R v Irving CA322/06
[2006] NZCA 512
•5 December 2006
NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA322/06
THE QUEEN
v
MAURICE IRVING
Hearing: 21 November 2006
Court: Arnold, Baragwanath and Ronald Young JJ Counsel: R A Weir for Appellant
P K Feltham for Crown
Judgment: 5 December 2006 at 2.30 pm
JUDGMENT OF THE COURT
The appeal is dismissed
REASONS OF THE COURT
(Given by Arnold J)
R V IRVING CA CA322/06 5 December 2006
Introduction
[1] Following a jury trial before Judge McGuire the appellant was convicted on one count of indecent assault and one count of sexual violation by unlawful sexual connection. The appellant appeals against his conviction on a single ground – that the Judge’s refusal to allow him to call a particular witness, A, resulted in a miscarriage of justice.
Background
[2] The complainant alleged that the appellant, who was an associate of her father, had visited her home one evening (with her agreement) and, while there, had assaulted and sexually violated her. In her evidence in chief, the complainant described the sequence of events leading up to the assault and the sexual violation. In the course of that description the following exchange took place between the complainant and prosecuting counsel:
A ….. and then he started talking to me about this other guy [A].
QDo you know a person by the name of [A] or the guy [A] he was talking about?
A Yes I do.
Q How do you know [A]? A Through my Dad.
Q Is he somebody that works with your father? A He worked in the bush yes.
Q And what did [the appellant] say to you about [A]?
AHe had told me that he had spoken to [A], which [A] had told him that I was – that I had fucked him, that I had given good blow jobs and I had told him I hadn’t even done nothing with him.
Q So just go a little bit slower, … – [the appellant] told you that [A]
had told him – is that right? A Yes.
Q That you had sex with [A] and gave a good blow job?
Q And what was your response to [the appellant]? A I had said no. It wasn’t true.
Q Did he say anything when you said that? A Yes he just kept saying yes I did.
Q Were you worried or concerned at that point at all?
AMmm yes I was because at that time I sort of knew where this was leading to.
QWhy do you say that, what made you think that it was leading to something?
ABecause he kept on persisting and saying that I had given him a blow job and that he wanted – [the appellant] wanted one too.
QSo during the conversation about [A], at what point did he say that he wanted one too?
A That [the appellant] wanted one. Q Yes?
A After he had spoken about [A] and what [A] had said.
[3] Before leading this evidence prosecuting counsel took the precaution of seeking and obtaining leave from the Judge under s 23A of the Evidence Act 1908. While this was understandable, it was, in our view, unnecessary.
[4] Mr Cooper, who represented the appellant at trial, cross-examined the complainant about her relationship with A. The following exchange occurred:
QNow there’s been some discussion in this case about a fellow by the name of [A]?
A [A]
Q [A] – is that [A], his surname [A]? A I’m not too sure of his last name.
Q Does he work in the bush and did you meet him through your father? A Yes I did.
QNow your evidence before the jury today was that you never kissed this man is that right?
Q Now that’s not true is it? A Yes it is true.
Q Well did you go out with him for 5 weeks? A With [A].
Q Yes.
A No I didn’t.
Q You sure about that? A Yes.
Q How did you meet [A]? A Through my dad.
Q Do you know that [A] got interviewed by the Police on the 24th of
October 2004? A No.
OBJECTION: MS GORDON.
CROSS-EXAMINATION CONTINUES BY MR COOPER.
Q How did you meet [A]? A Pardon.
Q How did you meet [A]?
A I met him in the bush with my Dad.
Q Right – so did you go out to dinner with him? A Yes I did.
Q Did you not go out with him for over a month? A Pardon.
Q Did you not go out with him for over a month? A I never went out with him at all.
Q Apart from what – to dinner? A Just to dinner.
Q Is that the one and only date that you had?
A Well I wouldn’t call it a date.
Q Is [your partner] quite a rotund fellow? A A what sorry?
Q Is [your partner] quite a fat fellow? A He’s quite big yes he is.
QRight – did you refer to him as a “fat cunt” at one stage when you were talking to either [A] or [the appellant]?
A I can’t recall.
THE COURT ADDRESSES MR COOPER
CROSS-EXAMINATION CONTINUES BY MR COOPER
Q Did you ever go to [A’s] address? A Yes I have.
Q Right – did you ever stay there the night? A No.
Q You sure? A Yes.
QAre you saying that you never had a sexual relationship with [A] at all –
THE COURT ADDRESSES MR COOPER
CROSS-EXAMINATION CONTINUES BY MR COOPER
QWell you told the Prosecution in your evidence today that you never kissed [A], is that right?
A Yes that’s right.
[5] At the close of the Crown’s case, Mr Cooper advised the Court that he wished to call A in order to lead evidence from him on two points, namely that:
(a) Contrary to her denial in her evidence in chief and under cross-examination, the complainant had kissed A; and
(b) There was no earlier discussion about oral sex between A and the accused.
[6] The Judge indicated to Mr Cooper that he considered that the questions were collateral. Mr Cooper accepted that but argued that they were matters going to the complainant’s credibility. The Judge said that that was invariably the case and, after further discussion, ruled that the issues were collateral and that A could not be called to contradict the answers which the complainant had given under cross-examination.
[7] The appellant gave evidence. He denied that the sexual assault had occurred. He said that the complainant had performed oral sex on him, but that it was at her instigation. He accepted that there had been some discussion about A, but denied that there was any discussion about oral sex between the complainant and A.
Discussion
[8] Mr Weir for the appellant submitted that the proposed evidence went so substantially to the complainant’s credibility that denying the defence the opportunity to present it meant that her credibility could not be tested, in circumstances where credibility was the only issue in the trial. This had resulted in a miscarriage of justice.
[9] The context was that the discussion alleged was part of the sequence of events leading to the assault and the sexual violation. It was part of the background. The complainant and the appellant agreed that there had been some conversation about A. They differed as to the content of that conversation, specifically as to whether the appellant said that A had told him that the complainant had performed oral sex on him. The appellant denied that he had made any such statement.
[10] Mr Weir advised us that, if called, A would say that the complainant had performed oral sex on him but that he had never told the appellant about it. As we understand it, Mr Weir’s argument was based on the premise that, had this evidence been led and accepted by the jury, the jury might have concluded that because A had never discussed with the appellant his sexual relationship with the complainant, it was unlikely that the appellant made the statement alleged. This would have raised a reasonable doubt about the complainant’s credibility overall.
[11] As the Judge said, collateral evidence goes simply to credibility – it is not relevant to other issues in the case. Cross on Evidence (Looseleaf edition, 1996) at [9.64] explains the position as follows:
The answers given by a witness to questions put in cross-examination concerning collateral facts must be treated as final. “Finality” in this context does not mean that the cross-examination on the collateral facts must stop immediately the witness has refused to accept what is put to him or her, but rather that the calling of rebuttal or other evidence is prohibited. A collateral fact is one that is not a fact in issue nor relevant to a fact in issue.
This rule is based on the desirability of avoiding a multiplicity of issues. The answers may or may not be accepted by the tribunal of fact, but the cross-examiner must take them for better or worse and cannot contradict them by other evidence….
As relevance is a matter of degree, it will be impossible to devise an exhaustive means of determining when a question is collateral for the purpose of the rule under consideration.
(footnotes omitted)
[12] In R v Kiriona CA 343/96 10 April 1997 at 5 this Court said:
Put in its traditional terms the collateral evidence rule – that the matter sought to be put to the witness has such a connection with the issue, that the opposite party would be allowed to prove it in evidence -– is easy to state but notoriously difficult to apply.
[13] There has been some debate as to whether it is preferable to view the prohibition on collateral evidence as a rule subject to exceptions, or whether a rather more flexible approach is required, one in which the overriding consideration is ensuring the fairness of the trial. On this latter approach, whether collateral evidence is permitted will depend upon a balancing of the competing policy considerations at play in the individual case.
[14] While evidence that is “collateral” may be relevant to credibility, considerations of trial efficiency and fairness usually militate against its admission. “Trial efficiency” includes taking up valuable court time with matters which are peripheral to the main issues and distracting the judge and/or jury from their central tasks. “Fairness” is directed at fairness to the witness, who may be unprepared to deal with peripheral matters.
[15] We consider that there is much to be said for an approach which focuses on considering whether, in a particular case, the evidence is of sufficient importance and value to the resolution of the matters at issue to outweigh the considerations of trial efficiency and fairness just identified. The touchstone, then, is the need to ensure a fair trial for the accused. This is to be contrasted with an approach which envisages the articulation of a “rule”, the identification of exceptions to it and an attempt to slot the particular case into either the rule or the exceptions. See, for example, the discussion in R v M [1996] 3 NZLR 502 at 506 – 510 (HC); Paciocco and Stuesser, The Law of Evidence (3 ed 2002) at [6.5].
[16] This is not an issue which we need to resolve in the present case, however. We consider that, whatever approach is adopted, the Judge was right to refuse to allow A to be called. The proposed evidence was, on any view of it, not only collateral but outside any exception to the rule of admissibility.
[17] First, this was a discretion exercised by the Judge in the course of trial. Appellate courts typically exercise restraint in interfering with such decisions. In the present case, we do not see how evidence of what A said to the appellant could assist the jury in determining what the appellant said to the complainant. If A denied that he had made any such statement to the appellant, and the jury accepted that, that would not mean that the appellant did not make the statement alleged to the complainant. It would not assist the jury in determining credibility as between the complainant and the appellant.
[18] Second, allowing A to give evidence would have required the jury to reach a view about his credibility. This would have distracted the jury from its proper task, which was to determine whether the Crown had established beyond a reasonable doubt that the offences alleged had occurred. What did or did not happen between A and the complainant was remote from the central issue.
[19] Third, the effect of allowing the proposed evidence from A was that the complainant’s prior sexual conduct would be put before the jury, in circumstances where the defence had not obtained the necessary leave under s 23A of the Evidence Act. As we have noted, prosecuting counsel sought leave under s 23A
before leading the complainant’s evidence of the appellant’s conversation with her. That was done as a precaution. The grant of leave for that purpose did not open up the complainant’s previous sexual history for examination in the way proposed by defence counsel.
[20] Finally, we note that had A given evidence to the effect that the complainant had performed oral sex on him, but that he had not discussed that with the appellant, that would have risked damaging rather than advancing the appellant’s case. This would depend on what, if any, aspects of A’s evidence the jury accepted. Further, even if the jury had concluded that the complainant had not told the truth about the conversation with the appellant, that would not mean that they would have been likely to conclude that her evidence about the assault and the sexual violation was untrue. As the commonly given lies direction recognises, the fact that a witness lies about one point does not mean that he or she has lied throughout his or her evidence.
[21] Accordingly, we do not accept that there has been a miscarriage of justice.
Decision
[22] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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