R v Marshall CA351/03

[2003] NZCA 382

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA351/03

THE QUEEN

v

MICHAEL DEAN MARSHALL

Hearing:         16 October 2003 Coram:  McGrath J

Goddard J Laurenson J

Appearances: P J Davison QC and A J Lloyd for Appellant H D N Lawry for Crown

Judgment:      28 November 2003

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]        On 7 June 2003 the appellant was convicted by a jury in the High Court of rape, sexual violation by unlawful sexual connection between his genitalia and the mouth of the complainant, and indecent assault of a girl aged between 12 years and 16 years. Each charge related to offending against the same complainant, a 14 year

R V MICHAEL DEAN MARSHALL CA CA351/03 [28 November 2003]

old schoolgirl. The appellant was sentenced to seven years imprisonment.  He appeals against his convictions only.

Background facts

[2]        During the evening of 25 March 2002 the complainant was a guest at a barbecue function at the house of a business acquaintance of her mother. Her mother also attended the barbecue, but left between 8pm and 8.30pm. She arranged for her daughter to be dropped off at her home, expecting that to happen at about 9.30pm.

[3]        The appellant, who was aged 46 years, met both the mother and the complainant for the first time during the evening. He left the barbecue at around the same time as the complainant. The complainant was driven to her mother’s home by a friend of her mother. When they arrived the friend found that her van could not negotiate the steep unsealed driveway up to the house. The appellant, who was driving his own car, pulled over alongside and offered to drive the complainant up  to the house. She and the friend agreed.

[4]        The Crown case at the trial was that the appellant waited for the friend’s vehicle to drive off, then reversed his vehicle out of the driveway, and drove off with the complainant. She had understood that she was being taken to her boyfriend’s place, but the appellant drove her to his own home. On their arrival they went into the appellant’s house and he showed her around. They went out onto a deck adjacent to a bedroom situated on the lower floor. The Crown’s case was that at that point the appellant grabbed the complainant, kissed her and began removing her clothing. She initially protested but then froze. It was alleged that the appellant carried her inside to a bedroom where he put her on the bed, removed his own clothing and forced her to perform oral sex on him. The Crown also said that he then raped her. Afterwards she got dressed and the appellant drove her home.

[5]        The next morning the complainant went to school and there told her boyfriend what had happened the previous evening. She said she had been raped. Later that morning she went to see a school counsellor, spending several hours with her. Another counsellor from outside the school was called in to assist. An

appointment was later arranged for the complainant to see a doctor which she did with her mother. Following that a complaint was made to the police.

The trial

[6]        The appellant gave evidence at his trial of his version of the events. He said that after the complainant had got into his car he proceeded up the unsealed driveway but stopped about halfway up when the complainant said to him that she did not  want to go home. She had asked where a particular township was and he had told  her that it was too far away for him to drive to that evening. She then asked if they could go to the appellant’s home. He agreed, drove to his place and went into his house with her.

[7]        The appellant agreed that he had had sexual intercourse with the complainant but said that she had instigated it. She had kissed him first, then moved her hands around the appellant and touched him sexually. His evidence was that  everything that happened thereafter, including sexual intercourse, was consensual. He also said that he thought that the complainant was in her late teens or early twenties. This was because she had been drinking and smoking and generally acting in the manner of an adult at the barbecue. The appellant also said that he had been inhibited in having sexual intercourse with the complainant because of an ongoing erectile dysfunction he had been experiencing at the time. He had subsequently been prescribed medication for it. Despite this evidence the jury convicted the appellant.

Grounds of appeal

[8]        Senior counsel for the appellant, Mr Davison QC, who like counsel for the Crown, Mr Lawry, was not counsel at the trial, put forward seven grounds for the appeal against conviction. They are:

1.The Judge’s refusal to discharge the jury following a reference in evidence by the counsellor to whom the complainant first spoke on the morning following the alleged offending to the complainant being shaken, angry, traumatised and

crying during the consultation because she had previously been raped by someone else.

2.The Judge’s refusal to allow the defence to call a witness concerning a conversation the witness had with the complainant, in which she made comments on alleged sexual assaults. The conversation was said to have taken place some time after the alleged rape, when the two of them were in the vicinity of the appellant’s house.

3.The Judge’s refusal to give the defence leave to cross-examine the complainant concerning a conversation she was said to have had with a guest at the barbecue, during which he is said to have advised her not, at her age, to play up to men. The complainant’s response was said to have been that it was a bit late for her to be behaving like a girl.

4.The Judge’s ruling prior to the trial refusing an application for discovery of medical notes in relation to the medical examination of the complainant on the day following the alleged offending.

5.The Crown’s failure to disclose records of a preliminary interview of the complainant by CYFS on the day prior to the medical examination, and of a previous complaint of sexual assault made by the same complainant.

6.The Judge’s failure in his summing up:

(a)    To address the evidence of the counsellor concerning what the complainant had told her of the previous rape; and

(b)     To give a lies direction in relation to evidence of the appellant.

7.The conduct of the Crown prosecutor, in the course of cross-examining the appellant in relation to his alleged lies told in the aftermath of the alleged offending.

[9]        As the hearing in this Court developed grounds 4 and 5 assumed the greatest prominence in both counsel’s argument.

Grounds 1 and 6(b): the counsellor’s evidence concerning a previous sexual assault

[10]      It is convenient to deal together with these two grounds of appeal which concerned the Judge’s refusal to discharge the jury after certain evidence was given, and the absence of a direction on it in his address to the jury. The evidence of the school counsellor at the trial was called as recent complaint evidence and concerned the complainant’s initial approach to her on the morning following the offending, and her detailed description of it. In responding to questions from the prosecutor at the trial concerning the complainant’s state at the time the counsellor said that she was:

Shaken, angry, traumatised, crying, she couldn’t believe that this had happened to her, she was swearing a lot because she had previously been raped by someone else. Different time though, not the same incident, and  she couldn’t believe this happened again to her. She was swearing, why do these things happen to her.

[11]      We were told from the bar that this evidence appeared visibly to move the jury at the time.  The Judge raised it with counsel in the absence of the jury when  the counsellor had concluded her evidence in chief. The following day he heard argument from counsel and ruled on a defence application that he discharge the jury under s374(1) of the Crimes Act 1961.

[12]      The Judge ruled that any prejudice to the accused from what the counsellor had said could only result from increased sympathy for the complainant. The evidence did not impact adversely against him in a more direct way. He decided that this prejudice could adequately be dealt with by way of a direction to the jury. He also said in his ruling that he would settle the nature of the direction after discussions with counsel. He envisaged that the jury should be told totally to disregard anything that might have happened in the past to the complainant, and that it would be unfair to the appellant to take into account matters that had nothing to do with him.

[13]      The Judge then recalled the jury and told them that under the law the evidence of what had happened in the past to the complainant should not have been given at the trial. It had come out accidentally and it should not influence their

thinking in any way. No further reference to the evidence concerned was made  either during the trial or when the Judge summed up to the jury.

[14]      In this Court Mr Davison argued that, in the absence of any indication to them that the appellant had had no involvement in the previous incident, the jury might have concluded he was implicated in some way through involvement with the complainant prior to the alleged offending. He said that in that situation there was a detrimental impact on the appellant’s interests arising from the way the unexpected evidence had been handled. The failure of the Judge to deal adequately with the matter could well have impacted on the credibility of the accused in the eyes of the jury. There is no doubt, as Mr Davison emphasised, that the relative credibility of  the complainant and the appellant were crucial matters at the trial.

[15]      Section 374(1) empowers the Court, in its discretion, to discharge the jury “in the case of any emergency or casualty rendering it…highly expedient for the ends of justice to do so”. The phrase “emergency or casualty” was the subject of argument from Mr Lawry for the Crown. It is sufficient for us to say that on the ordinary meaning of “casualty,” in the context of s374, an accidental disclosure of prejudicial evidence to a jury is plainly covered. In any event it is within the inherent discretion of a trial Judge to discharge a jury in such circumstances: R v Rongonui [2000] 2 NZLR 385, 397 per Elias CJ.

[16]      Whether it is appropriate for a jury to be discharged under s374(1), however, turns on whether it is “highly expedient for the ends of justice to do so”. That depends on whether there is a reasonable danger or reasonable apprehension of a miscarriage of justice in the circumstances: R v Pearson [1996] 3 NZLR 275. Section 374(8) provides that no Court may review the exercise of this discretion under the section. However, this does not prevent appellate scrutiny of a refusal to discharge. As is pointed out in Adams on Criminal Law at para 374.10, s374(8) is not to be read as qualifying the duty of the Court of Appeal under s385(1)(c) of the Act to allow an appeal if it is of the opinion that on any ground there was a miscarriage of justice.

[17]      In this case we are satisfied that, although the credibility of the accused was the crucial issue, the prejudice to him which resulted from the evidence of a prior sexual assault in which he was not involved was of a kind which could adequately be dealt with by an appropriate direction to the jury.

[18]      The nature of the potential prejudice in this case was not confined to the impact that sympathy for the complainant, engendered by knowledge that she had previously been sexually assaulted, might have caused. There was a further risk that the jury might have decided that she was to be believed when she said she was raped by the appellant because it had happened to her before. In the circumstances, other Judges faced with such an objection might well have immediately given the direction to the jury which the present Judge foreshadowed that he intended to do. However the essential message that the situation required was conveyed to the jury who were promptly told that the incident should not influence their thinking at all. The jury would also have been fully aware, from other evidence, that the appellant had not met the complainant before the evening of the alleged offending and accordingly could not possibly have been responsible for the earlier incident in which she had told the counsellor she was raped.

[19]      By the end of a substantial trial (and this one occupied 6 days) it will often be the case that an incident such as this is appropriately not raised with the jury as to do so would simply remind jurors of the prejudicial evidence concerned. Defence counsel did not invite the Judge to raise the matter again at the time of his address to the jury. We can understand why he decided not to do so but in any event are satisfied that no residual prejudice that might have resulted in a miscarriage of  justice remained as a result of the evidence concerned. That is so whether the matter is looked at in relation to the incident itself or as part of the whole of the complaint about the trial made by Mr Davison on behalf of the appellant.

[20]      For these reasons, which in essence are a combination of the effectiveness of what the Judge did at the time, and the potential for harm of reminding the jury of the inappropriate evidence when its impact had faded, we reject both these grounds of appeal.

Ground 2: Refusal to permit witness to give evidence

[21]      On the application of the defence the Judge heard evidence from a Mr Pedersen, in the course of a voir dire, in order to determine whether it should be admitted at the trial. Mr Pedersen referred to a conversation he had with the complainant, some months after the events the subject of the trial, when they were walking in the vicinity of the house in which the appellant lived. Mr Pedersen said the complainant told him she wished to throw stones at the house. She  had  explained her anger to Mr Pedersen by reference to an incident of an indecent assault on her nearby, while she and a friend had been walking through the area on the way home. She said that an old man, who was stupid and drunk, had indecently assaulted her. The complainant also said she had on another occasion been raped in the vicinity, that incident occurring on the side of the road. She did not explain the connection of the particular house at which she wished to throw stones to these events.

[22]      The Judge ruled against permitting Mr Pedersen’s evidence to be called, because of the differences between what he said that the complainant told him, and the circumstances of the alleged offending that occurred in the appellant’s house. Nothing in the conversation recounted by Mr Pedersen indicated that the complainant had drawn a connection between the incidents she was said to have described and what had happened in the house. Indeed she had told him that the house concerned was owned by a friend. Accordingly the Judge decided that there was no nexus between what was said in the reported conversation and what was alleged at the trial had happened at the house such as would make Mr Pedersen’s evidence relevant to the trial. The Judge added that he was influenced in his ruling by concern over the added impact of the inappropriate evidence given by the counsellor already discussed in this judgment. This had prompted him to take  a  strict view of the admissibility of Mr Pedersen’s evidence.

[23]      Mr Davison’s criticism of this ruling was that the Judge had not recognised that the particular import of the proposed evidence was that the complainant was angry at the occupant of the appellant’s house. What another man had done to her at a nearby location was not relevant in itself. As well, the reference to the roadside

rape was inconsistent with the complainant’s evidence at the trial and the defence was entitled he argued to explore that inconsistency to discredit the complainant. Particular weight was placed by Mr Davison on the complainant’s alleged statement that the house belonged to a friend which he said was inconsistent with the complainant having been raped by its owner. In the end the Judge had permitted the complainant to be cross-examined on the inconsistencies but without allowing the evidence to be led to show she had made prior statements. The jury may well have thought that what was put to her in cross-examination could not be substantiated.

[24]      The Crown’s position on this point was that the evidence was irrelevant, as there was no doubt that the sexual activity the subject of the trial had occurred in the appellant’s house. Mr Lawry argued that had the Judge admitted Mr Pedersen’s evidence there was a risk that the jury would have treated it as enhancing the complainant’s credibility through reinforcing the counsellor’s earlier evidence of a reference to a prior sexual assault or rape. Clearly this was of concern to the Judge. In the end the proposed evidence was not relevant to the issues at trial. There was no question but that sexual activity between the appellant and the complainant had occurred in the house on the evening concerned and the trial issue was rather one of consent.

[25]      Assuming that the conversation was as Mr Pedersen reported it, it seems highly improbable that the complainant was referring to the sexual activity she had had with the appellant which was the subject of the trial. If that is the case there is simply no inconsistency in what she said that could form the basis for Mr Pedersen’s evidence to be relevant at the trial. A prior inconsistent statement going to what is merely a collateral matter, not relevant to the subject matter of the proceeding, may be put to a witness but may not be proven. (Cross on Evidence, NZ Edition para 5.64). We have read the evidence of Mr Pedersen including that of cross- examination and are satisfied that no link has been established concerning the matters discussed in his evidence of what the complainant said to him and the circumstances of the alleged offending such as would indicate that the Judge’s decision not to admit the evidence was wrong. What the witness reports that she said is entirely collateral to whether the alleged sexual abuse in issue actually occurred.

[26]      Accordingly it was open to the Judge to decide that the evidence of what the complainant said in the conversation was not sufficiently linked to the alleged offending at the appellant’s house to make it relevant to the matters in issue at the trial. The necessary foundation for the evidence to be the basis of an inconsistent statement on his view of the matter did not exist.

[27]      It seems that he was also concerned that if the evidence was admitted the jury might speculate about its significance in a way that would be disruptive to their focus on the issues and unfair to the accused. This was because the evidence was being given in the context of the earlier inappropriate evidence of the school counsellor concerning what the appellant had said to her about another incident. In all these circumstances the Judge was entitled to see Mr Pedersen’s evidence as tangential to and potentially distracting from the issues. In the interests of justice, this risk was rightly avoided at the trial by refusing to admit Mr Pedersen’s evidence.

[28]The second ground of appeal accordingly also fails.

Ground 3 - Refusal of leave to cross-examine complainant concerning remarks at barbecue

[29]      The Judge refused the defence leave under s23A of the Evidence Act 1908 to cross-examine the complainant on the statement she is said to have made to a male guest attending the barbecue who had warned her that she should not drink and play up to men at her age as they may take advantage of it. She was said to have responded that it was a bit late for her to be behaving like a girl. Leave was refused by the Judge because of his view that the evidence was capable of being understood indirectly to suggest prior sexual experience.

[30]      Mr Davison argued that the evidence should have been admitted as it cast the complainant’s behaviour in a particular light, and was of assistance in confirming that she seemed older and more worldly than she was. He argued that the evidence did not suggest prior sexual experience or propensity on the part of the complainant. The Crown’s contention in response was that the evidence was irrelevant to the only

issue which was consent and that, if admitted, it could lead to an inference as to the complainant’s experience.

[31]      The matter in the end does appear to have been raised by defence counsel in cross-examination:

Do you recall Mike Gillard approaching you at the bbq and telling you words to the effect of you shouldn’t drink and play up to men…

That is – no.

That didn’t happen…That’s not the words that he had.

Do I take it that Mr Gillard Mike Gillard approached you and talked to you about the way you were behaving that night…No.

Later the complainant reiterated to counsel that there had been no discussion with her about playing up to men. The topic was used by counsel to lead into the question of how much she had had to drink that night.

[32]      We do not see that the evidence concerned had any significant bearing on whether the complainant consented to what happened at the appellant’s house that night. In any event it seems clear that the defence got an opportunity to raise the subject in the course of cross-examination and to derive what benefit they could  from this peripheral matter. The complainant said she did not remember the conversation in question. There is nothing of substance in this point and this ground of appeal is accordingly rejected.

Ground 4: disclosure of medical notes

[33]      In a pre trial ruling the Judge, without giving any reasons, rejected an application by the defence for the disclosure of the clinical notes of the medical practitioner who saw the complainant on 26 May 2002. The Crown had opposed the application.

[34]      During the evening of the day following the alleged offending the complainant had gone to a general practitioner with her mother, and one of the counsellors she had spoken with, for a medical examination. The complainant had earlier told the other counsellor, who gave evidence, that “he had fucked her hard” and that she was “very sore”. In her evidence the complainant said she had suffered

vaginal bleeding as a result of the rape and was sore to the point that she could not walk properly.

[35]      In the course of cross-examination at the trial the complainant was asked if she had refused her consent to a sexual assault examination on that occasion. She replied that she “thought she had done everything,” but “might have said no,” and later added that she “wasn’t comfortable with it”.

[36]      As already indicated the appellant’s version of the sexual activity during the previous evening was that he had difficulty maintaining an erection and that his part in what had happened was half-hearted as a result. It was because of the contrast between the two versions of the nature of the sexual act that the defence had sought to obtain the clinical notes indicating observations of the doctor concerned. We were told by Mr Davison that if there had been no report in the notes of physical appearances consistent with the complainant’s version, or if the notes indicated that she had declined to cooperate with an examination, there would have been a basis on which to attack her statements that she had been made very sore and had bled. This was relevant to her overall credibility in a trial in which there was a dispute both over the nature of the sexual intercourse as well as whether the complainant consented to it.

[37]      Mr Lawry said in response that the police had informed the defence, by disclosure of a police job sheet, that the nature of the examination was screening for sexually transmitted disease. No internal sexual assault examination had been conducted because the complainant had not consented to one. He submitted that the medical report could not have been of additional use in the circumstances over and above what the defence had been told and that the Judge had been right to uphold the Crown’s opposition to the application to disclose the notes. Mr Lawry also  submitted that the material was personal information about the complainant, to which the appellant had no right of access, citing Commissioner of Police v Ombudsman [1988] 1 NZLR 385 CA in support. He also referred to Principle 11 of the Information Privacy Principles contained in s6 of the Privacy Act 1993.

[38]      A copy of the practitioner’s notes dated 15 April 2002, was provided by the Crown to Mr Davison prior to the hearing of the appeal. The notes, so far as they are relevant to the appeal, read:

26 March 2002

She has come in tonight with a social support service with a history of being sexually assaulted…

Further evidence for sexual assault will have to be done through the police. There is a kit for that. These are very time consuming and are  usually 90 minutes. She has a few days in which to decide this. Next week there will be no point (no evidence of sperm in the cervical canal). I have explained this to them. There will be no other signs of trauma.  There was  no sign of trauma on her current presentation. An internal exam was not done (not consented to).

Specimen    High Vaginal Swab

[39]      Had the complainant gone first to the police rather than to a counsellor she would have been taken to a practitioner who was a police doctor, who had expertise in such examinations. While it is apparent that the practitioner concerned was not a police doctor, that does not affect the question of whether the police had an obligation to disclose the medical records to the defence.

[40]      The decision of this Court in Commissioner of Police v Ombudsman [1988] 1 NZLR 385 established that in the absence of special circumstances an accused person in a criminal case has a right under s24 of the Official Information Act 1982 to personal information about that person which is held by the police. The Court however recognised that in some cases information held would not be of a kind that was about the accused. In his judgment in that case Cooke P said at p396:

For the reasons already given, I do not consider that the general rule thus followed before trial is in accordance with the right to personal information conferred by the Official Information Act. If materials in the categories  listed by the Solicitor-General contain information about the person making the request, prima facie that person is entitled to it. Some of the material  will not be about that person in any natural use of language – a medical report on the victim, for instance, or photographs, sketches and plans of houses or localities. The same may well apply to some other documentary evidence, a category of evidence about which it is hard to generalise. None of the foregoing is exhaustive. But once the information is in the natural and ordinary use of language to be described as about that person, he or she is entitled to it on request unless good reason within the meaning of the Act exists for refusal. And, as already explained, I do not think that it can

correctly be asserted that as a general rule good reason exists under s6(c) as regards all the categories of information listed by the Solicitor-General.

[41]      There is, however, a common law duty on the Crown to disclose to an accused person who is facing a criminal charge any significant material which may affect the credibility of a prosecution witness. The principle was summarised  in those terms in a judgment of the English Court of Appeal delivered by Steyn LJ in R v Brown (Winston) [1994] 1 WLR 1599, 1607, his approach subsequently being upheld in the House of Lords: [1998] AC 367, 377. His judgment cited, as an illustration of the principle, the rule that the prosecution is obliged to disclose previous convictions of a prosecution witness, as articulated by Cooke P in delivering the judgment of this Court in Wilson v Police [1992] 2 NZLR 533. Steyn LJ referred with approval to this passage of that judgment:

As to the kind of conviction within the scope of the duty, the test must be whether a reasonable jury or other tribunal of fact could regard it as tending to shake the confidence in the reliability of the witness. (p537)

Steyn LJ then added:

The test may be capable of being applied to other collateral material which could affect the credibility of a prosecution witness.

To date in New Zealand, however, no hard and fast rules have been laid down which would expand to that extent the principle identified in Brown. There will be exceptions to the general application of the rule but as explained above it is apt to cover the present case.

[42]      Another New Zealand illustration of the principle is found in R v Chignell [1991] 2 NZLR 257, 273. In that case the information which was wrongly withheld was that the witness was a paid police informer but nothing turns on that circumstance. The principle is one of more general application.

[43]      We accept that the privacy interests of complainants in circumstances such as the present are substantial. The medical notes of her consultation are personal information about the complainant, held by the police, which Privacy Principle 11 directs may not be disclosed unless one of the specified exceptions applies. That however is the case where:

The agency believes, on reasonable grounds –

…

(e) That non-compliance is necessary-

…

(iv) For the conduct of proceedings before any court or tribunal (being proceedings that have been commenced or are reasonably in contemplation):…

[44]      In the context of criminal proceedings the test of necessity for disclosure will require close evaluation and a balancing of the conflicting requirements of privacy values and an accused person’s right to a fair trial. Assessments of this nature are becoming familiar territory in New Zealand Courts as indicated by judgments such as Gisborne Herald v Solicitor-General [1995] 3 NZLR 563 (right to a fair trial balanced against right to freedom of expression to determine if prejudicial publications prior to trial amount to contempt of court). A like case is R v Mahanga [2001] 1 NZLR 641 (privacy values balanced against principles of open justice on requests by media to search the Court’s criminal file).

[45]      In the present circumstances despite the very sensitive nature of the information which would have to be disclosed, we are satisfied that disclosure of the notes is necessary to secure the right to a fair trial in terms of the above test. The particular factors that in combination lead us to that conclusion are the references in the notes first to the complainant’s attitude to making a complaint at the time, secondly to her refusal to submit to an internal medical examination, and thirdly to the absence of any overt signs of trauma.

[46]      If the notes had been made available, as requested, the defence could have sought its own specialist advice. In a case in which not only consent but the roughness of sexual intercourse was in issue we are satisfied that the outcome is likely to have materially assisted the defence to conduct a more effective cross- examination of the complainant than that in fact undertaken.

[47]      The defence did seek the notes but the Judge upheld the Crown’s opposition. For the reasons given we consider that decision was in error, and we uphold this ground of appeal.

Ground 5: other non-disclosure

[48]      Prior to the trial the Judge ordered that certain passages, at that time not disclosed, which appeared in a record of a Specialist Services Unit Diagnostic Interview undertaken with the complainant by the Child Youth and Family Service (CYFS), should be provided to the defence. As a result the defence learned of the following passage in the memorandum:

C…had not been interviewed until today given that there has been a number of issues for C to deal with. Both parents have wanted C to be interviewed both for the CFI and for her to be undertaken (sic) the EVU but C has been resistant until now.

Another such passage read:

I have made contact with both C and (her mother). They will be coming into the office today for CFI to be completed.

[49]      Mr Davison submitted that CYFS must have made notes of the interview  with the complainant which, he said, clearly took place on 6 May 2002 as mentioned in the above passages. The CYFS operational manual indicated that there would be such a record. Mr Davison submitted that the notes should have been but were not disclosed.

[50]      Mr Lawry pointed out that all but two paragraphs of the record of the interview that was before the Court were disclosed. The Crown position was that the police gave the defence everything they had, other than the passages in the record. They were the subject of a decision of the Court. Mr Davison’s submissions indicate that the appellant does not accept that the complete records of the interview (including contemporaneous notes) were made available.

[51]      If there is or were further preliminary interview material in CYFS hands it should have been handed to the police and no doubt would then have been provided by the police to the defence: R v Robertson CA81/92, 9 July 1992. It is not possible for us on the material we have to speculate as to the factual situation. There is

nothing, however, which indicates that the Crown acted inappropriately. On the material before us this aspect of alleged inadequate disclosure is not made out.

[52]      The other aspect of non-disclosure concerned the previous complaint to the police made in December 2001. Mr Davison’s contention here was that the dissatisfaction of the complainant’s mother with the official response to this complaint may have resulted in her putting pressure on the complainant to exaggerate and falsify details of the complaint she made against the appellant. He said that had the prior complaint been disclosed it might have provided the basis for an application under s23A of the Evidence Act to cross-examine both the complainant and her mother concerning this possible motive for exaggerating their evidence of the events the subject of the trial. Mr Davison’s submission is that the material should have been disclosed because of this possible relevance.

[53]      Mr Lawry’s response was that defence counsel at the trial was aware of the prior complaint but had made no request for the disclosure of information held concerning it. His submission was that no such disclosure was required in those circumstances. Nor was there any indication of prejudice to the appellant as a result of the absence of disclosure.

[54]      In R v Price (CA2/92, 29 June 1992) the Court said that unless information was of a kind which might within the holder’s reasonable contemplation be of assistance to the defence, no duty to convey it arose. In the circumstances we are satisfied that this principle excuses the Crown from failure to disclose the prior complaint in the absence of a request from defence counsel who was aware it had been made. See also R v Hall [1987] 1 NZLR 616. It is inappropriate for us to comment further, but clearly the possible exaggeration by the complainant of the circumstances of the appellant’s alleged offending could well be a sufficient basis for disclosure of details of the prior complaint. If an application had been made, and resisted, a hearing would have been required to decide whether such disclosure was appropriate in this case.

Ground 6(a): failure to address on evidence of previous rape

[55]This ground of appeal has been dealt with under Ground 1.

Ground 6 (b): absence of a lies direction

[56]      The Crown prosecutor put to the appellant in cross-examination that he had told lies both in the course of the evening of the alleged offending and during the following day. First, he asked the appellant if he had said to the complainant’s mother, when she visited him at his shop, during the afternoon of the next day, in the prosecutor’s words, “I didn’t take your baby out of the driveway”. The appellant denied that he had said something of that sort to her. He also denied that he had told a deliberate lie at the time in order to leave the mother with the impression that he had done no more than to drop the girl off at her home and that he had never taken her out of the driveway. The Crown’s allegation that the appellant had lied in this respect was accordingly put in the context of the appellant having made an inconsistent statement as to what he did that evening.

[57]      The second incident of alleged lying, put to the appellant in cross- examination, was that he had told the police officer he had contacted soon after his conversation with the mother that he took the complainant up the drive, when the other vehicle could not do so, and had dropped her off at her home. The prosecutor put it to the appellant that his purpose was to see if he could get away with telling the policeman that he had never taken the complainant out of the driveway. The appellant denied that.

[58]      Later in the cross-examination the prosecutor came back to the visit of the complainant’s mother to the appellant’s shop, putting it to the appellant again that he had lied to the mother by suggesting that he didn’t take “her baby out of the drive”. The appellant responded that he did not lie to the mother. The prosecutor then reiterated that within two hours of that lie that the appellant had also lied to the officer concerning taking the complainant home straight away when she got into his

car and he went up the drive. The appellant repeated that he did not lie to the officer.

[59]      The prosecutor next put to the appellant that he had denied to a male guest at the party whom he saw the next day that he had taken the complainant to his place that evening. The appellant’s response was that no such question had been asked of him. He repeated that denial when pressed by the prosecutor. When it was pointed out to the appellant that three people had independently said that he had told them he did not take the complainant out of the drive and asked if they had all got that wrong the appellant replied: “I don’t know what your question is?”

[60]      The prosecutor also put it to the appellant that, contrary to what he had earlier said, he had not required assistance to maintain his erection on the evening of the alleged offending and that he had thrown into his version of events a line about his impotence as a matter of embarrassment to him, to make it appear that he was being honest. The appellant replied that what he had said concerning his sexual dysfunction was true, and that he had not made up his evidence concerning its effect that night.

[61]      Mr Davison argued that these passages of the prosecutor’s cross-examination together with his assertion in his closing address that the appellant was lying to cover up his guilt, indicated to the jury that the Crown case was that the appellant had lied in a way that strengthened its case against him rather than merely in a manner that might have relevance to his credibility. He submitted that in those circumstances a firm direction was required to the jury to bring home not only that it had to be proved that the appellant had lied, but also that it was the sort of lie which was indicative of guilt rather than innocence, in the sense that it suggested that there was no innocent explanation open for the untruth. In the present case defence counsel at the trial had sought a lies direction but none was given by the Judge. Mr Lawry’s position was that whether or not there was a lie in the circumstances depended on how the jury resolved the conflict between the propositions put to the appellant and his answers. He said that in the circumstances of the present case, including the manner in which the appellant answered the assertions put to him, no direction at all was required concerning lies.

[62]      In R v Toia [1982] 1 NZLR 555, in delivering the judgment of this Court, Cooke J said:

There are two main ways in which lies by an accused may be important. First, occasionally they are capable of adding something to the Crown case, whether  as  corroboration  or  simply  as  strengthening  evidence.  But, as pointed out by this Court in R v Collings [1976] 2 NZLR 104, 116-117, most lies are not in that category. For example a false denial of being at the scene of the crime often does nothing to help prove that the accused committed the crime; he may simply want to avert unjust suspicion. It is only when a lie is more consistent with guilt than with innocence, as when it suggests that the accused cannot give an innocent explanation, that it can add anything to the case against him. We think that not enough heed may have been paid to the warning given in Collings against too readily relying on lies as links in a chain of proof. We are fortified in repeating that warning when we note that the Court of Appeal in England in a judgment delivered by Lord Lane CJ has recently stated the law substantially as it was stated in Collings. The case is R v Lucas [1981] QB 720; [1981] 2 All ER 1008.

Secondly, and more commonly, proved lies by an accused, whether in evidence or in statements out of Court, may be relevant to credibility. This  is no more than a matter of common sense. They may help the jury to decide whether the evidence for the prosecution should be preferred to an account put forward by the accused.

To jump to the conclusion that an accused who has lied must be guilty is a human tendency that has to be guarded against. So, whenever lies by an accused figure in a case, it is customary and desirable to give a warning to the jury, as the Judge did here, on the lines that people may have various motives for lying and that a lie does not necessarily mean guilt. As stressed in R v Gibbons [1973] 1 NZLR 376, a summing up must always be adapted to the particular case and no specific formula is automatically suitable in dealing with lies.

[63]      Whether a trial Judge should give a lies direction is generally a matter of judgment, turning on how the trial has been run by each side. While there is no hard and fast rule as to when one is required, where an allegation that an accused person has lied in an out of court statement has become a significant issue in a criminal trial, a lies direction will usually be necessary.

[64]      In the present case the Crown pressed its assertion that there was evidence suggesting the appellant had lied to 3 persons during the day following the alleged offending, in each instance denying that he had taken the complainant back to his home after agreeing to drive her up the driveway to her home. Even assuming the jury accepted that it was proved that the appellant had lied in those out of court statements it did not however follow that he had done so to cover up his guilt of sexual offending. The embarrassment of admitting to sexual activity, falling short of

unlawful conduct, or of rape is one obvious possibility, as is a fear of unjustly facing a criminal charge if he admitted to events giving rise to suspicion. Similarly the appellant’s statements concerning his erectile dysfunction, could not amount to a lie that was inconsistent with a innocent explanation. Even if the jury was satisfied it was a lie it may have been calculated to enhance the impression of his honesty in the minds of the jury rather than for the purpose of covering up his guilt. This would be similar to a lie about being at the scene of the crime in order to avert unjust suspicion (see the passage in Toia cited above).

[65]      Mr Davison submitted that the nature of the cross-examination indicated that the Crown had run the case on the basis that if it were proved that the appellant had told lies on the occasions alleged, they would not go merely to his credibility, but would add evidential strength to its case. We are not however aware of how the case was put to the jury in this respect by the prosecutor and are not prepared to make an adverse finding on his conduct of the case on the record before this Court. The  Court has made very clear its attitude to the responsibility of Crown prosecutors not to press lies into service as strengthening their case, where they can tenably be relevant only to credibility: R v Loumoli [1995] 2 NZLR 656, 671.

[66]      The problem however in this case is that the position which the Crown took required that the jury evaluate the truth and, contingently, the significance of what the appellant had said in a context where his alleged lies had been made an important issue in the trial. The appellant admitted having sexual intercourse with the complainant at his home but their respective credibility was crucial on whether she had consented.

[67]      If they found he had lied the jury could treat that as relevant to the appellant’s credibility but that was all they could do. Consequently, the jury should have been directed that the appellant might have had a variety of reasons for lying and that the lies, if proven, could not be relied upon as evidence of guilt, though they could be treated as relevant to his credibility.

[68]      Defence counsel raised this issue with the Judge but no direction was given. We accordingly uphold this ground of appeal.

Ground 7: conduct of the Crown prosecutor

[69]      In the course of cross-examining the appellant at the trial the Crown prosecutor put to him a number of propositions which were criticised by Mr Davison as being neither evidentially supported nor correct. Particular suggestions were first, that the appellant had sexual desires for another woman at the party, secondly that he had enquired of the complainant’s mother concerning the complainant’s age on the day following the alleged offending, and thirdly that the appellant had made up his statement about his erectile dysfunction in an effort to give an appearance of honesty to his evidence. Mr Davison also argued that reference to the appellant by the prosecutor as “a Jekyll and Hyde character” was pejorative and prejudicial. Overall counsel’s argument under this head is that, taken together with other unsatisfactory aspects of the trial, the putting of such speculative propositions, with their implicit allegations, contributed to a situation in which the verdict of the jury amounted to a miscarriage of justice.

[70]      In response, Mr Lawry said that there was a proper basis for the first allegation in that the appellant had previously had a sexual relationship with the woman in question. He says that the second allegation went to the credibility of the appellant so no evidential basis was required for the prosecutor to put the question. Finally, Mr Lawry says that the third question was within proper bounds to test the appellant’s credibility in relation to a particular aspect of evidence that he relied upon.

[71]      As to the first point, during the cross-examination the appellant acknowledged that he realised that the woman with whom he had previously been in a relationship would be spending the evening with another male.  He denied that, as  a result, his attention had turned to the complainant. We are satisfied that the prior relationship of the appellant with the female guest at the party did provide a proper basis for the first line of questioning. There were direct contradictions, in their respective evidence, of the circumstances in which sexual intercourse took place. On the Crown’s view of the case, these differences reflected the fact that he was lying  as to what had happened in a number of respects. It was open for the Crown to put

to the appellant that he was lying in matters that were germane including his statement about dysfunction. It is unclear whether the prosecutor had good reason to believe that the appellant had inquired as to the complainant’s age the next day but, in any event, we see no prejudice to him resulting from that line of questioning in the context of this lengthy trial.

[72]      The principle on which Mr Davison questions the conduct of the prosecutor was stated in this Court’s judgment in R v Roulston [1976] 2 NZLR 644, 654. Woodhouse J discussed the use of emotive or inflammatory language by a prosecutor in a closing address to the jury and said:

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is  a  real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.

[73]      Overall the credibility of the appellant was in issue in this trial and the questioning of him in a robust way was open to the prosecutor. We have not been persuaded that any aspect of what was done infringed the principle stated by the Court in the Roulston case. The “Jekyll and Hyde comment” was an inappropriate but isolated one which in itself is not sufficiently loaded with prejudice to cause concern. In our view the complaint does not fit within the principles of Roulston and this ground of appeal must be rejected.

Conclusion

[74]      We have upheld two grounds of appeal, namely that the Judge should have given the requested lies direction and that he should have allowed the defence access to the clinical notes made following the examination of the complainant on the day after the alleged rape occurred. In those circumstances we have decided that the appeal must be allowed and that we must set aside the jury’s verdicts and direct a retrial of the appellant on both counts.

Solicitors:

Witten-Hannah Howard, Auckland, for Appellant Crown Solicitor, Auckland