R v Henderson

[2007] NZCA 524

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA153/07 [2007] NZCA 524

THE QUEEN

v

NEVILLE ROBERT HENDERSON

Hearing:         23 and 24 July 2007

Court:            Wilson, Panckhurst and Venning JJ Counsel:   J H M Eaton for Appellant

C L Mander and T M Gresson for Crown

Judgment:      20 November 2007         at 3pm

JUDGMENT OF THE COURT

AThe conviction on count 4 is quashed and an order made that there is to be no new trial on that count.

B        The appeal against conviction is otherwise dismissed.

CThe appeal against sentence is allowed.   The sentence of four years’ imprisonment is quashed and replaced by a sentence of three and a half years’ imprisonment.

R V NEVILLE ROBERT HENDERSON CA CA153/07  20 November 2007

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]      Following a jury trial in the District Court the appellant was convicted of three charges (one representative) of doing an indecent act and three charges of unlawful sexual connection.   The complainant in all charges was the 14 year old stepdaughter of a close friend and business associate of the appellant.   The trial judge, Judge Callaghan, sentenced the appellant to four years’ imprisonment.   He appeals against conviction and sentence.

Factual background

[2]      The  complainant’s  mother  and  father  were  separated.  The  complainant initially lived with her father. The complainant’s mother and her new partner lived in another city.  The appellant was a business associate of the complainant’s stepfather and maintained a close relationship with him and the complainant’s mother. From time to time he stayed at their home.  The appellant’s partner was also a friend of the complainant’s mother.

[3]      At the beginning of 2005 the complainant came to live with her mother and her  partner.     The  offending  by  the  appellant  started  in  August  2005.     The complainant described incidents when the appellant hugged her, grabbed her bottom, squeezed it and, on  occasions,  touched  the  inside  of  her  thighs.    She  said  this happened from early August 2005 until early January 2006.  This behaviour formed the basis of count 1 in the indictment.  Over the Christmas holiday period of 2005 the complainant’s family went camping.  The accused and his partner camped at the same place for a short period.  While at the camp ground the complainant spoke to Mr S, a schoolteacher from Auckland who was travelling around the South Island. He knew the complainant’s stepfather.  The complainant disclosed to Mr S that the appellant had made inappropriate comments and had acted inappropriately towards

her.  Mr S watched the appellant’s interaction with the complainant.  He told her that he intended to disclose what she had told him to her parents.  The complainant then sought to retract her disclosures to Mr S.   But Mr S did advise the complainant’s stepfather in late December when he left the campsite.

[4]      On the night of 31 January 2006 the appellant stayed overnight with the complainant’s family.   The complainant said that when the others were out of the room the appellant told her that she had sexy legs and asked her if she would come and see him that night.   She said that after everyone had gone to bed she went downstairs to the room where the appellant was sleeping, that he pulled her on to the bed, kissed her on the lips, put his hand down her pyjama shorts and put his fingers inside her (count 2).  She also described the appellant putting her hand on his penis and him ejaculating (count 3).   During January the appellant and the complainant exchanged text messages.   That exchange continued. The complainant said she received a text message from the appellant on 7 February to say that he was in town. He suggested they meet at a park.   The complainant said she went to the park at around 11.30pm, met the appellant and that they then went back to a nearby motel room.  She said there the appellant again placed her hand on his penis and used it to masturbate himself (count 4) and also put his penis in her mouth and had oral sex with her (count 5).

[5]      At about this time the complainant’s mother asked her about the conversation with Mr S.   The complainant said that Mr S must have got the wrong idea.   She denied any sexual activity with the appellant.

[6]      The complainant then sent a text message to the appellant telling him that her mother suspected something.  She also sent a text to Mr S saying that she had lied to him and that he shouldn’t tell anyone else because he would get the appellant into trouble for something he didn’t do.  She also left a message on his phone saying that it was all a lie and she was just trying to get attention.

[7]      On  14  February  the  complainant  then  received  another  text  from  the appellant.  He said that he was coming to the city in which she lived and suggested a meeting at the same motel room.  The complainant spoke to a school friend about the

proposed meeting and said that the appellant wanted to have sex with her.   The complainant gave evidence that she went to the motel and had sexual intercourse with the appellant (count 6).  Later that evening the complainant sent a text message to her friend confirming this.

[8]      On 16 February the appellant and his partner went to Australia on holiday. The following week Ms M, the complainant’s teacher noticed the complainant had become very quiet and closed off.   Upon making an inquiry the complainant told Ms M that she “wanted it to stop”.  The complainant agreed to see Mrs C, the school guidance counsellor.   During a number of sessions the complainant disclosed the bedroom incident and the sex at the motel to the counsellor.   The complainant’s mother was present for some of the later discussions.

[9]      On 27 February 2006, and while in Mrs C’s office, the complainant received two texts from the appellant, the second of which read:

Coming up Wed, same pla

[10]     A complaint was made to the police on 28 February.  On 2 March the police spoke to the appellant.   The appellant denied that he and the complainant were involved in a sexual relationship.   He said the complainant had told him that she loved him.

[11]     Three weeks later, on 22 March 2006, and at the appellant’s request, the police  conducted  a  video  interview  with  him  in  the  presence  of  his  counsel. Although the statement was exculpatory the Crown did not oppose its admission at trial.   In the course of the statement the appellant said that the complainant was infatuated with him.  He said that she told him she had attempted suicide, that she wanted the appellant to be her boyfriend and wanted to “have his babies”. The appellant also said that the complainant admitted to him she had sex with her boyfriend and that she had smoked marijuana.  The appellant did not give evidence at trial.  The exculpatory statement provided the basis for his defence.  The defence was that the complaints were false, and the complainant was unreliable.

Appellant’s submissions

[12]     Mr Eaton for the appellant submitted there had been a miscarriage of justice for the following reasons:

(a)       Conduct of Crown counsel

•    eliciting evidence by leading questions;

•    inappropriate and emotive language in the closing address;

•     use of an unfair chronology. (b)     Trial Judge errors

•     failing to direct the jury in relation to the submission as to the motive to lie;

•     wrongly limiting the admissibility of the evidence of a defence witness Mr T.

(c)       Inadmissible evidence was adduced at trial

•    evidence of behavioural change and character evidence;

•    recent complaint evidence.

Crown response

[13]     The Crown submitted that the only leading questions of concern were in relation to count 4.   Mr Mander submitted that generally, there was an agreement that evidence on non-contentious issues could be led and neither individually nor collectively could the other leading questions have given rise to a potential miscarriage of justice.

[14]     The Crown submitted the only matter of concern in the prosecutor’s closing was the use of the phrase “travesty of justice”.   Mr Mander submitted that such misconduct as there was by the prosecutor did not render the trial unfair and no objection could be taken to the chronology as it went to the jury by consent.

[15]     Counsel then submitted the Judge had not erred as the circumstances of the case did not require a specific direction regarding the issue of why a complainant might lie and the Judge’s directions were sufficient.   Next, he submitted that no miscarriage of justice had arisen from the way the Judge dealt with Mr T’s evidence.

[16]     Finally Mr Mander submitted that the demeanour evidence that was led was unobjectionable and that the balance of the complaint evidence that was led was the subject of discussion between counsel.  The trial Judge had confirmed in a ruling that defence counsel did not take issue with evidence of the separate complaints or the continuation of a developing complaint being led.   Mr Mander submitted that no miscarriage of justice arose from that either.

Discussion

[17]     There  was  an  informal  understanding  between  counsel  that  evidence  of non-contentious matters could be led without objection.   In memoranda filed after the hearing trial counsel and the prosecutor take a different view of the extent of the agreement regarding what evidence was non-contentious or fell into the category of “matters other than those central to the allegations”. Because of the informality of the agreement rather more evidence was led in this trial than might be the norm.

[18]     While the answer to a leading question is not per se inadmissible, the weight to attach to it may be substantially reduced: R v Wilson 9 Cr App R 124 (CCA). In R v E [2007] NZCA 404, this Court held that leading questions that went to the heart of the prosecution case would in themselves have been sufficient to allow the appeal: at [67] – [68]. But that comment was in the context that immediately following the playing of a video of the child complainant’s evidence-in-chief the prosecutor led all of the incidents referred to by the child in the video evidence again. This Court held

it was improper for the prosecutor to simply provide a repetition of the evidence in that way.

[19]     Trial counsel has confirmed that during the trial he did take objection or rose to take objection from time to time.  The Judge also dealt with the issue of leading questions, although the record does not show that. Save for the evidence  about count 4, such leading that was arguably outside the informal agreement has not prejudiced the appellant as it was not evidence central to the prosecution case.

[20]     While generally we do not consider the leading questions have led to any unfairness to the accused, there is one particular passage of evidence that is objectionable.   The first meeting at the motel led to incidents that supported both counts 4 and 5.  After the complainant had given evidence of oral sex (count 5), the prosecutor asked:

QJust going back at any stage was your hand on his penis during this incident?

A        Yes.

Q        Can you tell us about that?

A        He put my hand on there again and I moved it away.

QWhen he put your hand on his penis did he do anything with your hand whilst it was on his penis?

A        He moved it up and down.

[21]     That passage of evidence which followed the prosecutor’s leading question was the only evidence to support count 4.

[22]     The prosecutor’s questions about the incident which supported count 4 were improper leading questions on a contentious issue.  They required a strong response and direction by the Judge given that the evidence formed the sole basis for count 4. None was forthcoming. The conviction on count 4 cannot stand.

Crown counsel’s closing

[23]     Mr Eaton took exception to a number of the passages in the prosecutor’s closing address.

[24]     Mr Eaton first submitted that Crown counsel had effectively “repackaged” the defence case by seeking to suggest to the jury that the issue was whether the complainant had lied by manufacturing or fabricating evidence.  Mr Eaton submitted that Crown counsel was wrong to do that and had thereby placed an onus on the accused to explain why the complainant had lied.  In addition Mr Eaton argued that this theme was developed through the use of inappropriately emotive language:

[5]… nothing more than a desperate attempt by a guilty man to avoid you finding him guilty of these charges.

[6]       … in denying these charges and accusing [the complainant] of being a liar … That is basically what he has done.  He has endeavoured to trash the complainant’s reputation just to save himself.

[25]     Mr Eaton also submitted that two particular passages in Crown counsel’s closing address were so emotive or inflammatory they occasioned the risk of a miscarriage.

[26]     At [29] the prosecutor said:

As I have already mentioned, in relation to [the complainant] the defence has put  her  credibility  squarely  on  the  line  and  suggested  that  her  sworn evidence is untruthful in that it was fabricated, made up.  In other words it has been suggested that this girl has given false evidence on oath.   The Crown asks you, as I have already said, to totally reject that contention and says to you that she was a patently truthful and honest witness, and it would be a travesty of justice, the Crown submits to you, if you rejected her evidence.

(emphasis added)

[27]     And later at [131] the prosecutor closed on this note:

That’s it ladies and gentlemen.   This man, in the Crown’s submission, is guilty of the six counts.  You have the clear evidence of the girl down there supported by all the other evidence I have referred to.  You have the garbage that he has talked about in his interview, and although there may be the odd small inconsistency, when you stand back and look at the big picture, all the evidence, her behaviour at the relevant time, and everything else I have

referred to, it all dovetails in, and it can only lead you to the one conclusion, and that is you can be sure that this man has done these things and therefore it is your responsibility and your duty, ladies and gentlemen, to bring in verdicts of guilty.

[28]     Mr Mander conceded that the Crown prosecutor should not have used a phrase such as “travesty of justice” in the way he had.  That was a proper concession. The use of such an emotionally charged phrase had no place in assisting the jury to determine whether to accept the complainant’s evidence.

[29]   Mr Eaton referred to further examples of emotive and unnecessarily inflammatory  language  that  while  objectionable,  were  perhaps  not  as  serious. During the course of his closing, Crown counsel made a strident attack on the appellant’s attempt to portray the complainant as an unstable and unreliable witness. From time to time he lapsed into unnecessarily emotive language in the process, for example:

[9]       … some of the more bizarre or ludicrous aspects of the accused’s defence, …

[46]      …  that   amounts  to  an   allegation  of  this   14-year-old   acting deceptively, fraudulently if you like, using a document, fraudulently using a document, ie that drawing, to obtain a benefit for herself.  It is a very very serious allegation and it is just nonsense to think that she would do that.  The obvious question, is as I have noted here, is would [the complainant] be so devious and malicious as to do that to this accused?

[30]     When referring to Mr S’s evidence of disclosure by the complainant the prosecutor said:

He did tell others and because of that it may be – we don’t know and this is pure speculation of course – the truth may never have emerged.

[31]   Mr Eaton also criticised the prosecutor’s references to the appellant’s exculpatory statement, a theme to which the prosecutor returned from time to time, in particular:

[107]    … another attempt by the accused to manufacture something out of nothing when he realised he was in serious trouble.  He was trying to create a motive as to why these people would give totally false evidence against him.  It was just a smoke screen.

[91]     … self-serving statement which was made three weeks after he was arrested.  As I have mentioned it is not a sworn statement …

[32]     A number of the criticisms that Mr Eaton made of the closing address are justified.  The issue for this court is whether the departure from good practice was so gross,  so  persistent,  so  prejudicial  or  so  irremediable  that  the  trial  was  unfair: Randall  v R [2002] 1 WLR 2237 (PC).

[33]     The proper approach to be taken by Crown counsel particularly in the closing address was restated by this Court in R v Hodges CA435/02 19 August 2003.   In delivering the judgment of the Court Tipping J stated:

[20]      We return to the proper role of counsel when representing the Crown in a criminal trial.   Counsel is entitled, indeed expected, to be firm, even forceful.  Counsel is not entitled to be emotive or inflammatory.  The Crown should lay the facts dispassionately before the jury and present the case for the guilt of the accused clearly and analytically.  Although different counsel will naturally and appropriately have different styles and different methods of addressing the jury, the Crown's closing address should, at least at some stage, traverse the legal ingredients of the count or counts in the indictment, and call the jury's attention to the evidence which the Crown says satisfies the  onus  and  standard  of  proof  in  relation  to  each  ingredient,  and  in particular those which are the subject of dispute.   Crown counsel are important participants in the dispassionate administration of criminal justice. They are entitled to contend forcefully but fairly for a verdict of guilty; but they must not strive for such a verdict at all costs.

[21]      None of this is particularly new: see R v Roulston [1976] 2 NZLR

644 (CA) cited in Thomas [CA305/98 15 December 1998] and applied in the

Australian cases there noted. …

The principles from Hodges were recently repeated in R v O [2007] NZCA 87.

[34]     There are aspects of the prosecutor’s address that can properly be criticised. The principal concern is whether the effect was to suggest the onus was on the appellant rather than the Crown.   In the course of the address the prosecutor had reminded the jury that they must be satisfied beyond reasonable doubt the accused committed the offences before they could find him guilty.  He also said the Judge would remind the jury of the burden and standard of proof.  The Judge did give a full and proper direction as to the burden and standard of proof in summing up.  The jury would not have been left in any doubt as to the burden and standard of proof.

[35]     Further, the particularly objectionable passage referring to the “travesty of justice”  came  towards  the  start  of  the  address,  while  the  reference  to  the responsibility  and  duty  of  the  jury  that  Mr  Eaton  complained  of  came  in  the

concluding paragraph of the prosecutor’s address.  The two were not linked.  There is nothing wrong in principle with a prosecutor closing to a jury that on the basis of the evidence they could be sure the accused had committed the offences or, as counsel said, “done these things”, and that it was therefore their responsibility and duty to bring in verdicts of guilty.  Judges often direct juries that if they are sure of guilt then it is their duty to return verdicts of guilty.   We note that there was, however, a further unnecessarily inflammatory and pejorative reference to the exculpatory statement as “garbage”.

[36]    The closing address was a long one.   Aspects of it were conventional. Significantly also, after both closing addresses were delivered the Judge took an adjournment overnight and summed up the next morning.   To the extent the prosecutor’s comments were emotionally charged the impact of the emotion would have abated somewhat overnight. We do not take the Judge’s passing reference in his summing up to the Crown counsel and defence  closings as  “fine”  addresses  as approving the form and content of the addresses. The Judge was commenting on counsels’ advocacy.   The Judge told the jury that they were not bound to accept counsel’s closing arguments.

[37]     The submission that the accused had lied and manufactured his statement required a lies direction from the Judge: R v Marshall [2004] 1 NZLR 793. The Judge responded appropriately and spent some time in his summing up directing the jury on the Crown submission that the appellant had lied in his statements to the police: [57] - [64]. The Judge provided the jury with proper directions on that issue.

[38]     In  summary  on  this  point,  the  prosecutor  overstepped  the  mark  by  his reference to a “travesty of justice”. He also made a number of unnecessarily emotive submissions in the course of closing.   However, when the statements are put in context and considered in light of the Judge’s directions on the relevant points, we consider the failings fall short of leading to a miscarriage in this case.

Chronology

[39]     Mr Eaton next criticised the use of the chronology, which the prosecutor made available to the jury in this case.  He submitted the document was effectively a summary of the Crown closing address.

[40]     The  chronology  was  made  available  to  defence  counsel  before  closing addresses (albeit briefly).  He knew the Crown would use it.  He did not object at the time.  In closing defence counsel said:

I am happy for it [the chronology] to be before you because I think having all the dates there is of assistance, but please remember that it is prepared by the Crown, not the defence.  It is their timeline, but it is certainly there to help you with all those dates …

[41]     The Judge directed as to the purpose of the chronology and the use to which it might be put by the jury:

[22]     Mr Gresson, without Mr McDonald really objecting, provided you with a chronology, and that again is a helpful aid for your memory. But bear in mind that that is not evidence, that is just to aid you, and if you are going to place any reliance on something that is referred to in that, you must go back to the source – that is the actual evidence.

[42]     We are not persuaded the provision of the chronology to the jury led to any unfairness to the accused.

Was a motive to lie direction required?

[43]     In this case the accused did not give evidence.   In closing however, the prosecutor submitted:

The next point is why would she put herself through all this if she was making it up or it simply wasn’t true.   As you have heard she has had to speak to police officers, she has made several statements, her friends have got involved, her teachers have got involved and all this, of course it has had an effect on her family.  You observed how difficult it was for her to talk about the sexual acts that occurred.   So why would a young teenager put herself through all this if it was not true?

[44]     Defence counsel engaged that issue and in his closing address to the jury said:

… My learned friend has put the Crown case and he says, “Why would [the complainant] make these things up”?  Why would she?   Well let’s have a look at it from the other side of the coin.

He then analysed the evidence and made an argument that it was consistent with her having told lies.

[45]     Mr Eaton submitted that the Judge should have given the jury a very clear reminder that it was not for the defence to establish motive and that the onus of proof was on the Crown and that the Judge’s failure to do so has led to a miscarriage.

[46]     In R v T [1998] 2 NZLR 257 this Court confirmed that New Zealand trial practice has allowed the accused to be asked whether he knows of any reason for the complainant to fabricate her account and for the prosecutor to use the absence of any credible reason as a closing argument in favour of the complainant’s credibility. However, this Court also noted (at 265 – 266) that:

… where the prosecution had sought to bolster the complainant’s credibility by reference to the absence of a motive to lie, the charge to the jury needs to be clear that regardless of the absence of evidence of motive, the onus of proof remains on the Crown throughout. …

The question: “Why should she lie?” must be interpreted as and confined to the eliciting of facts known to the accused, not speculation as to possible motives.

[47]     As he did not give evidence, the appellant was not taxed in cross-examination with questions of “why would the complainant lie?” or if he knew of any reason why the complainant would lie.   In the face of such questioning, a very clear direction may be required.   However, where the accused has not given evidence but the prosecutor has used the “why would she lie” submission in closing, the issue is whether there is a danger the jury would consider the onus of proof has shifted to the accused.  As this Court noted in R v Hayman CA478/05 23 June 2006:

[32]      R v T should not be read as suggesting an invariable requirement.  A direction is not required every time there is mention of any absence of motive on the part of the complainant to make a false allegation (see for example R v Adams CA 70/05 5 September 2005 at [74]).

[48]     As noted, both counsel directly engaged on the issue of the complainant’s motivation to lie.  The Judge also dealt with the issue in some detail in the course of his summing up.   For example, after identifying the conflict between the complainant’s evidence and the complainant’s account as set out in his exculpatory statement the Judge said:

… so really at the end of the day, and I think Mr Gresson made the point with you, that the case is not overly complicated because it is a question of really who are you going to believe, and on that basis if it is the complainant, or have the Crown then proved the charge beyond reasonable doubt, and as Mr McDonald says, there is no burden on [the appellant], and at the very very least he says to you that the Crown have not proven beyond reasonable doubt because there is a reasonable doubt there for all the matters that he went into.

More importantly, the Judge later gave a full direction on the burden and standard of proof in accordance with R v Wanhalla & Anor [2007] 2 NZLR 573. Following that direction, and in the context of the summing up as a whole, the jury can have been left in no doubt that the onus remained on the Crown throughout.

What is the effect of the ruling regarding Mr T’s evidence?

[49]     In his statement the accused said that he had dropped in to see his friend Mr T and in the course of a general conversation about his relationship with the complainant’s stepfather he had told Mr T:

To make matters worse I am having trouble with his teenage stepdaughter and he says in what way and I told him and I said do you think I should tell the stepfather about it and he says oh no don’t be silly.  He says that is just the last thing you need to do.  He says she is just a typical teenager.  He says she is seeking attention.  It will blow over, just forget about it.

The defence wanted to call Mr T to confirm that conversation took place.   The Crown objected.  A voir dire was held.  In his evidence of what was said, Mr T went into much more detail than the accused had done in his statement.   The defence argued that what Mr T had to say was admissible because it was effectively an anticipatory response to a challenge the Crown were going to make to the veracity of the appellant’s statement.   The defence submitted it was admissible as a prior consistent statement to  rebut a challenge of recent invention.  After referring to the

decision of Anderson J in R v H (1989) 5 CRNZ 13 (HC) the Judge ruled that limited evidence could be led about a discussion between the accused and Mr T.  The Judge ruled that evidence of the conversation could be led but limited to the following:

•   that Mr T had a conversation with the appellant on 2 February 2006 at his home;

•    the conversation related to business issues regarding the purchase of the business by the appellant from the complainant’s stepfather;

•    the discussions extended to the appellant referring to problems he had had with the complainant;

•    the discussion including Mr T giving some advice to the appellant regarding the later issue.

[50]     Mr Eaton submitted the trial Judge was wrong to limit the evidence of Mr T as it was properly admissible in full as evidence of a prior consistent statement to rebut an allegation of recent invention or fabrication by the accused.

[51]     Mr  T’s  evidence  was  ruled  admissible  as  evidence  of  a  prior  consistent statement  to  rebut  the  anticipated  challenge  to  the  appellant’s  evidence.    His evidence could never be led to prove the truth of what the appellant had told him.  It was the fact that on 2 February, before any complaint had been made, the appellant raised with his friend Mr T that he was having difficulties with the complainant, was concerned for her and asked Mr T what he should do about it that is relevant.  It is the timing of the discussion with Mr T, taken with the appellant’s innocent explanation for the contact that he gave in his statement, that was particularly significant to the defence.

[52]     Trial counsel Mr McDonald was able to use Mr T’s evidence to that end in his closing address.  At [95] he submitted:

… he elects only to talk to Mr [T], a friend, and to monitor it, to keep in touch with her.

And later at [97]:

… all he is doing, he speaks to Mr [T], explains the concerns you have heard

Mr [T] confirm that there was that discussion, …

And then at [112]:

He told Mr [T] that on the 2nd because he is telling the truth.  There was no meeting on the 7th and there was no meeting on the 14th.  That is consistent. Why else did he tell Mr [T] that?  It just doesn’t make sense that he would continue with these meetings or to arrange these meetings. …

[53]     Having allowed the evidence in, we agree that the Judge should not have constrained it to the extent he did and there could have been more flexibility as to its scope.   But given the significance of Mr T’s evidence was the timing of the conversation between the appellant and Mr T we are not satisfied the way the matter was dealt with by the Judge has led to a miscarriage.

[54]     Finally on this issue, having limited the evidence of Mr T in the way he did the Judge should have intervened when the prosecutor explored the matter further in cross-examination.  But we accept that the extent of the further cross-examination by the Crown prosecutor was, as Mr Mander described it, innocuous.

Was inadmissible evidence adduced at trial?

Behavioural change and character evidence

[55]     Mr  Eaton  next  criticised  the  evidence  that  was  led  from  a  number  of witnesses as to behavioural changes they had observed in the complainant.   The prosecution used the evidence in support of a submission as to the complainant’s credibility.  He submitted that the evidence should not have been admitted and was prejudicial to the defence.   For example, he referred to the complainant’s mother noting the complainant was not sleeping well and referred to sleeping pills.  Mr S gave evidence that in his opinion the complainant was unhappy.  The stepfather gave general evidence about the complainant’s personality.  The teacher gave evidence the complainant was indulging in attention seeking behaviour and later gave evidence of behavioural change. She was also asked to describe the complainant’s demeanour

after she had disclosed.   Mrs C, the guidance counsellor, was asked questions concerning the complainant’s personality.

[56]     As   Mr   Mander   submitted,   the   appellant   squarely   put   in   issue   the complainant’s behaviour and character in his statement.   The appellant said the complainant had told him that she had tried to commit suicide, that she was very depressed, that she was sneaking out at night and having sex with a boyfriend and had given the boyfriend a blow-job.    He also told the police that she said she had smoked marijuana.    The defence thereby sought to portray the complainant as a sexually promiscuous 14 year-old with behavioural and, perhaps, mental issues. This was to support the defence case that she had confided in him and that he was doing no more than counselling her as a concerned adult.  To that end the appellant himself described the complainant as moody and being very volatile, up and down and attention seeking.  As an explanation for the text communications he said that he told the complainant she could text him or ring him if she wasn’t feeling right or was feeling depressed.

[57]     Reference can be made to the case of R v Walker CA417/03 15 June 2004.  In that case evidence was led as to the demeanour of the complainant.   The issue of whether that was in breach of s 23G of the Evidence Act 1908 (now repealed, but applicable in the present case) was raised.  The Court said:

[25]     We agree that the evidence relating to observed behaviour does not engage s 23G of the Evidence Act nor any evidential concern which that statutory provision envisages.  The real issue is whether there is anything in the evidence which, having regard to the ordinary understanding of human behaviour which a jury is expected to possess, has relevance to a matter in issue.   In relation to the observations of the girl's natural father, unusual behaviour having an emotional connection, occurring suddenly and unexpectedly, could properly be taken as evidence that something out of the ordinary in the child's life had recently occurred.   As to the evolving behaviour observed by the girl's stepfather, that really bears on the context in which the complaint came, ultimately, to be made.   The evidence was therefore admissible.  We think it would have been desirable for the Judge to have explained the relevance in terms such as we have used but we make that observation with this caveat: to have identified relevance with such precision could, in fact, have operated prejudicially to the accused although not illegitimately so. …

[58]     Similar considerations apply in this case.   The evidence does not engage s 23G of the Evidence Act.  It was not led as an indicator of sexual abuse but rather

as evidence that something out of the ordinary was happening in the complainant’s life.    The  evidence  supported  the  prosecution  submission  that  when  she  gave evidence of the incidents that took place with the appellant her observable behaviour was consistent with something happening in her life.

[59]     Mr Eaton submitted that the present case could be distinguished from R v W. In that case the behavioural change evidence was admitted as proving essential context to the complaint evidence.   While the evidence of the evolving behaviour observed by the child’s stepfather bore on the context in which the complaint was made in R v W  the observation of the girl’s natural father in terms of her unusual behaviour was also properly led as evidence that something out of the ordinary in her life had recently occurred.  That is the basis upon which the evidence was led in this case.

[60]     Also, the defence used the evidence of the complainant’s demeanour and behaviour in support of its case.   The defence had to give an explanation for the appellant giving the complainant his cellphone number while he was in Australia.  In closing defence counsel made the submission that:

[The complainant] wasn’t her normal self at school after the 13th.  Of course she wasn’t.  She has had boyfriend problems and all this is going to come out in the open. That’s when she starts to panic remember.  That is when she is making up this story.  Of course she is not happy at school.  … She’s got to come up with something.  She has already started that, and that is why she’s not her normal self.  That is why she is quiet.

[61]     And:

[94]     [The  complainant’s  mother]  says  that  [the  complainant]  said  in Mrs [C]’s  office  that  she  got  home  at  about  1am.    She  said  that  [the complainant] was a mess after the meeting on the 23rd, she cried and cried. Of course she cried.  There is an extreme amount of pressure here.  She has just let out this story for the first time.  It can just as easily be a response to that type of pressure that she is feeling. …

Then:

[96]     That’s just what he [the appellant] did with [the complainant] – he monitored  her.    She  had  explained  the  problems,  he  said  “Well  any problems, you text me, call me, whatever”.  He was monitoring that position. That is exactly what he was doing.

[62]     The evidence of the complainant’s demeanour and behaviour as related by her mother and stepfather and the teacher’s observations as to her being attention seeking was properly admitted as evidence that something out of the ordinary had occurred in her life.

[63]     Next, Mr Eaton submitted that a number of the witnesses had wrongly been permitted to express opinions as to whether or not they believed the complainant. Mr Eaton identified passages in the evidence of the complainant’s mother and stepfather,  and  Mr  S  as  to  their  belief  in  the  complainant  or  her  veracity.    In particular there seemed to be some attempt to qualify Mr S as an expert witness given his background with school children.   We agree that the evidence of that nature should not have been led.  However, the Judge did address the issue in his summing up. The Judge said:

[79]      Just let me say this also – and I reminded you of this on at least one occasion – in the course of giving their evidence some witnesses gave you their impression or opinion about [the complainant]’s credibility and reliability at the time that she was telling them things.   Again I want to remind you that in this case that is not their task.  That is your task to decide for example whether [the complainant] was reliable and credible.

[80]     But you can take into account the description of the demeanour, or that is the way that [the complainant] appeared to them at the time, and you are able to take that into account in assessing [the complainant]’s reliability and credibility.

[64]     The direction was to the point.  It is also apparent from the direction at [79] that the Judge had also dealt with the issue when it arose during the course of the trial.

Recent complaint evidence

[65]     The final point taken by Mr Eaton on the conviction appeal was the objection to the introduction of recent complaint evidence through the following witnesses:

•   Mr S;

•   a school friend;

•   Mrs C;

•   the complainant’s mother;

•   Detective Stevenson.

[66]     The difficulty for the appellant with the challenge to this evidence at this stage is, however, that defence counsel agreed as part of the defence approach to the case to allow the recent complaint evidence in.  The Judge recorded the matter in a minute as follows:

[1]       I have raised with counsel this morning the issue as to a number of the  “consistent  statements”  made  by  the  complainant  to  the  various witnesses; those witnesses being her mother, her stepfather, Mr [S], Ms [M], Ms [C] and Miss [S].

[2]       Mr Gresson advises that he understood there was no dispute about all this evidence being led, either as separate complaints or as a continuation of a developing complaint.  Mr McDonald has confirmed that is the position and no issue is taken with that evidence being led.

[67]     Again it was a legitimate tactic for the defence to allow that evidence in as part of its attack on the complainant’s credibility. The evidence showed that the complainant had made an initial complaint, then resiled from it, had then later sought to withdraw it and said that it was a lie, all before making the last complaint.  That provided a basis for the submission that the complainant was not a credible witness and should not be believed.  It was a legitimate tactic.  In closing defence counsel was able to make the submissions that in disclosing to Mr S the complainant was seeking attention and that when Mr S said someone must be told about it the complainant immediately became concerned at, on the defence case, the lies she had told.

[68]     As the Supreme Court said in R v Sungsuwan [2006] 1 NZLR 730 at [66]:

[66]      There will be cases in which particular acts or omissions of counsel may in retrospect be seen to have possibly affected the outcome but they were deliberately judged at the time to be in the interests of the accused. In some cases the accused will have agreed or acquiesced – only to complain after conviction. Where the conduct was reasonable in the circumstances the client will not generally succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment made by trial counsel which could well be made by another competent counsel in the course of a new trial.

[69]     The approach of defence counsel to allow the evidence of the conflicting complaints to be adduced to support a strong submission to the jury regarding the recantation by the complainant after Mr S spoke to the complainant’s mother and stepfather about the matter was a reasonable tactic.  The appellant can not complain about it now.

[70]     There was evidence led on other aspects of complaint evidence that was perhaps unnecessary and was strictly inadmissible.  However, the Judge gave firm and clear directions about recent complaint evidence and the use to which it could be put at [70] - [74].  In addition the Judge went on to say:

[75]      Now on the other side of the coin you have heard evidence which has been called in this trial from a number of witnesses as well who have said [the complainant] told them nothing happened, and that is the evidence of course that the defence say is evidence of inconsistency, and there is the discussion with [the complainant]’s mother, that was about 9 February, what she then told Mr [S] following the original complaint, and told him a number of times.   She got as far as telling him I think following 9 February that nothing had happened.

[76]      The stepfather spoke with her, and so you also need to bear in mind that there is this evidence of her saying nothing happened and you can use that as well to assess her reliability and credibility.  I will summarise it this way.   You have to bear in mind the evidence from a witness, what the complainant has said to that witness what occurred, is not evidence of the truth of that, but it is a tool whereby if you accept it was said it may assist you in assessing the credibility and reliability of the complainant.

[77]     Similarly the evidence of a witness of what the complainant said to that witness about something not happening is not evidence that it did not happen, but again it is a tool whereby if you accept that it was said it can go towards helping you assess the credibility and reliability of the complainant.

[71]     We are satisfied that the Judge’s directions were sufficient to ensure that the jury would have properly dealt with the issue of the recent complaint evidence that was led without objection.  No miscarriage arises.

Conclusion – conviction appeal

[72]     Save for the leading of the complainant’s evidence in relation to count 4, we are not satisfied that the matters raised by Mr Eaton affect the safety of the convictions in this case.  However, the only evidence to support the conviction on

count  4 was evidence adduced in response to a leading question from the prosecutor. The passage complained of was a clear and objectionable example of leading on a fact in issue.  It required a very firm and clear intervention and direction from the Judge. There was none.  The conviction on count 4 cannot stand.  It is quashed, and an order made that there is to be no new trial on that count.

[73]     We are satisfied, however, that in the context of the trial as a whole and given the evidence relating to the other incidents, the leading of the evidence in that way has not led to any danger in relation to the other verdicts.  The incident relating to count 4 took place immediately after the incident in relation to count 5 which was disclosed by the complainant and was not led.  The other incidents that supported the other counts took place on quite different occasions.  While the conviction on count

4 cannot stand the remaining convictions are unaffected.

[74]   While the prosecutor can properly be criticised for using unnecessarily inappropriate and emotional language at times, we consider his conduct falls short of leading to a miscarriage in this case.  None of the other matters raised by Mr Eaton, taken separately or cumulatively with the conduct of the prosecutor have led to a miscarriage.

Result – conviction appeal

[75]     The conviction on count 4 is quashed.   The appeal against conviction is otherwise dismissed.

The appeal against sentence

[76]     The appellant appeals against the sentence of four years on the basis it is manifestly excessive.   The maximum sentence is 10  years’ imprisonment.   The maximum penalty was increased from seven to 10 years’ imprisonment on 20 May

2005.  Earlier cases have to be read in light of that increase.

[77]     Judge Callaghan took a five  year starting point  for  the  offending before reducing it to four years as the appellant was a first offender with a good record.

[78]     The Crown accept that the start point of five years was perhaps at the higher end available to the Judge but submit that, taken as a whole, the final sentence of four  years  was  available  to  the  Judge  and  could  not  be  said  to  be  manifestly excessive.

[79]     As this Court observed in R v Boyd (2004) 21 CRNZ 169:

[40]      The starting point  here  must  be  that  legislation  of  the  character against which Mr Boyd offended is prophylactic. It is protective legislation, and it was quite deliberately put into place by our Parliament to protect young  girls  against  precisely  the  sort  of  thing  which  occurred  in  this particular case. In such circumstances, the fact that the conduct could in a sense be described as “consensual” is of no moment.

[80]     In R v G CA400/97 26 November 1997 this Court upheld a four and a half year sentence in a case where the appellant had pleaded guilty to three charges of unlawful sexual intercourse, one charge of sexual violation by unlawful sexual connection and representative charges of indecent assault and doing an indecent act, all against his partner’s daughter.  The complainant was 14 years old.

[81]     The relevant features of the present case for fixing the appropriate sentence are first, the totality of the offending. Next, the progression from suggestive comments to indecent touching and fondling to digital penetration to having the complainant masturbate him to oral sex  and  then  finally full  sexual  intercourse indicates a planned incremental overcoming of the complainant’s resistance.  There is also an element of breach of trust given the disparity in age and the close relationship the appellant had to the complainant’s family.   If all convictions had stood the appeal would have been dismissed.   However, some allowance must be made for the quashing of the conviction in relation to count 4.  The sentence of four years will be quashed and replaced with a sentence of three and a half years.

Result – sentence appeal

[82]     The  appeal  against  sentence  is  allowed.    The  sentence  of  four  years  is quashed and replaced by a sentence of three and a half years’ imprisonment.

Solicitors:

Crown Law Office, Wellington