R v R (CA121/04)

[2004] NZCA 402

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA121/04

THE QUEEN

v

R (CA121/04)

Hearing:         23 and 26 August 2004 Coram:  Chambers J

Williams J Panckhurst J

Appearances: C L Harder and A J Trenworth for Appellant K J Glubb for Crown

Judgment:      17 September 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Appeal on sexual violation charges

[1]    The appellant, following trial by jury in the High Court at Auckland, was found guilty on three charges of sexual violation by rape. The three rapes occurred over approximately a two week period in late 2002. Each charge involved the same complainant.

[2]    The appellant and the complainant were related. On the first occasion, the appellant picked up the complainant and offered to drive her home. She got in, but

R V R (CA121/04) CA CA121/04 [17 September 2004]

the appellant, instead of taking her home, took her to a secluded area where he fondled her and then eventually had sex with her.

[3]    The second incident occurred several days later. The complainant was on a bus heading towards the central city when she received a telephone call from the appellant. He told her to get off the bus at Point Chevalier. She did as he asked. He then picked her up and took her to a friend’s house close by. He took her into a bedroom at that house and then started kissing the complainant and sucking her breasts. He then took off her clothes, while she tried to hold them on. He had sex with her, while she protested.

[4]    The third incident took place about a week later. The complainant was waiting at a bus stop. The appellant drove up and offered to take her to her destination. The complainant declined the offer. The appellant got out of his car, grabbed the complainant by the hand, and pushed her inside the car. The appellant asked the complainant if anyone was at her home. She said “no” because “the others were at work”. The appellant then drove the complainant to her  home.  The appellant pushed the complainant into her bedroom and then closed the door and all the curtains. Once again, he started kissing the complainant and sucking her breasts. He then forced the complainant onto the bed and had sex with her. Following this incident, the complainant complained to the police.

[5]    The defence case with respect to the three incidents differed. With respect to the first, the appellant stated that no sexual activity took place. With respect to the second occasion, the appellant admitted that consensual oral sex took place, but denied that sexual intercourse took place. With respect to the third occasion, the appellant admitted that sexual intercourse took place but said that it was consensual. The appellant did not give evidence at trial, but had given a video interview to the police.

[6]    It is clear from the verdicts that the jury must have preferred the complainant’s account over the appellant’s.

[7]    In the notice of appeal, the appellant raised eight grounds. By the  time written submissions were filed, however, only three were pursued. And at the hearing before us two of those were dropped. This became a one issue case.

[8]    That issue was whether there had been a miscarriage of justice because fresh evidence had, since the trial, come to light which threw doubt on the jury’s verdict. Mr Harder, for the appellant, submitted that this new evidence, when considered alongside the evidence given at trial, might reasonably have led the jury to return a verdict of not guilty. He sought, on the appellant’s behalf, that the convictions be quashed and a new trial ordered.

[9]We now turn to the alleged fresh evidence.

Fresh evidence

[10]   The jurisdiction to allow an appeal on the ground of discovery of fresh evidence is derived from s385(1)(c) of the Crimes Act 1961, which provides that the court shall allow an appeal against conviction if it is of the opinion that on any ground there was a miscarriage of justice: R v Crime Appeal (CA60/88) (1988) 3 CRNZ 512 at 513. There is no exclusive test which is applied in order to determine whether the fresh evidence is of a nature sufficient to establish that there was a miscarriage of justice. But a test frequently applied is that the evidence must be new or fresh in the sense that it was not available of the trial and be relevantly credible and of a nature that, if given with the other evidence adduced, might reasonably have led the jury to return a different verdict: R v Bain [2004] 1 NZLR 638 at [18] (CA). There was no dispute in the current case about the applicability of that test. We intend to apply it.

[11]   Before applying it, we shall first set out the gist of the alleged new evidence, as it was presented to us in an affidavit filed on behalf of the appellant. The deponent, whom we shall call Mrs T, is a relation both of the appellant and the complainant. She got in touch with either the appellant or his counsel, Mr Harder, after the trial at which the appellant was found guilty. She then swore an affidavit, in which she made a number of assertions.

[12]   The first of these was contained in paragraph 3 of her affidavit.  Before setting that out, we should explain that the appellant has in fact undergone three trials, the first two having to be aborted during the course of them. The third trial took placed immediately after the second trial was aborted. In paragraph 3 of her affidavit, Mrs T is referring to the first of the trials, which was heard in September last year. Paragraph 3 reads as follows:

At that trial I was present on several occasions when [the complainant’s] mother would tell her to dress young, act dumb and cry when she was giving evidence. Her mother gave her this advice on many occasions both at my house and at her house. I was present on all these occasions.

[13]   A second assertion was contained in paragraph 12 of her affidavit. The reference to “Thomas Park” is a reference to the location at which the first incident occurred. Paragraph 12 reads:

I recall [the complainant] talking about what happened with [the appellant]. She told me that when they were together at Thomas Park no sexual intercourse took place between them. They only kissed and cuddled. She said [the appellant] bought her food afterwards. She told me this during the first trial.

[14]   We heard counsel concerning this affidavit on the first day of the appeal hearing (23 August). We were satisfied that what Mrs T had to say was “fresh”. There was no way in which the appellant or his counsel could reasonably have been expected to ferret this out before the third trial, given that the complainant was at the time living with Mrs T. Mrs T deposed that she had told nobody about these matters except her husband, who, she said, persuaded her not to tell anyone. She decided to come forward, she said, only after the appellant had been found guilty.

[15]   We were also satisfied that, at least on their face, these two assertions warranted further investigation. There were other assertions in the affidavit which did not warrant further investigation. We mention these briefly simply to explain why we did not take them further. There was an assertion that a particular person had, during the first trial, told the complainant’s mother that “it would be good for the case if [the complainant] was to cry while giving her evidence”. Mrs T did not say, however, that the complainant had been present when that comment had been passed. There were allegations concerning other sexual activity in which the

complainant was alleged to have taken part. But this other alleged sexual activity would certainly not have passed the test for admissibility under s23A of the  Evidence Act 1908. Clearly an appellate court will not take into account on a “fresh evidence” appeal evidence which would in any event have been inadmissible.

[16]   In the end, we indicated by minute (dated 24 August 2004) that we would consider paragraphs 1-3 and 12-16 of Mrs T’s affidavit. The Crown sought leave to cross-examine Mrs T on those aspects. The appellant did not oppose that  application. We granted it.

[17]   In advance of the hearing, the Crown had filed certain affidavits in opposition to Mrs T’s affidavit. We indicated that we would consider evidence from the Crown, limited to those aspects of Mrs T’s evidence which we had indicated we would consider. Mr Harder did not oppose that. He sought leave to cross-examine the Crown’s witnesses. The Crown did not oppose that. We granted leave.

[18]   On the second day of the appeal hearing (26 August) we heard evidence from Mrs T, the complainant, and the complainant’s mother. The purpose of this hearing was for us to form a view as to whether Mrs T’s allegations in the two key areas were sufficiently credible to warrant further assessment.

[19]   Before turning to the oral evidence, we need to explain some family dynamics. The family to which Mrs T, the complainant, and the appellant belonged is Indian Fijian. Just before the second and third trials, there was a serious argument between the complainant and Mrs T. There are differing versions of what provoked the row. What provoked it does not particularly matter. The complainant’s mother then became involved in the row, and sided with her daughter. She was particularly annoyed at what she considered to be Mrs T’s upsetting her daughter just before she was to undergo the strain of giving evidence in court. The complainant’s mother lashed out verbally at Mrs T. It is quite clear that, in the heat of the moment, things were said which perhaps were later regretted. But, for whatever reason, the die was cast and, since the row, Mrs T has had nothing to do with the complainant and her mother.

[20]   We have had the benefit of seeing Mrs T in the witness box. It was clear to us, from the evidence she gave and the way in which she gave it, that she is a woman prone to excitability. She is a woman who, we suspect, often speaks before she thinks. In saying that, we are not to be taken as putting the blame on her for the breakdown in family relationships. We are simply observing that a breakdown has obviously occurred and we do consider that this has fuelled Mrs T’s antagonism towards the complainant. It is quite clear that Mrs T considers that the sexual  activity between the complainant and the appellant was consensual. Her view on  that matter appears to be based on her general opinion that the complainant has been running round having sex with a number of men, a lifestyle of which Mrs T does not approve. She is keen to get the complainant, who is only 18, married off as soon as possible.

[21]   Having heard Mrs T, the complainant, and her mother, we are quite satisfied that the complainant’s mother did not tell the complainant “to dress young, act dumb, and cry when she was giving evidence”. We accept that, before the first trial, there may have been discussions about what the complainant should wear to court. That is hardly surprising. The complainant would never have been in a court before. It is a foreign environment for most people, and it would be hardly surprising if a teenaged complainant in a sexual violation case should discuss with her mother what clothes she would wear to court. There is no evidence that the clothing she did wear was inappropriately childish, which seems to be the inference Mrs T wants us to draw. (She gave no evidence of what clothes were in fact worn.) In any event, it would have been obvious to anyone that the complainant’s age would be a matter of evidence.

[22]   As to “acting dumb”, we need to point out that there was evidence at trial from a registered psychologist, Ms Verhoeven, that the complainant had “a mild intellectual disability”. Ms Verhoeven said that she had undertaken certain psychological assessments of the complainant. Ms Verhoeven said that the complainant’s overall “adaptive behaviour score” gave her an overall age equivalent of 8 years 8 months.   Her communication skills were at the level of a child aged     7 years 8 months. In those circumstances, it would, with respect, have been rather pointless to tell the complainant to “act dumb”. The complainant’s mother was well

aware of her daughter’s mental abilities. We are quite sure that she would have been very worried about her daughter giving evidence in the case, as any mother would be, but we accept her evidence and the complainant’s evidence that she did not tell her daughter to “act dumb”.

[23]   With regard to the first assertion Mrs T made, therefore, we do not find it sufficiently credible to warrant taking it to the next stage of enquiry.

[24]   We turn now to consider the far more important assertion made in the affidavit, namely that the complainant had told Mrs T that “no sexual intercourse took place” at Thomas Park.  Mrs T said that she had not realised until the start of  the first trial that the case involved more than one incident. She said she discovered that there had been more than one incident only through comments made over lunch during the first trial. Mrs T was not present when the complainant gave her  evidence, because of the restrictions on who is entitled to be present in the courtroom under s375A of the Crimes Act. Accordingly, she said she had asked the  complainant that night what these other incidents were. When Mrs T was cross-examined about what was said, the account she gave was significantly different from what she had said in her affidavit. She said that, when they got home from court, she said to the complainant, “When you were talking to your mother…about what other peoples did to you, can you tell me?” She said she did not know at that stage what the other incidents were; she knew only about the (third) incident which had led to the complaint. Mrs T said that the complainant told her that one day she was walking along the road and the appellant had stopped the car and asked her where she was going. She had answered, “Home.” He had then said, and here we quote Mrs T’s exact words:

“Come on, I’ll give you a lift.” And then they went to the park, and he was kissing and cuddling her and then after they went to the shop, he bought something from the shop, a drink, food, I don’t remember exactly what they bought, and she didn’t say any sex happened that day, only kissing and cuddling.”

[25]   Mr Harder chose not to re-examine about the significant change in Mrs T’s evidence. There is, of course, a fundamental difference between a complainant

saying “no sexual intercourse took place” and a report which did not mention anything about it.

[26]   The complainant, when she gave evidence, remembered that there had been a conversation between her and Mrs T one evening while she was giving evidence at the first trial, although she accepted that her memory was hazy. She said that Mrs T had asked her about the other incidents and that she had told her, with respect to the Thomas Park incident, that the appellant  had  kissed  her  and  had  sex  with  her. Mr Harder, in cross-examination, asked the complainant only one question with respect to the Thomas Park report. It was this:

In relation to Thomas Park, did you use the words “kiss and cuddle” in describing what happened to you? Yes.

[27]   There was, therefore, no cross-examination on the one crucial point concerning the conversation, namely whether the complainant had mentioned sex occurring.

[28]   There is, therefore, a conflict in the two accounts of what was obviously a brief conversation. One possibility is that the complainant’s version is correct, in which case there is no inconsistency at all between the evidence she gave and her conversation with Mrs T.

[29]   The other possibility is that Mrs T’s version of the conversation is correct. Even if that is the case, we do not see this as a case where the complainant resiled from her evidential account of the Thomas Park incident. We do not consider the omission of anything about sex to be significant. The complainant had been living with Mrs T for some six months or so before the trial. Despite their familial relationship, it seems that here had been no talk between the complainant and Mrs T about the case. Mrs T, until she overheard the lunchtime conversation, said she did not even know that there was any incident other than the third.  That suggests that  the relationship between the complainant and Mrs T was not sufficiently intimate as to lead to the complainant’s sharing confidences with her. That could also explain why she did not mention the most intimate part of the first incident. Further, the complainant acknowledged that she had been told not to discuss her evidence with

anyone while she was giving evidence. That too may have made her reluctant  to give the full version of what had happened in the first two instances.

[30]   Accordingly, we are not satisfied that the fresh evidence on this topic warrants further investigation. At best from the appellant’s point of view, we have a brief description of the Thomas Park incident which was incomplete, for quite understandable reasons. This is not a case where the complainant can be shown to have resiled from the account she gave in the witness box.

[31]   Mrs T’s evidence does not cause us to think that there is anything unsafe about the verdict that was reached. The appellant has not come close to showing that there was a miscarriage of justice.

Result

[32]We dismiss the appeal.

Solicitors:

Crown Solicitor, Auckland