R v M HC Whangarei T.000750

[2001] NZHC 696

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY T.000750

PUBLICATION OF NAME, ADDRESS OR OTHER INFORMATION IDENTIFYING PERSONS PROHIBITED UNTIL THE CONCLUSION OF THE TRIAL.

THE QUEEN

V

[M]

Hearing: 31 July 2001

Counsel: M B Smith and M Curran for the Crown
C Muston for the Accused

Judgement: 31 July 2001

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:
Marsden Woods Inskip & Smith, P O Box 146, Whangarei for the Crown
Thorne Dallas & Partners, DX AP24513, Whangarei for the Accused

[1] This is an application for leave to cross-examine under s 23A of Evidence Act 1908 and for rulings as to the admissibility of the evidence of a number of witnesses.

[2] The accused faces eleven charges of sexual abuse of young girls in or about the home the accused shared with their grandmother over the period 1975 to 1979.

[3] There have been two earlier rulings on pre-trial issues. Regrettably, this application was not heard until the first day of the trial. The application was not made until 19 July and did not come to my notice until just before the trial was due to commence. The submissions in support of the application were not made available until the morning of the hearing. It was therefore necessary to empanel the jury and send them away for the day. In the event, argument was not completed until 6.00 p.m. and further matters were raised in relation to the application on the morning of the second day of the trial which has further set back the commencement of the trial itself.

[4] I will deal first with the challenges to the evidence which are unrelated to the s 23A application and which can conveniently be disposed of first.

Evidence of Constable Tuffley

[5] The defence objects to all of the evidence proposed to be given by Constable Tuffley. It relates to what occurred when the accused was arrested by Detective Constable Tarlton whom Constable Tuffley accompanied. It covers the initial conversation between Detective Tarlton and the accused and refers to a statement which the witness heard the accused make to Detective Tarlton, “If this goes any further, then you are fucking dead”. It briefly describes the detective’s actions which followed.

[6] Mr Muston submits that the evidence should be excluded as irrelevant. In particular, he says that the alleged threat is the subject of a separate charge which is not being dealt with at this trial.

[7] On the face of it, the objection may have merit. However, in the course of one of the earlier pre-trial hearings, the admissibility of this evidence was considered in the context of an application to exclude passages of the accused’s video interview which includes the arresting officer’s account of what occurred. The passages which relate to the arrest were ruled admissible and I am informed that the challenge to the related evidence of Detective Tarlton was abandoned. I am not asked to revisit that ruling. The only objection therefore to Constable Tuffley’s evidence can be that he is confirming the evidence of another Crown witness. That is, as Mr Smith says, a novel ground of objection and I am not prepared to uphold it.

Evidence of [TM]

[8] Objection was taken to three passages in the brief of evidence of this witness who is an aunt of the complainants and is to give evidence about an incident which she witnessed in the house which they shared with the accused and their grandmother, the witness’ mother. There are three passages objected to:

[a] The first is in the context of evidence that the witness had seen the accused in the bed of one of the complainants. The disputed passage reads:

“I thought at the time that the accused got into the wrong bed, I didn’t have any knowledge about child abuse.”

Mr Muston objects to the passage referring to the witness’ knowledge of child abuse. I agree that those words may be understood to convey the witness’ opinion that an act of abuse had been committed and they should be deleted. There is no reason, however, why evidence should not be led as to as to the reason why the witness responded to the action of the accused as she describes earlier in her evidence.

[b] Later in her brief, the witness says:

“I think I would have told mum about what I had seen so she would have had a fair idea of what was going on. I told mum everything.”

Mr Muston agreed that there could be no objection to the witness giving evidence as to what she may or may not have told her mother and confines his objection to the passage “so she would have had a fair idea of what was going on”.

I agree that that passage should be deleted as it involves the witness drawing a conclusion for which there is insufficient evidential basis.

[c] The final passage objected to is:

“I have no knowledge of any other incidents of sexual abuse by the accused other than what I have said.”

In my view, the witness is not entitled to refer to incidents of sexual abuse and no evidence should be led which involves an expression of an opinion by her on that issue. However, there can be no objection to her saying that she did not witness any other incidents of the kind described.

Evidence of [MD]

[9] This witness, who is the half brother of the complainant, is to give evidence that he collected the children from the house which they shared with the accused and took them to live at his home.

[10] The first passage objected to is:

“About twenty years ago in about 1979, acting on information received, I believed that the girls had been and were being victims of physical abuse at the hand of the defendant.”

He then goes on to say that following receipt of that information, he went and picked up the complainants. His belief that the girls were the victims of physical abuse at the hand of the accused is clearly inadmissible and Mr Smith accepts that that part of the disputed passage should be deleted. I order accordingly.

[11] The second passage reads as follows:

“The girls were quiet while they stayed with me and, didn’t seem to be your natural type children. By this I mean they weren’t bubbly and happy-go-lucky as my own kids were at the time. At the time I put this down to their grandmother dying.”

Mr Muston objected to this evidence on the ground that it implies that the witness now holds a different view as to the reason for the children’s demeanour. Evidence of demeanour is commonly admitted in cases of alleged child sexual abuse. It is relevant to whether the abuse occurred and may also be relevant to explain any delay in complaining. I direct the deletion of the words “At the time” as they may have the effect of conveying that the witness now holds a different view which is adverse to the accused. Otherwise, I do not see that evidence as objectionable.

Evidence of [TM]

[12] This witness is also related to the complainants and is to give evidence as to the general conditions in which the complainants lived with the accused. The sole passage in his evidence which is objected to reads:

“Acting on a request which I received, I took one of the girls, whose name was [T], back to Auckland with me.”

Mr Muston submitted that the witness should not be permitted to give evidence as to the reason why he took one of the girls back to Auckland. I see nothing objectionable in this evidence. It is permissible for a witness to state why they took action provided they do not give hearsay evidence of what was said. In this passage it provides sense and context to the action which followed.

Section 23A application

[13] The accused applies for leave to cross-examine the complainants in relation to prior complaints of sexual abuse in respect of two uncles and alleged sexual abuse by them.

[14] The application, as initially argued, relies on information disclosed in a Social Welfare file on the complainant AD. It also relied on passages in AD’s statement to the police and a statement prepared for the purpose of giving evidence at depositions.

[15] The statement to the police contained the following passage:

“When I was 14 years old I was getting in trouble and Social Welfare had me in foster homes. I had a man Social Worker from Henderson. I think they wanted to send me up North again and I told them that he used to sexually abuse me. It was a woman I told, and she agreed not to send me, and put me in a foster home run by [GW].”

In the fourth line the word “he” replaces “they” which has been crossed out.

The passage in the deposition statement reads:

“I told a social worker at the time that the defendant had used to sexually abuse me, and I was placed in a foster home.”

[16] The documents in the Social Welfare file include a handwritten memorandum at the foot of which is endorsed a note:

“Uncles at [O] [name given]

[H] [name given]

beware it is alleged both have molested AD’s sisters and possibly AD.”

The note goes on to name two relatives and a friend who may be able to provide details.

[17] Apparently relying on the information that was the source of that note, other documents in the Social Welfare file contain such passages as:

“There are uncles in Northland, both of whom are said to have committed indecent acts upon AD and the other sister.”

And then:

“Meetings with AD’s father and sister have arrived at the conclusion that they are unable and unwilling to accommodate her. They and AD are opposed to placement with the extended family because this would mean her leaving Auckland and because of previous incidents of sexual abuse within the extended family.”

And again:

“She has been apparently cautious and shy towards this ‘foster uncle’ - [deleted] asked me had there been any molestation by older males in AD’s history. I confirmed that I has been told indirectly that there had been. . .”

And, finally:

“AD spent holidays in Northland with her foster family. They visited homes of her own relatives, but apart from an interested ‘hello’, AD withdrew from them. I feel she has unpleasant memories of contact with two uncles in the North.”

[18] Having examined the file, Mr Muston contacted the Social Welfare officer who had been responsible for the management of AD. That social worker has written confirming that he was the author of some of the relevant entries in the Social Welfare file. His letter reads in part:

“I have no recollection of [AD] disclosing directly to me any offending against her. I believe if she had specified such this would appear more clearly on the file. I believe that I asked the names of ‘uncles’ ‘up North’ because of earlier suggestions. These names were then jotted down without any intention to clarify past abuse.”

There is no reference on the Social Welfare file to any other allegations of sexual abuse or to any person who could be identified as the accused.

[19] Mr Muston submitted that he should be permitted to cross-examine the complainants in relation to possible sexual abuse by the uncles identified as relevant to the issue of whether deliberately or otherwise the complainants have attributed to the accused acts which had been perpetrated by others. He expressly disavowed as part of the defence that there had been consent or that sexual abuse had not occurred. The defence is a denial of abuse by the accused. The proposed cross-examination is directed to the issue of whether abuse by others could explain the complaints against the accused.

[20] Mr Muston referred me to the judgment of the Court of Appeal in R v Duncan [1992] 1 NZLR 529,535, where it was said in relation to leave to cross examine under s 23A that:

“It can be very relevant, particularly in child abuse cases, to explore the possibility of fabrication to gain attention or through malice, or transferred attribution from actual offender to present accused. Habitual or false previous complaints can be an indicator. There can be occasions when questioning along these lines far from being a character-blackening exercise of little relevance, is well justified in the overall interests of justice. In such situations, Courts will not be unduly reticent over granting leave for examinations which are beyond mere fishing expeditions.”

[21] In R v Maddern (CA.199/00, 31 August 2000), there is a fuller discussion of the basis for the exercise of the discretion under s 23A. Before I refer to the relevant passages in that judgment; it is convenient to set out the relevant parts of s 23A. Subsections (2) and (3) provide:

“(2) In any [case of a sexual nature], no evidence shall be given, and no question shall be put to a witness, relating directly or indirectly to-

(a) The sexual experience of the complainant with any person other than the accused; or

(b) The reputation of the complainant in sexual matters, -

except by leave of the Judge.

(3) The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to-

(a) Facts in issue in the proceeding; or

(b) The issue of the appropriate sentence,-

as the case may require, that to exclude it would be contrary to the interests of justice:

Provided that any such evidence or question shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.”

[22] After noting at paragraph 27 that it did not appear that Parliament had in mind sexual offending against a young child when enacting s 23A, the Court went on to say:

“There is no possibility that a young child will be able to be portrayed by defence counsel as having loose morals and therefore consenting to sexual activity. But defence counsel may need to ask the child if she has been molested by another person. There may be a legitimate basis for inquiring how the child came to have knowledge of sexual matters. Questioning may be intended to be directed to whether the source was something seen or overheard rather than personally experienced. In some cases, like the present, it may appear from the medical evidence that the child must have been sexually violated. As well, there are sometimes, if rarely, cases in which a young child who has actually been abused makes the accusation against a person who was not the abuser. In such cases, the accused may accept that the child has been molested by someone but will deny that he was the perpetrator. It is obvious that this is a defence which will often be very difficult to run if, although deemed innocent until convicted, the accused is barred from asking the complainant whether she has been abused by another person. Yet in asking this question there is no danger of portraying the child as having truly consented to any sexual activity.”

And the Court went on to say, at paragraph 28, that:

“. . . if the defence is able to show a basis for the proposed questioning which is more than speculative and that abuse by another person is relevant and accordingly ‘in issue in the proceeding’, the interests of justice may well require that some questioning of the complainant be permitted. There may be no other way in which the defence can adequately be advanced.”

[23] Both cases recognise that it may be proper to allow questioning about other sexual experiences where the person accused by an abused child may not be the perpetrator. Both cases also emphasise the need for a foundation to be laid which establishes the defence as “more than speculative”.

[24] Of considerable importance to Mr Muston’s application and to the defence that the abuse to which the complainant referred was perpetrated by others, is the absence from the Social Welfare report of any reference to the accused. As the Social Welfare file did not purport to record complaints by AD - on the contrary, the social worker makes it clear that the information came from others - this omission could not be accorded great weight. However, it provided a basis for the proposed questioning of AD which, arguably, was more than speculative. As matters turned out, however, the Social Welfare file was not the only information before the Court which bears on the issue.

[25] The defence subpoenaed a counsellor who had counselled AD and her sister in about 1992-1993 in relation to sexual abuse. A decision had not been made to call her as a witness as the defence had not had access to her file. The counsellor was unwilling to voluntarily make available her file because of the confidential nature of the relationship between her and her client. It was necessary therefore for the defence to obtain a ruling pursuant to s 35 of the Evidence Act 1908.

[26] In subpoenaing her the defence adopted the means for assessing material held by a non-party approved by the Court of Appeal in R v Dobson (CA.25/95, 8 June 1995), R v Accused (CA.303/96) 14 CRNZ 516 and more recently in R v Moore (CA.69/01, 3 May 2001). The practical difficulties which arise when such issues must be resolved in the course of a trial were amply demonstrated in this case and underline the need for a means of addressing non-party discovery issues pre-trial. The counsellor’s evidence had potential relevance to the s 23A issue. It took a full day of argument and evidence to dispose of the issue and would have taken longer and caused greater disruption if inspection of a large volume of documents had been required. The witness had to come from a distance and, had her evidence been required, would have necessitated a return journey later in the hearing.

[27] In her evidence the counsellor confirmed that her relationship with clients, including AD, was subject to conditions of confidentiality which were imposed by the Accident Compensation Corporation. Only reports to the Corporation itself were exempt. She emphasised the importance of the confidential relationship to the therapeutic process because of the need for the client to feel both trust in the counsellor and safety in the relationship. The counsellor said that her file did not name the alleged perpetrators of abuse of AD but identified three by reference to their relationship with AD. They were recorded as two uncles and a grandfather. Further questions elicited that the grandfather had lived in the household with the complainants during much of the period covered by the indictment.

[28] The accused is not the grandfather of the complainants but, over the relevant period, was married to the grandmother and lived with them. In the circumstances, Mr Muston elected not to pursue his application in relation to the counsellor’s evidence as it concerned AD. The evidence relating to the other complainant, AD’s sister, is unresolved as the witness did not bring her file in response to the subpoena.

[29] The evidence of the counsellor confirms the indications in the Social Welfare file that there had been abuse by two uncles but it also records a complaint of abuse against a person who, on the available evidence, appears to be the accused. That evidence therefore provides no foundation for a defence of what Mr Smith called in shorthand “cross-over”. The evidence of the counsellor, in association with that revealed by the Social Welfare file, provides no basis for the suggestion that abuse by the uncles is being attributed to the accused. The only evidence of complaints by AD are against all three.

[30] I reserved my judgment until 10.00 a.m. today. As I was about to commence delivering it, Mr Muston sought leave to address me further in relation to the s 23A application. He referred me to a number of passages in the transcript of the accused’s video interview which contains suggestions by the accused, in response to questions from the interviewing officer as to why the complainants would have fabricated their complaints, that other family members may have abused them. He does not mention the uncles referred to in the Social Welfare report or, it appears, to any other uncles. Two individuals are referred to by name but the answers of the accused suggest that the possibility of their having abused the complainants is almost entirely speculation on his part. They also appear incidental to the view which he ultimately expresses (video transcript p 22, line 1100) that he has no idea why the two complainants should fabricate their accounts of abuse by him.

[31] The application was made and advanced on the basis of some tenuous, but not wholly insubstantial, evidence that AD made complaints about abuse by uncles but not by the accused. The widened application seeks to expand enquiries in relation to abuse into other areas based on little more than speculation by the accused. There is no evidence to suggest that either complainant has made complaints against others which may be false or that in the past they have complained of the actions of others but not about those of the accused. In my view, to permit cross-examination in these circumstances, would be to authorise what is no more than a fishing expedition.

[32] Accordingly, the application for leave to cross-examine the complainants into alleged sexual abuse by persons other than the accused is declined. This does not, of course, preclude a later application should some substantial evidential basis emerge in the course of the trial for leave to be granted.

[33] This disposes of the further application on behalf of the accused for leave to cross-examine the police officer in charge of the case as to whether enquiries have been made arising out of the matters disclosed by the Social Welfare file. But even if I had allowed the s 23A application, I would have regarded that enquiry as irrelevant to the issues which the jury is required to consider.

[34] My finding in relation to s 23A application also disposes of the directions sought in relation to the evidence of the Social Welfare officer whom the accused wished to call to give evidence along the lines of what is contained in his letter. The information on the Social Welfare file regarding alleged abuse by others is also irrelevant to the issues which the jury is required to consider.