R v Smith Ca298/03

[2004] NZCA 335

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 298/03

THE QUEEN

v

ROSS FRANCIS SMITH

Hearing:         24 February 2004 Coram:  Hammond J

Laurenson J Doogue J

Appearances: J Ablett-Kerr QC for the Appellant B Horsley for the Crown

Judgment:      4 March 2004

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

Introduction

[1]    The appellant was convicted following trial by jury in the District Court at Dunedin on two counts of sexual violation by unlawful sexual connection and sentenced to 2 years imprisonment. His appeal against conviction to this Court was dismissed on an ex parte basis without reasons on 3 December 1992. The appellant has been granted a rehearing pursuant to the provisions of the Crimes (Criminal Appeals) Amendment Act 2001.

[2]The appellant relies on the following grounds in support of his appeal:

R V ROSS FRANCIS SMITH CA CA 298/03 [4 March 2004]

(a)          The appellant was prejudiced by the Judge ruling that the mother of the complainants S and N could give evidence before the complainants;

(b)          The mother of the complainants should not have been permitted to be the support person of the complainants when their evidence was given via closed-circuit television;

(c)          The Judge erred in refusing the defence application to cross-examine on the previous sexual experience of the complainants;

(d)          The defence should have been permitted to re-examine Mrs W in relation to a telephone call in which she said that the mother of one of the complainants had alleged that the appellant had interfered with Mrs W’s children; and

(e)          The summing up was both wrong and unfair.

[3]  In order to preserve the anonymity of the complainants we have referred to witnesses in this case by an initial or initials. To avoid any confusion, we set out a list of those witnesses and how they have been referred to.

Complainant 1  -        S

Complainant 2  -        N

Mother of 4 complainants including S&N         -        Mrs P Mother of the other complainant  -         Mrs D

Father of complainant   N  -        Mr DF

Grandmother  -        Mrs W

The other babysitter  -        SM

Appellant’s sister  -        Mrs WS

Appellant’s aunt  -        Mrs E

Background

[4]    The Crown case at trial was that the appellant committed various sexual offences against five children that he babysat on a regular basis during the period between 31 May 1991 and 12 October 1991. The appellant was a friend of the mother of four of the complainants in this case. He stayed at their house for two or three months from around June 1991.

[5]    At trial only the eldest two complainants, S and N, gave evidence. The three youngest complainants, all aged under 6 at the time, were not called. S and N gave evidence of witnessing sexual offending against their younger siblings. Ultimately,

however, the Jury returned guilty verdicts only on two counts relating to S and N. The allegations that formed the basis of those counts were that the appellant had put his penis in S and N’s mouths; and N had been required to put his in the appellant’s mouth.

[6]    Also called by the Crown were (a) Mrs P, the mother of four of the complainants, including S and N; (b) Mrs D, the mother of the fifth complainant; (c) Mrs W, the mother of Mrs P. The appellant was said to have made admissions to  Mrs W, but there were suggestions that she had overstated what was said, and that his words were in any event the result of the appellant being borderline intellectually handicapped and an unusually suggestible person.

[7]    The defence was that the appellant did not commit these offences. The defence theory of the case was that the complaints arose from a transference to the appellant of earlier sexual abuse by another babysitter, SM, or that the complainants had been encouraged in their beliefs by Mrs P, who had made other, similar allegations in the past against both the other babysitter and the complainant N’s father, Mr DF. The defence did not call the appellant, but called a number of witnesses. Dr Godfrey gave evidence as to the mental disabilities suffered by the appellant. The appellant’s father gave evidence of Mrs P’s questioning of the appellant and evidence relating to the appellant’s visit to Mrs W. The appellant’s sister, SA, gave evidence of previous allegations of abuse made by Mrs P against a past babysitter, and the appellant’s aunt, Mrs E, gave evidence of prior allegations made by Mrs P.

The Appeal

First and second grounds of appeal

Order of evidence and the choice of support person

[8]    At trial, the Crown proposed to call Mrs P prior to calling the complainants, S and N. In addition, the Crown proposed that Mrs P act as the support person for the complainants while they gave evidence. The defence objected to both courses of action. The trial Judge, Chief District Court Judge Ronald Young (as he then was) in his fourth ruling, considered that the provisions of the Evidence Act allowed a person nominated by the complainant to be present with them as a support person.

The choice of person was fundamentally that of the complainant. The Judge, after adverting to the defendant’s objections said:

I can see and understand why that might be so and one must in these matters always balance the interests of the accused in having a fair trial and also the interests of the Crown in getting the best out of their witnesses. In this case my view is that it is fundamental for the Crown to decide the order in which they call their witnesses.

…

In the end there is nothing that has convinced me that I should prohibit Mrs P from being the support person [of N and S]. Certainly in such a situation  it is proper that she be called before them to avoid any suggestion of any form of collusion in her evidence and the complainants evidence.

[9]    Ms Ablett Kerr, for the appellant, submitted that it is the established practice that the complainant gives his or her evidence before the Court hears from other witnesses. This enables the defence to test and examine the evidence of the complainant against that of the other witnesses. Ms Ablett Kerr submitted that the defence was prejudiced by the departure from this practice in two ways. First, it enabled Mrs P to present her version of events as the primary one, i.e the one that defined the substance of the allegations. This allowed any inconsistencies in the actual complainants’ evidence to be minimised. Second, it required the defence to lay bare its case on coaching/contamination to a witness who was inevitably to have close contact with N and S before they gave evidence the following day. If the defence was correct, further contamination could have occurred.

[10]   As to allowing Mrs P to act as the support person, Ms Ablett Kerr submitted that while a child should normally be allowed to choose their own support person, that choice is subject to an overriding discretion: R v Ellis (No 2) [1993] NZLR 325. Ms Ablett Kerr submitted that the fact that Mrs P was an important witness, and the allegations that she may have coached the complainants, excluded her from acting as support person. The presence of Mrs P close by the children and in the same room when they each gave evidence may have influenced the children’s evidence: see R v D (1991) 7 CRNZ 446.

[11]   Mr Horsley, for the Crown, submitted that the order witnesses are called in is at the prosecution’s discretion. It would be undesirable for the trial  Judge  to interfere with this discretion. In any event, Mr Horsley submitted, there is no

evidence that the defence was handicapped by calling Mrs P first.  The appellant does not provide specific examples of prejudice in terms of testing any matters of fact and the mother was extensively cross-examined on numerous issues. There is  no evidential foundation to suggest that Mrs P was coaching the complainants.

[12]   Turning to the issue of the support person, Mr Horsley submitted that the complainants were entitled to have a support person of their choosing present and that the Court should not exclude that person unless there are  compelling reasons:   R v V (1998) 3 CRNZ 423.  Mr Horsley submitted that no prejudice  arose  from  Mrs P being a witness in the case as she was, for that very reason, called first. In the absence of any evidential foundation that Mrs P abused her role as support person by influencing the complainant’s evidence, it was appropriate that the complainant’s person of choice was in the room. Mr Horsley notes that it is not unusual for allegations of coaching to be made by accused and submits that such allegations, unsupported by evidence, should not have the effect of removing the complainant’s support person of choice.

Discussion First and Second Grounds of Appeal

[13]   We are satisfied that the combined effect of s375A of the Crimes Act 1961 and s23E(i)(e)(ii) of the Evidence Act 1908 is to enable a support person to accompany a child complainant when the complainant gives evidence by means of CCTV from a room apart from the Court room. Certainly, this is the usual practice. The selection of this actual support person is subject to approval by the trial judge.

[14]   The duties of the court officer attending the complainant are set out in detail in a protocol. The full protocol is as follows:

EVIDENCE BY CLOSED CIRCUIT TV

PROTOCOL TO BE OBSERVED BY COURT OFFICERS – SAMPLE DIRECTIONS

1.     When directed, enter witness room with the witness and (any) friend requested and approved by the Judge. Close the door. Check no other person is present. Hand to the friend of the Court a card which says:

“From the time anyone speaks on the screen you must not speak to the witness, or answer the witness, or make any sign to the witness, until the witness’ evidence is finished and you are told you may do so.”

2.Sit yourself in front of the screen in the chair later to be used by the witness. Await instructions from the Judge on the screen. The screen will be live and need not be touched. Seat the witness in the seat which you later will occupy nearer to the witness chair, and the friend in court in a chair further away to the side and rear of the witness.

3.The Judge will ask you:

(a)Whether you can see and hear him or her. Reply.

(b)Whether there is anyone else in the room except yourself, the witness, and any friend in court. Reply.

4.The Judge then will ask you to change seats with the witness. Do so. The witness then will be seated facing the screen, and you will be in the seat nearer to her or him. Any friend in court will be seated to the side and rear of the witness. You will not be in the courtroom picture. Any friend in court will not be in the courtroom picture. Watch the witness’ screen, and listen for further instructions to you from the Judge.

5.The Judge may then question the witness as to fitness to take an oath or make a s13 declaration. The Judge then will call for you over the screen and either:

(a)   Ask you to administer an oath, or declaration, in which case do so, with the witness still facing the screen, from the card; or

(b)   will tell you to stand by, in which case the screen will go dead and you will wait in the witness room with the others present for further instructions.

6.Once the witness is sworn, watch the screen and listen for any further instructions to you from the Judge.

7.If items are brought to the door by the crier to be shown to the witness, take them and do so, watching and listening for instructions from the Judge over the screen s to what to do.

8.Otherwise, unless instructed by the Judge over the screen to do so, do not allow any person to enter the witness room, other than the crier.

9.The witness is not to leave the witness chair, having begun evidence, without permission from the Judge. If the witness disobeys, whether through distress or otherwise, do not attempt to use force but seat yourself in the witness chair and await instructions from the Judge over the screen or from the crier who will enter.

10.If the friend in court despite instructions, speaks or attempts to intervene, or if some other matter occurs which concerns you, lean over the witness and say

“Your Honour, I have a matter to report.”

Do not say what the matter is at that stage. Then await instructions from the Judge over the screen or from the crier who will enter.

11.In the event of fire, earthquake or like emergency you are in charge of the witness room and are to see to it being vacated.

“From the time anyone speaks on the screen you must not speak to the witness, or answer the witness, or make any sign to the witness, until the witness’ evidence is finished and you are told you may do so.”

[15]   We have referred to the protocol in detail because the trial Judge made specific reference to it in his first pretrial ruling when he determined that the two complaints who gave evidence should be allowed to do so by means of CCTV. In making this order, the Judge said:

“I have made available to counsel the decision of Queen v Osborne and the directions there given by Williamson J.I propose, subject to comments from counsel, to adopt those directions as directions in this case. I do so recognising that in that case the evidence-in-chief was prerecorded by video tape but it does not seem to me that matters in this case. Paragraph five of  the directions can simply commence with respect of evidence-in-chief and then continue with cross-examination and re-examination. Equally, the directions to the court officers and their duties is contained in an annexure of the Osborne decision which I, for the purpose of this case, also adopt. Again, if counsel have any concern about those matters then I invite their comment. But save for that, I make those orders accordingly.” (Our emphasis).

[16]   We think it is important to note the above passage because it indicates quite clearly that the Judge was aware of the strictures which are imposed on the support person when a complainant gives evidence. Given the nature of the defence case in the present case, the nature of those strictures was particularly relevant.

[17]   Appellant’s counsel did not accept however that the terms of the protocol were sufficient in this case to avoid the concerns voiced by the defence counsel at the time. Given the nature of the mother’s involvement in the case both, as the person who had received the complaints, and then as a witness, it was submitted that the mere fact of her presence was enough to influence the two children. Furthermore,

she having heard their evidence, there was the possibility that she could have spoken to them during adjournments.

[18]   In the absence of any evidence that the mother had in fact influenced her children by reason of her position as the support person, we have considered that whilst it may have been better to find out if some other person could have acted in that capacity, we do not consider that in fact her presence could be said to have created a prejudice to the appellant at trial.

[19]   Having determined that the mother should act in this capacity, the Judge then agreed to the Crown’s proposal that the mother should give evidence, first, in order to ensure that she could not tailor her evidence to that of the children. While we agree with defence counsel’s submission that to do so was contrary to usual practice, again, we do not consider that this could be said to have created a prejudice. Even though it meant that the jury were first presented with the more coherent evidence of an adult at the outset of the trial, we are unable to accept that this would have predisposed the jury towards accepting the subsequent evidence of the children. We think it is significant that the jury in this case acquitted the appellant on the three charges where the complainants did not give evidence. This leads us to the view that the jury placed considerable significance on the complainants’ evidence in each case, and that the evidence of the two who were heard was considered separately and carefully.

Decision First Ground

[20]For the above reasons we consider the first two grounds of appeal must fail.

Third Ground of Appeal

Cross-examination of complainant

[21]   The defence sought leave to cross-examine S and his mother, Mrs P, about his prior sexual experiences namely allegations that had been made about abuse by S’s father, Mr D, when S was 3 ½ years old. There was a further suggestion that the

abuse complained of had actually been committed by a former baby-sitter, SM. In his second ruling, the Judge ruled:

(a)The defence could cross-examine both witnesses on the issue of transference, that is, whether the complainants had confused or mixed-up the identity of the person who abused them;

(b)The defence could cross-examine Mrs P about the making of allegations about the father, the context of those allegations and the detail of them. However, the Judge ruled that no questions should be asked of S on that subject because, the Judge considered, the object of the questioning could be achieved by examining his mother. In addition, no questions could be asked of Mrs P that would directly or indirectly case doubt upon the credibility of the complaint made to her by S.

[22]   Ms Ablett Kerr submitted that s23A of the Evidence Act 1908 will rarely be applicable in the case of child complainants as no question of loose morals will be raised : R v M (200) CRNZ 468. Section 23A was not intended as a bar to inquiry into how young complainants could have acquired knowledge of sexual matters, R v G CA62/98, 23 April 1998, or previous false allegations , R v V CA2/97, 30 June 1997. Ms Ablett Kerr submitted that in order to raise the issue of transference and coaching, it was necessary to cross-examine the complainants. Following the trial Judge’s ruling, it could not be put to S that the allegation concerning his father was false and that he had been coached by his mother. It could not be put to Mrs P that she was prone to misinterpreting her children’s stories and building on them.

[23]   Ms Ablett Kerr also submitted that the Crown took unfair advantage of the ruling in that Crown counsel asked S, in re-examination, whether the other babysitter, SM, or anyone else had ever abused him. The defence was unable to cross-examine S using the documentary evidence that showed a complaint had been made in respect of his father.

[24]   Mr Horsley noted that nothing in the judge’s ruling prevented cross- examination to the effect that it was SM who had committed the abuse and that the complainants were confused. The ruling was solely directed at the allegations made against Mr D. Mr Horsley submitted that the purpose of cross-examination on this issue was to damage the credibility of Mrs P by suggesting that she had made a false claim in the past in the context of a custody dispute. This line of cross-examination was in fact extensively pursued. As a result of that cross-examination, Mrs P admitted making the allegations but denied that S had reported specific assertions (namely, that Mr D had placed his penis in S’s mouth). Instead, she reported nightmares and signs of physical abuse. On that basis, Mr Horsley submitted, there was no evidential foundation to suggest that S had been making false allegations of sexual abuse. Mr Horsley submitted that the truth or otherwise of previous allegations by S was a collateral issue and the Judge was entitled to restrict cross- examination on that point.

[25]   In relation to the prosecution’s re-examination of S concerning whether others had abused him, Mr Horsley says that nothing in the Judge’s ruling prevented cross-examination on the issue of whether SM had ever abused S and in fact the complainants were cross-examined on the sorts of activities they said SM did with them.

Discussion Ground 3

[26]   The application which the Judge had to consider immediately raised the prospect of a number of issues which although relevant to the defence allegations of transference because of mistaken identity of the offender, and the issue of the mother’s alleged propensity, were nevertheless collateral issues. Furthermore, the evidential basis was to a large degree hearsay. We consider he was therefore correct in setting limits on the extent to which they should be pursued. In fact, the essential matters which the defence wished to raise, were canvassed. Importantly, we note that the questioning by the Crown which led to a denial that another person had been the offender, was a matter which could have justified the defence counsel requesting the Judge to revisit his earlier ruling. No such application was made.

Decision Ground 3

[27]   Taking into account these matters together we have concluded that the defence was not prejudiced by the Judge’s ruling and that the third ground of appeal fails. We therefore find that the third ground of appeal must also be dismissed.

Ground 4

Re-examination of Mrs WS the appellant’s sister

[28]   Mrs WS, the appellant’s older sister, was a defence witness. Her evidence was that Mrs P had made allegations to her that another babysitter, SM, had inappropriately touched her children and that consequentially he was no longer used as a babysitter. However, Mrs WS also gave evidence in her evidence-in-chief that Mrs P had alleged to her that the appellant was abusing Mrs WS’s children. These allegations were made prior to the allegations that were the subject of the proceedings coming to light. The prosecutor began to cross-examine Mrs WS on the latter allegations but was stopped by the Court.

[29]   The Judge, in his fifth ruling, held that further cross-examination or re- examination on that subject would not be allowed and that the Jury would be instructed that such matters must be set aside as irrelevant. The Judge reasoned as follows. Allegations of previous sexual abuse against the complainant could not  form part of the Jury’s considerations at trial. Equally, the proposition that Mrs P  had made these allegations was never put to Mrs P and indeed would have been beyond what the Judge was prepared to allow. If re-examination was allowed, it potentially undermined Mrs P as a witness. To be fair to the prosecution, if re- examination was allowed, it would be necessary to allow the prosecution to cross- examine on whether in fact the appellant had abused Mrs WS’s children.

[30]   Ms Ablett Kerr submitted that this ruling was very prejudicial to the appellant. Once Mrs WS’s comments had been made, Ms Ablett Kerr said, the jury could not help but take notice despite the Judge’s warning to the contrary. As such, Ms Ablett Kerr says, re-examination should have been allowed in order to support an interpretation that Mrs P had made unsubstantiated complaints in the past. The

Judge’s concern to protect Mrs P’s credibility was inappropriate, Ms Ablett Kerr said, as it was very much in question and was relevant to the jury’s assessment of the evidence of the children.

[31]   Mr Horsley submitted that the Judge’s direction to the Jury to specifically disregard those statements was sufficient to deal with any potential prejudice to the appellant. To have allowed further cross-examination and re-examination could only have made the situation worse.

Discussion Ground 4

[32]   The unexpected evidence given by Mrs W did, indeed, pose a real problem for the Judge. Whilst it may have assisted the defence in maintaining the allegation that the mother did have a propensity to make unjustified complaints, it carried with it a far greater danger to the appellant that the jury might accept that he had been involved in other offending with other children. This had never been part of the Crown case, and, had it been suggested, then it would have been a subject for consideration by the Judge. Given that the evidence necessarily involved hearsay evidence, it is most unlikely that it would have been admitted. The fact that the evidence, once given, also had the potential to diminish the mother’s evidence was, as we see it, a secondary consideration for the Judge. The whole thrust of the fifth ruling in which the Judge dealt with the issue was to ensure that the appellant was not prejudiced.

[33]   In this difficult situation, we consider the Judge dealt with the unexpected evidence appropriately. The direction to the jury was clear and unequivocal. Had he allowed the matter to be pursued, as sought by defence counsel, there was a real potential that the appellant could quite wrongly have been prejudiced.

Decision Ground 4

[34]For the above reasons, we find that this ground of appeal fails.

Ground 5(a)

Lack of similar fact direction

[35]   In relation to this ground of appeal, Ms Ablett Kerr first took objection to the absence of a similar fact direction in the Judge’s summing up. She acknowledged that the Judge instructed the jury to only use the evidence relevant to each charge when considering each individually. However, she submitted that it was inevitable that the Jury would deal with the fact that the counts in the indictment related to similar allegations said to have occurred in similar circumstances. The Jury should have been given instructions on the legitimate use of this type or reasoning, rather than be left to formulate their own rules.

Discussion Ground 5(a)

[36]   During defence counsel’s submissions, it was conceded that this ground of appeal really came down to a submission that there should have been a clear direction given regarding the possibility of collusion between the two boy complainants. There was no direction which expressly referred to this issue but the Judge did refer to a number of matters raised by the Crown negating the likelihood  of the complainants’ making up the allegations. First, the fact that they were not together when the allegations came out. Second, they were in different households in different towns. Thirdly, the words used by them were dissimilar and there was no apparent reason why they should concoct a story together. These matters effectively address the issue of collusion. The above factors were not disputed.

[37]   Another aspect to this issue is the fact that no request was made to the Judge, after the jury retired, for a further direction on the specific issue of collusion. Given the importance now ascribed to this issue, it is, we consider, surprising that no such application was made if at that time the omission was regarded as being significant. The reason why no such application was made is, we consider, because the Judge had clearly considered the complaints were to be considered separately, and, he had referred to the possibility of concoction of stories in a manner which effectively disposed of the possibility of collusion.

Decision Ground 5(a)

[38]For these reasons, we find that this ground of appeal must also fail.

Ground 5(b)

Summing Up Unbalanced and Misleading

[39]   Ms Ablett Kerr submitted that the summing up as a whole was unbalanced and misleading. In particular, Ms Ablett Kerr submitted that:

(a)      The summing up placed too much emphasis on the evidence of Mrs W but was dismissive of Dr Godfrey’s evidence that the appellant was unusually susceptible to suggestion. In particular, the Judge suggested to the Jury that if they accepted Mrs Wiggin’s evidence that the admissions made to her by the appellant were not as a result of her questioning, Dr Godfrey’s evidence was irrelevant. Ms Ablett Kerr submitted that Dr Godfrey’s evidence was such that the Jury were entitled to consider the appellant’s admission unreliable irrespective of prodding.

(b)      His Honour effectively ruled out the defence theory of mistaken identity.

(c)      The Judge stated that the Jury’s task in relation to the complainant’s evidence was to consider whether they were “genuinely doing their best to tell you the truth” or whether they were lying. Ms Ablett Kerr submitted that the defence theory of the case in fact rested on a third possibility, that the complainant’s were honestly mistaken as to what occurred as a result either of transference or their mother’s coaching.

(d)      The Judge’s comments that suggested that there was no evidence that a third person had been present at Mrs W’ home during the appellant’s admission were incorrect. In fact, the defence had lead the evidence of Mr Smith, the appellant’s father, to establish just that.

(e)      The Judge indicated to the Jury that it was open to them to find that it  was irrelevant whether Mrs P was a truthful witness. Ms Ablett Kerr submitted that this was not open, given that it was the defence case that

the evidence of the children was unreliable because of the input of the mother.

(f)       The Judge indicated that a guilty verdict could be sustained on the evidence of Mrs W even if the jury found that the complainants were unreliable witnesses.

[40]   Mr Horsley submitted, in relation to similar fact evidence, that the Crown case was not presented on this basis and that no direction was required. Instead a firm direction that evidence on one charge should not be used in support of the evidence in respect of a further charge was required, and given. Mr Horsley noted that joint trials may be justified even in the absence of similar fact evidence where the facts in relation to each case are so inextricably linked that the interests of justice demand that the trials be heard together.

[41]   As to the general complaint of unfairness, Mr Horsley submitted that when read as a whole the Judge’s comments were balanced and appropriate. Mr Horsley noted that, as this Court held in R v Afele CA330/02, 10 December 2002, Judges are empowered to comment on the evidence and there is no requirement to refrain from criticism on certain aspect of the evidence, so long as it is made clear to the Jury that the Judge’s view is not in any respect binding on them.

Discussion Ground 5(b)

[42]a)        The evidence of the grandmother Mrs W

[43]   We do not accept that the passage in the summing up relating to Dr Godfrey’s evidence was dismissive. It was stated as a matter of logic that if the jury found as a matter of fact that the comments to Mrs W were unsolicited, then the possibility of those comments having been in someway suggested to the boys simply could not arise. The direction was, in our view, appropriate. We find it was neither unbalanced or misleading.

b) & c)     Mistaken identity

[44]   The Judge referred specifically to this issue. He directed that there was no evidence on which it could be concluded that the children had mistakenly identified the appellant as the offender. This direction was given in association with the direction to ignore the evidence which had been volunteered unexpectedly by Mrs

W. Absent that evidence, there was no other evidence to support any suggestion of transference or mistaken identity. As we have already noted, the evidence by Mrs W had called for a firm and clear direction to avoid prejudice to the appellant. We do not consider that this direction was either unbalanced or misleading.

Third person present at grandmother’s house

The direction that no other person was at this house at the time when a complaint was volunteered to the grandmother is incorrect. We do not consider that this was material or significant in the total context of the grandmother’s evidence.

e) & f) Irrelevance of mother’s evidence

The direction in question was, in effect, that if the jury did accept that the mother’s evidence was flawed, then this did not diminish the essence of the boy complainant’s evidence given the unsolicited admission by the appellant to the grandmother Mrs

W. This was, we consider, a comment properly open to the Judge. He did not, however, leave the matter there. He made it clear that if the jury did find the two boys were untruthful and unreliable, it was not then simply a matter of accepting the grandmother’s evidence. There was a further direction that, in that event, the jury was still required to consider the truthfulness and reliability of the grandmother when determining whether the appellant had made the admission to her. Considering these matters together, we consider that the Judge did provide a balanced and fair commentary to the jury on these issues.

Decision Ground 5(b)

[45]   For the above reasons, we do not consider the summing up was either unbalanced or unfair. Therefore this last ground of appeal also fails.

Decision

[46]The appeal is dismissed.

Solicitors:

McKinnon Aitken Martin, Dunedin for the Appellant Crown Law Office, Wellington for the Crown