R v I Ca410/01
[2002] NZCA 358
•8 August 2002
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139, CRIMINAL JUSTICE ACT 1985
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 410/01 |
THE QUEEN
V
[F I]
| Hearing: | 1 August 2002 |
| Coram: | Anderson J |
| Baragwanath J | |
| Appearances: | P Le ‘au’ anae for Appellant K Raftery for Crown |
| Judgment: | 8 August 2002 |
| JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J |
The appellant was found guilty in the High Court at Auckland upon charges of unlawful sexual connection and rape of his niece. He was sentenced to eight years imprisonment. This appeal against conviction is upon the grounds that a miscarriage of justice occurred because complaint evidence was wrongly admitted and in any event the complainant has recanted her evidence that it was the appellant who abused her.
Background
The trial occupied four days from 9 – 12 October 2001. The indictment contained nine counts. These were referable to three separate incidents, in relation to each of which there were charges of indecent assault, unlawful sexual connection by digital penetration and rape. The complainant was aged eight years at the time of the first incident and nine years at the time of the second and third incidents. At the conclusion of the Crown case the prosecutor invited a s347 application with reference to the indecent assault counts. Commendably he considered that although there was evidence to support these counts no purpose was to be served by complicating the task of the jury in considering them. The indecent assault allegations were an integral part of each abusive incident, the criminality of which was adequately captured by the unlawful sexual connection and rape counts. Orders in terms of s347 resulted.
The jury found the appellant not guilty upon the counts referable to the first and second incidents, but guilty upon the remaining two counts related to the third incident. This incident occurred between 14 February 1998 (when the complainant turned nine years) and 13 February 1999. A complaint was made to a relief teacher at the complainant’s school on 17 February 1999. As a result of it there was an evidential interview of the complainant on 16 March 1999.
With reference to the third incident the complainant thought it had occurred the previous year in about November or December and in the “new house” to which her family had shifted some time earlier. Her disclosure was expressed in these terms:
Q.Okay, just carry on – at your new house?
A.It was after school. It was just me and my brother and my mum and dad were at work, my sister was at my Aunty’s house and me and E were just watching TV and so we locked the door and then my … [F] came and he came in to have a drink of water and then he told me to get the stereo and then I just went in my room to get it and he came in the room and locked the door and then he told me to get on the bed and I never and then he grabbed me and pushed me in bed and then he told me to take off my pants and I never and then he did it, took it off and he took off his and he put his private part in my private part and it was hurting and I screamed and my brother was coming and trying to open the door, peeking and went outside the window jumping up and down, to see what’s happening and my brother said, “You had sex, you had sex” like that, screaming like that and my mum’s cousin [F] he was, you know, he was going, like humping it.
Q.Like humping?
A.Me.
Q.You, yeah.
A.And it was hurting and I was screaming and then after that he stopped and he tried to kiss me and then he did it again. He tried to kiss me and I never wanted to kiss him and he tried to and then he stopped and pulled up his pants and then he went and I got up and then I wanted to go to the toilet and then it hurted, it was like a needle.
In subsequent questioning the complainant told the interviewer that [F] had also digitally penetrated her before the rape occurred.
The complainant’s identification of [F] as the perpetrator at interview came as a surprise. Previously she had told a health nurse at her school that her uncle (“my mother’s brother”) [F I] was the abuser. At trial it was the Crown case that [F I] was the name by which the appellant was known within his immediate family.
On 7 November 2000 there was a second evidential interview of the complainant. This time she said that [F I] was the perpetrator. In explanation of the first interview she said that her mother had suggested she substitute [F]’s name, because he had returned to Samoa and if [F I] was identified he would go to jail. By the time of the November interview the complainant was no longer in the day to day care of her parents.
At trial the complainant named and identified [F I] as her abuser, albeit he was indicted and appeared under his correct name of [FA I].
However, in January 2002 the complainant wrote a letter which was provided to counsel by her family addressed “Dear Judge” in which she said that the wrong
person was locked up, being [FA] rather than [F I].
At trial the identity of the abuser was the key issue. The fact of sexual violation was essentially confirmed by medical evidence of a healed but significant injury to the complainant’s hymen which was consistent with her allegations of intercourse. Moreover, as the above extract (paragraph [4]) from her evidential interview indicates the complainant’s young brother, E (aged eight years at the relevant time), witnessed the abuse at least in part. Against this brief outline of the history of the case we can now turn to the specific grounds of appeal.
The Complaint
It was common ground at the trial that prior to the complaint to Ms Hull on 17 February 1999 the complainant had spoken of the abuse to three of her school friends. In the course of life skills instruction Ms Hull told the class that all people had secrets, some of which were bad secrets, and that if anyone had secrets which they wished to share with her they could do so. Subsequently at least two of her friends asked the complainant if she had been abused and said they had been as well. On 17 February 1999 one of the friends said to the complainant in Ms Hull’s hearing as the class was walking to a swimming pool “tell Miss, you can tell her”. Subsequently Ms Hull thinking that the complainant may have a concern spoke to her at the pool while the other children were swimming. The complainant complained of rape by her uncle in terms consistent with the description set out earlier at paragraph [4].
Ms Hull reported the matter to a senior teacher, wrote an account of what she had been told and provided the information to the public health nurse having responsibility for the school. The nurse on 18 February 1999 visited the school and spoke to the complainant who provided the name [F I], describing him as her mother’s brother, as the offender. This report resulted in the first evidential interview on 16 March 1999 but in which the complainant named [F] as her abuser.
At trial the Crown did not seek to call evidence from any of the three school friends. The first of them had left Auckland and her whereabouts were unknown. The second was available, had made a statement and was capable of saying that there had been a discussion in which the complainant referred to being raped by her uncle. It seems that any discussion with the third friend was more limited in nature. In any event the Crown sought only to call Ms Hull and the public health nurse. Defence counsel objected to that course.
The trial Judge ruled that both of the proposed witnesses were competent to give recent complaint evidence. He considered that exclusion of the evidence would be unfair to the Crown since it would enable the defence to exploit the inconsistency between the two evidential interviews, absent evidence of what the complainant said when she first reported the abuse to an adult figure in February 1999. The Judge considered that the evidence of the one available friend, whilst admissible, was not of assistance in relation to the major issue in the trial, namely who was the perpetrator of the abuse. To her friend the complainant referred only to her uncle, whereas Ms Hull was told that the uncle concerned was her mother’s brother ([F] was her mother’s cousin), and, the next day the public health nurse was given the name [F I]. Hence the Judge described Ms Hull as the person to whom “the first relevant complaint” was made in the sense of a complaint which bore on the identity of the offender.
With reference to an argument that the complaints to Ms Hull and the nurse were not first in time nor at the first reasonable opportunity, the Judge dismissed such argument “easily”. He noted the complainant’s age, her fear that she would receive a hiding from her parents had she complained to them and that it was the life skills lesson from Ms Hull which precipitated the complaint. He put the matter in these terms:
Given the complainant’s relationship with the alleged perpetrator and given her reasonable fears of what would happen if she told her parents, I am quite satisfied that the disclosure to Miss Hull was a disclosure at “the first reasonable opportunity”. A 9 year old girl of Samoan extraction would never have thought of telling a Pakeha teacher about these things, which to her were shameful, had it not been for Miss Hull's lecture that morning. Once when she knew that here at last was someone to whom she could safely complain, she did so within a matter of hours.”
The argument on appeal was similar to that advanced at trial, namely that the witnesses relied upon by the Crown were not the first to whom complaint was made and nor was the evolving complaint to Ms Hull as supplemented the following day by the naming of the offender to the health nurse, one at the first reasonable opportunity. The complaint first in time was that in the school ground to the complainant’s school friends. Complaint evidence from this source was permissible, but the Crown chose not to call it. If it was said this was an example of a developing disclosure or complaint, it was still incumbent upon the Crown to establish what the complainant said at the outset to her friends.
The rules which regulate the admission of recent complaint evidence have effectively been modernised in recent times in light of increased awareness concerning the reaction to be expected on the part of victims of sexual abuse and in keeping with legislative changes. Some say that modernisation has not gone far enough : see the dissenting judgment of Thomas J in R v H [1997] 1 NZLR 673, 682 (CA).
The purpose for which recent complaint evidence is admitted is not evidence to prove the acts complained of. That a victim of abuse has promptly told another of their misfortune, which is retailed by that other, does not prove the truth of such allegations. That would involve proof by hearsay. Rather the purpose of complaint evidence is to establish consistency of conduct on the part of the complainant. That a spontaneous complaint was made may bolster the credibility of the complainant. Hence the requirement that a trial Judge direct the jury upon the limited purpose for which evidence of recent complaint is admitted.
Next is the requirement that the complaint be voluntary in the sense that it was not extracted by another in circumstances such that the complaint was not truly that of the complainant. As to this see the judgment of this Court in R v Duncan [1992] 1 NZLR 528 in which the need to consider and weigh all the circumstances of the particular case, was stressed.
But it is the requirement that the complaint be one made at the first reasonable opportunity which is at the heart of the present argument. As was said in R v Nazif [1987] 2 NZLR 122 (CA) at 125:
There are no hard and fast rules as to the time within which a complaint must be made in order to be admissible. Matters to be taken into account will include the age, nature, and personality of the prosecutrix, her relations with those to whom she might be expected to complain, the reasons for delay in complaint and all other circumstances the Judge regards as relevant.
It does not follow there may only be one recent complaint witness. Successive complaints to different people may be parts of a single process of disclosure. On the other hand “a second complaint, remote in time from the first and lacking any connection with it” is not admissible : R v N [1994] 3 NZLR 641, 646 (CA).
The argument in this appeal was based on these latter requirements. It was arguable in this case that there was a developing process of complaint or disclosure. The complainant first told her school friends that she had been raped by an uncle. This was repeated to Ms Hull with the addition that such uncle was a brother of the complainant’s mother. Finally, the visiting nurse was told the actual name of the offender, being [F I]. Given this development in the terms of the complaint does it follow that the evidence of the adult complaint witnesses was properly admitted? Two points arise.
First, to establish an evolving or developing complaint it was necessary to call evidence of what was said on the first occasion; here that was when the complainant spoke to her school friends. This was not done. Second, the admissibility of the evidence of the successive complaint witnesses remains contingent upon disclosure being made at the first reasonable opportunity. Hence, any development in the complaint must be prompt. An addition to its original terms distant in time and circumstance from the first moment of complaint, is inadmissible.
Mr Raftery was disarmingly candid in explaining how the present complaint evidence originated. Prior to his late involvement in the trial it was not intended to adduce recent complaint evidence. He considered such evidence was necessary. However counsel recognised that the important issue in the case was the identity of the abuser. The complaint to the school friends was therefore of limited assistance. The complainant’s reference to her uncle was ambiguous, because uncle was a term which she applied both to her mother’s brother and her cousin. By contrast the evidence of the adult witnesses was capable of advancing the Crown case. Ms Hull narrowed the field down to a brother of the complainant’s mother and the nurse to the actual perpetrator by name, albeit subject to proof that [F I] was indeed the accused. In these circumstances Mr Raftery sought to call the adult witnesses, but not the children. Understandably he was of a mind that children of this age should not be subjected to the ordeal of giving evidence in a criminal trial if that course was avoidable.
Despite the obvious logic of counsel’s approach, there were two problems with it. The first was that successive complaint witnesses may only be called where the complaint emerged by way of a close process of development. It follows that each contributor must be called to establish the whole. Otherwise the complaint is not evidence of the first words of complaint but, as here, evidence of the first words of the complainant relevant to the real issue in the case. Indeed, that was the way in which the trial Judge approached the issue when he said that the disclosure to Ms Hull was “the first relevant complaint”. It is not for the Crown to pick and choose what constitutes a complaint by reference to what counsel considers the key issue in the case to be. To put it bluntly the Crown is stuck with the terms of the complaint as it is first made, save where the case is one of a developing disclosure.
The further related complication in relation to the evidence of the adult witnesses is whether what they were told on 17 – 18 February 1999 was at the first reasonable opportunity. The trial Judge accepted that the complaint to Ms Hull was one “within a matter of hours” of the life skills lesson which precipitated it and, hence, that the complaint was indeed at the first reasonable opportunity. However, that finding was one made with a focus upon the evidence of the adult witnesses. That one of the school friends alerted Ms Hull to the complainant’s possible need to share a secret was considered by the Judge, but the s344A ruling does not address the issue of when the school ground complaint to the complainant’s friends was made. In the course of the argument we were provided with a statement obtained from one such friend who was interviewed shortly before the trial when a decision to call complaint evidence was taken. On one reading of that statement it may be that the school ground complaint and that to Ms Hull were very proximate, perhaps even the same day. By contrast in cross-examination the complainant left the impression that there was a gap of a few weeks between the relevant disclosures. Because of the way in which the recent complaint evidence was approached in the High Court the question of its timing was not adequately explored. In the result we cannot agree that the complaints to the relief teacher and visiting nurse were shown to have been made at the first reasonable opportunity.
For these reasons we find that the recent complaint evidence should not have been admitted in the absence of evidence of the school ground complaint and without further examination of the timing issue. However, evidence of what the complainant first said about the identity of her abuser and before the first evidential interview, is of obvious relevance.
The case is an unusual one. The fact of abuse was not seriously in issue. The key questions were whether the jury accepted the complainant’s evidence it was [F I] (not [F]) who raped her and, if so, whether the accused and [F I] were one and the same person. Put another way the real difficulty in relation to the Crown case was that the complainant had at her first evidential interview identified [F] as the perpetrator, whereas in the second interview and at trial she named [F I], whom she also identified. Given this conflict in accounts on occasions when she had promised to tell the truth, it was obviously relevant to inquire how the allegations had emerged in the first place and to know what the complainant had said as to the identity of the abuser at that time. If not established to be admissible as evidence of recent complaint, was the evidence of the relief teacher and the visiting nurse admissible under some other head?
As discussed with counsel in the course of argument we think the evidence was admissible to meet what was effectively an allegation by the defence of recent fabrication. We shall refer first to the relevant principles and then return to this case.
The general rule is that previous statements (whether oral or written) of a witness are not admissible in order to show consistency of account. The rule is one of economy and convenience. It avoids inquiry into collateral issues which will inevitably arise in relation to a previous consistent statement, for example when and how it arose. But the rule is subject to exceptions.
One is that a previous consistent statement may be admitted to rebut a suggestion of recent invention or concoction. Such a suggestion was central to the defence case in this trial. Inevitably counsel pointed to the March 1999 interview when [F] was named, being the first evidential account supplied by the complainant. What she said in the November 1999 evidential interview, and at trial, was contrasted as a belated invention. Hence the complainant was quite properly cross-examined concerning her different accounts at the two interviews, and what motivated the change, it being suggested by counsel that the complainant’s mother had not raised the suggestion of substituting [F I]’s name on the first occasion. In these circumstances we are in no doubt that the oral statements to the relief teacher and the visiting nurse were admissible to rebut the suggestion of recent invention.
It is interesting to note that s22A of the Evidence Act 1908 (introduced in 1982) enables evidence of the description of an offender supplied by a witness who identifies the accused to be admitted as an exception to “the rule against the admissibility of previous consistent statements”. However, despite the parallels to the present situation, this statutory exception relates only to “descriptions” being those “given to the police or the prosecutor”. Still the section by analogy at least is of passing relevance.
The assessment whether a previous statement consistent with the witness’s evidence at trial should be admitted is one for the trial Judge. The High Court of Australia in Nominal Defendant v Clements (1960) 104 COR 476, 479, Dixon CJ, said this of the Judge’s discretion:
Inasmuch as the rule forms a definite exception to the general principle excluding statements made out of Court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The Judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen … the Judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.
These observations, we note, are quoted in Cross on Evidence (NZ ed) para 9.42.
The two elements to be considered before the discretion is exercised were fully explored at trial. We have already indicated that there was an attack upon the complainant to the effect that her final account was a belated unreliable version. The probative worth of the prior consistent statement we have already discussed in the context of considering it under the recent complaint head. We are in no doubt that here the discretion would have been exercised in favour of reception of the previous statement.
We note also that where a previous consistent statement is admitted its purpose is not to prove the truth of the witness’s trial evidence, but to disprove a concoction. In other words to show that the witness’s evidence is consistent with a statement made at a time and in circumstances likely to assist in the assessment of the complainant’s credibility. Importantly, therefore, the limited purpose for which evidence of recent complaint and evidence of a previous consistent statement may be admitted, is similar.
The conclusion we have reached as to the admissibility of the evidence under a head different to that relied upon at trial is supported by authority. In R v H (1989) 5 CRNZ 13 the trial Judge disallowed recent complaint evidence since it lacked the requisite recency, but allowed the evidence in to rebut an attack of recent concoction. The extent of the evidence was limited in accordance with the purpose for which it was received. The suggestion was that a complainant of sexual abuse had manufactured the allegations on account of an educational difficulty which she experienced. Anderson J admitted the evidence, limited to the fact of a complaint about the sexual misconduct, because it pre-dated the educational difficulty.
Similarly in R v C [1995] 2 NZLR 330 (CA) this Court sustained a conviction where recent complaint evidence had been admitted although it lacked recency, because the Court was satisfied that “if the label of complaint was put to one side” (p 335) the evidence was properly admissible as either a prior consistent statement or as collateral conduct going to the credibility of the complainant. Reception of the evidence in the wrong guise had not prejudiced the appellant because although a recent complaint direction was given to the jury it correctly served to identify the limited purpose to which the evidence could be put. The same is true here. It follows that for these reasons this ground of appeal must fail.
The Recantation
We are able to deal with this aspect of the appeal quite shortly. In our view the letter of recantation does not diminish the worth and reliability of the complainant’s evidence that it was [F I] who raped her and that he was the accused person at the trial. In short the recantation does not go to the identity of the offender, but to the complainant’s belief that the wrong person had been “locked up”.
The operative words of the letter addressed “Dear Judge” are “ … I have discovered that you have locked up the wrong person because you have [FA] instead of [F I] …”. After the letter was referred to the police in January 2002, the complainant participated in a further video-taped interview. In it she said that a cousin had told her at school that [FA] was the person who was “locked up”. The complainant therefore concluded that the actual perpetrator, whom she knew as [F I], was not in prison. However, in the course of the interview she also expressly confirmed her evidence that the abuser whom she referred to by the name [F I] was the accused at trial, and therefore the appellant. It follows that, properly understood, the letter is not a recantation. Based on what she was told at school the complainant when she wrote the letter laboured under the misunderstanding that a person other than the appellant was in prison. It was a matter of confusion, not recantation.
This ground of appeal must also fail. The appeal against conviction is accordingly dismissed. There was no challenge to the sentence of eight years imprisonment.
Solicitors:
Crown Law Office, Wellington
0
0
0