R v M CA301/02

[2003] NZCA 386

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA301/02

THE QUEEN

v

[M A M]

Hearing:         17 June 2003

Coram:Elias CJ Anderson J Glazebrook J

Appearances: C B Cato and A J D Guest for Appellant S P France and M F Laracy for Crown

Judgment:      6 August 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]    In October 1999 the appellant was convicted by a High Court jury on five counts of sexual offending against the daughter of a former de facto partner. A subsequent appeal against conviction to this Court was dealt with in a way that entitled the appellant to a rehearing pursuant to s15 of the Crimes (Criminal Appeals) Amendment Act and it has been reheard accordingly.

[2]    The Crown case was that the appellant, whom the girl’s mother had originally approached for counselling sessions, suborned the mother into submitting to his

R V [M A M] CA CA301/02 [6 August 2003]

violations of the girl by means of his powerful personality and claims to a divine connection with God; that he characterised his criminal activity as essential, even life-preserving therapy for the victim; and that so complete was his domination that some violations occurred in her presence, even in the same bed. The indictment contained specific counts and representative counts of sexual violation by digital penetration, sexual violation by rape and indecent assault. The offending occurred between 30 December 1994 and 29 December 1996 when the complainant was 12 and 13 years old.

[3]    On 1 September 1998 the girl complained to the Police but at interview did not reveal that her mother had been present during two rapes and other indecencies. Returning home after interview she told her mother that she had reported the abuse to the Police but that she had not mentioned her mother’s presence. About a week later when the Police were following up the complaint the mother made a statement as a recent complaint witness. On 29 December 1998 the mother made contact with the Police and told them that she had been present during some of the sexual abuse of her daughter. The Police then put that to the daughter who reluctantly advised  that her mother was present twice when the appellant had raped her. Further statements were taken from the complainant and her mother. The girl described two incidents in which she was raped by the appellant while her mother was in the same bed and the mother stated that she had been in bed with the appellant on occasions when he indecently assaulted the daughter and digitally penetrated her and on two occasions had been present when the daughter was raped.

[4]    At a depositions hearing on 12 March 1999 the evidence for committal was admitted by consent pursuant to s173A of the Summary Proceedings Act 1957. The evidence included the mother’s signed brief. At the time of the deposition hearing the Solicitor-General had under consideration a written request by the Police, dated  9 March 1999, for immunity for the mother. On 26 March 1999 the Crown Law Office advised on behalf of the Solicitor-General that immunity would not be granted.

[5]    Notwithstanding the declining of immunity the mother was prepared to give evidence in the High Court trial. She said how she had come from an abusive

background which had caused major problems in her adult life and with her family. Desperate for help she had made the acquaintance of the appellant who was a Christian Minister and who had offered healing through prayer. That led rapidly to a sexual relationship and to a sense of being completely under the appellant’s power, believing she had to obey him. The harrowing evidence relating to the submission and domination of the mother and child need not be detailed for the purposes of this judgment. It is sufficient to acknowledge that the mother’s evidence was crucially incriminatory not only of the appellant but also of herself but was given, notwithstanding her own jeopardy, out of a sense of duty and as a step along the path of her own redemption. The legal significance of her testimony, for the purposes of this appeal, is that she was a Crown accomplice witness who did not have immunity from prosecution and against whom relevant criminal proceedings had not been disposed of. That fact is the foundation stone of the submissions in support of the appeal.

Grounds of appeal

[6]    Mr Cato contended that the Crown should not have called the mother to give evidence against the appellant after she had been declined an indemnity against prosecution and when the live issue of whether she would be prosecuted had not yet been resolved. Either her evidence was inadmissible on that ground or, if  admissible, it would have been amenable to exclusion at the trial Judge’s discretion but counsel at trial made the radical error of failing to ask the Judge to exclude the evidence. Further, it was submitted, the Judge erred in refusing to allow trial counsel in the course of cross-examining a Police officer to pursue a question concerning whether the mother might yet be charged, depending on the type of evidence she might give in Court. The appellant also complains that the Judge should have given  a direction to the jury to treat the mother’s evidence with care and pointing out that she may have some purpose of her own to gain by giving evidence adverse to the appellant and having an incentive to seek the approbation of the Police in order to avoid prosecution for her role in his offending. It is further submitted that the Crown having cross-examined the appellant, when he gave evidence, on the issue whether he knew of any reason why the girl would make a false complaint, the Judge should

have given a jury direction in terms of this  Court’s  observations  in  R  v  T  [1998] 2 NZLR 257 at 264-265 which were in the following terms:

His Honour stressed that where the prosecution sought to rely on the absence of a motive to lie, appropriate directions were required to avoid any risk that a jury might think there was an onus on the accused to adduce evidence of a motive, and to emphasise that regardless of whether any such reason had emerged, the Crown still had to satisfy the jury that the complainant was telling the truth.

[7]    Another ground of appeal is that there was a material non-disclosure by the Police of a complaint made by the mother that a former partner had sexually abused the complainant. Related to that ground is a challenge to the decision of the trial Judge not to permit cross-examination of the complainant pursuant to s23A of the Evidence Act 1908 concerning sexual abuse of her by the former partner.

Appellant’s arguments

[8]    Mr Cato carefully examined principle and precedent in support of a proposition which he expressed in these terms:

It is submitted that the [mother] should not have been permitted to give evidence. She was an uncharged accomplice who had been declined an indemnity against prosecution and against whom the issue of prosecution was unresolved, at the time she gave her evidence. It is submitted that in these circumstances she was incompetent to give evidence.

[9]    The Courts have long approved a Crown practice of not calling an accomplice, jointly charged in an indictment with a co-accused, as indicated in R v Pipe (1967) Cr App R 17 at 20 where Parker LCJ said:

It may well be, and indeed it is admitted, that in strict law Swan was a competent witness, but for years now it has been the recognised practice that an accomplice who has been charged, either jointly charged in the  indictment with his co-accused or in the indictment though not under a joint charge, or indeed has been charged though not brought to the state of an indictment being brought against him, shall not be called by the prosecution, except in limited circumstances. Those circumstances are  set  out correctly in Archbold, in paragraph 1297 of the current edition, where it is said that where it is proposed to call an accomplice at the trial, it is the practice (a) to omit him from the indictment or (b) take his plea of Guilty on arraignment or before calling him either (c) to offer no evidence and permit his acquittal or

(d) to enter a nolle prosequi.

That approach has been endorsed in New Zealand in, for example, R v Weightman

[1978] 1 NZLR 79 at 81 and Taylor v R (1996) 14 CRNZ 334 at 341.

[10]   Mr Cato submitted that the law should be extended in this area by replacing the judicial discretion to exclude with an exclusionary rule founded on a perception of incompetence.

[11]   Alternatively, the trial Judge should have excluded the mother’s evidence as  a matter of discretion because her own jeopardy was so compelling a motive for ingratiating herself with the prosecution as to create such a risk of unreliability as to make it unfair to the appellant that she should testify.

[12]   In respect of his arguments, both as to competence and as to discretionary exclusion, Mr Cato urged the policy justification of the importance, in terms of the administration of criminal justice, of self-serving motives of accomplices being pre- empted by a transparent, established judicial practice. In his submission the best practice was immunity, in the absence of which there should be discretionary exclusion or at least a firm accomplice warning. In that last respect there was no  such warning in the present case. He urged this Court “…to take the opportunity to state the law substantively so there can be certainty in practice”.

[13]   As to the trial Judge disallowing counsel’s question to Detective Constable Armstrong whether the mother might yet be charged depending on the type of evidence she gives in Court, Mr Cato submitted that the question was relevant to the motive of the mother and that the absence of an opportunity to explore whether there was an arrangement between her and the Police over the prospect of her being charged impinged on the weight of her evidence and thereby materially prejudiced a fair trial.

[14]   The appellant had no convictions prior to the trial and Mr Cato submitted this fact had a relevance and a significance which was not adequately brought to the notice of the jury. Understandably Mr Cato did not characterise trial counsel’s approach to that matter as radical error but rather in terms of the context in which the Judge’s direction falls to be assessed in terms of error or unfairness.

[15]   The Judge’s directions in this respect were in connection with a direction that the jury should reach its verdict uninfluenced by perfectly natural feelings of sympathy or prejudice. He warned the jury not to be influenced by sympathy for the complainant’s disturbed and upsetting upbringing. By the same token he urged the jury not to be influenced by sympathy for the accused who, a person with no previous criminal history, was facing very serious charges. Mr Cato, whilst not complaining about a failure to give a character warning on the basis of the absence  of convictions, submitted nevertheless that the Judge “unfairly diminished whatever value the appellant’s lack of convictions might have in the eyes of the jury (and he was 65) by placing his convictions in the context that they should not have sympathy for him because he was a man with no previous criminal history.”

[16]   As previously mentioned, Mr Cato took issue with the fact that the Judge did not give an R v T direction in circumstances where the Crown had in the course of cross-examining the appellant asked and obtained the following question and answer:

Q. Do you know of any reason that [the complainant] would invent all these things you say are not true as far as you are concerned.

A. I am sorry I don’t know. I am not a psychologist. I don’t know.

[17]   Trial counsel adverted to this matter in his closing as may be inferred from a portion of the Judge’s summing up which reads:

Mr Leabourn says it is not for the accused to say why the complainant and her mother would make a false complaint. Could it be the money? Could it be the break-up? Could it be, he put it more colourfully, jealousy?

[18]   The effect of Mr Cato’s submission is that rather than merely identifying trial counsel’s response to the issue raised by the Crown, the Judge ought to have given directions to obviate a risk that the jury might think there was an onus on the accused to adduce evidence of a motive.

[19]   Mr Cato’s submissions relating to non-disclosure by the Police of an historical complaint by the mother that her daughter may have been abused needs to be examined in relation to two other factors. The first is that medical evidence adduced at trial showed penetrative disruption of the girl’s hymen. The other factor

is the trial Judge’s declining leave for appellant’s counsel to cross-examine the complainant in respect of a complaint of inappropriate touching of the girl by the mother’s former partner. The evidence relating to the earlier incident suggested that the former partner had been observed in the street kneeling in front of the complainant in circumstances which the Judge was obviously prepared to accept indicated “inappropriate conduct”. But he held there was nothing in the material to indicate the possibility that the complainant was sexually violated and accordingly it could have no relevance to the particular issue rendering cross-examination admissible in terms of s23A of the Evidence Act.

[20]   We note that the trial Judge did grant leave for counsel to cross-examine in connection with the possibility of sexual abuse of the child by her estranged natural father when she was a baby. Leave was also granted to cross-examine in respect of the possibility of sexual activity between the complainant and her older sister.

[21]   A report form in relation to the street incident was disclosed by the Police after trial and was placed before this Court on the appeal. It shows that the mother did in fact complain in the wake of a neighbour’s observing the inappropriate touching of the child in the street. A detective constable from a local sexual abuse team inquired into the mother’s complaint that she believed her ex partner may have sexually abused the child. She interviewed the mother at length and established that there had been no disclosure by the child about any such abuse and that the mother was concerned about behavioural problems which may have stemmed from abuse even though there was nothing to suggest it. The detective constable ascertained that the child had seen psychologists, counsellors and paediatricians and there had never been any disclosure of sexual abuse. The report form notes that the mother understood that the Police could not ask the child any leading questions about the abuse and that unless she disclosed something there was little the Police could do. Later, not having heard from the mother, the Police contacted her and were informed that the mother had left a message some time earlier that the matter was in hand and the daughter’s behavioural problems had improved. The mother stated she  needed no further help and the detective constable cleared the matter as “no offence”.

[22]   Mr Cato could not, of course, and did not suggest that the discovered information could have been used as a basis for suggesting that the child had in fact been penetratively abused by the former de facto partner. He submitted, however, that the information could have been used to impeach the credit of the mother as a person given to unfounded suggestions of sexual abuse by men she had been living with.

Crown arguments on appeal

[23]   On the question of the competence of the mother as an accomplice Mr France submitted for the Crown that there was no rule nor any justification for one that an accomplice is not competent unless there has been a grant of immunity from prosecution or finalisation of criminal proceedings against the accomplice. An examination of the authorities such as Pipe, Weightman, Taylor, and R v Royal (1993) 10 CRNZ 266 identifies the following principles:

1.   An accomplice is competent to give evidence for the prosecution.

2.   There is a general practice that an accomplice’s position should be finalised before he gives evidence.

3.   Even where the accomplice’s position has been finalised there is still a discretion to exclude.

4.   The dominant consideration when receiving evidence from accomplices is whether the inducement under which the witness gave evidence is such as to give rise to a real danger that false evidence will be given.

5.   The occasions when accomplice evidence will be directed to be excluded will be rare.

6.   When asked to exclude evidence, the trial Judge should ask whether there is in existence an operative inducement on the accomplice; if so, what the power of that inducement is; whether such inducement is likely to give

rise to a real danger that false evidence will be given by the accomplice; whether the inducement will thereby cause a real danger of injustice to an accused.

7.   Even if an inducement is considered “very powerful” it is still necessary to consider the other factors mentioned and also to give weight to the public interest. In this respect, Mr France pointed out that in Taylor at p341 this Court cited the following observations of Lawton LJ in Turner at p79:

It does not follow, in our judgment, that in all cases calling a witness who can benefit from giving evidence is “wholly irregular”. To hold so would be absurd. Examples are provided by the prosecution witness who hopes to get a reward which has been offered “for information leading to a conviction”, or even an order for compensation or whose claim for damages may be helped by a conviction.

If the inducement is very powerful the judge may decide to exercise his discretion; but when doing so he must take into consideration all factors, including those affecting the public. It is in the interests of the public that criminals should be brought to justice; and the more serious the crimes the greater is the need for justice to be done.

[24]   As to a discretionary exclusion of the evidence of the mother as an undoubtedly competent witness, Mr France submitted that her evidence could only have been excluded if in all the circumstances it was apparent that there was a real danger she would give false evidence against the appellant. On the facts of the case there was no such danger. The witness herself had created her legal jeopardy before any legal proceedings against her were envisaged by volunteering incriminating admissions when there was no incentive whatsoever to make false statements about the offending. She was warned of the risk that she was incriminating herself but nevertheless went on to sign a written statement which she confirmed on oath at depositions and in the terms of which she testified at trial. The only material difference between her initial statement to the Police and her later accounts relate only to the fact that the latter contained admissions of her own role. In the Crown’s submission there could in reality be no inducement to give false evidence at trial when she had volunteered the same information in the knowledge she might be charged on the basis of it. There was accordingly no “operative incentive” before

the witness in exchange for her evidence and no risk that the evidence given at trial would be false.

[25]   Concerning the Judge’s failure to give an accomplice warning, Mr France noted that this is discretionary in terms of s12C of the Evidence Act 1908. The appellant had not based his defence on the proposition that the mother was unreliable because she was an accomplice but simply on the basis that she and the child were not to be believed because they had concocted a story of sexual abuse after the appellant left the relationship, in order to get back at him. The appellant had contended that the incidents of which the child and her mother complained had simply not occurred. Mr France submitted that in such circumstances an accomplice warning, which implied the possibility that the mother was unreliable because of her complicity in events which had occurred, would cut across the defence to the disadvantage of the appellant. In any event, in summing up, the Judge emphasised that credibility was the most important issue for the jury to decide. Credibility and reasons which might affect the credibility of the complainant and her mother were closely examined before the jury which was in a sound position to determine the weight which should be given to the mother’s evidence. In these circumstances no specific direction was required.

[26]   Mr France’s response to the complaint about non-disclosure and its related ground in respect of s23A of the Evidence Act was that there was an insufficient basis to allow cross-examination because the complainant never alleged that she was sexually abused by the former partner, nor does the discovered material provide an adequate basis for any suggestion that the former partner may have been responsible for disruption of the complainant’s hymen. As to a lost opportunity to challenge the mother’s credit on the basis that she was prone to making false complaints, the facts simply did not support such a proposition. The mother did not complain that the former partner had in fact sexually abused her daughter but merely expressed concern that this may have occurred having regard to the child’s difficult behaviour. The mother later indicated that she had the matter in hand and the daughter’s behavioural problems had improved so that she needed no further help.

[27]   The Crown’s general response to the other complaints on behalf of the appellant were, in effect, that they were insignificant and far from amounting to any cause for concern over the fairness of the trial or the safety of the verdict.

Discussion

[28]   With respect, Mr Cato’s submission that the law should not recognise accomplices as competent witnesses was bold but doomed to failure on the basis of precedent and reason. He frankly acknowledged that there was no precedent that accomplices are not competent witnesses. In our view it would be unreasonable to hold otherwise. Apart from the fact that incompetence has been a status founded on policy considerations other than the potential for unreliability through induced self- interest (for example, spousal incompetence which had its origins in the unity of husband and wife) accomplice incompetence would lead to absurd results. A co- accused could not give evidence on his or her own behalf in a joint trial; nor could a person who although not charged but might seem to be an accomplice be called by an accused to support the defence. And if a witness’s complicity was not obvious at the outset of testimony but became apparent, say, in the course of cross-examination a jury would have to be directed to disregard the evidence in its entirety whether or not it might have been helpful to the Crown or to an accused.

[29]   To the extent that complicity might in all the circumstances, including possible inducements, so affect a witness’s reliability that notwithstanding any direction by the Judge the testimony might operate unfairly against an accused, the Court’s discretion to exclude is plain and unquestionable.

[30]   In this particular case there could be no rational basis for a discretionary exclusion of the mother’s evidence because the essential ingredient of maleness in relation to the offences of sexual violation by rape and indecent assault, mean that the mother could not be guilty in any relevant respect or degree unless the appellant were guilty as a principal. That is, the mother could only ever be guilty as an accessory and could only be an accomplice if the appellant were in fact a principal.  It is unrealistic to suggest that she might have given false evidence against an appellant in order to mitigate or deflect attention from her own culpability. Any

motive she may have had for wrongly implicating the appellant could not be by virtue of her status as an accomplice but for some other reason.

[31]   It follows that we reject the appellant’s submissions that the mother ought to have been regarded as incompetent or that her evidence should have been excluded on a discretionary basis because of her status as an accomplice who had neither been granted immunity nor had proceedings against her in the same respect disposed of.

[32]   The legal principles which bear on the exercise of the discretion to exclude are clearly articulated in the authorities to which both learned counsel have referred, as mentioned earlier in this judgment and which have been summarised in terms of Mr France’s submission noted in para [23] above.

[33]   As to the complaint that the Judge should have given an accomplice warning we note the terms of s12C of the Evidence Act 1908:

12C    Witnesses having some purpose of their own to serve

Where in any criminal proceedings it appears to the Judge that a witness may have some purpose of his or her own to serve in giving evidence and that for that reason there is a risk that the witness may give false evidence that is prejudicial to the accused, the Judge shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness.

[34]   There is compelling force in Mr France’s submission that any such direction would have cut across the defence case rather than assisting it. Any suggestion of a need for caution in dealing with the mother’s evidence because she might be complicit could, in the circumstances of the case, only reinforce the Crown case with the inference that her complicity arose out of the appellant’s own criminality. It certainly did not strike experienced trial counsel as a deficiency to be remedied when, immediately after the jury had retired, the trial Judge asked counsel whether there was any question of law on which he did not, or did not correctly direct the jury, or any matter of fact which he did not state correctly. Defence counsel had no comment he wished to make.

[35]   We see nothing in any of the other points raised by Mr Cato on behalf of the appellant. Concerning the way the Judge dealt with the appellant’s absence of prior

convictions Mr Cato specifically, and in our view properly eschewed any argument that the failure to give a character warning on the basis of absence of convictions  was an error by the Judge but, with respect, his submission that the Judge unfairly diminished whatever value the lack of convictions might have in the eyes of the jury is, in effect, the same untenable proposition.

[36]   Nor do we have any reservations about the Judge’s disallowing a question whether the mother might yet be charged, depending on her evidence. Police intentions had no relevance to the mother’s credit unless they had been disclosed to her as an inducement. The effect of any such inducement on her mind was a matter to be put to her before the police officer was cross-examined. And in any event the Judge did allow inquiry into the area in subsequent questions. When examined in context the disallowing of the question has no significance.

[37]   The complaint that the Judge should have given an R v T direction in view of the Crown’s cross-examination of the appellant concerning knowledge of any motive for lying falls to be considered in the light of the following firm directions given by the Judge on the matter of proof:

The onus of proof of the essential ingredients of each charge is on the Crown. That onus rests on the Crown from beginning to end. There is no onus on the accused at any stage to prove his innocence. The accused does not need to give evidence. In this case he has chosen to do so but that does not affect the onus of proof. The law is that the Crown must prove each essential ingredient of the charge you are considering beyond reasonable doubt before you may bring in a verdict of guilty on that charge.

[38]   The Judge developed the directions concerning proof including emphasis that the appellant’s giving evidence did not alter the onus of proof. The Crown’s inquiry was restrained, not badgering, and by way of giving the appellant an opportunity to provide an explanation if it were possible. There is nothing to suggest the Crown made anything of that matter in closing and in all the circumstances the case called for no more than the general and clear direction on the onus and standard of proof which the Judge gave.

[39]   There is, in short, no substance in any of the grounds which Mr Cato assiduously advanced before us on behalf of his client. The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington