R v Rongonui

[2009] NZCA 279

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REISSUED ON 7 SEPTEMBER 2009 PURSUANT TO MINUTE OF THE COURT DATED 7 SEPTEMBER 2009

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF MS X.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA736/2008

CA749/2008 [2009] NZCA 279

THE QUEEN

v

MAIA RONGONUI

Hearing:         23 February 2009

Court:            William Young P, Chisholm and Heath JJ Counsel:    N Levy for Appellant

P K Feltham for Respondent

Judgment:      2 July 2009 at 11.30 am

Reissued 7 September 2009 : see recall judgment of 7 September 2009

Effective date of judgment:  2 July 2009

JUDGMENT OF THE COURT

R V MAIA RONGONUI CA CA736/2008 [2 July 2009]

A        The appeal against conviction is dismissed.

BThe Solicitor-General’s application for leave to appeal against sentence is granted.   The appeal is allowed.   The sentence of four years’ imprisonment is set aside.   A sentence of imprisonment of six years is substituted, in its place.

C        Order  prohibiting  publication  of  name  or  identifying  particulars  of

Ms X.

REASONS OF THE COURT

(Given by Heath J)

Contents

Introduction  [1] The appeals  [3] The cases for the Crown and Mr Rongonui at trial  [5] “Recent complaint” evidence

(a)   Background  [19]

(b)   The nature of the “recent complaint” evidence  [26] (c)  Was the evidence admissible?  [37] The prior statement of Ms X

(a)  Was the Judge correct to allow the prosecutor to use the

statement to refresh Ms X’s memory?  [52] (b)   Leading questions to elicit content of prior statement  [68] Identification direction  [77] Remaining grounds of appeal  [82] Solicitor-General’s appeal against sentence  [87] Result  [96]

Introduction

[1]      Mr Rongonui was charged with one count of sexual violation by unlawful sexual connection and one of assault with intent to commit rape.  After a trial in the District Court at Christchurch, before Judge Farish and a jury, he was convicted on both counts and sentenced to an effective term of four years imprisonment.

[2]      Mr Rongonui appeals against conviction.  The Solicitor-General seeks leave to appeal against sentence.

The appeals

[3]      Ms Levy, for Mr Rongonui, advances the following grounds of appeal: (a)    The Judge erred in admitting “recent complaint” evidence.

(b)Mr Rongonui’s female relative (Ms X) ought not to have been allowed to refer to a statement that she made to the Police (some six weeks after an alleged conversation with Mr Rongonui) for the purposes of refreshing her memory.  Ms Levy submits that the statement was not “fresh”.   In that statement, Ms X said that Mr Rongonui had made admissions to her about what happened.

(c)     The Judge erred in giving an identification direction in relation to the reliability of a witness at or near the scene.

(d)The Judge gave confusing directions to the jury in respect of Crown submissions as to motive and lies.

(e)     The Judge was unfairly critical of defence counsel when summing up to the jury.

[4]      Ms Feltham, for the Crown, puts the Solicitor-General’s application for leave to  appeal  against  sentence  on  the  grounds  that  the  sentence  was  manifestly inadequate and wrong in principle.

The cases for the Crown and Mr Rongonui at trial

[5]      On  8  April  2007,  the  complainant,  a  young  female  Australian,  was  in New Zealand for a touch rugby tournament.   She and Mr Rongonui  gave quite different versions of relevant events.  To provide context for some of the points on appeal, we introduce the facts by comparing the cases for the Crown and defence, as put to the jury in closing.   It is clear, however, that the jury must have rejected Mr Rongonui’s explanation of what occurred.

[6]      Counsel for the Crown, at trial, submitted that the complainant was a credible witness and that her account of the events demonstrated that unlawful sexual connection and an assault with intent to rape occurred.

[7]      The complainant’s evidence was that Mr Rongonui walked with her, along Manchester  Street,  Christchurch  on  the  evening  of  7  April  2008,  they  became friendly and, at one time, she asked Mr Rongonui for directions to get back to the backpackers’ hostel, where she was staying.  At some point, they moved off into a more secluded area off Manchester Street.  She said that she was struck in the face by Mr Rongonui, knocked to the ground and kicked in the head twice.   The complainant said that Mr Rongonui sexually violated her, by putting his penis into her mouth.

[8]      Counsel for the Crown submitted that all of that happened with “the clear intention on the accused’s part that he intended to have either sexual intercourse” or “oral sex with her”.  Counsel pointed to Mr Rongonui’s own evidence, in which he had suggested, several times, that she have sexual relations with him.

[9]     Counsel for the Crown submitted that Mr Rongonui tried to pull the complainant’s trousers down.  He tried to get the complainant to perform oral sex on him, while he held her down.  She did not consent, told him so, struggled and pushed him.   Nevertheless, Mr Rongonui managed to force his penis into her face.   The penis either rested on her lips or was inserted into her mouth.   Eventually, the complainant managed to get free.  She ran and immediately called for help.

[10]     The Crown also relied on admissions that Mr Rongonui had made to a female relative (Ms X).  Her name was suppressed during the trial and she was allowed to give evidence in closed Court.

[11]     Counsel for the Crown also sought to cast doubt on evidence from a local prostitute, called on behalf of Mr Rongonui at trial.  She claimed to have seen the complainant and the accused walk past her at about 2.50 am; walking back up Manchester Street towards her about 30 minutes later.   That witness also recalled seeing them walking back up an adjacent street and saying that she got a good look

at the complainant at that time.  Some five or ten minutes later she saw a person, whom she thought was the complainant, running down a nearby street, looking really upset, and on her telephone.  While the Crown suggested that only the latter part of her evidence was reliable, the witness’ veracity was not challenged.

[12]     In closing for the defence, counsel for Mr Rongonui submitted that there was a reasonable doubt and that the jury ought not to act on the complainant’s evidence to find the elements of the charges proved beyond reasonable doubt.  Evidence given by Mr Rongonui was emphasised.

[13]     Mr Rongonui’s account began with his visit to Jade Stadium that night, with a friend, to watch the Crusaders play a Super 14 rugby game.   The friend was Ms X’s boyfriend.

[14]     After the game, Mr Rongonui and his male friend went into town.   They began to drink.  They walked around the city, passing a rugby ball around, smoking drugs and drinking.

[15]     A  little  later  he  met  a  tourist  (the  complainant)  outside  a  bar  called “Shooters”.   Mr Rongonui said she looked intoxicated.   He introduced himself to her.

[16]     Mr Rongonui said that she was “all over” him, meaning “cuddling, trying to kiss”.  At some point he asked the complainant to have sex and she agreed.  They went down the side street.  Mr Rongonui continued (in examination in chief):

Q.       … And so what happened then.

A.        Then we went down the street.  She started feeling me up, undoing my pants and I said we’re going to this park bit and she said, yep. So we went into the park bit. She gave me oral sex and yeah, yep.

Q.       Okay she gave you oral sex. What happened then.

A.       And then we back onto Manchester Street. Back towards the city. Q.        What happened then.

A.        Um, she checked her pockets and searched for her keys and they weren’t there so, um, we went back to the park bit, had a look for

them, we couldn’t find them and I said I had them to her and she was like, oh, yep.  Can I –

Q.       So just stepping back for a second.  If I can just ask you to pause there. The first time you were in the park.

A.       Yep.

Q.       You’ve said there is oral sex and you ejaculated in her mouth. A.   Yep.

Q.       Did any other sexual activity take place on that first visit to the park. A.     Um, yep, yep, there was.

Q.       What happened.

A.       I had sex with her.

Q.       You said you had sex with her.  Does that mean did you ejaculate inside her when you had sex.

A.       No, no.

Q.       So the first visit to the park, just to be clear. A.     Yep, yep.

Q.       You had oral sex with her. A.      Yep.

Q.       You had sexual intercourse with her. A.    Yep.

Q.       And you ejaculated in her mouth. A.        Yeah and then I had oral sex again. Q.        Right.

A.       Yep.

Q.       And I think you’ve said you walked back onto Manchester Street.

Correct.

[17]     Because the versions of events given by the complainant and Mr Rongonui were so diametrically opposed, the “recent complaint” evidence admitted by the Judge and her decision to allow Ms X to give evidence of oral admissions made to her by Mr Rongonui assumed some importance.

[18]     After  the  hearing, we issued  a  Minute  (of  25  February 2009)  seeking  a transcript of the submissions made to the Judge, together with transcripts of other discussions on legal points relevant to the appeal.  We did not receive a completed transcript on all issues raised until 26 March 2009 and the last of the submissions came to hand on 7 May 2009.

“Recent complaint” evidence

(a)  Background

[19]     On 11 July 2008, approximately two months before trial, the Crown had applied under s 344A of the Crimes Act 1961 for a ruling as to the admissibility of the “recent complaint” evidence.   This evidence related to the distress of the complainant after the incident albeit that it included references to the complainant talking to her friends and, on her account, telling them what had happened.   This application was supported by written submissions which referred to legal authorities. As it turned out, this application was not able to be dealt with until the morning of the first day of the trial (Monday 8 September 2008) when counsel saw Judge Farish, in Court for Chambers, to discuss the application.

[20]     The Judge ruled that evidence could be led from the complainant of the fact that she had made a complaint shortly after the incident, so long as “the details of the conversation” were not led, either from herself or the person to whom the complaint was made.  In admitting that evidence, the Judge said that she would give reasons later.  No reasons have ever been provided.

[21]     During the course of the Chambers’ hearing the trial Judge expressed the view that the evidence was relevant only to narrative.  She saw no reason why the “fact” of a complaint ought to be withheld from the jury.

[22]     The relevant evidence was led from the complainant and her two friends. The  two  friends  were  Mr  Jones  and  Ms Garlick.    The  complainant  said  she telephoned Mr Jones soon after the events involving Mr Rongonui.  The complainant

was explicitly asked not to tell the jury what she said to her friends.   She gave evidence that, after she spoke to them, they took her back to the hostel where she had a shower and changed her clothes.

[23]     Ms Garlick  described  overhearing  the  telephone  discussion  between  the complainant and Mr Jones.   She took the telephone off Mr Jones and heard the complainant “very distressed and just struggling to breathe, just trying to get words out and say whereabouts she was”.  Ms Garlick added that when she first saw the complainant she was “very distressed” and “hyperventilating, crying … she was struggling to talk”.   She added that she had never seen the complainant like that before.

[24]     Mr Jones  gave  evidence  of  the  telephone  call  which  resulted  in  the complainant and her friends finding each other.  He said:

A.        … she sort of had her head down and was obviously upset and something had gone wrong and she looked a bit scruffed up and when we got there she was all upset and crying and you couldn’t get too much out of her and then because then the girls came up behind and they sort of comforted her and all I could draw from it that obviously something had taken place but we didn’t know what and I wasn’t going to ask her sort of anything.

[25]     Ms Levy submits that the evidence was inadmissible and resulted in the jury wrongly hearing evidence of what the complainant did, what she had told her friends and how she appeared immediately after the incident.

(b)  The nature of the “recent complaint” evidence

[26]     Resolution of the admissibility issue involves a consideration of s 35 of the

Evidence Act 2006 (the Act), R v Turner [2007] NZCA 427 and R v Balien [2009]

1 NZLR 170 (CA). The Crown submits that the evidence was admissible (based on Turner) as part of the narrative.  In Balien, at [53], this Court left open the possibility that Turner might be decided differently as a result of s 35 of the Act.  This appeal raises the question whether Turner is still good law.

[27]     Section 35 provides:

35.      Previous consistent statements rule

(1)    A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2)    A previous statement of a witness that is consistent with the witness's evidence  is  admissible  to  the  extent  that  the  statement  is  necessary  to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3)    A previous statement of a witness that is consistent with the witness's evidence is admissible if—

(a)   the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b)     the statement  provides  the  court  with information  that  the witness is unable to recall.

[28]     “Recent  complaint”  evidence  was  the  name  given,  before  the  Act,  to admissible  evidence  demonstrating  that  something  said  by  a  complainant  in sufficient proximity to an alleged sexual assault was consistent with testimony at trial.  Such evidence also served to rebut any suggestion of recent fabrication.

[29]     In Turner, this Court referred to R v Kincaid [1991] 2 NZLR 1 (CA) at 9 and White v The Queen [1999] 1 AC 210 (PC) at 215-216, in discussing the nature of such “recent complaint” evidence, as an exception to the general rule that previous consistent statements were inadmissible. In White, Lord Hoffmann said:

… The immediate question is - "How is one to know she is a truthful girl telling of her complaint?". The answer - that her own assertion that she did complain will help the jury to assess her truthfulness - needs only to be stated to be recognised for its logical absurdity. Without independent confirmation of  what  she  said, the  girl's  own  evidence-in-chief  that  she complained takes the jury nowhere in deciding whether she is worthy of belief. The doctrine of "recent complaint" in sexual cases allowing the prosecutor to adduce evidence of a prior complaint is not to be confused with the rule allowing recourse to such a statement in order to rebut a specific charge of recent intervention.

(Emphasis added.)

[30]     In Turner, the District Court trial had taken place before the Act came into force.   So, the pre-Act law applied.   The Court held that evidence of what a complainant did at a time proximate to the alleged offence (including her statement

that she had told a third party “what had happened”) was not recent complaint evidence.  Rather, it was evidence of the complainant’s conduct, designed to support her credibility.  Because, in Turner, no evidence had been led of the actual words uttered by the complainant, the evidence did not fall within the scope of the “recent complaint” rule, described in White.  Mr Turner’s appeal was dismissed.

[31]     Mr Turner sought leave to appeal to the Supreme Court.  In dismissing the application for leave (Turner v The Queen [2008] NZSC 11), Elias CJ, Anderson and Wilson JJ said:

[3]       The first point rests on a misconception of what occurred at trial. Although  the  complainant  gave  evidence  of  what  she  did  in  the  hours between  the  incident  with  the  applicant  and  her  going  to  the  Police, including contacting a friend and her mother, she was not asked to and did not give evidence of anything she had said to any person during that time. The friend and the mother were not called as witnesses. The Crown relied on the evidence which the complainant did give as evidence of conduct which was consistent with the offending having occurred.

[4]       The Court of Appeal saw no difficulty with the evidence being given for this purpose. As it said, it was the complainant’s conduct which was used to support her credibility, not a prior consistent statement. We agree that the evidence was not in law “recent complaint” evidence, was unobjectionable and did not require any special direction.

[5]       We do however differ from the Court of Appeal on one minor and immaterial  point  in  relation  to  the  first  proposed  ground.  That  Court expressed the view that it would have been preferable for the trial Judge not to have referred to the evidence as a complaint. The Judge however used the word “complaint” in the ordinary sense of that word and the jury would have understood it as such, rather than attributing to it the technical legal meaning of “recent complaint”.

(Emphasis added.)

[32]     Barlien was an appeal against conviction, arising from a trial that took place after the Act came into force.

[33]     In Barlien (at [28]-[35]) the Court outlined the legislative history of s 35.  In summary:

(a)     The Act had its genesis in a review of the law on evidence undertaken by the Law Commission.  In its recommendations (Evidence: Code and Commentary   (NZLC   R55   1999)   at   C   168),   the   Commission

recommended the prior consistent statement rule, now found in s 35. The Law Commission report did not intend to displace the common law dealing with recent complaint evidence in sexual cases.   In the form proposed by the Commission in its draft Evidence Code, the equivalent of s 35 read:

37       Previous consistent statements rule

A previous statement of a witness which is consistent with the witness’s evidence is not admissible except

(a)to the extent necessary to meet a challenge to that witness’s truthfulness or accuracy; or

(b)      if   the   statement   will   provide   the   court   with information which that witness is unable to recall.

(b)Under its proposed s 37, the Commission intended to bring the recent complaint   rule  within   the  general   ambit   of   previous   consistent statements designed to meet a challenge to a witness’s truthfulness or accuracy.  Contrary to the common law, however, the “complaint” did not need to be “recent” and could be used to prove the truth of what was said.

(c)     The  scope  of  what  was  to  become  s 35  was  narrowed  by  the Parliamentary Select Committee.   It considered the Commission’s wording to be “unworkable and too broad”.   For that reason, the admissibility of previous consistent statements was limited to the extent necessary to respond to challenges to a witness’s accuracy or veracity based  on  a  previous  consistent  statement  or  to  claims  of  recent invention on the part of the witness: see s 35(2).

(d)The Select Committee’s refusal to retain the recent complaint exception to the hearsay rule was deliberate: see Mahoney and others The Evidence Act 2006: Act and Analysis (2007).   The learned authors of that text state that a specific submission from the New Zealand Law Society, seeking to retain the “rule” was rejected: see Mahoney and others at [EV 35.04].

[34]     The analysis in Barlien demonstrates the extent to which the law relating to previous consistent statements has been changed:

(a)     The  common  law  recent  complaint  rule  in  sexual  cases  has  been removed.

(b)The admission of previous consistent statements to rebut allegations of recent fabrication was retained: s 35(2).

(c)     The admission of previous consistent statements is permitted in cases where there has been a challenge to the witness’s veracity or accuracy, based  on  a  previous  inconsistent  statement  by  the  same  witness: s 35(2).

(d)Statements forming part of the res gestae (in the sense of the general background) are not specifically covered by the Act.   As to the res gestae point, see Barlien at [37]-[39].

[35]     The disputed evidence in Barlien consisted of what the two complainants had said at a time proximate to the alleged sexual offending.   This Court found the evidence was inadmissible, but that there had been no miscarriage of justice.  That view was formed notwithstanding that, historically, inadmissible recent complaint evidence  that  had  been  wrongly  admitted  has  been  regarded  as  sufficient  to constitute a substantial miscarriage of justice.

[36]     The convictions were saved because the Court was satisfied that the evidence would have been before the trial Court in any event.  The essential allegations were the subject of a contemporaneous confrontation between Mr Barlien and a complainant’s mother and his reactions (by words or conduct) were  admissible. Therefore, the substance of the statements made by the two complainants would have been before the jury, albeit on a different basis.

(c) Was the evidence admissible?

[37]     In this case, no evidence of what was actually said by the complainant was led.   It is the evidence of the complainant’s contemporaneous demeanour, the fact that she had told someone what had happened and the telephone calls to her friends that are in issue.   Does evidence of that character fall under s 35?   Or, may it be admitted as direct relevant evidence, forming part of the narrative?

[38]     The evidence adduced by the Crown was both relevant and cogent.  For the purposes of s 7(3) of the Act, it was relevant to prove something of consequence to the determination of the proceeding; namely, the complainant’s credibility.  It was cogent because it was evidence of contemporary behaviour that was consistent with the allegation of  sexual  abuse.    Section  7(1) of  the Act  states  that  all  relevant evidence is admissible, unless rendered inadmissible or excluded, either by the Act or some other statute.

[39]     Two types of evidence are in issue.   The  first is evidence led from  the complainant’s  friends,  Ms  Garlick  and  Mr  Jones,  that  describe  her  general demeanour when she was spoken to on the telephone and when they first saw her after the alleged sexual assault.  The second was evidence led by the Crown of the complainant telling her friends what had happened, without giving evidence of what specific words were used.   The latter is the type of evidence ruled admissible in Turner.    We  assume  that  this  was  the  basis  on  which  the  trial  Judge  allowed evidence of the fact of complaint to be led: see [19] above.

[40]     Section   35   deals   only   with   the   admissibility  of   previous   consistent statements.    Evidence  only  comes  within  the  scope  of  s 35  if  it  amounts  to  a “statement” of a witness.  The term “statement” is defined in s 4(1) of the Act, by reference to both words and conduct:

4   Interpretation

(1)   In this Act, unless the context otherwise requires,—

statement means—

(a) a spoken or written assertion by a person of any matter; or

(b)  non-verbal conduct of a person that is intended by that person as an assertion of any matter

[41]     Evidence given by a witness of how a person reacted to an event is not, necessarily a “statement”,  as  defined.   While  “non-verbal  conduct”  is  involved, evidence of a spontaneous reaction cannot be evidence of conduct “intended by [the complainant] as an assertion” of what occurred.  Spontaneous non-verbal conduct is, by definition, not an intentional assertion of any fact.  In this case, it is plain that any reaction of the complainant was spontaneous, so s 35 does not apply to it.

[42]     Both Turner and Barlien can be distinguished on that basis.  Both involved spoken utterances.   Accordingly, neither Turner nor Barlien can be regarded as controlling law on the conduct issue.

[43]     More problematic is the evidence of the complainant that was led by counsel for the Crown, in accordance with the trial Judge’s ruling.  The evidence is within short compass:

Counsel: Now when your friends arrived. I don’t want you to tell us what you said but I, I take it that you told them what had happened and they took you back to the hostel.

Complainant: Yep.

No point is taken about the leading question asked.   Counsel agreed the form of question eliminated any possibility that the witness would stray beyond evidence that the Judge had ruled admissible.

[44]     This evidence is of a similar kind to that given in Turner. The complainant in that case gave evidence that she told her friend what had happened: at [19]. The question is whether, once the Act came into force, evidence of that type is excluded on the basis that it amounts to an inadmissible previous consistent statement.

[45]     The definition of “statement” in the Act (see para [40] above) includes “a spoken or written assertion by a person of any matter”.  From the evidence actually given, the jury discovered that two things happened when the complainant reunited with her friends.  The jury discovered that the complainant told her friends what had happened.  They also discovered that they took her back to the hostel.  The jury did

not hear what the complainant had told her friends, though an inference could readily be drawn that she had told them she had been sexually assaulted.

[46]     Logically, any jury will realise, in a sexual abuse trial, that (at some stage) a complaint was made to the police.  The timing of a complaint may be critical to a favourable assessment of the credibility of the complainant; just as a delayed complaint may, despite the judicial direction set out in s 127 of the Act, in practice weigh against a favourable assessment.

[47]     Evidence of what a person did is different in kind to evidence of what that person said.  In general terms (moving away from the particular subject of complaint evidence in sexual cases), a witness will be permitted to give evidence of speaking to another person, without disclosing what was said; either to avoid the possibility of introducing  inadmissible  hearsay  evidence  or  distorting  the   conversation  by reference only to what that particular witness said.    Such  evidence  is  regularly admitted as part of the narrative of events.

[48]     Such evidence was admitted for that purpose in Turner. The approach taken by Turner was approved by the Supreme Court, when it gave judgment dismissing the application for leave to appeal: see [4] of the leave judgment, set out at [31] above. While we recognise that the Supreme Court did not have to address the statutory definition of “statement”, the Court agreed that the evidence given went to conduct rather than what was said. Therefore, it was not, in law, “recent complaint” evidence.

[49]     Barlien does not affect that conclusion.   Barlien involved repetition of a victim’s oral statement that the appellant had “touched her on the fanny and kissed her like a grown-up”: at [12] and [18].   Barlien dealt with the words that were actually spoken.  In contrast, the complainant’s evidence in this case was directed to what happened.

[50]     In our view, this Court’s judgment in Turner remains good law despite s 35. The characterisation of the nature of the evidence cannot change.  The complainant, by saying she had told her friends what occurred, put in context what happened

afterwards.   It was not a previous consistent statement as defined.   It was direct evidence of something that happened that was relevant to the narrative of events.

[51]     In our view, because evidence was not given of anything actually said by the complainant, the evidence did not fall within s 35.  Therefore, being both relevant and cogent evidence going to the complainant’s credibility (see [38] above), it was admissible.

The prior statement of Ms X

(a)  Was the Judge correct to allow the prosecutor to use the statement to refresh

Ms X’s memory?

[52]     This point arises from Ms X’s evidence.  It is clear, from notes of evidence taken on voir dire, that she was a reluctant witness.   The Judge directed that her evidence be given in closed Court and ordered that her name be suppressed, to assuage her concerns.

[53]     Ms X referred to a conversation with Mr Rongonui the day after the alleged sexual assault in which he was alleged to have said that “he hooked up with an Aussie chick”.  She also gave evidence of another conversation about a week later. Contrary to an agreement between counsel, Ms X also gave evidence about putting to Mr Rongonui that he had “helped himself” to the “Aussie girl”.  She stated that she could not remember what he had said “but he looked pretty guilty”.

[54]     The  balance  of  Ms  X’s  evidence  was  obtained  as  a  result  of  the  Judge permitting her, over objection, to refresh her memory from a typed version of a statement that she gave to the Police, about six weeks after the second conversation. However, Ms X’s memory did not improve.

[55]     The Judge then allowed counsel for the Crown to ask leading questions to extract the precise terms of the prior statement from her.  Ms X’s oral responses to those questions form the disputed evidence.

[56]     We  requested  a  transcript  of  the  legal  discussion  that  preceded  Ms  X’s evidence and similar discussions that occurred during the course of her evidence before the jury; including the issue of refreshing memory.

[57]     This part of the evidence emerged  after Ms X had said, in answer to  a question from counsel for the Crown about what the accused said after the discussion that led to the “looked pretty guilty” remark: “I can’t remember”.

[58]     At that point, counsel for the Crown asked the witness to look at a statement she had made to the Police about “six or so” weeks after the conversation.  The typed statement is dated 29 May 2007.  Counsel for the accused objected to that course. The objection was that no foundation had been led for the witness to refresh her memory, to which the Judge responded: “She just said I can’t remember … ”.

[59]     Ms Levy’s complaint is that the Judge ought not to have allowed Ms X to refresh her memory from her previous statement.  She does not rely on any lack of foundation for the Judge to exercise her discretion to allow that to be done.   The challenge is on the basis that the document was not sufficiently contemporaneous to be used for that purpose.

[60]     That issue turns on the interpretation to be given to s 90(5) of the Act:

90    Use of documents in questioning witness or refreshing memory

…

(5)       For  the  purposes  of  refreshing  his  or  her  memory  while  giving evidence,  a  witness  may,  with  the  prior  leave  of  the  Judge,  consult  a document made or adopted at a time when his or her memory was fresh.

[61]     The issue is whether the document from which the witness refreshed her memory was “made or adopted at a time when … her memory was fresh”.  Ms Levy submits that that threshold could not be met in respect of a document that came into existence some six to seven weeks after the relevant event.

[62]     In  R  v  Foreman  [2008]  NZCA  55  at  [50],  Hammond J,  for  the  Court, considered what approach should be taken to the interpretation of s 90(5).  He said:

[50] This Court has said that the new Act must be seen in its own terms; it is a new beginning.   So as matters now stand, s 90(5) has to be approached anew.  There will be a number of problems to be solved with respect to this provision.  It is sufficient for present purposes to say that contemporaneity is the statutory bedrock,  and there is no doubt that was satisfied in this case. Even so, the laying of a proper basis must still be attended to.  The exercise of refreshing a witness’s memory should not be confused with a “reconstruction”.  Resort should be had to this technique only if the witness actually needs to have her memory refreshed.   The rule is intended to facilitate testimony that would otherwise be unavailable, not to bolster evidence a witness can provide in any event.  The witness should be able to rely  on  the  document  or  electronic  record  to  assist  in  presenting  her testimony only if she is able to assert that the document accurately represents her recollection at the time it was made.  Neither is it right to enable counsel to control the evidence the witness will supply.  Counsel should not attempt to have a witness use the particular record as a sort of script.  That would be quite improper leading.  Finally, the aid is just that; it is not evidence.

(Emphasis added.)

[63]     Ms Levy relies on the proposition that “contemporaneity is the statutory bedrock”.   In Foreman, there was no question that the statement was sufficiently contemporaneous.

[64]     An exclusive focus on the contemporaneity of the document leaves to one side the possibility that a document made at some later time may still, as a matter of fact, have been made or adopted when the witness’s memory of events was “fresh”. Situations often arise when a person is not asked about a particular event for many months but, because of the significance of the event or because there has been a continuing need to refer to what had happened for other reasons, his or her memory of what occurred remains “fresh”.

[65]     In  our  view,  it  is impossible  to  draw  a  line  as  to  the  point  at  which  a particular witness’ memory is no longer “fresh”.  While contemporaneity will, more often than not, be the touchstone, in each case a factual inquiry must be made to determine whether the jurisdictional prerequisite to use of s 90(5) has been met.  In a sufficiently contentious situation, this may require the Judge to hear evidence, in the absence of the jury, to make that determination.  No such hearing took place in this case.

[66]     In favour of the exercise of the discretion to allow the witness to refresh her memory, it is unlikely that Ms X would have forgotten what was said by and to

Mr Rongonui.  This was a significant event, for Ms X as well as for Mr Rongonui. Not only was Mr Rongonui a relative but she was also concerned about the conduct of her boyfriend.  Her conversation with Mr Rongonui may have allayed any fears about his involvement.  On the other hand, because a narrative of some detail was involved, it is possible that Ms X’s memory of  some  of  the  detail  might  have decayed.   On balance, we consider there was sufficient evidence for the Judge to allow the statement to be put to the witness for the purpose of refreshing memory.

[67]     Because Ms X gave evidence, her prior statement was not hearsay.  Unless she gave evidence which was in substantial accord with that prior statement, the prior consistent statement restrictions in the Act were not applicable.  So, once Ms X gave evidence which was not consistent with the earlier statement, it was practically inevitable that the statement (or at least its substance) was going to be admitted. Although we have engaged with, and rejected, the s 90(5) argument as presented, we wish to make it clear that even if the subsection had not been able to be invoked, the independent admissibility of the statement would have meant there was no miscarriage of justice.

(b)  Leading questions to elicit content of prior statement

[68]     After  the  statement  had  been  put  to  Ms  X  to  refresh  her  memory,  the transcript reveals that she continued to be reticent in answering questions.  At one point she said that her mind “had gone blank”.  Simply putting the statement to her did not have the effect of jogging her memory.

[69]     Counsel for the Crown then addressed the Judge.   From the transcript, it appears that was done in the absence of the jury.  Counsel asked whether she could “put the passage to the witness”.   She said that she was prepared either to “put it directly to her or get her to read it”.   Counsel for the accused submitted that the document should simply be used to refresh her memory so that she could be asked questions on it.  Her Honour responded:

Well, we have done that and I think it might be safer to do it in the way in which [Counsel for the Crown] has suggested actually.

[70]     The questions asked to extract evidence of the content of the statement are set out below:

EXAMINATION CONTINUES: [Counsel for the Crown]

Q.        In your statement [Ms X], you have told the Police that you said to

Maia Rongonui, “You helped yourself” is that right.

A.        Yep.

Q.       That he replied, “But she was drunk” is that what happened. A.     Yes.

Q.       And you said, “That gives you no right to help yourself”. A.        Yes.

Q.       Is that what happened. A. Mhm.

Q.       And then he replied, “Oh I know cuz I did help myself”. A.         Yes.

Q.You said, “You raped her” and he said, “Don’t be like that.” Denied it and don’t tell anyone.

A.        Mhm.

Q.       So is that, what’s in your statement, is that how you remember that conversation.

A.        Yes.

[71]     The  fact  that  the  Judge  allowed  counsel  for  the  Crown  to  put  leading questions to Ms X suggests that she was satisfied that Ms X was “hostile”.

[72]     Section 94 of the Act states:

94 Cross-examination by party of own witness

In  any  proceeding,  the  party  who  calls  a  witness  may,  if  the  Judge determines that the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge.

[73]     By the time the Judge allowed counsel for the Crown to put the statement directly to the witness, the evidence demonstrated that Ms X was not only struggling to remember without an aid but also was reluctant to accept what she had clearly said

in a written statement as being an accurate account of what she had told the Police earlier.   We are prepared, on that basis, to find that it was open to the Judge to exercise her discretion to allow cross-examination on the grounds of hostility.

[74]     Once hostility is declared, there is no issue of use of a previous consistent statement.  Leave to cross-examine is granted when the statement that the Crown is seeking to elicit is different from the evidence actually given in Court.

[75]     In R v Hira [2009] NZCA 144, William Young P, for the Court, discussed the use of prior statements of this type, once a witness had been declared “hostile” under s 94. The President said:

[30]    Once it became apparent that the witnesses were going to be cross- examined on their previous statements, the most straight-forward way of proceeding  would  have  been  for  the  Crown  to  produce  the  relevant statements  through  the  witnesses.     These  statements  were  admissible (because they were not hearsay and not in the nature of prior consistent statements).  Each had evidential value.  We were told, however, that when this course of action was suggested, the Judge acceded to objections from defence  counsel  with  the  result  that  the  prosecutor  was  required  to  go through the relevant statements with each of the witnesses.  It is right to note that an exercise of this sort was probably going to happen anyway.   The prosecutor was entitled to supplement what was said in the out of court statements (which we regard as including the evidence at the preliminary hearing) with such additional material as he could extract in cross- examination from the two women.

[76]     Following the approach in Hira, the statement, as a whole, could have been admitted.  Therefore, it did not matter whether the contents were elicited orally or not.  On that basis, the challenge to this evidence must fail.

Identification direction

[77]     Ms Levy submits that the Judge erred in giving what she described as an identification  warning in  respect  of  evidence  from  the  prostitute  who  identified Mr Rongonui and the complainant together on two separate occasions: see para [11] above.  Ms Levy contends that the case did not fall within the boundaries of s 126 of the Act and, in giving the warning, the trial Judge undermined the defence case.

[78]     The Judge directed the jury as follows:

[65]  In terms of identification, ladies and gentlemen, you need to consider a number of issues in relation to reliability.   That is because experience has shown that sometimes honest witnesses can be mistaken in relation to identification, but it is a matter entirely for you.  But you might just like to consider, in terms of assessing [the prostitute] evidence, a number of issues. One, perhaps, she did know?   Did she have any prior knowledge of the people that she was identifying?  What were the circumstances like?  What was  the  lighting  like  in  the  area  where  she  was  standing?    Over  what distance was she making the identification, in particular in relation to those first two occasions when she said she identified the accused and [the complainant]?   Over what time period did she have the people in view? What  direction  was  she  viewing  these  people  from?    Was  there  any particular reason for her to recall these people?  Was she distracted in any way from her identification?   Was there anything distinctive or unusual about the people that she was identifying?

[66]  The Crown say [the prostitute] is an honest but, perhaps, a mistaken witness but she, [the prostitute], agreed that she gave a description to the police of the girl that she saw and that was on the last occasion when [the prostitute] said she saw her going into Aberdeen Street.  That was, I think,

10  or  15  minutes  before  [the  complainant]  comes  running  out  very distressed.

[67]   [Counsel for the defence], however, says [the prostitute] was not mistaken and, more importantly, [counsel for the defence] says the person, the young woman that she saw on those occasions, had the same hair colour, the same hair style and was wearing the same clothing.  So she is not only reliable in relation to her identification but she is consistent in terms of the clothing and the height and hair colour of the young woman that she was seeing and therefore she cannot be mistaken.  As I said, it is a matter entirely for you, and it is a matter for you to assess in relation to [the prostitute’s] reliability and accuracy.

[79]     Section 126 of the Act states:

126   Judicial warnings about identification evidence

(1)   In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.

(2)  The warning need not be in any particular words but must—

(a)warn the jury that a mistaken identification can result in a serious miscarriage of justice; and

(b)      alert the jury to the possibility that a mistaken witness may be convincing; and

(c)      where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.

[80]     We agree with Ms Levy that s 126 did not require the Judge to give an identification warning in respect of evidence of identity of the witness.  Section 126 is focussed on identification of the accused.   Nevertheless, we consider that the direction which she gave was justified.

[81]     We note that the Judge’s direction did not follow the form which is used when s 126 applies.   In particular, there was no reference to a “special need for caution” in relation to the evidence, nor mention of the possibility of a “serious miscarriage of justice”.  Rather, the nature of the Judge’s warnings are more aptly characterised as judicial directions about the reliability of evidence.  Section 122 of the Act entitles a Judge to give reliability directions such as this.  We are satisfied that it was open to the Judge to give the directions under s 122.  The identification point fails.

Remaining grounds of appeal

[82]     Ms Levy accepted that by themselves, the remaining points (see [3](d) and (e) above) could not give rise to a miscarriage of justice.   She put these points forward on the basis that, considered cumulatively with the recent complaint, refreshing memory and identification points, a miscarriage did occur.   We should note,  however,  that  the  case  was  argued  before  the  Supreme  Court  decision  in R v Stewart [2009] NZSC 53 was delivered and in light of that judgment we will address the first of the remaining points in a little detail. Before we do so, however, we should record that we do not consider that the Judge was unfairly critical of Mr Rongonui’s trial counsel. It is unnecessary to set out the criticisms. We are satisfied that they were relatively mild and could not have influenced the jury adversely against Mr Rongonui. Certainly, they did not create any overall risk of unfairness, so as to bring into play principles set out in R  v  Adams  CA70/05

5 September 2005 at [87].

[83]     In her closing address, the prosecutor commented on the absence of any motive for the complainant to lie.  As to the appellant, she said this:

Now I fully accept on behalf of the Crown that people can and do lie for lots of different reasons. Doesn’t mean they are guilty by any means and Her Honour will talk to you about this as well and even though in the accused case, we known he was only 17 at the time that those statements were made, we know that these were serious allegations that were being put on him. He was no doubt worried and no doubt stressed, I accept that, but he chose ladies and gentlemen, he chose not to exercise his right to silence. He chose to make a statement both times and he chose to say these things to the police and the Crown says he chose not to tell the truth and that’s the truth about the level of contact he had with the complainant. …

…that fact that he told lies before he came to Court, the context in which he told those lies and the time line in which they happened indicate I suggest that you can’t rely upon anything he says now either. The second factor is his evidence in this trial and the Crown says that it seemed that he was making things up as he went along. He was minimising things that didn’t assist him and he was overstating the things that he thought did help and of course you’ve heard he blamed almost everybody got lying or making things up.

…

The third factor are [sic] his motivations. He is a young man, he is on trial for some very serious allegations and it is a matter for you, but you might think that it’s not surprising that he try and minimise what he did that night to try and get himself out of trouble.

(Emphasis added)

[84]     In her summing up, the Judge gave the usual tripartite direction and she addressed specifically the arguments advanced by the prosecutor as to motive:

[69]      The other issue relates to a submission that Ms Beaton made to you yesterday in relation to motive.   She suggested to you that you needed to consider, in terms of [the complainant’s] position, her reliability but also the fact that there does not appear to be an apparent motive as to why she would make up this story against Mr Rongonui.

[70]     Well, ladies and gentlemen, there is no onus on an accused to put forward a motive. In this case it is a matter for you whether or not there is a motive.   There does not appear to be an apparent motive. However, Ms Beaton went further and suggested that the accused had a motive to lie. This submission assumes, of course, that the accused is guilty because if he was innocent his denials of guilt are not lies at all.

[71]     In a subtle way Ms Beaton’s submission really undermines the presumptions of innocence and I ask you to disregard her comments in relation to that.  What I believe Ms Beaton was trying to say was that the accused’s varying accounts, the different versions he gave to the police, the version that was put to [the complainant] and then his evidence in chief and cross-examination are consistent with someone realising that they are in serious trouble, and then changing their story to reflect the evidence as it

comes out. As Ms Beaton put to Mr Rongonui yesterday, that he was simply making it up as he went along.

(Emphasis added.)

In addition when summarising the two cases, the Judge said:

[93]      Mr   Shamy’s   contention   was   that   the   Crown   is   saying   that Mr Rongonui is smart, not sophisticated, but smart enough to be able to make up the story. I actually did not think the Crown was saying that. I actually think the Crown was saying that he is not clever at all and that is why he has got himself into such a pickle in terms of the evidence and the lies he has told. The Crown has said that the lies he has told are now unravelling because there is no consistency in terms of his evidence.

[85]     It should now be well understood by prosecutors that comments to the effect that the accused has a motive to lie should not be made.  So it is disappointing that this problem should once again have surfaced.   That said, the comments the prosecutor made are not in the same league as those in issue in R v Stewart.  As well, and importantly, the problem was adroitly addressed by the Judge.  She directed the jury to ignore the comment in issue and she contextualised this direction with a succinct explanation as to why the comment was unfair.  For those reasons we see the  case  as  falling  within  the  principle  discussed  in  the  judgment  of  the  Privy Council in Randall v R [2002] 1 WLR 2237 at [28]:

… it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated  and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice.

In contradistinction, it is not a situation where, to use the words of the Supreme

Court in Stewart at [36]:

the prosecutor’s conduct was so blatant a departure from good practice and so prejudicial that the trial was unfair and the convictions cannot stand.

[86]     Accordingly we conclude that there was no miscarriage of justice.

Solicitor-General’s appeal against sentence

[87]     On the charges of sexual violation by unlawful sexual connection and assault with intent to commit sexual violation, Mr Rongonui was sentenced to an effective prison term of four years.  Judge Farish adopted a starting point of six years for the offending, uplifted to six and a half years due to the fact that Mr Rongonui was on bail at the time of offending.  The Judge gave a credit of 18 months for age and a further 12 months “to reflect the fact that if I had my way I would release you today but I cannot”.  No uplift was made for previous convictions, as the Judge noted that “none of them … are similar and … all of your offending appears within a very short period of time, five months”.   The Judge also commented that Mr Rongonui was “not a bad boy at all” and that the offending was “an impulsive act out of character”.

[88]     We  agree  with  the  Crown  that  the  Judge’s  sentence  was  manifestly inadequate.  In our view, the Judge placed far too much weight on the testimonial material before her and gave too little weight to the evidence of prior offending on which  Mr  Rongonui  had  appeared  previously in  both  the  Youth  Court  and  the District Court.   In our view, though no convictions resulted, the findings in the Youth Court ought to have been taken into account and given significant weight: see Kohere v Police (1994) 11 CRNZ 442 (HC).  As a result, the overall credit given to the accused was far too high.

[89]     In R v Wilson [1989] 2 NZLR 308 (CA) the public interest in holding an offender accountable for offending of this type took precedence over a significant credit for youth. While Wilson involved an actual abduction of a woman leading to sexual abuse (which might be viewed as more serious than what occurred in this case) the principle that the community requires protection from offending of this type holds good.

[90]     The maximum penalty for sexual violation for unlawful sexual connection is one of 20 years’ imprisonment.   Assault with intent to commit sexual violation carries a maximum penalty of 10 years’ imprisonment.   The offending was very serious.

[91]     We have no difficulty with the Judge’s nominated starting point of six years: see R v Hassan [1999] 1 NZLR 14 (CA) and R v Tranter CA486/03 14 June 2004 at [95].  Hassan involved a charge of assault with intent to commit sexual violation and one of injuring with intent to injure.  No sexual violation resulted but more serious injuries resulted to the complainant than in the present case.   The Court upheld a sentence of six years’ imprisonment, while describing it as at the “upper end”.

[92]     We disagree with the District Court Judge on her assessment of aggravating factors personal to the offender and mitigating factors.

[93]     Mr Rongonui’s list of  prior  offending,  both  in  the  Youth  Court  and  the

District Court, justified a significant uplift, notwithstanding that Mr Rongonui was

17 and a half years old at the time of the offending.   In addition, the offending occurred while Mr Rongonui was on bail for another offence.

[94]     There was no guilty plea and no remorse shown.  The Judge’s comments that Mr Rongonui  was  “not  a  bad  boy”  and  that  the  offending  was  “totally  out  of character” are irreconcilable with his previous history.  So the only mitigating factor of significance was Mr Rongonui’s age.

[95]     We accept that some credit for youth was required: see R v Mahoni (1998)

15 CRNZ 428 (CA) at 436-437.  Our perception is that the aggravating factors are of more moment than the appellant’s age.  But applying the principle that the lower end of a band of sentences should be adopted for any increase on a Solicitor-General’s appeal and allowing for our perception that the starting point was at the high end of the  available  range,  we  will  treat  the  mitigating  and  aggravating  features  as cancelling each other out.   Accordingly we set aside the sentence imposed and replace it with a sentence of six years imprisonment.

Result

[96]     The appeal against conviction is dismissed.

[97]     The Solicitor-General’s application for leave to appeal against sentence is granted.   The appeal is allowed.   The sentence of four years’ imprisonment is set aside. A sentence of imprisonment of six years is substituted, in its place.

Solicitors:

Crown Law, Wellington