R v S CA183/03

[2004] NZCA 336

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA183/03

THE QUEEN

v

[S]

Hearing:         17 March 2004

Coram:Anderson P Laurenson J Paterson J

Appearances: P L Borich for Appellant

D G Johnstone for Crown Judgment:    31 March 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

Nature of the appeal

[1]    On 10 December 2002 the appellant was convicted on his trial before a District Court Judge and jury on one count of indecent assault of a girl under the age of 12 years and one count of sexual violation by unlawful sexual connection occasioned by digital penetration of the  genitalia, in respect of the same girl.  On   31 January 2003 he was sentenced to 15 months imprisonment on the first count and two years imprisonment on the second count, to be served concurrently.

R V [S] CA CA183/03 [31 March 2004]

[2]    The Notice of Appeal was filed considerably out of time, on 25 May 2003. The appellant therefore applied for leave to appeal out of time on the grounds that  his delay is excusable having regard to his incarceration and the difficulties he seems to have experienced obtaining counsel to advise him independently on the merits of an appeal.

[3]    The Crown does not object to the granting of leave and in view of the difficulties in relation to counsel and the fact that the appeal discloses a seriously arguable point, we are prepared to grant leave and do so accordingly.

[4]    The seriously arguable point relates to the admission at trial of an audio tape recording, made by the girl’s father shortly after the alleged incidents, evidencing the girl’s complaint. The essential ground of appeal is that a miscarriage of justice has been occasioned by the wrongful admission of the audio tape.

Nature and circumstances of the alleged offences

[5]    The girl lived with her parents in a house in which the appellant and his partner were frequent visitors because the partner and the girl’s father were sister and brother. On occasions when the appellant and his partner would stay overnight they would sleep in the rumpus room in sleeping bags. It seems to have been not uncommon for the girl and her brother to go down to the rumpus room in the morning and wake up the couple with horseplay. The girl alleged that on the particular day, after her brother and aunt had left the rumpus room, the appellant pulled her down on top of him, over the sleeping bag, and interfered with her. The interference consisted of putting his hand down the girl’s knickers, from behind, and inserting his finger into her vagina and pushing it around there for several minutes. He also allegedly lifted her sleeping top and kissed and rolled his tongue around her nipples.

[6]    The child left the basement area and went up to her room where she dressed into day clothes and approached her father. According to the father’s evidence the girl was quite upset and in a trembling voice said she wanted to talk to him without the appellant being around. The father called his wife into a bedroom where the girl,

crying and shaking in a state of visible upset, complained to her parents in the following terms, according to the trial transcript:

….. She said – he had stuck his finger in my vagina and I said – how the heck could he do that, and she said he put his hand around my bottom and stuck it into my vagina. And I said – what – and then I think she said also at that time he was licking my nipples – I said – do you mean giving a azerbit and she said – no he was licking – rolling his tongue all round my nipple.

What do you mean azerbit?….. We have a bit of a fun thing, an azerbit is when you have a blow up – do one, if you imagine it’s someone stomach  you know –

Blowing a raspberry?….. Like a raspberry we call them azerbit. And we thought that that what he might have done and she said he kept on rolling his tongue around it.

Anything else that you recall [the child] saying to you when you and your wife were in the room with her at that stage?….. I recall saying – yeah – we sat there for a little while talking about it – I said lots of things, I asked why didn’t you yell out or something, I did that later sorry, I asked that question later. What else did she say that was the main two things, he’d stuck his finger inside me, and also the other thing she said which is that it wasn’t just for a little time she said it was like 5 minutes, and I said 5 minutes he put his finger inside for 5 minutes, that’s a long time and she said and she kept on rubbing it, I was just taken aback, I could not believe what I was hearing.

[7]    The father then called his sister into the bedroom and explained to her what the child had said. In consequence, his sister confronted the appellant whose manner was quite aggressive. He allegedly said that he had done “azerbit” and that he had given her “a wedgy, a wedgy being if someone pulls up your underpants or your shorts very tightly and it goes up your crack.” A short time later the appellant left  the house in a rancorous mood.

[8]    The father testified that the girl and indeed the whole family was very upset at that stage, and whilst the girl’s mother gave her a shower to quieten her down the father and his sister rang Child Youth & Family Services, following which it was decided that the girl would explain what had happened to her on an audio tape recording.

[9]    The taping began at about 10.30 a.m, approximately one hour ten minutes after the initial complaint. In the presence of his wife and sister, the father asked the child questions which she answered. She said that she and the appellant were just

cuddling each other and she was not sure if he was just trying to tickle her or not and “he suddenly just went down further and went into my private”. She explained that she meant her vagina and that he was “poking it and stuff” with his finger. She said her pants were not down but he pulled them a bit further down so he could get through with his hands and then he pulled her shirt up and “started slobbering…round where my nipples were”. His finger was in her vagina for about five minutes. “He kept pushing. It kept on pushing really hard.” She said the appellant did not have pants on, he just had undies on. The girl said that the  appellant did not kiss her on the lips but she thinks he kissed her on the cheek. She just kept saying she thought breakfast was ready because she just wanted to get upstairs. The appellant told her to wait for him, so she waited for him at the bottom of the stairs trying not to cry, and then came upstairs. She said the appellant  followed her upstairs and acted like nothing had ever happened. The tape  was played to the jury in the course of the trial and at one point a transcript was read to the jury.

[10]   It is convenient at this point to set out the directions the trial Judge gave to the jury about recent complaint evidence:

Now I want to say something to you because it is important in this case about what Ms Yelavich rightly termed ‘recent complaint evidence’. It applies to both counts. In this case the recent complaint evidence is the evidence that Mr [the father] gave about what [the child] said to him pretty shortly after she came up from the rumpus room and what she said to him and was recorded on the tape, and you heard that and had the transcript read to you. Well firstly that evidence, as Ms Yelavich said, is normally inadmissible because it is hearsay – Mr [the father] is telling you in terms of what [the child] said to him is hearsay. But in these circumstances it is admissible. The first thing you have to decide is whether she actually told her father those things. Well you may think there is not too much doubt about that because you heard the tape recording of what was said in any event which was pretty consistent with what Mr [the father] said [the child] had told him orally some time before. And it has not been challenged by Mr Wade. But you must understand this and be very clear about it, and that is the relevance of that evidence. The only relevance of it is that it may show that there is consistency in what she said soon after the event and what she told you about it in the video and orally yesterday. That evidence may assist you as a result of determining the consistency in assessing her credibility as  a witness, that is whether you believe her or not, and how much weight you give to that evidence is for you to decide.

So the important thing to remember is that the evidence of recent complainant, [sic] that is what Mr [the father] said [the child] said, what was said on that tape, is not evidence that the events actually occurred

themselves. The only relevance of it is that it may assist you in determining whether you can rely on her or not, whether you believe her or not because of the consistency of what she said soon after what she claimed had happened and when she told Mr [the father], and compared with what she told you yesterday both on her video and orally.

Submissions for appellant

[11]   Counsel for the appellant submitted that the audio tape was inadmissible on four grounds. First, what it evidenced was not a first complaint. Next, it was staged, leading, repetitious and not spontaneous as a whole. Third, it contained irrelevant and otherwise inadmissible material and finally, its prejudicial value outweighed its probative value. In relation to the issue of first complaint, counsel acknowledged  that the authorities allow evidence to be given of complaining on more than one occasion if the subsequent disclosures relate to the first instance of complaining and amount to a continuing process of disclosure. But in the present case there was no continuation of the complainant’s motion but rather the eliciting of repetition when the first complete and spontaneous complaint had occurred in and been concluded in the bedroom. The tape recorded evidence related to a time more than an hour later, after the occurrence of events which were sufficient to conclude the first complaint.

[12]   Counsel submitted that the tape recording was staged and not spontaneous, with information being elicited by leading and repetitious questions. There was no evidence about what explanation if any was given to the child about the audio tape and its purpose, but there must have been some explanation to her so that her explanation was elicited and not spontaneous. In any event, the process of  taping and the complainant being aware she is being taped for a specific purpose of relaying the complaint amounts to an inherently leading exercise.

[13]   In addition, the playing of the tape and the reading of the transcript of it formed part of a repetitious, credibility buttressing, process. This is because the jury had before it the videotaped evidence in chief of the child, her viva voce evidence by closed circuit television link, evidence from the father as to the particulars and demeanour of the child in relation to the first complaint, audio evidence of the

complaint and demeanour by way of the tape, and the reading back of the transcript of the audio tape.

[14]   Counsel also impugned the leading of the child and the repetition of information in the course of the audio taping.

[15]   The final ground, which in effect summarises the previous grounds, is that  the prejudicial value of a tape created to record a repetition of what had previously been said with the inherent defects complained of and in circumstances where credibility was squarely in issue given the appellant’s explanation to the Police and at trial of innocent inadvertent touching, resulted in a prejudice which far  outweighed any permissible probative value.

Crown submissions

[16]   Counsel for the Crown submitted that although the accepted rule is that  recent complaint evidence may be admitted to show consistency with evidence at trial providing the complaint was made at the first reasonable opportunity (R v Nazif [1987] 2 NZLR 122 (CA)), modern authorities show that some flexibility is allowed concerning the assessment of the “first reasonable opportunity to complain” depending on the circumstances of a case. Evidence of complaining on more than one occasion may be admitted where complaints are of a developing or incremental nature but not where such complaints are remote in time or lack connection. It is to be observed that counsel for the appellant does not differ from those statements of principle derived from an analysis of the cases. Where the difference lies is in the application to the present case.

[17]   Counsel for the Crown submitted that there was a single developing account having regard to the proximity of the alleged incidents and the disclosures, and that more detail emerged during the course of the audio taping. The detail related to the movements of people upstairs and downstairs, that the child and the appellant were cuddling, that the appellant pulled the child’s pants down far enough to get his hand through, that she did yell out because she did not want to hurt the appellant’s feelings, that the appellant had pulled the girl’s shirt up at the front and started

slobbering around her nipples which lasted for about two minutes, that the appellant pushed his finger in and out of the girl’s vagina leaving it in position at one stage for about five minutes, that the child felt really sore, that the appellant had his undies on and had rubbed himself against her, that the appellant had told the complainant to wait for him before going upstairs.

[18]   By reason of the additional detail and the proximity of the complaining, the first instance of complaining was not complete, in counsel’s submission. Further,  the tape gave a more direct and accurate impression of the girl’s demeanour and of her developing account than her father could possibly have conveyed in his own oral evidence.

[19]   Nor in counsel’s submission, was the evidence unfairly repetitive. Whilst conceding that the tape included some leading questions, counsel submitted that the answers resulting from those could not be regarded as rendering the tape unfairly prejudicial. The answers to the questions did not include any serious allegations  over those already made and were relatively inconsequential. In reality, counsel submitted, complaints are likely to emerge through questioning and the only effect of taping the complaint is to show exactly how the complaint developed. To  that extent, a taping better allows a jury to evaluate the quality of the complaint.

[20]   In short, in counsel’s submission, the subject matter of the audio tape was not a second complaint but part of a continuing disclosure amounting to a single complaint, elements of leading and repetition were not unduly prejudicial and the taping of the way in which the complaint developed was an appropriate aid to the jury in assessing the quality of and weight to be attached to the complaint. Further, the tape had the incidental advantage of conveying the child’s demeanour, evidence of which, closely associated with an alleged incident, is admissible.

Discussion

[21]   Recent complaint evidence,  as  this  Court  iterated  in R  v  McLean  [2001] 3 NZLR 794, at para 32 is admissible in sexual violation cases as tending to show consistency in the conduct of a complainant; that what has been said in evidence to

the jury is consistent with a prior complaint made about it, thereby supporting the credibility of the testimony. Normally and logically the probative value of a prior statement will be found in terms of inconsistency, but where a person says or does something quite proximately to an alleged incident the words or conduct or demeanour may bear on the reliability of that person’s testimony at trial. The more proximate such words or conduct or demeanour are to the occurrence of the alleged incident the more reliable it would be expected to be. Conversely, the more removed in time it is the less reliable it may be because the quality of spontaneous reaction will have been lost. For this reason the admissibility of complaint evidence is dependent on the complaint having been made at the first reasonable opportunity. But the law now follows common sense in recognising that having regard to human behaviour, there may be good reasons for a complaint not having been made at the earliest possible rather than the earliest reasonably possible opportunity and that disclosure by a person of sexual or other abuse against her or him may well be incremental. This Court observed in R v McLean at para 33 that the events which follow a sexual assault are often of a developing kind with more than one confidence being made within a short period of time, such that all the confidences can then properly be said to have been made on the same occasion. It is a matter of degree in the individual case. Recency thus becomes a relative term.

[22]   Nevertheless there are limits. As this Court said in R v N [1994] 3 NZLR 641 at p646, “What can safely be said is that our Courts have not been prepared to admit a second complaint, remote in time from the first and lacking any connection with it.”

[23]   Nor should the prejudicial value of repetition be overlooked. Thus, for example, in R v R CA354/01 15 April 2002, a second complaint which included no further particulars was not be regarded as an element of a developing complaint which added to the consistency of what the complainant said soon after the incident. In that case, because the jury heard an account of what the complainant said the morning following an incident there was found to be a real danger that the jury may have overlooked the fact that it was merely the same story being repeated, as a second hand or hearsay account, by several witnesses and that the complainant’s evidence was somehow given additional support by such repetition.

[24]   The fair application of the exception to the hearsay rule of recent complaint evidence in sexual cases mandates the general requirement that there must be, in effect, a single complaint albeit in some circumstances developed incrementally, and that it be relatively recent, such being assessed in terms of the features of the particular case.

[25]   It is necessary to bear these principles and analyses in mind when examining the case before us.

[26]   The relevant features of this case are that the complainant was a 9 year old child, the complaint was about the conduct of a trusted member of the family group, the girl was in a state of considerable distress when she first approached her father, and her disclosure caused understandable shock and dismay to the family. For about 10 minutes they “were talking and questioning and trying to work out what was going on”. The father then approached the appellant who responded very aggressively. The father described the situation in his evidence in chief in the following terms:

And how would you describe Graeme’s demeanour when you were speaking to him downstairs?…..I could see that he was very aggressive, he at one stage, I just went to sit down for a second, cos I was still in shock as to what had happened or what was alleged to have happened at that point in time. And I sat down there just – and then he came up to me, he was looking to hit someone I think and he was very very aggressive and standing right in my personal space and trying to – I think – I don’t know and I thought do I do something here or do I not and I thought no, I haven’t done anything myself so I backed off and the interesting thing was at one stage during the conversation [my sister] got her hand up just in front of her, and said – look you don’t do – and then he whacked, hit her hand quite hard and she said – hey, don’t start that sort of thing.

[27]   The father said that his daughter was “just beside herself crying and shaking and trembling and she was wanting cuddles”. Following a discussion with Child Youth and Family Services the father decided to tape record what his daughter could say about the matter and did so within about an hour of leaving the bedroom to question the appellant. In the meantime the child’s mother was giving her a shower in order to calm her down.

[28]   Having regard to the distress of the child and her family occasioned by the alleged indecencies perpetrated by a trusted guest with close family connections, and given also the relatively short lapse of time between the child’s first approach to her father and the conclusion of the taped discussion, and taking into account the age of the child and the additional information she disclosed during the taping, we think it would be unrealistic not to regard the first disclosures and the later taped disclosures as constituting a single complaint developed incrementally at the first reasonable opportunity, closely connected in time and circumstance and amounting to a single complaint. In short, the taped interview was not inadmissible as amounting to a second complaint remote in time from the first and lacking any connection with it.

[29]   Nor in our view were there any questions of such a leading nature as to detract from the relative spontaneity of the child’s complaint. It is the case that at  one point the father asked whether the appellant had his pants on the whole time and the child replied “He didn’t have pants on, he had just undies on.” At another point the father asked, without there being any previous indication of such, whether the appellant rubbed himself against the child at all. The simple response was “Yes”.

[30]   A little later in the discussion a woman, either the mother or aunt asked “Did he kiss you?” and the child replied “He didn’t kiss me on the lips, he kissed me on the cheek I think.”

[31]   In the context of the taped complaint as a whole it could not be said that answers were suggested by the leading form of questions and we regard them as of no real consequence.

[32]   Mr Borich’s further submission about the leading nature or otherwise of the taped discussion has merit as a generalisation, as a general indication against the viva voce recording of complaints. He submitted that the process of taping a complainant who was aware that the taping is for the specific purpose of relaying the complaint amounts to an inherently leading exercise. In the particular case there was no evidence about what explanation, if any, was given to the child about the taping and its purpose, but there must have been some explanation which would have affected the question of spontaneity.

[33]   The recording in this case was made in effect as part of the continuum of an incremental complaint developed over a relatively short space of time. The upset caused to the complainant and the family over that period, and the conduct of the various people in the house dispels concern about reliability through the adoption of the particular procedure. This must have been evident to the very experienced counsel who represented the appellant at trial (not Mr Borich) who did not seek to test the issue of discussions between the child and her father in connection with the setting up of the recording process.

[34]   But although in the particular case we do not regard the production of a tape recording of the complaint as unwarranted and the exhibit therefore inadmissible, we express considerable diffidence about such a practice in general terms, for all of the susceptibilities to unreliability indicated in Mr Borich’s submissions. They include the element of repetition which in this case we do not regard as objectionable in nature or extent but which could be significant in some other case. Thus we would not encourage the practice and suggest that should a similar case occur in the future, then on the application of counsel or of the Judge’s own motion, the circumstances in which a permanent viva voce recording was made ought be examined pre-trial, on a voir dire, in order to discover whether the complaint can fairly be regarded as spontaneous, unrehearsed and fairly regarded as an element in a single recent complaint. This caution would apply also in respect of attempts to produce viva  voce permanent records seeking to display alleged distress or other behaviour about which evidence could normally be given as part of the res gestae.

[35]   Turning now to the submission on behalf of the appellant that the tape had a general prejudicial quality in that, in effect, it went beyond evidence of particulars in respect of which the credit of the complainant’s testimony at trial might be examined, we think the short answer, in this particular case, is that the tape was the best evidence that could be given of the particulars of the complaint. There is no suggestion of staged distress, manipulated answers, or other features which on the one hand reduce probative value and on the other might generate illegitimate prejudice.

Conclusion

[36]   In the result, we do not consider the tape to have been wrongly admitted and played to the jury. The appeal is therefore dismissed.

Solicitors:

Rice Craig, Papakura for Appellant Crown Solicitors, Auckland