R v Simpson CA204/06
[2006] NZCA 500
•27 November 2006
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA204/06
THE QUEEN
v
VARU RAE SIMPSON
Hearing: 15 November 2006
Court: O’Regan, Potter and Miller JJ Counsel: F D Steedman for Appellant
P K Feltham for Crown
Judgment: 27 November 2006 at 12.00 noon
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
R V VARU RAE SIMPSON CA CA204/06 27 November 2006
[1] The appellant was convicted after a District Court jury trial before Judge Dawson of one count of indecent assault of a 12-year-old girl, whom we will call “K”, and one count of indecent assault and one count of rape of another 12-year- old girl, whom we will call “T”. He appeals against conviction on a number of grounds, the principal one of which is that there ought to have been separate trials for the count involving K and the counts involving T. Central to this issue is the proposition put forward by counsel for the appellant, Mr Steedman, that the evidence of the offending against K ought not to have been admitted as similar fact evidence in relation to the offending against T. The severance/similar fact evidence point was the focus of the appeal, and we will deal with that issue in some detail. A number of other appeal points were pursued and we will deal with them briefly for the sake of completeness at the end of the judgment.
Charges
[2] Details of the charges faced by the appellant, and the outcome in relation to each, were as follows:
Count Date Charge Complainant Verdict
1 3 November 2001 –
2 November 2003
2 3 November 2001 –
2 November 2003
3 3 November 2001 –
2 November 2003
4 3 November 2001 –
2 November 2003
Indecent assault
(taxi)
Sexual violation by rape (bathroom)
Sexual violation by rape (bedroom)
Party to sexual violation by rape (bedroom)
T Guilty
T Guilty
TSection 347 discharge
TSection 347 discharge
5 6 June 2002 – 19
December 2002
Indecent assault K Guilty
Facts
[3] The Crown case was that the offending against T all happened on the same day. T has a hearing impairment. She was living with her father at the time, and her evidence was that she, her father, the appellant and another man (whom she called “Michael”, but who has not been identified) were drinking at the home of her aunt and uncle. They then went in a taxi van to another relative’s house. T’s father entered the house, while the others waited in the taxi. After about half an hour T tried to leave the van to see what her father was doing, but was stopped by the appellant from doing so. She said he pulled her back into the taxi van, unzipped her jeans and touched her on the outside of her genitalia. She and the appellant were in the back of the van, the taxi driver and Michael were in the front of the van.
[4] T then said she went into the house and found her father drinking. She asked if she could go home and he said “no”. She returned to wait in the van. She said the appellant indecently assaulted her again, touching her genitalia and breasts underneath her clothing and putting his tongue in her mouth while he kissed her.
[5] T then jumped out of the van, ran to her home and had a shower. While she was in the shower she heard someone in the house so she got out, wrapped a towel around her and opened the door to see who it was. It was the appellant. He came into the bathroom with her and locked the door. He took the towel from her, laid it in the bath and told her to get in the bath and lie down. She did so. He then raped her in the bath.
[6] In her evidential video, T had said that after the rape in the bath, the appellant had raped her again in her father’s bedroom, and that Michael had assisted him by locking the door. She had then said that the appellant had assisted Michael to rape her, by locking the door of the bedroom while Michael was in the bedroom raping her. However, at trial she gave evidence only to the effect that Michael had sexually abused her in the bedroom. The Judge discharged the appellant under s 347 in relation to counts 3 and 4.
[7] The other complainant, K, normally lived with her mother, but at the time of the offending she was living with her father. For several weeks K and her father lived with the appellant at his one-bedroom flat. The offending occurred on a day during that period.
[8] On the day in question K’s father was drinking with the appellant and a number of other adults at the appellant’s flat. K and two of her friends went to the flat to get some money from K’s father. Later they were dancing in the appellant’s bedroom when he entered and told the other girls to leave. He hugged K, kissed her cheek and rubbed her stomach and legs, before pushing her against the wall. She pushed him away and left the room. She immediately told her friends what had occurred, and all three girls then left the flat.
[9] About one and a half hours later K returned to the flat to see her father. At her father’s request she put her four-year-old cousin to bed in the appellant’s bedroom, and remained in the room with the child. The appellant then entered the bedroom and again indecently assaulted K, kissing her on the mouth and touching her stomach, waist and inner thighs underneath her outer clothing. The appellant then told K not to tell anyone. She pushed him away and left.
[10] The appellant was interviewed by the police on 21 February 2005 in relation to both sets of complaints, and denied the allegations. He was critical of the parenting skills of the fathers of the complainants and suggested that both could be responsible for abusing their own daughters. It is notable that the interview with the appellant occurred well over two years after the offending against K, and more than a year after the offending against T.
Severance/similar fact evidence
[11] In a pre-trial ruling, the District Court Judge dismissed the appellant’s application for severance. Mr Steedman said this decision was wrong. Having a single trial had led to a miscarriage of justice because the evidence of K in relation to the offending against her ought not to have been admissible as similar fact evidence in relation to the counts relating to T. Although there were some similarities
between them, there were significant differences and the limited probative value of K’s evidence in relation to the counts involving T was substantially outweighed by the prejudice to the appellant. He said that this prejudice was magnified at the trial because T had been a “quirky” witness, and her evidence may well have not been accepted by the jury if it had not been bolstered by the more credible account provided by K of the offending against her.
[12] The similarities identified by the District Court Judge in his pre-trial ruling were:
(a) The two sets of alleged offending are proximate in time to each other;
(b)Both T and K were of similar age when the offending is said to have occurred;
(c) Both T and K are girls;
(d) Both T and K were known to the appellant through their fathers;
(e) Both T and K lived with the appellant at or near the time of the offending;
(f)Both T and K alleged that the appellant touched them on the skin under their clothing and also kissed them;
(g)In relation to both complainants, the appellant suggested that their fathers were responsible for the offending.
[13] Mr Steedman argued that some of these matters were so commonplace as to be irrelevant (for example both being female) and that others were common to sexual offending so as to not be distinct.
[14] Crown counsel, Ms Feltham, pointed to a number of other matters which she said exhibited the similarity in the offending. In particular, she referred to the following factors:
(a)Both T and K described a series of incidents occurring on a single day, involving persistent and repeated actions by the appellant;
(b)The appellant had been drinking on both occasions with the father of the complainant and was described as being drunk on both occasions;
(c)In both cases, the offending included offending at the appellant’s own home;
(d)In both cases, the offending involved incidents where others were either present or in close proximity.
[15] Ms Feltham said it was particularly significant that the appellant had offended in an opportunistic but persistent manner, targeting each complainant on a single day only and in high risk situations.
[16] Mr Steedman took issue with a number of the details of these matters, but we accept the Crown’s submissions that the combination of factors identified in the District Court decision and amplified by Crown counsel’s submission in this Court established that, when viewed in the round, there are very significant similarities in the circumstances in which the offending against the two complainants occurred. While the nature of the sexual assault on T was much more serious than that against K, the initial offending against T was of a similar gravity, but was followed by the rape incident. In relation to K, who appears to have been more persistent and effective in her resistance to the appellant’s unwelcome advances, the offending did not go beyond the two incidents of indecent assault. But the factors identified in [12]-[14] above exhibit a method of operation on the part of the appellant in taking advantage of access to young girls who are the daughters of friends of his when drunk, and notwithstanding the element of risk involved by virtue of the presence of others.
[17] We do not ignore the significant prejudice to the appellant in having the evidence of one complainant bolstered by that of the other, but we are satisfied that the prejudice is, for the most part, legitimate in the sense that it arises from the
probative nature of the similar fact evidence, rather than from the risk of any illegitimate propensity reasoning.
[18] Having determined that the evidence of each complainant was admissible in relation to the charges against the other, we are satisfied that there was no proper basis for the Judge to order severance.
[19] Mr Steedman raised a number of other issues of fairness which he said would justify separate trials. In particular he said K’s complaint was made before that of T and it appeared that the police did not intend to charge the appellant in relation to that complaint. It was only after T’s complaint was also made that the appellant was charged with indecent assault in relation to K. This led to the very considerable time lapse between K’s complaint and the appellant being charged. Mr Steedman said, but for that fact, the trial in relation to the allegations against K would have concluded before T’s complaint was made so there could not have been a joint trial. But that is irrelevant because, given the admissibility of K’s evidence in relation to the charges involving T, K could have been called as a witness at the appellant’s trial for the offending against T even if the trial in relation to K had already taken place.
[20] We are satisfied that the decision of the District Court Judge to decline severance was correct. No miscarriage of justice has arisen. This ground of appeal therefore fails.
Other grounds of appeal
[21] We deal briefly with the other grounds of appeal for completeness.
Recent complaint evidence
[22] There were four recent complaint witnesses at the trial. One of these was a deaf counsellor who gave evidence of a complaint by T. There was no dispute as to the appropriateness of that evidence.
[23] However, there were three separate recent complaint witnesses in relation to the offending against K.
[24] The first was a friend of K who had been present in the bedroom immediately before the first episode of the offending against K, and to whom K had made a complaint immediately after that episode (but before the second episode). She was not interviewed by the police until some years after the offending, and her memory of the incident was limited. However she gave evidence that K had said “Oh [the appellant] touched me”, and that K looked scared and frightened as if she was going to cry.
[25] Several weeks after the incident, following an altercation with some friends and the intervention of her father and his partner, K told them that the appellant had touched her. She provided a full account, including details of the second episode which happened after the disclosure she had made to her friend on the night concerned. This complaint was much more detailed. Both her father and his partner gave evidence at the trial, apparently because the complaint was made partly to one and partly to the other. Mr Steedman accepted that if recent complaint evidence from one was appropriate, then it was appropriate for both to give evidence given the sequential nature of the complaint.
[26] Mr Steedman’s argument was that the complaint to K’s father and his partner was not the first complaint, and their evidence of the complaint being made to them ought not to have been admitted. However, he accepted that it was, in fact, the first complaint in relation to the second episode of the offending against K. However, he said that the evidence had no real point to it because soon after the disclosure was made to K’s father and his partner, a complaint was made to the police and a statement taken from K.
[27] Mr Steedman said there was prejudice to the appellant from having such a large number of recent complaint witnesses at the trial: four out of nine witnesses in total (two of whom were the complainants and one was the officer in charge). However, K’s father gave evidence of the events on the night of the offending
against K, as well as recent complaint evidence, and would have been a witness in any event.
[28] While we agree with Mr Steedman that there were a large number of complaint witnesses at the trial, we are unable to discern any error on the part of the Judge in allowing each of them to give evidence at the trial. The evidence of K’s friend to the effect that K had said on the night in question that the appellant had touched her was obviously complaint evidence in the ordinary sense: it was a complaint made at the first opportunity and although vague it disclosed inappropriate touching by the appellant which had upset K. While the complaint made by K to her father and his partner came some weeks later, Mr Steedman did not take issue with the fact that it was made in circumstances that qualified it as recent complaint evidence. Because it disclosed events that occurred after the initial complaint to K’s friend, it was the first complaint about aspects of the appellant’s behaviour. There is no real issue, therefore, that it was also rightly admitted. Mr Steedman also accepted that it was necessary for both K’s father and his partner to give evidence because disclosures were made to them sequentially, in circumstances where one was not present when the disclosure was made to the other.
[29] We are satisfied that there was no error by the Judge in admitting the evidence of all of the complaint witnesses. This ground of appeal therefore fails.
Use of deaf interpreter
[30] As indicated earlier, T has a hearing impairment. It was therefore arranged that a deaf interpreter would be available to assist her with her evidence. Mr Steedman said this had not been foreshadowed with him and he believed that it was not appropriate. In effect he challenged the need for the deaf interpreter, and said that the intervention of the interpreter had often interrupted his cross- examination and reduced its effectiveness.
[31] We see nothing in this point. There is nothing before us that indicates that the provision of a deaf interpreter was inappropriate, or that the deaf interpreter behaved inappropriately in carrying out her duties.
Direction relating to absence of collusion between complainants
[32] Mr Steedman said no evidence was given at trial by any witness as to whether there was any connection between T and K. There was no evidence that they even knew each other. Nevertheless in closing Mr Steedman raised the possibility of a connection between the complainants, suggesting that as they inhabited the same world of large, loosely knit families with honorary uncles in a provincial town, it would not be a surprise if their individual worlds had overlapped. This led the Crown prosecutor to raise the matter with the Judge and after discussion with counsel the Judge made a direction as follows:
The Court did not hear any evidence of collusion between [T] and [K] and the defence have not raised this as a defence theory. The defence do say that there is an assumption that [T] and [K] did not know each other and therefore could not have colluded. However they say [T] and [K] were never asked and it is possible their worlds may have overlapped at some stage.
[33] Mr Steedman said that this misrepresented his position, because he had not said there was any assumption that they did not know each other and it was not right to say that the defence had not raised the matter as a defence theory.
[34] In our view, the statement made by counsel in his closing address ought not to have been made, and the direction made by the Judge was an understandable and mild response to the situation which arose.
Availability of further evidence
[35] Mr Steedman sought to adduce in this Court in support of the appeal an affidavit from the appellant’s former partner which he said suggested there was some familial connection between T and K. Her evidence was that her son had used her cell phone and had sent a text message to a cell phone used by T and T’s younger sister. Her son had asked who K was, and the response was that she was the daughter of “Aunty [S]”. The witness said that the S to whom reference had been made in the text message was the former partner of K’s father. The witness believes that S is related in some way to the mother of T or they at least have a connection
which was sufficiently close for S to be referred to as “aunty” in the text message referred to above.
[36] We can see nothing at all in this point. There is nothing in the affidavit from which we could draw any inference that there had been collusion between K and T. It does not even establish that they know each other, or knew of each other at the time they made their respective complaints to the police. We decline to receive the affidavit and dismiss this ground of appeal.
Verdict unreasonable
[37] The final ground of appeal is that the verdict was unreasonable. Mr Steedman correctly acknowledged that this was a difficult argument and one which could only rarely be expected to succeed. In essence his submission was that the evidence of T was so contradictory, bizarre and inherently unreliable that any conviction which relied on it must be regarded as being unsafe. He pointed to the fact that T had, contrary to what she had said in her video interview, said nothing about counts 3 and 4, and that this had led to a discharge in relation to those counts.
[38] The weight to be given to the evidence of any witness, and the assessment of the credibility of the witness are quintessentially jury issues. Any aspects of T’s evidence which indicated unreliability was no doubt the subject of submission by counsel at trial. Ultimately the jury had to determine whether they accepted the evidence of T, in the light of the other evidence heard at trial, including the similar fact evidence and the recent complaint evidence. No issue was taken with the way the Judge directed the jury in relation to the similar fact evidence and the recent complaint evidence. In the circumstances, we can see nothing in this point and we dismiss it.
Result
[39] We dismiss the appeal against conviction.
Solicitors:
Crown Law Office, Wellington
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