R v Jarden CA51/03

[2003] NZCA 416

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL TRIAL.  THEREAFTER PUBICATION OF NAMES, IDENTIFYING PARTICULARS OF COMPLAINANTS PROBIHITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA51/03

THE QUEEN

v

KEVIN MOANA JARDEN

Hearing:         25 June 2003

Coram:Anderson J Panckhurst J Paterson J

Appearances: D R LaHood for Appellant

M N Zarifeh for Crown

Judgment:      4 August 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Background to the appeal

[1]      The appellant was convicted on his trial before a High Court Judge and jury on 16 counts of sexual offences against girls aged between 6 and 10 years.  He was sentenced to preventive detention and now appeals against conviction and sentence.

[2]      Leave to appeal is required because the appeals were filed out of time.  There were problems in relation to instructions to previous counsel engaged for the appeal

and problems also with obtaining a trial transcript.  The Crown did not oppose the

R V KEVIN MOANA JARDEN CA CA51/03 [4 August 2003]

grant of leave and, as we indicated at the hearing of the appeal, we think that leave should be granted.

[3]      The appellant was a friend of the families of two of the girls whom we will refer to as “S” and “J”.  He boarded at S’s home and sometimes stayed overnight at J’s home.  The third child, whom we shall call “C” was a friend of the other girls, whose homes she visited.  The Crown case was that the appellant exploited access to the girls through the residential arrangements and friendship, in order to molest them.   The offending included sexual violation by rape and by unlawful sexual connection as well as indecent assaults and indecent acts.

[4]      The complainants’ evidence was given by way of videotaped interviews and viva voce examination by video link.  The Crown also led evidence from the mother of S, the mother of J, and the godmother of C, relating to complaints and certain behaviours of the girls.  There was medical evidence as to anatomical examinations in respect of S and J, who had allegedly been vaginally penetrated.  Evidence was also led by the Crown from Dr K D Zelas, an eminent consultant psychiatrist, whose testimony was relied on by the Crown for the purposes of s23G(2) of the Evidence Act 1908 which provides as follows:

(2)     In any case to which this section applies, an expert witness may give evidence on the following matters:

(a)      The intellectual attainment, mental capability, and emotional maturity of the complainant, the witness's assessment of the complainant being based on—

(i)    Examination of the complainant before the complainant gives evidence; or

(ii)    Observation   of   the   complainant   giving   evidence, whether directly or on videotape:

(b)      The general development level of children of the same age group as the complainant:

(c)       The  question  whether  any  evidence  given  during  the proceedings by any person (other than the expert witness) relating to the   complainant's   behaviour   is,   from   the   expert   witness's professional experience or from his or her knowledge of the professional literature, consistent or inconsistent with the behaviour of   sexually  abused   children  of   the   same   age   group   as   the complainant.

Grounds of appeal against conviction

[5]      Counsel for the appellant, who was not briefed for the trial, submitted that a miscarriage of justice had been occasioned by the introduction of inadmissible evidence through Dr Zelas.  To the extent that such evidence was not challenged as inadmissible by counsel at trial, then, it was submitted, such omission was either radical error by counsel resulting in a miscarriage of justice or ought not, in any event, lead this Court to excuse a miscarriage which such evidence had occasioned. The unjust consequences of the introduction of such evidence were, in counsel’s submission,  not  ameliorated  or  negatived  by judicial  directions  to  the  jury.    In addition, it was said, the Judge misstated the effect of the evidence relating to the anatomical examination of S and J.

[6]      The complaints made on behalf of the appellant about Dr Zelas’s evidence were with specific reference to alleged excesses of opinion, going beyond the constraints of s23G(2) and amounting to comment on the credibility of the complainants’ evidence.  It was submitted that Dr Zelas’s evidence even extended to, in effect, an opinion whether sexual abuse had occurred.  We do not set out the detail of the impugned evidence at this point but will advert to it later in this judgment.

[7]      As to the anatomical evidence relating to possible penetration, the Judge’s comment in his directions to the jury were in the context of his precis of the Crown’s case.  He said [summing up, paragraph [32]]:

As  to the  issue  of  penetration,  the  Crown  through  Mr  Zarifeh,  I think, directed you to three main matters: first, it is suggested that the description given by S and J is consistent with penetration; secondly, their description of the hurting was consistent with penetration; and, thirdly, that Dr Batchelor’s evidence supports the view that there was penetration here.

[8]      In counsel’s submission, Dr Batchelor’s evidence did not support the view that there was penetration, being at best neutral on this issue and merely indicating that young children may have difficulty describing penetration.

Crown arguments on appeal against conviction

[9]      The Crown accepted that the general proposition in relation to the scope of s23G of the Evidence Act is as described by this Court in R v Baillie CA418/02

10 March 2003 paragraph [25]:

What the section does not allow is for the expert to comment directly or indirectly upon the credibility of the complainant’s evidence, much less to express an opinion whether sexual abuse has occurred.

[10]     However, submitted Mr Zarifeh, because the permissible evidence has the purpose of assisting a jury to evaluate the credibility of a complainant, it may often come close to an indirect comment on credibility, as Fisher J observed in R v P (1999) 16 CRNZ 537 at 539.  In any particular case the issue would be whether the line had been crossed between, on the one hand, what the legislature regarded as permissible expert assistance to a jury to evaluate the credit of young complainants in sexual cases and, on the other hand, inadmissible opinion evidence as to actual credit and on the issue whether sexual violation has occurred.

[11]     In this case, in the Crown’s submission, Dr Zelas’s evidence did not cross that line and comment directly or indirectly on the complainants’ evidence.  Further, the Judge put that witness’s evidence in perspective with the following direction:

Dr Zelas.  Generally people can only give evidence in Court about what they have seen or heard and they are not permitted to come along and express opinions about  this, that  or  the  next thing.    But  in  the  case  of  alleged offences of this nature the law makes special provision for a psychiatrist to give evidence and it is in exercise of that power that the Crown has called Dr Zelas.  It will, of course, be for you to weigh the evidence given by Dr Zelas. Could I emphasise to you though, members of the jury, that this is not trial by expert.   It is your view that counts rather than Dr Zelas’s view.   Of course, you take into account all she has told you.  Remember though that you have access to all the evidence that has been presented in this trial.  Dr Zelas did not have access to all the evidence.  Indeed, as Mr Barker pointed out, she has not personally, as I understand it, made face to face contact with the children.  So inevitably while it is a matter for you to weigh, use your own commonsense when considering the views Dr Zelas has expressed.

[12]     Counsel who appeared for the appellant at trial could not fairly be regarded, in  the  Crown’s  submission,  as  having  made  a  radical  error  in  relation  to  the admission of the now impugned parts of Dr Zelas’s evidence.   Such counsel had, between them, considerable experience in criminal and family law practice.   They adopted an understandable and reasonable tactic of seeking not to over-emphasise

the opinion evidence, but rather to consent to its being read out as a brief in order to dull  its  impact  before  seeking  to  exploit  one  aspect  of  it.    In  a  brief  cross- examination of Dr Zelas counsel for the appellant had focused on the opinion that S “appears to suffer from not having been raised with someone to relate to as a father” to support a defence suggestion that observed behaviours might be attributable to the removal of the appellant as someone who had for a time been able to fill a paternal role.

[13]     The Crown submitted that if, contrary to its submission, this Court should hold that Dr Zelas’s evidence crossed the line and impermissibly commented on the complainant’s credit, the verdicts should nevertheless be regarded as safe and the proviso to s385(1) of the Crimes Act applied.  It was submitted that the evidence of the  children  was  detailed,  inherently  credible,  supported  by  recent  complaint evidence and ultimately sufficient to justify conviction without the opinion evidence to support it.

[14]     As to Dr Batchelor’s evidence, the Crown submitted that although it had not in fact expressed its submission to the jury in the manner articulated by the Judge, it did rely on the evidence of the doctor in conjunction with the evidence of S and J to support a submission to the jury that they could properly find there had been penetration.   The evidence in question included anatomical features and physical experiences by the girls suggestive of penetration.   In the result, despite the brief remarks of the Judge, arguably a misdescription, and despite the neutral effect of, specifically, the anatomical examinations, the jury must have been entirely aware of the nature of the Crown’s argument on the point.

Discussion

[15]   Although the boundary between permissible and impermissible opinion evidence for the purposes of s23G(2) may in practice seem indistinct, the party who calls such evidence and the Judge whose responsibility is to assure compliance with the statutory limits, must be astute to prevent the border being crossed.   Prudence and fair restraint should inform the scope of the intended evidence, as witnesses should be encouraged to understand.  It is, not for the first time in cases such as this,

appropriate to recall the observation of Casey J more than a decade ago in R v Tait

[1992] 2 NZLR 666 at 671 line 10:

The case demonstrates the importance of these expert witnesses being fully briefed as to the limits of their permissible evidence and of the Judge appropriately dealing with a situation where those limits are exceeded, whether it be in examination-in-chief, cross-examination or re-examination.

[16]     It is of course essential for any expert witness to be entirely fair and objective and to avoid the fact or appearance of being an advocate for one side or the other in litigation.  We regret to say that we have reservations about aspects of Dr Zelas’s evidence on this account.   One matter of concern was her willingness to say in respect of each of the complainants: “There has been no known prior sexual abuse”. Not only is this a factual matter outside the scope of permissible expert opinion, it also carries the inevitable inference of the doctor’s opinion that the present matters before the Court were, in fact, occasions of sexual abuse.

[17]     Before the doctor’s evidence was given the defence had been supplied with a brief in the nature of a report.   Exception was taken to the particular comment in relation to S, although the same comment in respect of the other two girls was overlooked.   It was agreed that the disputed comment should be deleted from the brief and it was.   Notwithstanding this, Dr Zelas departed from her reading of the brief to add, gratuitously: “I would add that there is no known prior sexual abuse of S.”

[18]     That unexpected remark caused concern to counsel who decided the best response was to make nothing of it in the hope that the jury might overlook it.  But by dint of oversight in respect of two of the girls and Dr Zelas’s departure from the brief in respect of the third, the jury had before it, from the mouth of a very eminent psychiatrist, a statement that there had been no prior sexual abuse with its inference that there was sexual abuse in fact in terms of the complainant’s testimony.

[19]     There are other matters of concern in relation to the witness’s evidence.  To some extent they may be the result of the expediency of Dr Zelas reading her report rather than her evidence being led in a conventional way which would have been more likely to constrain its scope within legitimate bounds.

[20]     One of these matters is the reference by the witness to interviews she had with S’s mother and with J’s mother “to gather relevant information”.   But s23G does not authorise such bases of an opinion.  The permissible bases, in terms of subs (2), are:

Examination of the complainant before the complainant gives evidence.

Observation of the complainant giving evidence whether directly or on videotape.

Evidencegiven during the proceedings by any person (other than the expert witness).

Theexpert    witness’s    professional    experience    or    knowledge    of professional literature.

[21]     In relation to S, Dr Zelas testified:

S’s mother describes her as being very clingy to her, particularly at bed time and being reluctant to sleep alone.   This behaviour indicates a lack of emotional security appropriate to her age.

[22]     Although not necessarily of much significance in itself, this opinion was expressed in relation to S’s emotional maturity, a permissible opinion for which could not be based on hearsay but only on the expert’s observation of the complainant.  In relation to J, the witness invoked a comment by that child’s mother to support an opinion as to J’s emotional maturity.

[23]     Commenting upon J’s mental capability, the witness referred to the child’s evidence in Court and observed:

It is not realistic to expect a child of J’s age to be able to accurately estimate distances or describe geographical locations and J showed herself to have difficulty in this area.

[24]     We  think  that  comment  was  not  so  much  an  opinion  as  to  J’s  mental capability as an apology for the quality of her evidence in certain respects.  On its own,  such  a  comment  might  be  overlooked  but  there  is  a  pervasive  quality of

justification for potentially challengable aspects of the girls’ evidence as to cause us concern that in many subtle respects the witness has crossed the boundary between permissible information and impermissible evaluation of the actual credit of the complainants.

[25]     In  relation  to  each  charge  and  under  the  heading  consistent  behaviours Dr Zelas  summarised  various  behavioural  traits  disclosed  by  the  children  or described by their mothers.  Such matters are recorded as established fact.  All are said to be consistent with the behaviours of sexually abused children of a similar age. We think this is not just evidence of consistency of behaviour in terms of s23G(2)(c) but a persuasive restatement of the relevant evidence, in summarised form and in the words  of  an  experienced  expert,  coupled with  the  endorsement  of  the  statutory opinion.   This exceeded the permissible scope of opinion evidence and had the character of advocacy.

[26]     We do not think it necessary to reproduce the dozen pages of small font representing the brief read to the jury in order to describe the very words which cause us concern.   It is enough to indicate our apprehension that the witness may well have been perceived as an advocate for the complainants rather than as a truly independent expert providing opinion evidence strictly within the purview of s23G.

[27]     In all fairness to Dr Zelas we do not suggest that the excess was deliberate. In many ways the scope of her testimony may have been a product of the generality of the concepts which an expert may give an opinion upon within the constraints of the section.   However the potential for unfairness, for the displacement of the judgment by the jury of human behaviour requires that much care has to be taken, as we indicated earlier, that inadmissible evidence is not placed before the jury either expressly or by subtle implication.

[28]     It is the case that the Judge directed the jury, in the manner set out in para [11] hereof but we think, with respect, that the direction did not go far enough.  The circumstances required more than a direction to use common-sense and that the jury’s view counted rather than the doctor’s view.  Given the unfortunate nature of much of the evidence which had been presented we think, with respect, that the

Judge should have explained to the jury that opinion evidence is received from an expert such as Dr Zelas solely for the purpose of providing the jury with background assessments concerning the intellectual attainment, mental capability and emotional maturity of complainants, coupled with the evidence of the general development level  of  children  of  the  same  age  in  order  to  provide  a  benchmark  for  their assessment.  And as to opinion evidence concerning the consistency of behaviour, the fact of any such consistency is not evidence that sexual abuse has occurred, let alone sexual abuse of any particular nature (bearing in mind the variety of offences which had been alleged).

[29]     As to the Judge’s direction about the evidence of Dr Batchelor, we would be unconcerned if that was the only ground of appeal.   Even in conjunction with the other matters it adds little to the weight of the appellant’s grounds.

[30]     The Crown has urged us to apply the proviso to s385 on the basis that the verdicts are, ultimately, safe.   There is, perhaps, a measure of incongruity in the Crown having decided to invoke s23G with its potential for unfairness in circumstances where, as the Crown now contends, a jury could safely come to a verdict of guilty without any recourse to such evidence.  We remark, in passing, that the bench as presently constituted, with its trial experience, has reservations about resort to s23G in contemporary circumstances.  It is not often invoked by the Crown, perhaps through recognition of the practical difficulties of staying within the permissible scope and because of the significant potential for unfairness should that not be achieved.

[31]     In  this  case  resort  was  had  to  the  section  and  we  are  not  prepared  to depreciate  the  likely significance  of  the  opinion  evidence  in  the  context  of  the particular trial.

[32]     It is, of course, most regrettable that the three children should be required to undergo the stress of another trial but in our view the appeal must be allowed. Inadmissible  opinion  evidence,  some  of  which  the  Crown  and  the  defence  had agreed should not be put before the jury, was presented.   Its impact was not adequately ameliorated by judicial directions and a miscarriage of justice has been

occasioned.  We are unpersuaded that the miscarriage was not substantial and we are not therefore prepared to apply the proviso.

[33]     In the result, the appeal against conviction is allowed, the sentence quashed, and a new trial is ordered.

Solicitors:

Sladden Cochrane & Co, Wellington for Appellant
Crown Solicitors, Christchurch