R v Moli CA117/05
[2005] NZCA 351
•5 July 2005
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA117/05
THE QUEEN
v
TALAUNIU MOLI
Hearing: 29 June 2005
Court: Anderson P, Williams and Doogue JJ Counsel: F P Hogan for Appellant
B J Horsley for Crown
Judgment: 5 July 2005
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by Anderson P)
[1] The appellant was tried by a District Court Judge and jury on an indictment alleging five counts of sexual offending against a young woman with whose family
R V MOLI CA CA117/05 5 July 2005
he was staying during most of the year 2002. He was convicted on one count of indecent assault, one count of sexual violation by penile penetration of the complainant’s anus, and two counts of rape. On the fifth count, which also alleged rape, the appellant was acquitted.
[2] Although of adult years, the complainant is intellectually impaired, having a mental age equivalent to that of a child of about eight or nine years. In about March
2003 she disclosed to a female cousin what she said were secrets she had told no one about. She went on to explain in some detail, using her finger to represent either a penis or sexual activity, circumstances and conduct amounting to sexual abuse of her by the appellant. This disclosure led to her mother taking her to Manurewa Police Station on 24 March 2003. There the complainant was interviewed by Detective, now Detective Sergeant, Vakaruru who arranged for the group to go to Wiri Police Station where he interviewed the complainant for several hours. Detective Sergeant Vakaruru took several pages of notes of the interview but the whereabouts of that record was not known by him at the time of trial.
[3] Detective Sergeant Vakaruru decided it would be best if the complainant should make an evidential video with a specialist interviewing team located at Otahuhu. He made an appointment for the complainant. Later he wrote up his job sheets on the basis of his notebook entries and the interview notes.
[4] It happened that the proposed video interviewing did not take place. After discussing the situation with another officer Detective Sergeant Vakaruru composed a written statement in reliance on the notes he had taken. This document was dated
24 March, which was the date of the interview he had had with the complainant, but it was not in fact put to her until 3 April when he went round to the address where she was living with her family. This statement contained words and concepts which trial counsel for the appellant demonstrated in cross-examination and otherwise could not have been the complainant’s actual words. A similar criticism could be and was made of a deposition statement prepared on the complainant’s behalf.
[5] The evidence showed that the complainant was not able to read the statements with any real understanding and that the contents were explained to her and discussed with her by her mother and a sister.
[6] At trial, counsel for the appellant impugned the complainant’s credit with reference to the relative simplicity of her oral evidence and the relative complexity of the formal statements she had made in the course of the police inquiries and for the deposition hearing. To the extent that the documentation might have been considered prior inconsistent statements, such a course is entirely orthodox. But there is an incongruity in the challenge based on prior inconsistent statements and the argument that they were not the complainant’s statements at all but those of the police officer. It seems that counsel for the appellant sought to resolve that conundrum by submitting that the complainant’s evidence at trial was the product of coaching of the complainant by others, including her family, apparently because the family had “helped” the complainant before she signed the statements.
[7] On the appeal, counsel for the appellant addressed the matters we have discussed so far in this judgment and complained that he had been misled by an omission in the Crown’s discovery of documents into cross-examining the complainant on her previous statements, including that which had been dated
24 March 2003, in the mistaken belief that such statement was the initial police record of the complaint. It seems that after counsel had put the statement dated
24 March 2003 to the complainant, the Crown instigated inquiries leading to disclosure of the fact of the initial interview notes taken by Detective Sergeant Vakaruru. However, save for the attribution by the police officer to the complainant of words which she was intellectually incapable of using or likely to use, there is nothing to suggest that the essential nature of the complaint as recorded in the interview notes was different from the essential nature of the later written statements or the complainant’s oral evidence. It cannot therefore be said that the derelict discovery or the adult interpretation of the complaint has occasioned any miscarriage of justice.
[8] Counsel for the appellant characterised these various issues, compendiously, as indicating that the jury’s verdicts were unsafe. He submitted that there were
indications of coaching or collusion in relation to the complainant’s evidence such as to render the jury’s verdict unreasonable or not supportable having regard to the whole of the evidence. This was because, in counsel’s submission, the jury could not reasonably accept the complainant as reliable on essential matters.
[9] With respect, we do not doubt that counsel for the appellant relied on the matters of which complaint is now made, to impugn the complainant’s reliability and to urge an acquittal when he finally addressed the jury. But ultimately, those were matters for the jury as the arbiter of fact and judges of credibility. There is no basis for characterising the jury’s acceptance of the complainant’s evidence as irrational and we reject that ground of appeal.
[10] Counsel was also critical of interventions by the trial Judge who on several occasions indicated to the complainant that if she did not know the answer to counsel’s question she should just say so. We find no substance in that submission. The complainant was intellectually impaired, had manifest difficulties with the English language (a fact which was implicit in counsel’s challenge to the authenticity of the statements prepared by the police) and was often questioned in terms which plainly presented a difficulty to a person with those impairments. The linguistic facility of lawyers, whose tools of trade are words, is often not shared by witnesses. Trial Judges are very familiar with the necessity and duty to ensure that questions put to witnesses can be fairly understood by them. What cannot be captured exactly in the course of an appeal but which, we think, cannot have been without relevance in the course of the trial, is the demeanour of a child-like witness as she attempted to cope with sustained and relatively complex questioning by defence counsel. We are not persuaded there was any unfairness in the trial process by reason of the Judge’s indications to the complainant that if she did not know then she should say so.
[11] Counsel for the appellant also submitted that there was, in effect, procedural unfairness in the Crown asking leading questions and asking inappropriate questions. Counsel’s submissions gave one example of each. We do not consider it necessary to expatiate their nature in order to dismiss the criticisms as entirely unjustified.
[12] Another ground of appeal concerned the Judge’s rulings in respect of matters falling to be considered in the light of s 23A of the Evidence Act. That provision prohibits the giving of evidence and the questioning of a witness relating directly or indirectly to the sexual experience of a complainant, in any case of a sexual nature, with any person other than the accused; or the reputation of the complainant in sexual matters; except by leave of the Judge. Subsection (3) prohibits a Judge from granting leave unless satisfied that the evidence to be given or the question to be put is of such direct relevance to facts in issue in the proceeding or the issue of the appropriate sentence that to exclude it would be contrary to the interests of justice.
[13] The legislative purpose of s 23A is to prevent logically irrelevant probing into the sexual relationships of complainants, not only because of the privacy intrusion inherent in that course, but also to ensure that possibly emotive responses on the part of the judges of fact do not taint the course of justice.
[14] The appellant was interviewed by the police and the interview was recorded on videotape. In the course of interview the appellant was asked whether he had ever known the complainant to have a boyfriend. He replied that he had because he had heard the complainant speaking on the phone and, further, that she told him “…she has been having sex with this boy for a long time.”
[15] The appellant, by counsel, wanted that evidence, and the issue whether the complainant had sexual relations with another person, put before the jury, presumably with reference to semen stains on the duvet in the complainant’s room. A difficulty with the appellant’s position is that some of the semen stains were identified through DNA analysis, as almost certainly having been caused by his own semen. The relevance of any other sexual relationship the complainant might be said to have had was, therefore, quite obscure. Certainly nothing was suggested to us in argument to raise any reasonable possibility that inquiring about any other sexual relationship of the complainant was of such relevance, direct or otherwise, that to exclude it would be contrary to the interests of justice. It is perfectly plain to us that the examination of the issue was prohibited by s 23A. This meant that not only could the complainant not properly be cross-examined about the issue but also the reference to it in the appellant’s videotaped statement could not properly go before
the jury. The Judge allowed defence counsel to ask the complainant whether she had ever talked to the appellant about having sex with a boy and such question received the reply “No”. Further cross-examination on the issue was prohibited by the Judge and she directed excision from the appellant’s videotaped statement of the related reference.
[16] We consider the Judge to have been not only justified in the course she took but bound to deal with the issue in the way she did.
[17] A further ground of appeal was that the evidence of recent complaint, given by the cousin, should not have been put before the jury. That argument is advanced on the basis that there was no evidence from the complainant as to the recency of her complaint or the contents of what was disclosed. However, as the Crown points out in its submissions, there is no legal requirement for a complainant to establish the foundation for the admission of recent complaint evidence. Indeed, a complainant’s own evidence of having complained is, as a generalisation, incapable of adding to the credibility of his or her own evidence of the matter which is the subject of the complaint. The logical value of recent complaint evidence lies in the confirmatory nature of the evidence of the complainee.
[18] Counsel further submitted that there was a lack of accord between the complainant’s evidence and the evidence of the cousin as to the number of occasions on which certain sexual activity occurred. That does not render the evidence of the complaint inadmissible. Indeed, if anything, an inconsistency is material which the defence can properly raise and exploit.
[19] The final ground of appeal relates to the Judge’s ruling that the indictment could be changed as to the dates of alleged offending.
[20] As we have mentioned, the complainant had an intellectual impairment. It is evident from the trial transcript that the complainant had difficulty about the year in which the offending occurred. She plainly got mixed up between the years 2002 and
2003. The appellant sought to challenge the complainant’s reliability on that account
and to take advantage of the obviously erroneous date by showing that he was not living in the same house as the complainant at that date.
[21] A Judge’s power to make an amendment to an indictment is contained in s 335 of the Crimes Act 1961, relevant provisions of which are as follows:
335 Variance and amendment
(1) If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as [filed] or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.
(2) If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment.
…
(4) In any such case the trial or the appeal may then proceed in all respects as if the indictment or count had been originally framed as amended.
(5) If the Court is of opinion that the accused has been misled or prejudiced in his defence by any such variance, error, omission, or defective statement as aforesaid, but that the effect of his being misled or prejudiced might be removed by adjourning or postponing the trial, the Court may in its discretion make the amendment and adjourn the trial to a future day in the same sittings, or discharge the jury and postpone the trial to the next sittings of the Court, on such terms as it thinks just.
[22] No request for an adjournment was made in the present case. That in itself is an indication that no real injustice was perceived at the time by experienced trial counsel.
[23] Section 335 has the objective of ensuring that technical differences between proof and indictment which do not mislead or prejudice a defence ought be amended; and rather than that a prosecution should collapse through a technicality, the effect of which is curable by adjournment or discharge of the jury in case of misleading or prejudice, an amendment should be made.
[24] We think the present case is a classical example of the exercise of the power of amendment, avoiding as it did, unjust consequences of an obvious error by a severely intellectually disadvantaged complainant.
Conclusion
[25] For all of the above reasons we consider the appeal should be, and it is, dismissed.
Solicitors:
Crown Law Office, Wellington
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