. Mr Slater conceded that he was not able to point to any case which might show that the sentence was inconsistent with those for like offending.
[25] The appeal both against conviction and sentence is dismissed.
Solicitors:
D G Slater, Invercargill for Appellant
Crown Law Office, Wellington
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