R v M (CA191/06)
[2006] NZCA 497
•23 November 2006
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA191/06
THE QUEEN
v
M (CA191/06)
Hearing: 16 November 2006
Court: Chambers, Goddard and Gendall JJ Counsel: J J Corby for Appellant
K B F Hastie for Crown
Judgment: 23 November 2006 at 11 am
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant must surrender himself to the New Lynn Police Station no later than 4 pm on 25 November 2006 to commence his sentence of
imprisonment.
REASONS OF THE COURT
(Given by Gendall J)
R V M (CA191/06) CA CA191/06 23 November 2006
[1] The appellant was convicted in the District Court at Auckland on 14 March
2006 on one count of unlawful sexual connection by digital penetration of the vagina of a 15 year old girl. She knew him as her father and the act occurred during an access visit. The appellant was sentenced to three and a half years imprisonment and has been on bail pending the determination of the appeal against conviction.
[2] The ground upon which the appeal is advanced is that a miscarriage of justice occurred because the trial Judge, Judge Hubble, declined to permit defence counsel to put a question to the complainant, in cross-examination, to the effect that shortly before the alleged incident she had found out that the appellant might not be her father. It is argued that a positive answer to that question might have provided a foundation for the proposition that the girl had a motive to make a false allegation against the appellant.
The alleged offending
[3] The complainant’s parents separated when she was aged six. She had little contact with her father after that until she was 11. Thereafter, she saw him for access visits from time to time. In September 2004 during an access visit the appellant took the complainant, then aged 15, to a beach and engaged her in some conversation about her sexual experience which left her uncomfortable. Thereafter, she spent the night at her father’s home. Her evidence was that she awoke in the early hours of the morning to find the appellant violating her by placing his fingers inside her vagina. Her evidence was that she endeavoured immediately to telephone a friend but was unsuccessful. After being returned to her home the next day, she said she did not feel able to complain to her mother but the following day told a girlfriend what had happened. That friend gave evidence of a recent complaint nature.
[4] When interviewed by the police, the appellant denied any offending, stating that on the night in question he had become ill, blacked out and awoke to find the complainant touching him in a sexual way with her hand “in the wrong position or something like that”. The defence at trial was that he had not digitally penetrated the complainant and that she was lying.
Doubts about the complainant’s parentage
[5] The issue of whether the appellant was in fact the complainant’s father arose in the following way, according to Mr Corby, who has been the appellant’s counsel throughout. The complainant’s mother gave evidence at the preliminary hearing. Apparently, in the course of her evidence, she was asked an innocuous question as to whether the complainant was the daughter of her and the appellant. She answered, with commendable honesty, that she could not be 100% certain that the appellant was the complainant’s father. That was apparently a revelation to Mr Corby, and perhaps also to the appellant. Mr Corby explored that issue in cross-examination. The complainant’s mother explained that her doubts as to the appellant being the complainant’s father had always been a matter of shame to her. She had told only a couple of close friends of her doubts. She had never expressed those doubts to the complainant, and she did not believe that the complainant was aware of them.
[6] Mr Corby concluded that this would be a worthwhile matter to explore at trial. If it could be shown that the complainant had shortly before the alleged incident found out that the appellant might not be her father, then her shock and annoyance at finding that out might be an explanation for her alleged rebellious behaviour around the time of the alleged incident and might provide a motive for the allegedly false allegation against the appellant. Mr Corby frankly acknowledged to us that, at that time, he had no evidence that the complainant was aware of the doubts. The mother’s evidence at the preliminary hearing suggested the complainant did not know. And clearly the appellant had no evidence that the complainant knew of the doubts; indeed, for all we know, the fact that he might not be the complainant’s father came as a shock to him.
[7] Following the Crown opening, Mr Corby alerted the prosecutor to the fact that he intended to cross-examine the complainant on this topic. The prosecutor objected, and the matter was referred to Judge Hubble. Mr Corby did not seek a voir dire. Presumably that was because the mother’s evidence on the topic was unlikely to be different from that which she had given at the preliminary hearing, the appellant had nothing useful to say on the topic, and he had no other evidence
available to him suggesting that the complainant might have become aware of the doubts.
[8] The Judge declined to allow such cross-examination and in his ruling said:
If it was known to all of us that she knew about this, I would have no problem with her being questioned.
The only indications are at this stage that she has no idea that there may be an allegation that he is not her father and I do not think it should be raised with her in cross-examination. I am not going to allow that.
That could change depending on how things emerge.
[9] The complainant gave her evidence. The question of her knowledge of doubts about her parentage was not, of course, in light of the ruling, touched on. Mr Corby did, however, put to the complainant that she had lied and had invented the allegation because of some antagonism that she had developed for the appellant because of what he had said to her.
[10] Later when the complainant’s mother gave evidence she said that she was not
100% sure that the appellant was the complainant’s father but had never said anything to the complainant to that effect. When asked, “Does she have any idea that he may not be her dad?” She answered “No, not that I know of”.
[11] The defence position was that the alleged event did not happen and that the complainant was inventing it. The appellant elected not to give evidence.
[12] Mr Corby at no stage asked the Judge to reconsider the ruling, notwithstanding the fact that the Judge had left open that possibility.
[13] Defence counsel in his address to the jury submitted that the complainant was an out of control teenage girl antagonistic towards the appellant and had made a false allegation. In the addresses of both Crown and defence counsel, reference was made to the possibility that the complainant may have been aware that it had been alleged that the appellant was not her father. The Judge referred to those submissions in his summing-up, first when referring to Crown counsel’s address:
[Counsel] questioned the motive that she had found out that he was not her father and that formed some motive for her taking exception to him. But [counsel] says well if she did find that out and there is no evidence of it, and indeed there was no evidence of it except an inference that you might draw from the fact that the mother had put it around to some others that he might have been the father. [Counsel] points out that if that was the case she should have been taking it out on her mother, not the father because that was the mother’s indiscretion.
[14] When dealing with defence address the Judge said:
So the picture that the defence paint is one of [the complainant] who was out of control as a young teenage girl. There is a real risk that she has discovered that her father is perhaps not her father and that she has resented his intrusion into her private life. She has nothing to do with him and so when the opportunity arises with another of her young friends is in trouble and the police are around she decides to dump on her father and the first mention of any such thing like this occurring is immediately taken up with by [sic] her mother and it goes straight to the police. Once it goes there you are on the bandwagon, it is impossible to get off.
Discussion
[15] A trial judge must always balance the right of an accused to a fair trial and the right of a complainant not to be subjected to unnecessary distress. Whilst Judge Hubble did not give any reasons for his ruling, he must have been troubled by the risk that the child knew nothing of her mother’s doubts about who her father was. He obviously thought that, unless there was some evidentiary foundation for the possibility the complainant knew of these doubts, the question should not be put. Such a foundation may have come from the child’s mother who was to later give evidence or the appellant (if he gave evidence). So the matter was put “on hold”.
[16] A Judge may disallow a question or line of questioning pursuant to his overall discretion to protect a vulnerable witness and s 14(b) of the Evidence Act
1908 provides that the Court may forbid any question it regards as:
intended to insult or annoy, or needlessly offensive in form, notwithstanding that such question may be proper in itself.
[17] Beyond doubt, an accused has the right to cross-examine prosecution witnesses, as well as to give and call evidence. The extent of that right is that prima facie all evidence relevant to the question whether an accused is guilty or innocent is
admissible. The test is whether the Judge’s decision to not permit the question breached the appellant’s right to a fair hearing. It is well understood that an accused does not have an absolute and unqualified right to put whatever questions he chooses to a witness, the issue being one of proportionality. As was said by Lord Hope in R v A (No. 2) [2002] 1 AC 45 at [94]:
….Furthermore, to ask oneself whether [it is] fair to the defendant is to address one side of the balance only. On the other side there is the public interest in the rule of law. The law fails in its purpose if those who commit sexual offences are not brought to trial because the protection which it provides against unnecessary distress and humiliation of witnesses is inadequate. So too if evidence or questions are permitted at the trial which lie so close to the margin between what is relevant and permissible and what is irrelevant and impermissible as to risk deflecting juries from the true issues in the case.
….
[99] It is plain that the question is in the end one of balance. Has the balance between the protection of the complainant and the accused’s right to a fair trial been struck in the right place?
[18] It is important that vulnerable young witnesses be protected and it is easy to see why the Judge, not then knowing the extent of knowledge (if any) of the complainant, was concerned to protect her from unnecessary distress until he saw how the evidence emerged. The Judge must have thought the question to have possible relevance and he permitted counsel to explore the question of the child’s possible knowledge with the mother. If an evidential foundation had been laid that the child knew of the suggestion, then defence counsel could have sought to recall the girl for further cross-examination. It is clear to us that the Judge did not totally rule out the asking of the question which was something that, as he indicated, could be re-visited.
[19] The complainant denied both that she had some sort of motive to invent a false story and that her evidence was false. The suggestion that the complainant might have known that it was alleged that the appellant was not her father was made to the jury in any event, both in submissions and arising out of the cross-examination of the complainant’s mother. There being no evidential foundation for such a question of the child, it would have been unduly distressing and traumatic to the child for it to be put.
[20] The appellant’s right to a fair trial was not jeopardised by the Judge exercising his discretion so as to protect the girl in the way that he did. There is no evidence, even today, that the complainant did know about her mother’s doubts. All the evidence indicates she does not know. It would have been appalling for the complainant to find out about those doubts for the first time while in the stressful environment of giving evidence of intimate matters against, of all people, the man she believed to be her father (and who indeed may very well be her father).
[21] The issue was not in any event at the heart of the case. Had she found out shortly before that the appellant was not her father, this might conceivably have caused her to be antagonistic towards him. But, as Ms Hastie, for the Crown, said, it was much more likely that she would be furious with her mother. Given what the complainant and her mother both said in evidence about their relationship, it seems inconceivable that she would not have raised this issue with her mother, had she found out that the appellant might not be her father.
[22] The appellant has not demonstrated that a miscarrige of justice has arisen as a result of the Judge’s ruling.
Result
[23] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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