R v O(CA106/06)
[2006] NZCA 438
•11 August 2006
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT UNLESS AND UNTIL THE SUPPRESSION ORDER MADE
IN THE DISTRICT COURT LAPSES OR IS SET ASIDE.
ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF A.
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON
INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED
IN THE COURT OF APPEAL OF NEW ZEALAND
CA106/06
THE QUEEN
v
O(CA106/06)
Hearing: 25 July 2006
Court: O'Regan, Goddard and Gendall JJ Counsel: G J Burston and C J Boshier for Crown
G C Gotlieb and J Smith for Respondent
Judgment: 11 August 2006 at 11 amat 11 am
JUDGMENT OF THE COURT
A Leave to appeal is granted.
B The appeal is allowed. The complaint evidence of A is admissible.
C Order prohibiting publication of name or identifying particulars of A.
DOrder prohibiting publication of name, address or identifying particulars of appellant unless and until the suppression order made in the District Court lapses or is set aside.
EOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other publicly accessible database until final disposition of trial. Publication in
Law Report or Law Digest permitted.
REASONS OF THE COURT
(Given by Gendall J)
[1] This is an appeal against a pre-trial ruling by a District Court Judge at Auckland ruling inadmissible evidence of the nature of “recent complaint” at the forthcoming trial of the respondent. He faces multiple counts of sexual violation, unlawful sexual connection, attempted unlawful sexual connection and assault. The events are alleged to have occurred in the early hours of the morning on 20 March
1998 in a police station at Kaitaia at a time when the respondent was a serving police officer.
Background
[2] The complainant was aged 44 at the time. She was in a relationship with a man (“A”) who was a friend of the accused. She lived alone in Ahipara near Kaitaia. On the evening of 19 March 1998 she went to a hotel in Awanui socialising there with friends and her boyfriend. At some time during the evening the complainant was asked to take the accused back to Kaitaia, as she was the only person in the bar returning to that town who had a car. The evidence was that the accused was somewhat affected by alcohol. The Crown case is that the accused told the complainant that he needed to go to the police station to collect some items. Whilst in the car outside the police station he made amorous advances to the complainant which she says were rebuffed. The Crown’s case is that the accused went into the police station for some time and when the complainant got out of the car to look for him, he placed handcuffs on her and stated that he intended to have intercourse with her. The Crown case is that the complainant was taken by the accused to his office, while still handcuffed, and there he raped her on several occasions and performed other sexual indignities without her consent which are the subject of the various counts.
[3] The Crown evidence is that the complainant later drove to her home arriving at about 4.00am at which time her boyfriend had not arrived. Half an hour later he arrived and because of what he observed as her distressed state he asked what had happened. Her evidence in her deposition statement was that:
I couldn’t tell him [what had happened].
Then he asked did [the defendant] rape you. I said yes but I couldn’t give him any details, I couldn’t talk about it.
Ross said you’ll have to tell Colin YATES [Sergeant in charge of Kaitaia Police Station]. I said that I just wanted to think about it at that time because of my work and living in a small town.
Ross said that I would have to tell YATES and if I didn’t he would.
[4] The complainant’s evidence was that she told a police officer at about
4.00pm the next day of her allegations. She states that she was advised by the officer that regulations required him to report the allegation to his commanding officer, Sergeant Yates. Later that day she made similar allegations to Sergeant Yates in his
capacity as a police officer. No written statement was taken by the officer. A formal written complaint was not made thereafter until Friday 24 June 1988.
[5] The evidence which was subject to the Judge’s ruling is that of the complainant’s boyfriend, A, who generally confirmed events at the hotel. He said that he left there at about 3.30am and when he arrived at the complainant’s home she was in bed awake. His deposition evidence proceeds as follows:
She said hello and that I had taken a long time.
She then said something like ‘it was some mate you sent me home with’ or something similar to that. I knew that she was referring to the defendant.
I asked ‘why’.
She told me that she had had a bit of trouble with him on the way home.
I asked her what sort of trouble and she said he had gotten a bit heavy with her.
She appeared tense and uptight and I sensed there was something wrong.
I remember saying to her that he can be a bit of an arsehole when he gets pissed.
I got into bed and as soon as I touched her she felt tense.
I can’t remember if I asked her what was wrong or she just started to cry. I
know she started to cry.
She gradually told me the defendant had taken her to the Police Station on the pretence of picking up some gear.
[The complainant] said the defendant went inside and when he came out he told her that there was something wrong with her car and that one of her headlights wasn’t working.
[The complainant] said that when she got out of the car to have a look, he handcuffed her.
When she was telling me this she had started to cry and was very distressed.
I think I asked her why she didn’t yell or something and she said she thought he was having a bit of a joke.
She said that she was worried but thought she could handle it.
I asked what had happened, specifically why he handcuffed her. She said he had taken her inside into an office.
She was crying when she was telling me this.
I asked if he had given her a hard time, because I knew what he was like when he got pissed.
When she didn’t reply I directly asked her ‘did he rape you’.
It was her demeanour, coupled with her reluctance to tell me what had happened that caused me to ask that question.
She replied ‘yes’.
[The complainant] didn’t go into any specific details about that. I was stunned, absolutely stunned.
[The complainant] wouldn’t tell me any more about what had happened.
She did tell me that she had hit him and showed me some bruising on her wrist where the handcuffs had been.
The Judge’s decision
[6] In his ruling the Judge said the complaint of rape arose out of a “blatant leading question on the fundamental issue at trial in circumstances where, I think, the complainant would have had good reason, could have been expected to complain immediately [her boyfriend] arrived” (at [30]). The Judge ruled inadmissible the evidence of complaint insofar as it referred to rape as well as the evidence of the narrative leading up to the reference to rape. The Judge correctly identified the basis upon which recent complaint is admissible and noted that the evidence met the threshold test of being made at the first reasonable opportunity after the commission of the offence. However, in his reasons he concluded (at [25]) that the evidence “offends the rule that the evidence must not be elicited by leading questions.”
[7] The Judge referred to the well known decision of R v Duncan [1992] 1 NZLR
528 (CA) and the manner in which the law originally has developed since R v Norcott [1917] 1 KB 347. He correctly set out the test expounded in R v Duncan but concluded that that case was distinguishable because it dealt with children and, inferentially, accepted the submission of counsel for the accused who he said:
relied on the fundamental rule that a leading question or questions offend basic principles and this was not a situation where the complainant was young and/or [her boyfriend] in a position of a parent or caregiver.
Discussion
[8] Before us counsel for the accused submitted that it was implicit that the proposition arising from the case of R v Duncan related only to children, and could not be applied when dealing with cases involving adult complainants. This Court in Duncan, however, stated that since R v Osborne [1905] 1 KB 551 and R v Norcott, rules for identification of unacceptable leading questions could not be laid down or developed in a vacuum. Each case depended upon its own circumstances. The Court stated at 533:
The better approach, more in tune with current needs, is to return to the original fundamentals. In a particular case, in all its circumstances so far as known to the trial Judge, and in the light of his experience, is there an unacceptable risk that the substance of the complainant’s responses, which the Crown wishes to lead in evidence, may be the result of suggestion to her through the manner of questioning? In that inquiry, the fact that the accused’s name, or the specified act, was put to the complainant is of course a factor, and may well be an important factor. A young child, confused and upset, may too readily accept that the shadowy figure held in mind must have been the accused, as the parent seems to be stating, and become genuinely fixed in that view. A disturbed or vindictive child may agree to the embellishment of some lesser event which the question seems to offer, flattered at having a concerned audience. These are dangers to guard against. However, this factor is not necessarily predominant. Examination must move on to identify and weigh all other available circumstances. What was the age of the child? Was the child upset? Are there any indications of special susceptibility to suggestion? What was the degree of authority with which the question was uttered? Was it interrogatory, or was it really a disguised imperative? What was the answer; both immediate, and to follow-up questions? Did that answer barely respond to the question, in the dismissive fashion so easy for a child who wishes to end an unpleasant conversation without thought of consequence, or did it volunteer credible independent detail?”
The Court emphasised the importance of the underlying principle that complaint should not be excluded simply because the question was in a leading form, even to the extent of naming the accused or specifying the suspected act.
[9] The test is whether, in all the circumstances of the case so far as they are known to the Court, there is an unacceptable risk that the substance of the complaint may have been the result of suggestion through the manner of questioning.
[10] Mr Gotlieb argued that Duncan relates only to children because he says it is only they who may not be influenced by a leading question. There is no foundation for such a submission. We know of no authority or evidence that suggests that adults are more likely to make false utterances in responding to a leading question than children. There is nothing to suggest that a mature age of a complainant has any relevance, in terms of applying the principle.
[11] The Judge erred in this case because he mistook the rule to be drawn from Duncan. The Judge said that it was the leading question on the fundamental issue, coupled with an expectation of immediate complaint (despite his having held that the complaint was made at the first reasonable opportunity), which offended the rule. But the rule is not infringed simply because of those findings.
[12] When the full extent of the evidence of A is analysed, it can be seen that there was a developing exchange with a complainant who he says was distressed and crying. She was, according to A, reluctant to provide details, but described certain alleged acts, including being taken into the police station whilst handcuffed. The final question “Did he rape you” was a logical and natural progression of that which had occurred before. It was “hanging in the air”. The question was virtually demanding to be asked by the witness in the context of what was transpiring between himself and the complainant shortly after he returned home when she was exhibiting distress and emotional upset. She had already referred to or complained about certain acts which she said were non-consenting.
[13] As was said by the Supreme Court of Victoria in R v Freeman [1980] VR 1 at
5 the ultimate question must be, does the “complaint”, in the circumstances in which it was uttered, tend to buttress the complainant’s credit as a witness? Whilst the credit of the complainant is a jury question, it can only arise after the complaint evidence is admitted. If on the facts before a Court, a precise complaint emerges from a developing conversation, the Court must judge whether such a complaint is capable of being regarded by the jury as being a spontaneous account by the complainant of the incident which is the subject of the charge. If the questions are natural in the circumstances and not of the kind likely to elicit a false story, and the answers possess the hallmarks of spontaneity and belie any notion that was
suggested by the terms of the questions then there is no unacceptable risk of false complaint arising from the questions. We consider that is the case here.
[14] In the context of the factual circumstances as described by the witness, it is not possible to objectively conclude that there was an unacceptable risk of a false complaint being made as a consequence of that question.
[15] We conclude the Judge erred in excluding the evidence of the complainant’s former boyfriend. The Judge erred in the precise application of the rule, no doubt because he accepted the submissions of counsel that it was a “fundamental rule” that a leading question offended basic principles and that any liberalisation of the rule referred to in Duncan did not apply to mature adults.
Result
[16] Leave to appeal is granted and the appeal is allowed. The complaint evidence of A is admissible.
Solicitors:
Crown Law Office, Wellington
Bergseng & Co, Auckland for Respondent
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