R v Olliver

[2016] NZHC 2273

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-000810 [2016] NZHC 2273

THE QUEEN

v

THOMAS OLLIVER

Hearing:	21 September 2016
Appearances:	C J Lange for the Crown P J Shamy for the Defendant
Date ofRuling:	23 September 2016

RULING OF NATION J

[1]      At  the  conclusion  of  counsels  final  addresses,  I  had  a  discussion  with counsel, firstly, as to whether there was a need for a propensity evidence ruling.

[2]      Mr Lange told me that, because there had been no challenge as to the truth of the complainants’ evidence as to the defendant’s actions with them, the Crown are not seeking to rely on propensity evidence in relation to what was at issue in the trial. I indicated that, if that was the position, I would probably need to give a direction that they must not use the evidence in relation to one complainant as relevant with regard to the other complainant.   I also said that the actions of the defendant, as described by the complainants, had not been admitted.  Mr Lange asked for time to consider the Crown’s position.

[3]      Just prior to my summing up at 10.00 am on 23 September 2016, I received a communication  from  the  Crown  suggesting  that  evidence  in  relation  to  one

R v OLLIVER [2016] NZHC 2273 [23 September 2016]

complainant could potentially be relied on by the Crown on elements of the charges that were in issue but care would have to be taken in directing over this.

[4]      Given what was in issue, with the way the trial had proceeded, I did not consider it appropriate to direct the jury that evidence could be used on a propensity basis. Accordingly, in my summing up, I directed the jury that they must not use the evidence relating to one complainant to add weight to the charges involving the other complainant.  At the conclusion of my summing up, in the absence of the jury, Mr Lange, for the Crown, said no issue was taken with the approach I had adopted.  He said the Crown did not require a ruling on this.

[5]      During the discussion I had with counsel after their addresses, Mr Shamy, for the defendant, formally asked me to caution the jury as to the reliability of the two complainants’ evidence, pursuant to s 122(1) of the Evidence Act.   He suggested such a caution was required because of the way the complainants’ evidence could or had been rendered unreliable through discussions which had taken place with their mothers and between each other and/or because of conversations which they were likely to have heard others having about the allegations before they participated in evidential interviews.

[6]      Mr Shamy suggested I should consider carefully what the Supreme Court had to say about the appropriateness of such a caution in two recent judgments.1     I indicated that I was not minded to give such a caution but I would consider those cases and my decision on whether or not I would give a caution would be apparent from my summing up.  Mr Shamy asked me to formally note that he had made this request.

[7]      Having read the judgments of the Supreme Court and having considered the evidence further and what I would be saying in my summing up, I decided a caution as  requested  was  not  required.   Accordingly  there  was  no  such  caution  in  my

summing up.  I now give brief reasons for that decision.

1      L v R [2015] NZSC 53; CT v R [2014] NZSC 155.

[8]      Section 122(1) gives a trial Judge the discretion to warn a jury of the need for caution in deciding whether to accept evidence and the weight to be given to evidence.

[9]      In most cases involving sexual abuse allegations, there will inevitably be a challenge as to the truth of a complainant’s essential allegations.  On occasions, the defence  may  suggest  that  a  complainant  has  been  deliberately  dishonest  in recounting the abuse which she alleges but  commonly the attack  will be based around the reliability of her evidence, even if honestly given.  Such an attack might be based on such matters as the inherent improbability of the acts described, inconsistency in descriptions of what allegedly occurred, inconsistency between the acts and behaviour alleged and contemporaneous other events, documents or records. Not  unusually,  especially  with  younger  children,  it  might  be  suggested  that allegations have arisen out of the notion of sexual abuse being put before a child by others, particularly in a situation where there is conflict between parents and one or other parent or caregiver is hypersensitive to the potential for sexual abuse or has a motive for discrediting another party.

[10]     Section 122(2)(a) to (e) refer to particular circumstances in which risks as to reliability can arise.  In such situations, the Judge “must consider whether to give a warning under s 122(1) but, even then, it is not mandatory that the Judge does so. Those are however not the only circumstances in which a caution may be required. As William Young J stated, “unreliability” is not a narrow or technical term.  The Supreme Court considered it unwise to attempt refinement or classification of when evidence may be unreliable and also said a restrictive approach to directions under s

122 is not warranted.

[11]     In this case, I decided it was not appropriate to give such a caution because the primary issue for the jury to determine was what physical contact the defendant had with each complainant, the nature of that contact and all the circumstances in which it occurred.   Once the jury had decided what, if any, potentially indecent contact had occurred, it would be for them to assess whether or not that conduct would  be  considered  indecent  by right-minded  members  of  the  community and whether or not the defendant intended or appreciated the existence of those facts that

made what he did indecent.   The evidence of the complainants’ was of crucial importance in determining what physical contact occurred.  Their evidence was not of significance in determining the other two issues.

[12]     Significantly  in  this  case,  the  defence  had  not,  in  cross-examination, suggested to either of the complainants that their evidence as to what happened was mistaken, confused or in any other way untrue.  It would therefore have been unfair to the Crown for me to caution the jury as to the reliability of the complainants’ evidence when the defence had not given the witnesses the opportunity to respond to any suggestion that what they were saying was not true.

[13]     On  my  own  assessment  of  the  evidence,  I  also  considered  that,  in  the particular circumstances of this case, the risks of unreliability as to evidence on the crucial issue, for the reasons advanced by the defence, were not so great as to require a caution.    There were the statements made by one complainant at the commencement of her evidential interview where she mentioned rape.   The other complainant gave evidence as to how things “clicked” as to what had been happened to her when she first told her mother about the allegations.  One complainant gave evidence of the way she had talked to the other complainant about what had happened.  On that evidence, there was a basis on the evidence for the defendant to suggest that the children’s evidence could have been affected by prior discussions which they had or which they overheard.

[14]     The focus of the evidential interviews was not however on what they thought about what was occurred but on what actually happened to them.  The distinction is important.   While there would be good reason to think that their view as to the appropriateness of the conduct they alleged would have been affected by what others might have said about it, this would not necessarily be true of what they recalled and described as having been done to them.  In each case, the interviewers took care to let each child describe and demonstrate what happened.  There was nothing in the way their evidence developed during the evidential interview to suggest that what each was saying could well have been the result of a reconstruction or something that they were inventing or developing at the time to meet the expectations of either the interviewer or someone who might have spoken to them earlier.

[15]     In this context too, again, it was significant that they were not challenged in cross-examination as to the account each had given as to the way each said the defendant had acted with them.

[16]     While there was some evidence from each child on which the defence could suggest there was potential for the reliability of their evidence to have been affected by discussions prior to the interviews, balanced against that was the evidence which each mother gave as to how they had each first learnt of the allegations and of steps they took to ensure, as best they could, that the allegations would not be discussed with the children before the evidential interviews.  The evidence that the mother of complainant T gave, as to the circumstances in which she was told of T’s allegations, how she had not queried T as to the possibility of any inappropriate relationship between T and the defendant was, on the face of it, compelling.  On her evidence, T made allegations of inappropriate conduct on the defendant’s part before any discussion could have taken place with her mother or the other complainant about what happened.

[17]     The  evidence  each  complainant  gave  was  also  as  to  events  which  were relatively recent: for complainant T, within two months of her evidential interview; for complainant S, within 11 months of her evidential interview.

[18]     To the extent the reliability of the complainant’s evidence was an issue and to the extent this could have been affected by discussions of which there was some evidence, the issue had been clearly and forcefully put to the jury by the defendant’s counsel through his closing argument.  During both his closing address and cross- examination he highlighted for the jury the evidence he was relying on in making this an issue.  The Crown referred to evidence as to a discussion between the two complainants’ as to something which they needed to consider.  I also made it clear in my summing up that it was a matter which they needed to consider.

[19]     In the context of this particular trial, the evidence which was given by the complainants and the way the trial proceeded, I concluded it would have been unfair to the complainants and unfair to the Crown to caution the jury that there would be

particular risks in accepting or giving weight to each complainant’s evidence as to what happened to them.

Solicitors:

Raymond Donnelly & Co., Christchurch
P J Shamy, Barrister, Christchurch.