R v L (CA60/05)

[2005] NZCA 386

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA60/05

THE QUEEN

v

L (CA60/05)

Hearing:         20 October 2005

Court:            Chambers, Potter and Doogue JJ Counsel:      P L Borich for Appellant

M T Davies for Crown

Judgment:      4 November 2005

JUDGMENT OF THE COURT

Appeal against conviction and sentence dismissed.

R V L (CA60/05) CA CA60/05  4 November 2005

REASONS (Given by Doogue J)

Table of Contents

Para No. Introduction  [1] Background    [4] Grounds of appeal  [7] Out of Court statements  [8]

Inconsistent statements  [9] Prior consistent statements  [19] Recent invention  [23] Judge’s direction relating to complaint delay  [30] Judge’s direction as to Dr Webster’s evidence  [37] Similar fact/relationship evidence and indictment  [46] Miscellaneous admissible evidence  [49] General  [57] Result  [59]

Introduction

[1]      The appellant was convicted following trial by a jury in the District Court at Auckland of five sexual offences and three offences of violence, all in respect of the same female complainant.   Judge Lance QC, the trial Judge, imposed an effective sentence of eleven years imprisonment.

[2]      The appellant lodged an appeal against both his conviction and sentence.  His sentence appeal has not been pursued and will be dismissed.  The conviction appeal relies upon four different areas of alleged error by the trial Judge, which are said to result separately and collectively in a miscarriage of justice.

[3]      The Crown opposes the appeal and says that there were no errors by the trial

Judge and that, in any event, there was no miscarriage of justice.

Background

[4]      The appellant was found guilty of the following five sexual offences, all of which were the subject of representative charges relating to the period between

17 September 1993 and 4 August 1996:

a)       Induced a girl over the age of 12 years and under the age of 16 years to do an indecent act upon him.

b)Sexually   violated   the   complainant   by   having   unlawful   sexual connection with her, occasioned by the penetration of her genitalia by his finger.

c)       Sexually   violated   the   complainant   by   having   unlawful   sexual connection with her, occasioned by connection between his mouth and her genitalia.

d)Sexually   violated   the   complainant   by   having   unlawful   sexual connection with her, occasioned by connection between her mouth and his genitalia.

e)        Sexually violated the complainant by raping her. [5]   The three assault offences were as follows:

a)       Assaulted the complainant using an aluminium pole as a weapon on or about 8 May 1995.

b)       Being a male assaulted the complainant on or about 10 May 1995. c) Being a male assaulted the complainant on or about 4 August 1996.

[6]      Judge Lance, in sentencing the appellant, found the  facts relevant to the offending and to sentence to be as follows:

[3]       …  The complainant was your stepdaughter.   She was very young when you married her mother, and she lived with you thereafter as a member of the family together with other children that you and your wife had.  She was 12 years old in 1993 when this offending began.  It occurred when you took advantage of her mother’s absences at work and at other places and elsewhere in the house.   In 1995 her mother, your wife, and two younger children were killed tragically in a motor accident.   The complainant continued to live with you.  Your offending continued, seemingly to me on the  evidence  I  heard,  with  increasing  frequency  and  most  certainly increasing seriousness, progressing through to full sexual intercourse.  Her evidence was that these incidents occurred frequently on a weekly basis and sometimes on a daily basis.  The impression I gained, and it was clear from her evidence, was that you treated her as a substitute wife.

[4]       Your offending was  also accompanied  on  occasions  by smoking marijuana, encouraging her to do so and also to drink, and watching pornographic movies which you encouraged her to simulate with you.  There was evidence that you threatened her that if she told anyone about what was happening it would destroy your family and she would be viewed as the person responsible for doing so.  The evidence is a little unclear as to how frequently those threats were made …  The overall impression I gained was that it was not said certainly on a daily basis or even weekly for that matter, or even as frequently as something like that, but it was certainly said and reinforced from time to time.

[5]       The incidents of the assault with a weapon and assaults on her arose from rather trivial family incidents, although in the context not particularly serious, on their own reflected, in my view, your increasing domination of the household.  This offending came to light when the complainant sought help from a teacher at her school.  She was removed from your care.  The police were informed …

Grounds of appeal

[7]      The  appellant  claims  that  a  miscarriage  of  justice  has  occurred  as  a consequence of:

a)       The way in which the Judge dealt with out of Court statements;

b)       The nature of the direction relating to complaint delay;

c)       The nature of the direction relating to the evidence of a Dr Webster;

d)Issues arising out of similar fact and/or relationship evidence and the indictment; and

e)        Claimed miscellaneous inadmissible evidence. We will deal with each of those heads of appeal separately.

Out of Court statements

[8]      The criticisms of the trial Judge are in respect of four aspects of out of Court statements, namely:

a)        Alleged inconsistent statements.

b)       Alleged prior consistent statements.

c)        Recent complaint. [This point was not pursued.]

d)       Recent invention.

We deal with each of those heads separately.

Inconsistent statements

[9]      It is submitted for the appellant that there was evidence before the Court that the complainant made a number of inconsistent statements in that contrary to her evidence at trial she:

a)       Had told a doctor, a teacher and an employee of the Children, Young Persons’ and Their Families Service (CYPFS) that she had not been sexually abused.  The complainant acknowledged this.

b)Had told an independent witness that an injury caused to her thigh, the subject matter of the charge of assault with a weapon, had happened accidentally while she was out riding.  At trial the complainant said an aluminium pole wielded by the appellant caused the thigh injury.  She

denied  ever  saying  that  the  injury  was  caused  accidentally  while riding.

c)        Had given a different description of the violent offending towards her to a constable.  [This point was not pursued.]

[10]     It is submitted for the appellant that the inconsistent statements a) and b) went to central issues in the case, namely, whether the complainant was sexually abused and whether she received a bruise from a weapon or in an accident.   It is further submitted that having regard to the previous inconsistent statements, there should have been directions to the jury as to how to treat those statements and as to how they affected the witness’ credibility: see R v Morgan [1981] 2 NZLR 164 and R v Gurran CA214/02 12 December 2002.  It is further submitted that in this case the Judge gave no such directions, which has resulted in a miscarriage of justice.

[11]     So far as the submissions relate to a delay by the complainant in complaining of sexual abuse and her denials of abuse prior to such complaints, the issue was not so much one of prior inconsistent statements as complaint delay.  The complainant acknowledged the factual position and trial counsel for the appellant was able to use this in his address to the jury.   The Judge properly dealt with the issue as one of complaint delay, which we will return to shortly, as it is the subject matter of another ground of the appeal.   He was, understandably, not asked to direct on the subject matter of prior inconsistent statements.  It would have been artificial to do so.  The trial issue was the credibility of the complainant.  Her denials of sexual abuse were relevant  to  that.     They  did  not,  however,  require  any  separate  treatment  as inconsistent statements in this trial, any more than in other sexual abuse trials where prior denial of abuse has arisen.  Significantly, Mr Borich could not refer us to any reported case involving allegations of sexual crimes where a direction as to inconsistent prior statements by the complainant has been required in circumstances such as the present.

[12]     We  now  turn  to  the  different  explanations  for  the  thigh  injury.    The complainant gave evidence that on 8 May 1995, the appellant had assaulted her with an aluminium pole, causing a lump and a big bruise.   She said that she could

remember the date because it was two days after her 14th birthday.  She showed the bruise to several friends, one of whom gave evidence as to seeing the bruise.  The complainant said the bruise “lasted for about three months”.  The complainant also gave evidence as to what led up to the assault.  The details do not matter.  It involved chopping firewood.

[13]     The appellant when he gave evidence acknowledged a “firewood” episode, although he thought it occurred in late summer that year (i.e. a little before the complainant said it occurred).  He denied that he had assaulted the complainant with an aluminium pole.  He did recall the complainant having a bruise on her thigh at that time.   He said, “she had recently been on a horse” and had jammed her leg between a gatepost and the horse.

[14]     The defence called as a witness the appellant’s foster mother, who recalled that on Christmas Day 1995 the appellant, the complainant, and her sister had visited to spend the day.  She also recalled seeing a bruise on the complainant’s thigh.  She said that the complainant had said that she had suffered the bruise when her leg got crushed between her horse and a gatepost.  The bruise was, the witness said, bluish and “just a few days old”.

[15]     It is immediately apparent that the bruise to which the complainant and the appellant were referring was a different bruise from the one that the appellant’s foster mother saw on Christmas Day 1995.  She cannot be mistaken about the day. There is no way in which the bruise she saw could have been the same as the one to which the complainant and the appellant were referring.  There was no relevant prior inconsistent statement on the complainant’s part. The foster mother’s evidence was completely irrelevant to the allegation concerning the May 1995 bruise.

[16]     The Judge said nothing about this evidence.  By saying nothing, he was, if anything, favouring the defence.  Had he highlighted the appellant’s foster mother’s evidence, it would have been clear that she was referring to a different bruise from the one to which the complainant and the appellant had referred.  Judicial comment would have drawn attention to this fact.   It would also have reinforced the unlikelihood of the appellant’s account.   How likely was it that the complainant,

shortly before the firewood incident, would have jammed her leg between her horse and a gatepost and then done exactly the same thing at Christmas 1995?

[17]     In short, there was no need for the Judge to comment on this matter and the absence of comment if anything favoured the defence.

[18]     In any event, the Judge made clear to the jury that credibility was very much in issue in the trial and in summing up the case for the appellant fairly put the matters now relied upon by the appellant.

Prior consistent statements

[19]     It is submitted for the appellant that the complainant gave evidence of prior consistent statements as to both the sexual and violent offending and that other witnesses were permitted to confirm such statements.   It is submitted that notwithstanding that trial counsel, not Mr Borich, did not object to this evidence and that some resulted from cross-examination, the statements were inadmissible and that directions were, in any event, required to instruct the jury as to how to deal with them.

[20]     We see no substance in these submissions at all.   First it is clear that the complainant did not give any evidence of prior consistent statements to bolster her evidence of sexual offending.  The complainant was properly cross-examined as to her prior statements and her failure to complain at any earlier time and the reasons for that.  The complainant in re-examination was permitted to refer, very briefly, to her prior statements solely to meet those points of cross-examination and, in particular, as to the reason for her delay in complaining.   There was no reference whatever as to what she had said in those statements about the alleged offending.

[21]     The case for  the  appellant  at  trial  was  that  the  complainant’s  story  was inconsistent with her prior statements and effectively one of recent fabrication.  In those circumstances, it was open to the trial Judge to admit the prior consistent statements to demonstrate consistency: see, for example, R v Gruenwald CA99/04

19 July 2004.  Experienced trial counsel for the appellant took no objection to the course adopted and many of the statements resulted from his cross-examination.

[22]     As there was no bolstering of the complainant’s evidence by reference to prior consistent statements, there was no need for the Judge to give any warning about the use that the jury could make of the prior consistent statements.  They were used for limited legitimate purposes and additional directions were unnecessary.  In the  context  of  a  defence  of  recent  fabrication,  what  occurred  was  entirely appropriate.

Recent invention

[23]     It is submitted for the appellant that the Judge was obliged to direct the jury in respect of the re-examination of the complainant in relation to statements by her to CYPFS dated 26 March 2002 and the Police dated 1 November 2002.   The submission is that the re-examination arose out of the suggestion in cross- examination of recent invention.   It is submitted that, while the evidence was admissible  to  rebut  the  suggestion  of  recent  invention,  the  Court  should  have directed the jury on how that evidence could be used: R v Wilson (2004) 21 CRNZ

418.

[24]     In Wilson, the Crown had applied at trial to re-examine the complainant on the basis of his prior consistent statement made to the Police on the night in question: at [15]. The trial Judge allowed such re-examination, apparently on the basis that evidence of prior consistent statements was justified to rebut an allegation of recent fabrication: at [16]. Following that ruling the Crown was permitted to lead evidence from the complainant, starting at the foot of page 2 of his police statement and ending at page 5. This Court said that the material that thereby came into evidence “amounted to all or most of the relevant parts of the complainant’s statement describing the events on the evening in question”: at [17]. The Judge, in summing up, did not give any direction as to the use that could be made of that evidence of prior consistent statement.

[25] On appeal, this Court doubted that the cross-examination of the complainant had been such “as to clearly raise an issue of recent invention such as to justify the Judge exercising her discretion to permit the introduction of the complainant’s prior consistent statement in re-examination”: at [24]. Although this Court would not have allowed the appeal on that ground alone, the failure of the Judge to direct the jury on how to deal with that evidence made that outcome inevitable: at [24] and [26].

[26]     What happened here was quite different.  The re-examination was brief.  The complainant confirmed the date of her statements to CYPFS and the Police.  There was  in  fact  nothing  new  in  that,  as  the  appellant’s  trial  counsel  had  already confirmed those dates with the complainant in the course of his cross-examination of her.

[27]     The only matters read from these two statements – one 23 pages long, the other 28 pages – were two short passages, showing that she had referred to being threatened by the appellant in those statements.   Those two short passages were a direct result of the following question and answer in cross-examination:

Until yesterday you have never said in your statements, have you, that he threatened your safety, that he threatened you in any way?…I believe that I did actually, right at the beginning of my statement.

[28]     Given   the   nature   of   that   question,   the   re-examination   was   entirely appropriate.   It did not engage the principle in Wilson.   No “prior consistent statement” direction was required.

[29]     While the Judge might have directed the jury as to the use they could make of the particular evidence, we are unaware of any rule that made it mandatory for him to do so.   Indeed directions as now sought for the appellant under this and the preceding head of appeal would have only complicated the trial for the jury without any apparent advantage for the appellant.  Additional directions could well have had real disadvantages for the appellant in further highlighting the evidence contrary to his case.

Judge’s direction relating to complaint delay

[30]     It is submitted that the Judge erred in the direction given by him pursuant to s 23AC Evidence Act 1908 on the issue of delay by the complainant in making the complaint.

[31]     It is further submitted that a direction was not required as, according to the complainant, the complaint had been made to her mother prior to her mother’s death. In any event, it is submitted that the direction needed to be balanced with reference to   the   evidence   given   by   various   persons   in   the   family   and   independent professionals,  each  of  whom  presented  an  opportunity  for  the  complainant  to disclose her complaint.  It is submitted that this was not a case of silence without an opportunity to disclose.   It is said that it was a situation where three persons in particular asked specific questions of the complainant about the topic of sexual abuse by the appellant and were informed by her that no sexual abuse had taken place.  It is submitted that the failure of the complainant’s mother to take any steps during her lifetime or apparently notify anybody as to the complaint was also worthy of comment.

[32]     It  is  further  submitted  that  in  the  circumstances  the  direction  given  was overly favourable to the complainant, resulting in an unfair and unbalanced presentation of the complainant’s credibility that has led to a miscarriage of justice.

[33]     What the trial Judge said to the jury in summing up is this:

I want to say something to you about the reference that has been made in this trial to the fact that the complainant did not make her complaints until some time after the events that she said gave rise to the incidents.  And there has been a suggestion, and the suggestion is that if they had really occurred surely she would have complained to somebody much earlier, either shortly after they occurred or some time later when they had perhaps accumulated, and Mr Wiles put to you that there were more than one occasion when she was in circumstances where she could have done so and particularly as she got older and appreciated the significance of the things that she said occurred to her.   And the burden of his submission to you was well if they really occurred why did she not say something, why did she not make known her concerns much earlier.  Well I must tell you this.  That is something you will have to consider and give as much weight as you think fit, but the law allows me to say this to you, that experience has shown that there may be very very good  reasons  often  deeply  buried  and  very  personal  to  the  particular

individual why people do not complain about things immediately, indeed why they do not complain about things for a long time afterwards.  One of those factors, an important factor, is the age of the person.  Sometimes they do not appreciate the significance of what is happening to them or what has happened to them until later.  Sometimes they are in a family situation which makes them feel vulnerable, pressure is brought to bear and they do not feel they should say anything.  There are occasions when they have not got the confidence to tell someone.   There may be other factors operating, opportunities and things of that sort.  In this case the complainant said, as I recall her evidence initially that she was told that these things were quite normal within a family.  There is also her evidence that she felt fearful of the consequences, that she was told that if she told anyone about this then this could break up the family and she feared she would be responsible for that.

Also you should in this case bear in mind what you make of the trauma that she suffered as a result of the death of her mother, the fact that the accused was her step-father and in effect the father of the household, and you have to consider whether her silence in those circumstances can be rationally explained or is there something more sinister, that she was making all of this up and for some reason came along later and made these wild allegations as the  defence  has  suggested  to  you.    Well  I  have  tried  to  help  you  by identifying the matters that you should take into account and there may be others as the trial has progressed you have felt were of relevance.  But the important thing is that you must bear in mind that experience tells us that people do remain silent for a variety of reasons when looked at in the cold hard light of day it is hard to understand.  And you are tempted to say well that is a bit silly, why did somebody not say something about it.  But there are deep-seated, deep-rooted personal things in circumstances surrounding which when looked at fairly and rationally may explain it.  It is very much a matter for you to consider and to weigh up in the particular circumstances of this case.

[34]     The Judge later said with reference to the case for the appellant:

Mr Wiles also emphasised and made some strong submission to you about the  lateness  of  these  complaints  and  I  have  dealt  with  that,  but  it  is something that you should carefully consider.

[35]     We have to say that we find the direction unexceptional in the circumstances of the case as it tailored the provisions of s 23AC to the facts.  The complainant’s mother could not give evidence, as she was dead.  The appellant’s case was one of recent invention or fabrication.   The Judge was right to explain how the law approaches delays in making complaints in sexual abuse cases in the context of the facts before the jury.

[36]     The important issue under this head is whether the Judge fairly put before the jury  the  case  for  the  appellant  in  respect  of  the  issue  of  credibility  of  the complainant.  We do not intend to set out further lengthy passages from the summing

up as no attack has been made on the overall balance of the summing up.  We have read the trial record, the evidence, the submissions of counsel and the summing up, with care and are satisfied that the case for the appellant was fairly put.  In context the direction could have created no unfairness to the appellant.

Judge’s direction as to Dr Webster’s evidence

[37]     In his summing up the trial Judge said this:

I want to say something to you very briefly about the witness Dr Webster. She opined that there was no evidence of sexual abuse.  Well you ignore that completely.  That should not have been said.  I am not blaming anyone, it just slipped out, it was a mistake, please put it completely out of your mind.

[38]     The doctor gave evidence as to the interactions between the appellant and the complainant that she had observed on a number of occasions over three years.  She said, “I never saw anything in those interactions that made me suspect that there was physical or sexual abuse occurring”.  She had earlier deposed that the complainant had been specifically asked about sexual abuse and that the complainant had said nothing had happened.

[39]     It is submitted for the appellant that given that evidence the Judge’s direction was inappropriate as there was nothing inadmissible or warranting such a direction. It is submitted that the more appropriate course for the Judge would have been to isolate what parts of the evidence were admissible or inadmissible, if any, and deal with each of them in turn.  It is further submitted that the effect of the direction made may have resulted in the jury disregarding the legitimate probative aspects of the doctor’s evidence.   It is submitted that the qualifications of the doctor, her observations and the nature of the evidence given by her were such that it was persuasive evidence in favour of the appellant’s defence.  And thus it is submitted that the inappropriate treatment of this evidence has led to a miscarriage of justice.

[40]     First, as submitted by the Crown, the direction has to be put in context.  The

Judge immediately went on to say:

Secondly the witness McGregor, the school teacher from Waihi, she made some comment about she intuitively thought there was something going on.

Well again just ignore that, it was at best speculation, it is irrelevant, please put that out of your mind also.

[41]     It is therefore quite apparent that the Judge at this part of his summing up was endeavouring to ensure fairness for both the appellant and the Crown by having the jury put out of their mind evidence that was thought to be inadmissible.  It is clear that in this part of the summing up the Judge made it obvious to the jury precisely what part of the evidence he was saying was objectionable.  There was no comment whatever on other parts of the evidence of the two witnesses.  The Judge had earlier made clear that the jury might accept one part of the evidence of a witness but not other parts.  There was nothing in the directions that undermined the credibility of the particular witnesses.

[42]     There is a complicated background to this point that we need not traverse. The Judge’s direction arose from a request by Crown counsel at trial, not Mr Davies, that it be made.  The appellant’s trial counsel may have felt constrained by an earlier trial ruling by the Judge and did not object.

[43]     Unfortunately, both Crown counsel at trial and the Judge did not address what the witness had said but what they thought she had said.  The witness said she never saw anything to make her “suspect that there was physical or sexual abuse occurring”.  This was, however, elevated to “there was no evidence of sexual abuse”, something the doctor did not say.

[44]     Mr  Davies  attempted  to  argue  that  there  was  no  factual  foundation established for the doctor to express the view she did express.  We disagree.  It was entirely open to her to say what she did say in the context of a number of meetings over three years.   She was not cross-examined on the number of meetings or the nature of her observations.  She formed her view, after all, in circumstances where the complainant had told her that she had not been sexually abused.

[45]     Thus we are of the view the Judge accidentally erred in his direction to the jury.   However, it was a very limited error.   At the end of the day, the doctor’s observation was no more than a neutral factor.  It established nothing.  It could not

negate positive evidence of abuse.   By itself it does not give rise to any possible miscarriage of justice.

Similar fact/relationship evidence and indictment

[46]     The essence of this complaint is that the complainant gave evidence against the appellant in respect of sexual offending which did not take place at Waihi, the only address specified in the indictment.  However, it is apparent that the evidence in question related to the timeframe of the indictment and the type of offending alleged in the indictment.  The address is a mere particular rather than an essential element of the charges.  As such the fact that the evidence related to an additional location from that set out in the indictment cannot be fatal to the verdicts.  That being so, we do not find it necessary to traverse the factual detail relied upon.   No doubt if an objection had been made at trial, it would have resulted in a simple amendment to the indictment to include the additional address that the evidence related to.  Such amendment would have been permitted by consent, unless the appellant regarded himself as prejudiced by the amendment.   It is clear that at trial no prejudice was considered to arise.  If the evidence in relation to the different address could have been categorised as fresh evidence that might have assisted the appellant’s case of recent invention or fabrication.  It is apparent that as nothing was made of the point at trial there was no prejudice.

[47]     This is not a case coming within R v P [1998] 3 NZLR 587, involved as it was with a representative charge in circumstances where the complainant was making specific allegations in relation to a very limited time frame. This was a case where the use of representative charges was not only justified but assisted the appellant in his defence of recent fabrication. If it had been otherwise, his experienced trial counsel would have undoubtedly sought particulars or challenged the indictment.

[48]     It is also necessary to recognise the very different way in which the defence was run in this case compared with R v P.  In the latter, the six identified incidents of alleged rape forming the representative charge were separately examined and cross- examined upon.   The defence to the six incidents differed.   In some instances P

asserted that the alleged acts of sexual intercourse had not taken place, while on the remainder the defence was consent.   Clearly in those circumstances a single representative charge was entirely inappropriate.  In this case, however, there was no emphasis on individual incidents and virtually no cross-examination at all about the alleged sexual activity.   The defence tactic was to approach the allegations on a global  basis  and  to  insist  that  the  entire  package  of  complaints  was  a  total fabrication, recently devised for vindictive reasons and as a means of obtaining accident  compensation  benefits.    The  circumstances  of  the  two  cases  and  in particular the dynamics of the two trials were, therefore, quite different.

Miscellaneous admissible evidence

[49]     The appellant takes issue with pre-trial rulings as to the admissibility of a comment by the appellant that the complainant was a “coconut” and as to statements made by the appellant concerning child abuse.  The issues are so peripheral to those in the trial that they could not possibly result in the verdicts being impugned but, nevertheless, we will deal with them briefly.

[50]     A Mr Heighway gave evidence at trial that the appellant at one stage told the complainant to do something in his presence and subsequently made comments about “her being a coconut sort of thing”.   The  appellant’s trial counsel cross- examined on this issue to ascertain from the witness that the appellant had described the complainant’s father as a “coconut”.

[51]     The pre-trial ruling accepted that the evidence was admissible as a response to the appellant’s assertion in a video statement to the police that he was a caring and loving father.  As it transpired, that video was not actually shown during the trial. Nevertheless, trial counsel for the appellant did not seek to revisit the issue and thus the evidence came to be led in the way we have mentioned.  The trial Judge was not asked to rule on the point.  At trial the appellant was anxious to present himself as a caring and loving stepfather.   A derogatory comment about the stepdaughter was relevant, although of limited probative value, in respect of that.

[52]     The second aspect of the evidence that the appellant challenges is evidence from a Mrs Griffin that on one occasion the appellant stated that “there was no such thing as an abused child and that there was this banter going backwards and forwards and that they must have asked for it and that they wanted it, yeah.”

[53]     The pre-trial ruling accepted the evidence was admissible on the basis that it supported  the  complainant’s  evidence  of  the  response  she  received  from  the appellant when she confronted him about his abuse of her.  At trial the complainant gave evidence that when she confronted the appellant:

… he was saying that I had wanted it all, that I’d asked for it all, that I had been sexually curious and that he’d felt it was his duty to instruct me and answer my questions, and that we couldn’t help ourselves and that we were just so attracted to each other that we couldn’t stop …

[54]     The  appellant  makes  various  submissions  in  respect  of  the  evidence  of Mrs Griffin but in particular that in the context of the trial the statement was of little or no probative value but significant prejudicial value and that it should have been excluded.

[55]     Again the evidence was relevant, even if of little probative value.   It may have been prejudicial to the appellant but it was legitimate and not illegitimate prejudice.

[56]     It has to be noted in respect of both these matters raised on behalf of the appellant that this is a trial where he gave evidence and both issues were discussed with him.

General

[57]     Except for the point relating to Dr Webster’s evidence, we have not found any of the grounds of appeal made out.  As already noted, it could not by itself give rise to a miscarriage of justice.

[58]     We have viewed the appellant’s grounds of appeal collectively as well as separately.  We can see nothing in the conduct of this trial to give us any reason to

believe it was anything other than fair.  In context, the only error that is identifiable is minor. To convict the appellant the jury had to believe the complainant’s evidence, supported as it was by that of other witnesses, and reject the appellant’s evidence. This they did on all eight charges.

Result

[59]     The appeal against conviction as well as sentence is dismissed.

Solicitors:

Rice Craig, Papakura, for Appellant

Crown Law Office, Wellington