R v Raj
[2007] NZCA 10
•16 February 2007
ORDER PROHIBITING PUBLICATION 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
CA421/06
CA422/06
CA423/06CA424/06 [2007] NZCA 10
THE QUEEN
v
RONEEL RAJNIT RAJ RAVIKASH CHANDRA BALRAM REDDY
NEIL ADAM MCKAY
Hearing: 13 February 2007
Court: Robertson, Ronald Young and Venning JJ
Counsel: K B F Hastie and E A Gambrill for the Crown as Applicant
P L Borich for Respondents Raj and McKay
F P Hogan for Respondent Reddy
M I Koya for Respondent Chandra
Judgment: 16 February 2007 at 3 pm
JUDGMENT OF THE COURT
A The application for leave to appeal is granted.
B The appeal is allowed. Evidence of the complainant will be given by:
R V RAJ AND ORS CA CA421/06 16 February 2007
(a) showing of the video interview made on 30 October 2005; and
(b) her subsequent oral evidence by way of closed-circuit television.
CPublication of this decision in news media or on the Internet or other publicly accessible database is prohibited until final disposition of trial.
Publication in law report or law digest is permitted.
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1] The Crown seeks leave to appeal the decision made by Judge Johns under s 344A of the Crimes Act 1961 and s 23D of the Evidence Act 1908 that the evidence in chief of one of the complainants in a forthcoming sexual violation trial be given without using a pre-recorded evidential interview.
[2] The four respondents face six counts of sexual violation or attempted sexual violation and one of kidnapping of a young woman. At the time of the alleged offending she was 13½ years of age and is now 15. Mr Raj also faces two additional counts in relation to the sister of the complainant, but they do not figure in this appeal.
[3] There are a variety of allegations made by the complainant which involve the three respondents apart from Mr McKay and two counts arise from an incident a little later on the same night involving only Mr Raj and Mr McKay.
The factual arena
[4] There is no dispute that, at the relevant times, the complainant and the respondents were in each other’s company.
[5] The complainant told her family about what she said had happened immediately on her return home. She was taken to Starship Hospital where she remained for three days. Two days later she was interviewed by a specialist interviewer at the South Auckland Video Unit. It is that video recording which is in issue.
[6] The thrust of the complainant’s evidence on that tape is that a variety of sexual encounters occurred which were all non-consensual. When interviewed by the police, Mr Raj and Mr Reddy denied any sexual connection. Mr Chandra admitted that he had had sexual intercourse but said that it was consensual. Each of the respondents is charged as a party to some of the physical acts of another. In respect of the latter incident, Mr McKay denied attempting to have sexual intercourse with the complainant although he said he witnessed Mr Raj and the complainant involved in what he took to be consensual intercourse.
The District Court ruling
[7] Directions were sought that:
(a) the complainant’s video interview be admitted as evidence in chief;
and
(b)the balance of her evidence be given by means of closed-circuit television.
[8] Initially the application was supported by a report from the complainant’s counsellor, Tracy Saaranen. On 17 August 2006 the matter was listed before Judge Wade and the Crown sought an adjournment to enable them to file further evidence.
[9] A further report was provided by a registered psychologist, Anne Raethel. [10] Neither of the experts was required for cross-examination.
[11] Ms Saaranen had seen the young woman in six therapeutic sessions. Her evidence was that the complainant had post-traumatic stress disorder and avoided issues relating to the rape experience as it caused her intense distress. She had difficulty concentrating and focussing her attention and disassociated when talking about the sexual experience. Ms Saaranen referred to relevant literature about the difficulties of giving evidence and concluded:
It is my opinion that K would be a poor witness in a court room setting with unfamiliar adults. An appearance in court is likely to cause K much anxiety and distress. I would like to recommend that K give her evidence in chief and be cross examined by means of a closed circuit television. At the least a screen be placed between K and the accused. It is also important that K have a support person.
At no stage in Ms Saaranen’s evidence is there any reference to the video interview and its potential as part of the evidence.
[12] Evidence from Ms Raethel, a clinical psychologist with many years experience who had viewed the video interview and had spoken with the young woman as well as her mother, the counsellor and school teachers, covered more ground.
[13] Ms Raethel concluded:
As is not uncommon in a person suffering Post Traumatic Stress Disorder, K has found that her most effective coping strategy has been to attempt to totally suppress the events whenever they come to mind, to avoid attending appointments or counselling sessions and to withdraw from many of her former activities including school attendance.
In the face of strong defences employed around the events K describes, it is highly unlikely that she would be able to give evidence viva voce in an open court, with or without screens. The need to recount the traumatic events she has already described will be likely to have a powerful effect upon her ability to give evidence and will carry a grave risk of re-traumatisation to a significant level. During counselling K is frequently observed to enter a dissociative [sic] state. This is likely to be one of the debilitating effects of appearing in court and giving evidence in any other method than with the full protection available by statute to a hear [sic] such evidence from a young person of her age.
…
For the above reasons it is recommended that the evidence of K is presented to the Court in the form of the video tape already recorded and that cross- examination be by closed circuit TV.
[14] Although Ms Raethel’s conclusion as to the videotape being used is clear and unequivocal, she does not articulate reasons why this would be preferable to the other alternatives which were available.
[15] This case throws into sharp relief the need for precision and focus in applications of this sort. The Crown, in seeking evidence, should ensure that potential witnesses clearly understand what they are being asked to direct their expertise and knowledge to, and ensure that any expert provides comprehensive advice on all relevant issues.
[16] At the conclusion of the hearing, Judge Johns announced that the video interview would not be played at trial, but that all the complainant’s evidence would be given viva voce using a closed circuit television.
[17] Two weeks later the Judge issued a decision which sets out the background facts, states the law, paraphrases the two experts’ evidence, recites the submissions made by counsel and then concludes:
Whilst acknowledging that the allegations involve serious sexual offending, balancing, as I must do, the interests of the complainant as against the interests of the accused and the need for a fair trial, I am not satisfied given the age of the complainant that it is appropriate that her evidential video be played. I am of the view that the concerns of Ms Saaranen and Ms Raethel can be met by the use of close-circuit television and a support person but with the complainant giving viva voce evidence. It is artificial to suggest that she will not have to recount what is alleged to have happened to her because she will, of course, be cross-examined by four defence counsel and I anticipate for some at least, the defence will be one of consent and that will require her having to go into detail about what she says happened to her.
For the above reasons, the application to play the evidential video tape is declined.
[18] It has been difficult in dealing with this appeal for all involved because there is no analysis or evaluation and no substantial articulation as to what factors were assessed by the Judge in her exercise of discretion.
The statutory framework
[19] Section 23 of the Evidence Act 1908 applies. The offences are included in s 23C(a) and the complainant has not attained the age of 17 years.
[20] Section 23D(4) provides:
Section 23D Directions as to mode by which complainant’s evidence is to be given
…
(4)In considering what directions (if any) to give under section 23E of this Act, the Judge shall have regard to the need to minimise stress on the complainant while at the same time ensuring a fair trial for the accused.
[21] It is a wide discretion to be exercised having regard to the intent and purpose of the statutory provision.
Solicitor-General’s argument
[22] Ms Hastie contended that the exercise of discretion was plainly wrong in light of the unchallenged evidence in the Court below. She submitted this was a compelling case for the complainant’s evidence in chief to begin with the interview on the video being shown. There was no suggestion that the applicable statutory and regulatory requirements had not been complied with.
[23] The s 23 regime was introduced to provide a more flexible process which would minimise stress in the trial process and thereby assist with getting to the truth of a matter.
[24] The approach to its operation was articulated by this Court in R v Lewis
(No 1) [1991] 1 NZLR 409 at 411 as being:
… [C]learly to ensure that the old technicalities of evidence and traditional approaches to the giving of evidence, even the contents of evidence in matters such as hearsay, shall not necessarily prevail against the desirability of getting at the truth and doing so by an effective machinery which enables
children to give evidence without undue stress, while at the same time preserving the accused’s rights to a fair trial.
[25] This attitude was confirmed in R v J (2004) 21 CRNZ 178 at 181 (CA) and
R v COV CA347/05 2 November 2005.
[26] Ms Hastie noted that in the Evidence Act 2006, s 107 (which has yet to come into force) extends the provisions of s 23D(4) of the Evidence Act 1908 to include any criminal proceeding involving a child (not merely those involved in sexual offences) and made it applicable to any person under the age of 18 years, not under the age of 17 years.
[27] The Crown submitted that the Judge recognised the need for a balancing exercise but argued that the Judge failed to engage it, with undue emphasis being given to the fact that the complainant is now 15 years of age.
[28] Particular emphasis was placed on the unchallenged evidence of Ms Raethel as to the position of this young woman, and Ms Hastie submitted that the subsequent ability to cross-examine, challenge and confront meant that no aspects of fair trial rights for the respondents would be comprised.
The respondents’ position
[29] Mr Borich contended that it was not demonstrated that the discretion had been wrongly exercised. He submitted the Judge had regard to the interests of the complainant, minimising stress to her, the psychological evidence, the concerns of the expert witnesses and the need for a fair trial. He submitted that there was in the authorities a tendency to require older teenagers, who could be covered by the regime to be required, to give their evidence orally in its totality. He submitted that the new legislative provisions in the Evidence Act 2006 did not alter the approach or threshold but merely increased the ambit in which it could have operation.
[30] Mr Koya’s submissions were to like effect. He stressed that the two experts had offered different opinions and the Judge was able to make a choice. He argued that Ms Raethel’s observations, which are relied on by the Crown, were properly
rejected when the Judge noted the inevitable cross-examination which will occur as recorded in [17] above.
[31] He submitted that Ms Raethel had not advanced any convincing reason as to why the use of the video interview would reduce the stress level which will come most during cross-examination.
[32] Mr Hogan supported the submissions of other counsel and contended in addition that, with respect to Balram Reddy, there would be a particular injustice in permitting the video to be played as, prior to that interview, the complainant, in verbal discussions with the police, had said that she told the Indian guy no and he did not do anything to her. In the video interview she makes incriminatory allegations about him so if it is played he would be disadvantaged.
Discussion
[33] It was drawn to our attention that the Crown applied for leave to appeal on
20 November 2006. The District Court decision was given on 9 November, although reasons were not provided until 23 November. We leave open the question as to whether, in circumstances such as this, time ran from the oral delivery of the outcome or the provision of reasons, but responsibly no-one argues that the time factor is of any weight in the determination we must make.
[34] More than fifteen years ago Parliament saw fit to introduce a regime to minimise the potential for young complainants in sexual cases being re-traumatised by the court process. Mechanisms were created for alternative ways of receiving evidence. There is no presumption for or against their use, but they are available and must be evaluated in relevant circumstances.
[35] There is nothing in the section which requires that the nearer a person gets to the age of 17 the less the Court should consider exercising the jurisdiction. It will depend entirely on the total facts and circumstances of the case. All counsel for the respondents valiantly argued that the age of the complainant was not a matter which had weighed heavily with Judge Johns and that her comments, as noted in [17]
above, were merely the listing of a factor. We cannot read her judgment as a whole in that light. Her reference to the decision of this Court in R v Vaovasi CA347/05
2 November 2006 and her recitation of the respondents’ submissions about a trend towards viva voce evidence where a complainant is over the age of 12 years, leads to the inevitable conclusion that the fact that the complainant was 13 at the time of the offending and is now 15 was of importance to her.
[36] The regime which Parliament has provided is about protecting the vulnerable. Age is a factor to be weighed, but a much more rigorous analysis is required than any presumption that the older a person is the less likely that something other than traditional means of giving evidence should be adopted. We are satisfied the Judge placed too much weight on the complainant’s age alone in reaching her decision.
[37] There is, in the evidence of both of the professional witnesses, the clearest indication of the devastating consequences for this young woman of whatever occurred on the night in question.
[38] The uncontroverted evidence before the District Court Judge was that the complainant presented with injuries which were the worst that the examining paediatrician had witnessed in more than ten years of practice in this area. The like had not been seen before in the unit which “had examined between three and four thousand children and young persons for allegations of sexual assault since December 1991”.
[39] There is no argument as to the fact that at the relevant times the complainant was in the company of each of the four respondents. There is major divergence as to what happened. It is important that the story of each is heard. Ms Raethel’s conclusion recorded above in [12] leaves no room for doubt as to the need to do all that can be done to ensure the complainant’s side is before the Court. The respondents’ counsel suggest that, as the complainant had not been examined by any other expert, Ms Raethel’s view should be treated with caution. We do not agree. No challenge is mounted to the professionalism and experience of Ms Raethel and her view deserves serious consideration.
[40] It appears to us that it is unarguable that, from the point of view of the jury getting to hear the complainant’s story so they can evaluate it, the showing of the video interview is of the utmost importance.
[41] We reject the submission that there is conflict between the evidence of Ms Saaranen and Ms Raethel. Ms Saaranen speaks about possible means of minimising trauma, but fails to address at all the critical issue of the video. We accept that there could have been a greater elucidation by Ms Raethel of the factors which led to her conclusion that the video should be utilised, although the factors are really self-evident:
•a 13 year old had been involved in a sexual incident involving more than one man;
• she was immediately complaining;
•her physical condition required hospitalisation for three days and was described as extreme;
•a video interview was taken within five days which was in conformity with the applicable statute and regulations; and
•the psychological consequences for this young woman were disastrous and continue to be an issue.
[42] The respondents will have every opportunity to challenge her after the video is played. It cannot be in the interests of justice to have a situation in which this woman may entirely freeze and say nothing at the trial (even when on closed circuit television) if anything of the sort which she asserts did in fact occur. We consider therefore the evidence from the Crown overwhelmingly supported the proposition that the complainant’s evidence should be by pre-recorded video.
[43] The issue therefore is whether there can still be a fair trial for these four men.
[44] At a general level, all counsel contended that the use of the video interview technique places accused people at a disadvantage. That is not convincing. Parliament has determined that in appropriate circumstances it is a mechanism which can be employed. The balancing must be about particular circumstances relating to an individual case. The opportunity for a jury to assess demeanour and reaction and body language will still be available during cross-examination.
[45] We have given particular consideration to Mr Hogan’s argument for Mr Reedy that the complainant earlier made a statement which is inconsistent with the position of Mr Reedy as described on the video interview. There is nothing unusual or special about that. The complainant can be challenged about that and all other aspects of her testimony. Nothing has been pointed to which indicates that the playing of the video material will impede or lessen the ability of the four accused men to get a fair and proper trial.
[46] A different approach to receiving evidence having been statutorily introduced, and the policy behind it having been reconfirmed and not limited in the recent statutory amendment, the total available evidence leads to the inevitable conclusion that this application must be granted. There was an unsustainable exercise of the available discretion when the District Court Judge refused to permit the video interview to be played.
[47] A regime where the complainant will engage in dialogue with all counsel after there has been a viewing of this video (which was made so near to the time of the alleged offending) is quite different to a situation where this young person (more than 18 months after the event) has to begin from scratch and tell a story about whatever happened which has had such extreme physical and psychological consequences for her. The fact that she is now 15 does not lessen the demands of the particular circumstances. The Court should facilitate the complainant’s reception of testimony as recommended.
Result
[48] This application for leave to appeal is granted. The appeal is allowed. There will be an order that the evidence of the complainant will be given by:
(a) the showing of the video interview made on 30 October 2005; and
(b)her subsequent oral evidence will be provided by way of closed- circuit television.
[49] Publication in news media or on the Internet or other publicly accessible database is prohibited until final disposition of trial. Publication in law report or law digest is permitted.
Solicitors:
Rice Craig, Auckland, for Respondent Raj
Crown Law Office, Wellington