R v Prattley CA42/04

[2004] NZCA 401

PUBLICATIONS OF NAMES(S) OR IDENTIFYING PARTICULARS OF COMPLAINANTS(S) PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA42/04

THE QUEEN

v

LINDSAY STEPHEN PRATTLEY

Hearing:         19 July 2004

Coram:O'Regan J Panckhurst J Paterson J

Appearances: J H M Eaton for Appellant

B J Horsley for Crown Judgment:        3 August 2004

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1]    Following a trial before Judge and jury in the District Court, the appellant was convicted on one charge of sexual violation by unlawful sexual connection and five charges of indecent assault. He was subsequently sentenced to four and a half years imprisonment. This appeal, against conviction, is based upon three criticisms of the summing up.

R V PRATTLEY CA CA42/04 [3 August 2004]

[2]    Counsel, Mr Eaton, contended that a direction concerning complaint evidence was materially wrong, that Judge Erber failed to direct adequately upon the effect of rejection of trial counsel’s submissions that the complainant had a motive to lie, and that no direction was given concerning opinions expressed by the police officer who interviewed the appellant when a direction to disregard such opinions was required. Mr Eaton submitted that the cumulative effect of the mis-directions and non- direction gave rise to an unacceptable risk of a miscarriage of justice.

Factual background

[3]    The appellant was in a relationship with the complainant’s mother throughout the period relevant to the offences, 29 March 2002 to 28 February 2003. The first two charges related to 29 March 2002. The complainant (K) gave evidence that on this occasion, the appellant entered her bedroom, touched her breasts and violated her by connection between his tongue and her genitalia. She was then aged about 14 years 6 months. The appellant was found guilty of both charges.

[4]    The further eight counts in the indictment were preferred in the alternative.  In each instance the more serious count alleged sexual violation by unlawful sexual connection (either oral connection or digital penetration) or sexual violation by rape. In the alternative, the lesser counts were allegations of indecent assault based on the same conduct. Some of these charges were also representative in nature.

[5]    In the event, and in light of detailed directions which the trial Judge gave concerning the obligation upon the Crown to negative consent, the jury returned verdicts of guilty upon the lesser alternative charges of indecent assault. This, no doubt, was a reflection of the fact that K described a prolonged and extensive course of sexual activity between herself and the appellant. While she of course said that  the sexual acts were non-consensual and the Crown case was that she was groomed by the appellant, the jurors were obviously left in doubt as to the absence of consent or as to the appellant’s belief in its existence. They therefore convicted upon the indecent assault charges in relation to which consent (or belief in it) was irrelevant.

[6]    The course of abuse described by K in her evidence ceased in February 2003, by which time the appellant and K’s mother were estranged. The appellant had entered into a new relationship with another woman. On 17 April 2003, K disclosed the allegations of sexual abuse to her mother. A prompt complaint was made to the police and the charges were laid in due course.

[7]    Against this brief summary of the case, we now turn to the alleged mis- directions and non-direction.

Complaint direction

[8]    The actual complaint evidence given by K’s mother was brief. She said her daughter spoke of the appellant having kissed her and touched her breasts, and in response to a question, K said that sexual intercourse had also occurred. K was described as sobbing, and apologetic as she gave these answers. No further details were supplied by K and accordingly, her mother’s evidence on the topic was quite brief.

[9]    In summing up, the Judge first dealt with the question of the delay before any complaint was made and then instructed the jury concerning the use to which evidence of a complaint could be put. With reference to delay, he acknowledged defence counsel’s submission that the delay had been considerable.  He observed  that such delay on the part of an adult might be seen as relevant to whether the alleged misconduct had occurred at all, to whether the occurrence was different from the allegations at trial, or to whether there was consent. However, the Judge continued that human experience indicated a young person may not react as the jury might expect an adult to do, whether on account of embarrassment, error of  judgment or different thought processes. The Judge then referred to  K’s explanations for the delay, including her concern not to break up the relationship between her mother and the appellant, and the lie which she had told to her mother and a doctor in the context of a conversation about contraception, namely, that she was having sex with a 15 year old boy.

[10]   Next the Judge referred to the effect of the evidence of complaint given by K’s mother. The relevant direction was in these terms:

When she told her mother and the fact that she said it to her and the distress which she exhibited at the time is not evidence that what she was saying was true. The evidence on which you will act is the evidence which has been given at the trial. The value of what a complainant, which is the legal term for K, tells a third person lies in the consistency or inconsistency of account. If a complainant not long after an alleged indecency told another about it, saying in general terms significantly the same thing as she told you from the witness box, that is evidence of consistency and consistency of account is one of the factors – it is not the only factor of course – it is one of the factors which may weigh with you in considering whether or not you believe what the complainant has told you. Similarly inconsistent accounts may tell against the acceptance by you of a complainant’s evidence. So that I repeat what K told her mother after the alleged incidents is not evidence that what she said was true, it is evidence simply of what she in fact said and goes to the consistency of account and the weight which you place on her testimony.

[11]   Mr Eaton submitted that this direction was incomplete, inadequate, and a material misdirection in the circumstances of this case. The essence of his argument, as we understood it, was that the direction focused upon consistency of account as the material factor which, if judged to be present may legitimately influence the jury in their assessment of the complainant’s evidence. Counsel contended that a proper direction would have identified consistency of conduct as the relevant focus, because a reference to the account of the allegations alone was too narrow. Thereby, the jury’s attention was deflected from other considerations which were relevant to consistency, being the promptness and spontaneity of the complaint in particular. As a result, the effect of the direction was to convey to the jury that so long as the complainant’s account (or story) was consistent, her credibility may be enhanced on account of such consistency.

[12]   Mr Horsley did not accept that the summing up contained any material misdirection in this regard. He pointed out that the complaint evidence itself was relatively slight and did not form a major plank in the Crown’s case.  By contrast,  the defence had mounted a significant attack upon K’s credibility (in particular, whether she had a motive to lie), and in that context had focused upon the lateness and timing (in relation to other events) of the complaint to K’s mother. Counsel submitted the direction was entirely adequate and tailored to the circumstances of the case.

[13]   Nor did Mr Horsley accept the submission that there was a distinction to be drawn between consistency of conduct on the one hand, and consistency of account on the other, such that a focus upon the latter gave rise to a misdirection. He submitted that the authorities did not recognise any such distinction and that although consistency in relation to the complainant’s account or story was only one aspect of the necessary inquiry, the summing up in this instance was an appropriate one.

[14]   In support of his argument, Mr Eaton referred to a passage in R v T [1998] 2 NZLR 257 (CA) in which Eichelbaum CJ in delivering the judgment of the Court at p270 said:

It is trite law that evidence of recent complaint is not evidence of its truth or of any other fact than that it was made. In particular (although consent was not an issue in the present case) it is not evidence of absence of consent. Recent complaints were admitted only as showing consistency between the complainant’s conduct at the time and his or her evidence at the trial thereby supporting the credibility of the witness’s testimony, see (eg) R v Nazif [1987] 2 NZLR 122 at p125.

Using this passage as illustrative of the relevant principles, Mr Eaton submitted that it was wrong of the Judge to refer to consistency of account, rather than conduct, throughout the relevant portion of the summing up.

[15]   We agree that in judging whether a complaint demonstrates consistency on the complainant’s part, the focus is on not only what he or she said, but also on when and how it came to be said. The latter requirements are captured by the pre- conditions for admissibility of a complaint, namely, that it be recent and spontaneous. These elements also inform the judgment whether the complaint demonstrates such consistency of conduct as to support the credibility of the complainant’s testimony. Put another way, consistency may depend upon all the circumstances which attend the making of the complaint.

[16]   Did this summing up contain a misdirection? We do not think so. The question of delay had already been drawn to the jury’s attention in appropriate detail. The defence contentions were set out followed by an explanation that there may be good reasons for delay, particularly on the part of a younger complainant. Hence we

think the requirements of s23AC of the Evidence Act 1908, and the need for balance, were appropriately struck.

[17]   When, in the next paragraph, the Judge explained the limited use to which complaint evidence may be put, it was not therefore inappropriate that he focused upon K’s account to her mother. Ideally, it may have been preferable to have  referred to consistency of conduct, but the need to examine closely the timing of the complaint in particular had already been the subject of a separate and extensive direction. Certainly no criticism can be, or was, made of the purpose aspect of the direction. And, the Judge made it clear that depending on the assessment of the issue of consistency the complaint evidence may support, but equally detract from, a complainant’s credibility.

[18]   For these reasons, we are not persuaded that the summing up contained any misdirection.

Direction: Motive to lie

[19]   Also based on the decision of this Court in R v T, Mr Eaton developed a submission that the trial Judge erred by failing to direct the jury that if it rejected the defence contention that the complainant had a motive to lie, such rejection did not affect the onus of proof which remained on the Crown throughout the trial. To appreciate this argument, it is necessary to refer to the facts of the case in a little more detail.

[20]   The question – why would the complainant lie (in relation to her allegation of sexual abuse) was first raised by the constable who  interviewed  the  appellant  on 24 April 2003. About a third of the way into the interview, the officer asked “Why would she [K] say that?” to which the appellant gave a lengthy answer to the effect that the complainant had been keen to cause as much trouble as she could for some time as evidenced by a complaint of assault she made against him to the police, and stories she had told his new partner. This question was the only one directed to the complainant’s motivation to make the allegations.

[21]   At trial, the issue of such motivation was pursued by the defence, rather than the Crown. The nature and extent of the attack was summarised by the trial Judge at a point in his summing up when he referred to issues which the jury might wish to consider in judging K’s credibility. He referred first to matters pertinent to demeanour, and to the manner and content of her evidence. The Judge continued:

51.    Has your assessment of her been affected by the criticisms which Mr Radford made in evidence, and what motive can you ascribe to her for making up this story?

52.   As to this question of motive, there is no obligation on the defence to prove motive nor indeed is there an obligation on the Crown to show that there is not any motive but you are entitled to consider whether there is a motive for K to make up such a long detailed account of sexual abuse. The motive suggested is a growing hatred of Mr Prattley. She did not welcome him at first, then she tolerated him, then her mother’s relationship with him broke up and that made her cross because it made her mother unhappy, then the police seemed to side with Mr Prattley and she was told off for abusing him but nothing much happened to him when she complained of him hitting her. This, Mr Radford said, made her, and I use his words, “hopping mad” and so she goes for “the big hit” of an allegation of sexual abuse.

53.   Well you should consider whether those circumstances provide any or sufficient credible motive to lie about abuse and the details she described.

[22]   This passage, Mr Eaton argued, suffered from an omission amounting to a material misdirection. He submitted:

Having deliberately invited the jury to address the issue of motive as an important factor in assessing credibility, it was incumbent on His Honour, having identified the defence suggestions as to possible motive, to clearly and explicitly remind the jury that regardless of the absence of evidence of motive, the onus of proof remained on the Crown throughout.

Counsel added that the summing up, in effect, placed an onus on the appellant to provide a credible motive to lie.

[23]The required approach in New Zealand is clearly spelt out in R v T at p265-6:

In R v E ((1996) 39 NSWLR at 450) it was acknowledged that while taking the absence of a motive to lie into account might be “a matter of common sense”, there was a danger in encouraging a commonsense approach, contrary to “the rigours of the criminal law”. We have to say, with respect, that we see an even greater danger if, in a field where the public is intimately involved through the jury trial process, a gap is allowed to develop between the law and common sense in a facet of criminal trials as basic as the assessment of credibility. We accept that the proposition “Why would the

complainant lie?” should not be presented in a way which would deflect or distract the jury from the central issue, whether the Crown had proved the charge and each element of the charge beyond reasonable doubt. Nor should any suggestion be allowed that there was an onus on the accused to advance a credible answer. Generally, the trial Judge would be required to intervene firmly if these principles were infringed. And without wishing to burden Judges with yet another topic which must be covered in summing up, in any case where the prosecution had sought to bolster the complainant’s credibility by reference to the absence of a motive to lie, the charge to the jury needs to be clear that regardless of the absence of evidence of motive, the onus of proof remains on the Crown throughout.

[24]   We have considered whether anything arose in the present trial to deflect the jury from the central question whether the Crown had proved its case. The Crown did not focus on an absence of motive as can sometimes be the case. Rather, the defence pursued the theme  that  a  motive  to  lie  did  exist.  It  seems  to  us  that Mr Eaton, in effect, contended for an extension to the principle in R v T, namely, that if an accused through counsel asserts that a complainant did have a motive to lie, the jury should be warned that its rejection of that proposition does not affect the fundamental onus of proof resting on the Crown.

[25]   We do not read the judgment in R v T as authority for that proposition. It is not necessary for the purposes of this case to consider whether circumstances could arise in which such a direction was necessary. Here, the Judge began by instructing the jury that there was no obligation on the defence to establish its contention of a motive to lie. That direction, coupled with the earlier standard directions concerning the onus of proof, in our view, was as much as was required in the present case.

Non-direction: opinion evidence at interview

[26]   Mr Eaton submitted that in light of several expressions of opinion contained in the video interview of the appellant, it was incumbent upon the trial Judge to give an explicit direction that the opinions of the interviewer were not evidence and were to be disregarded: R v Hunt, CA178/00, 26 September 2000 and R v Lawton CA221/01, 29 October 2001.

[27]   Mr Horsley, on the other hand, while accepting that it was unfortunate the interviewing officer had phrased some questions so as to include an expression of

opinion, characterised the resulting opinion evidence as mild and insufficient to warrant any direction from the trial Judge. He suggested the case was one far removed from the circumstances in both Hunt and Lawton.

[28]   To appreciate the argument, it is necessary to consider the interview as a whole. Mr Eaton identified eight questions which, in his submission, incorporated at least some element of expression of opinion by the interviewer. Two examples will suffice to capture the flavour of the questions. At p28 of the transcript of the interview, the appellant was asked:

I think more has happened than you are letting on … I think, because if what she, the detail that she has gone into something has happened and I think you’re holding some of it back.

And at p47:

Over a period of perhaps just a year on the strength of her allegations, you have basically groomed her to get her to the point where you were having sex with her …

We accept that these questions (and the others identified by counsel) did extend to matters of opinion. That should not have occurred.

[29]   However, the real issue is whether the questions, in the context of the interview as a whole, required any direction from the trial Judge? In Hunt, Gault J described the relevant questioning as “a bad case of over-reaching by an interviewing officer.” In Hunt, the Court found that the interviewer had pursued an insignificant aspect of the complainant’s account with extraordinary persistence, had made clear his belief that the complainant was truthful and that the accused had lied, and had persisted in a “steady stream of questions” which invited explanation of why the complainant would lie so as to imply an obligation upon the appellant to provide such an explanation.

[30]This case, we agree with Crown counsel, is far removed from both Hunt and

Lawton. We are not persuaded that any direction was called for in this instance.

Result

[31]   The grounds of appeal alleging misdirection and non-direction are not made out. Accordingly, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington