R v Lewis CA311/06

[2006] NZCA 502

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST

PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA311/06

THE QUEEN

v

CRAIG RAYMOND LEWIS

Hearing:         22 November 2006

Court:            William Young P, Chambers and Ellen France JJ Counsel:     M M Dorset for Appellant

P K Feltham for Crown

Judgment:      28 November 2006         at 11 am

JUDGMENT OF THE COURT

AThe  application  for  leave  to  appeal  is  granted  but  the  appeal  is dismissed.

B           The ruling of Judge Moore is confirmed.

R V LEWIS CA CA311/06  28 November 2006

CWe make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the Internet or other publicly accessible database until final disposition of trial.  Publication in Law Report or Law Digest is permitted.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]      The appellant, Mr Craig Lewis and a co-accused, Mr Jack Scott, face trial in the District Court on charges of burglary and wounding with intent to injure.  Their trial is scheduled for March next year.  Mr Lewis seeks leave to appeal against a pre- trial ruling of Judge Moore made on 1 August 2006 in which the Judge ruled that the evidence of T, a child witness, could include the playing of a video interview and that his confirmatory oral evidence in chief and cross-examination could be via closed-circuit television.

[2]      The application for leave to appeal proceeded on the assumption that a ruling as to mode of evidence comes under s 344A of the Crimes Act 1961 so as to give rise to a possibility of appeal under s 379A.  The Crown took no issue on this point, referring us to R v Accused  (CA32/91) [1992] 1 NZLR 257 and R  v  Thompson CA361/02 19 March 2003.  In our view, we have no general appellate jurisdiction under s 379A in relation to mode of evidence rulings which do not involve a discrete admissibility issue.    On  the  other  hand,  we  do  have  jurisdiction  to  entertain  a challenge to that part of the ruling of the Judge which permits the use at trial of T’s evidential video, cf R v B (CA92/04) CA92/04 9 September 2004.  That indeed is the

only aspect of the ruling which Ms Dorset for the appellant wishes to challenge.  In other words no issue arises about the use of CCTV for T’s oral evidence.

The issues

[3]      The case thus raises two issues:

(a)      Did  the  District  Court  Judge  have  jurisdiction  to  direct  that  T’s evidence in chief be given in the form of his video interview? And, if so;

(b)      Was the Judge right to make the challenged ruling?

Before  we  address  those  issues,  we  should  briefly discuss  the  case  against  the appellant.

The case against the appellant

[4]      The Crown alleges that on Friday 12 August 2005, Messrs Lewis and Scott entered the complainant’s house and began to assault him by punching him about the neck and head.  This occurred in front of the complainant’s son, T, then aged six. On the evidence which the Crown proposes to adduce, the offending is serious.   The complainant suffered brain injuries as a result of the attack.  He was in any event not a well man.

[5]      The appellant made a statement on 21 September 2005.  In it, he explained that he and Mr Scott went to the complainant’s house to warn him not to go to a particular property, that they were both chased off the property by the complainant and that the complainant’s injuries were caused by him falling off the end of a deck attached to the house.

[6]      In light of this defence, T (who is now seven) will be an important witness at trial.  He was interviewed on video on 28 September 2005 about what had happened.

The interview was conducted as if under ss 23C-23E of the Evidence Act 1908.  T discussed with the interviewer the difference between truth and lies and he promised to tell the truth.  In the course of the interview he discussed the events of the night in question.  This discussion is consistent with the Crown case in that he said that both accused attacked his father.  He referred to blood on the couch, to being scared, and to one of the two men who entered calling him an “egg head” and shouting (“into my ear”) to shut up.  An unfortunate aspect of the case (from the point of view of T) is that the incident was apparently sparked by him hitting (or kicking) a ball into the property of a neighbour.

Did the District Court Judge have jurisdiction to direct that T’s evidence in chief be given in the form of his video interview?

[7]      Sections 23C-23E of the Evidence Act 1908 make special provision for the giving of evidence by child complainants in sexual abuse cases and the procedure proposed by Judge Moore accords with the usual method by which child complainants give evidence in such cases.  The issue for this Court is whether the Judge had jurisdiction to invoke such a procedure (in particular as to the use of the video interview) in circumstances not covered by the statute.

[8]      Before Judge Moore, it was common ground that he had jurisdiction to make the order sought and the only question raised by counsel was whether he should do so.  The Judge, however, considered that he was obliged to address the jurisdictional issue:

[3]       … The position of counsel [ie that there was jurisdiction] is rendered a little complicated by the relatively recent decision of MacKenzie J in R v Paul  (High  Court  Palmerston  North  CRI-2004-054-102;  judgment  21

September 2005) where the learned High Court Judge seems to have considerable doubts, expressed particularly in paragraph 21 of the judgment,

as to whether the Court’s inherent jurisdiction extends to permitting the

evidence of a child who is only a witness, not a complainant, to be given in the manner sought.

[4]       That   approach   is   somewhat   contrary   to   long-standing   views expressed by the Court of Appeal in R v Moke and Lawrence [1996] 1

NZLR  263  and  Neazor  J  in  R  v  Moke  (1997)  15  CRNZ  267.    I  well

understand the difficulties that arise for counsel in advising clients when the law seems to be uncertain.   With great respect to the learned High Court

Judge,  for  my  own  part,  I do  not  think  the  law  is  uncertain.    In  Paul reference  is  made  to  inherent  jurisdiction.    This  Court,  at  least  in  its summary jurisdiction has none.  What it has is inherent powers.  But, as I have noted on a number of occasions, most recently in Police v Razamjoo [2005] DCR 408, 412 the distinction between inherent jurisdiction and inherent powers is a mere technicality for the High Court but a matter of importance to this Court because it has no inherent jurisdiction.

[5]       Also, as I outlined in Razamjoo, (p 435-6) and for the reasons set out there, this Court has inherent power to give directions concerning the mode in which the evidence of a witness may be given.  Reasons are required for departure  for  normal  process.     The  greater  the  departure,  the  more compelling the reasons need to be.   It is not a power that is restricted to children or to complainants in sexual cases.  It has, for example, (Police v Stevens [1995] DCR 791; R v Coleman [1996] 2 NZLR 525, 526 (CA); see also s.13G Evidence Act 1908) been exercised in trials where there is a fear of intimidation of the witnesses. That aspect of the matter does not appear to have been canvassed before McKenzie J.

[6]       I hold … that this Court has inherent power to make orders as to the mode by which any witness may give their evidence but, in the exercise of that power, due regard needs to be had to the legitimate expectation that normal process will be followed unless there is strong reason for departing from it.

[9]      Ms Dorset for the appellant put in issue whether the Judge had jurisdiction to make the challenged ruling.  She relied primarily on the judgment of MacKenzie J in R v Paul HC PMN CRI-2004-054-102 2 September 2005 which Judge Moore cited. In that case MacKenzie J said:

[20]      … I do not consider that there is authority, binding on this Court, that the evidence of a young child, who is purely a witness to some relevant events, and is not a complainant, or in a similar position to a complainant, in respect of these events, may, in the inherent jurisdiction of this Court, be given by means of a video interview.

[21]      Both Neazor J in R v Moke & Lawrence [[1996] 1 NZLR 263 (CA)] and Tompkins J in R v Trenouth [HC AK T132/95 10 October 1995] were prepared to accept the existence of such a jurisdiction, though they were not, on the facts of these cases, prepared to exercise that discretion.  For my part, I have considerable doubt whether the court’s inherent jurisdiction does extend to permitting the evidence of a child, who is a witness only, in such a manner.  The mode of evidence proposed involves a substantial departure from the ordinary rules of evidence, and essentially involves the admission of evidence which is not otherwise in an admissible form.  The Court does not ordinarily have power to admit inadmissible evidence, and it appears to me at least arguable that to do so would be to go beyond the inherent jurisdiction of this Court to control its proceedings and processes, and to venture into the area of the substantive law within which this court must operate.

[10]     We have no doubt that that there is jurisdiction to permit evidence of child witnesses to be given otherwise than in the ordinary fashion and, in particular, in part through a video interview.  That this is so is apparent from R v Moke and Lawrence. The existence of such a jurisdiction was assumed in R v F CA130/96 6 May 1996. Also directly on point is R v Thompson (referred to in [2] above).   There is also ample High Court authority to the same effect: R v Trenouth, R v Moke (1997) 15

CRNZ 262 and R v Teariki (1999) 16 CRNZ 540 (HC).

[11]     We note in passing that cl 99 of the Evidence Bill provides for applications to be made or for a judge on his or her own initiative to direct that a witness give evidence in an alternative way.  Such a direction may be made based on the age or maturity of the witness, the trauma suffered, or the nature of the evidence the witness is expected to give.  The Judge will be required to have regard for the need to ensure that there is a fair trial and the need to minimise stress on the witness.

Was the Judge right to make the challenged ruling?

[12]     In Trenouth Tompkins J observed:

[I]t would in my view require exceptional circumstances to justify the adoption of that course.   These circumstances could include, for example, where a witness is young, say aged five or six, where the evidence is largely although not entirely controversial or where there is some other reason that may relate for example to a disability on the part of the witness that would make the giving of evidence in chief in person difficult.

Similarly in R v Teariki Fisher J considered that “something out of the ordinary is called for” and that it must principally stem from the stress on the witness and enhancing that quality of the evidence.  At 544-5 he said:

The  particular  obstacle  for  the  Crown  to  overcome  is  not  so  much  the absence of statutory mode of evidence provisions for a non-complainant, as the difficulty in satisfying the stress factor which underpins the regime for complainants. It can be taken for granted that a child complainant in a sexual abuse trial will be under a special and obvious stress. That is not inherently the case where the witness is not a sexual abuse complainant. Each case will need to be considered on its own facts but that places a special onus on the Crown to demonstrate why the usual principles as to personal presence of witnesses is inappropriate for non-complainant witnesses. … I do not think that the mere object of preserving freshness of memory will be sufficient or

indeed a significant factor. Virtually all witnesses will be under some form of stress, and children possibly more than most, but stress within normal boundaries will not be enough.

We are content to proceed  on the basis that the discretion  should  be  exercised broadly as indicated by Tompkins and Fisher JJ.

[13]     In the District Court, the Crown relied on  an affidavit of Ms  Leach, an experienced registered clinical psychologist.   She had read the police summary of facts, watched T’s videotape interview and read the transcript of it, and interviewed T and his mother.  She said:

T presents with features of Post Traumatic Stress Disorder.  As described by his mother, he is clingy and acts out aggressively.  He reported that he had nightmares  and his description  of the  nightmares  indicates that  he  feels unsafe and fears abandonment.  As it had been during the forensic interview, T’s description of the alleged assault was fragmented and he lacked the ability  to  provide  a  cohesive  and  chronological  narrative.    Typical  of children who have been traumatised, T could recall some details vividly but was confused about other details.  Memories of traumatic events are encoded in the form of vivid images and sensations and some or all of the details will lack verbal context and narrative.  When describing the alleged punches, the blood on the couch and jumping out of the window, T became dissociative.

…

The legislation provides for children’s Evidence in Chief to be given by way of an evidential video interview.   The provisions of this legislation were intended to prevent undue distress to child witnesses and to ensure that the child’s evidence be available to the Court in the best possible manner.  For T both  of  these  intentions  will  be  best  met  by  the  use  of  his  videotaped evidence and cross-examination being conducted with the use of Closed Circuit Television.

[14]     As noted, the only issue on this aspect of the case relates to the use of the video interview as the evidence in chief of T.

What are the implications of the video interview being used in this case?

[15]     The implications of using the video interview are that T’s primary evidence will be as recorded within six weeks of the incident rather than given 19 months or so later.   The account given in the interview is fragmentary (as Ms Leach noted). Commonsense suggests that if T is required to cover the same ground at trial, his

account will be even more fragmentary.  In part this is because of the delay which has occurred since the incident.  As well, the interview was conducted by a person who is experienced in interviewing child complainants, and it is likely that she may have been able to obtain a more coherent narrative than could be expected of prosecuting counsel.  The environment in which he gave the interview was perhaps slightly less artificial than the court environment in which he will give his evidence via CCTV (which we assume will be a room in the courthouse).  Further, if the video is played at the start of his evidence (as it would be) he will be oriented to what he said in September 2005 when he gives his oral evidence.   In their totality these factors provide appreciable advantages over the traditional method of leading evidence in terms of the reliability of the evidence to be given.  A major question in the case is whether the corollary of these advantages is illegitimate prejudice from the point of view of the appellant.

[16]     The argument as to this was reasonably limited.

[17]     Ms Dorset noted that the qualifications of the interviewer were not known, but this is a point which can be addressed if necessary at trial.

[18]     Ms  Dorset  also  made  written  submissions  about  two  elements  of  the videotape interview.  The first was her claim that T did not appear to understand the truth/lies/promises component of the questioning in the interview.  The second is that T stated that he had practised his story with a family member prior to the interview.

[19]     We  see  nothing  in  either  submission.    While  T  did  not  appear  to  be particularly articulate, the interview as a whole makes it clear that he has an adequate understanding of the difference between truth and lies and that he made an appropriate promise to tell the truth.  The family member that T “practised” with was his four year old sister.   When he mentioned this in the interview the interviewer asked if he had made any of it up or lied about any of it.  His response was that it was true.

[20]     In oral submissions Ms Dorset focused on the delay between the incident

(12 August 2005) and the evidential interview (28 September 2005) and suggested

that T’s memory or recollection of events may have been contaminated by the upset associated with what had happened and subsequent events.  She was not inclined to accept that the evidential interview was therefore more likely to be reliable than evidence which T might give orally at trial.  These are, of course, issues which can be explored in cross-examination at trial.  As a matter of commonsense, one would expect that this child would have a better recall of events six weeks after the incident than he would 19 months later.

[21]     The reasons why child complainants in sexual abuse cases are permitted to give evidence in chief in the form of an evidential interview are associated with factors very similar to the ones which we have seen as applicable here, cf [16] above. Further, the incident, at least on the Crown case, must have been extremely traumatic for the point of view of T.  That this is so is strongly supported by the evidence of Ms Leach.  Although T is not, strictly speaking, a complainant, it would be difficult not to regard him as a victim (again at least on the Crown case).  The nature of the events about which he will be required to give evidence, his age and the evidence of the psychologist mean that this is an exceptional case.  So we see no legitimate basis upon which we could interfere with the way the Judge exercised his discretion.

Result

[22]     In those circumstances, we grant leave to appeal but dismiss the appeal.  The ruling of Judge Moore is confirmed.

[23]     We make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the Internet or other publicly accessible database until final disposition of trial.  Publication in Law Report or Law Digest is permitted.

Solicitors:

O’Sullivan Clemens, Rotorua for Appellant

Crown Law Office, Wellington