R v T (CA11/07)

[2007] NZCA 296

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA11/07 [2007] NZCA 296

THE QUEEN

v

T (CA11/07)

Hearing:         20 June 2007

Court:            Hammond, Williams and Wild JJ Counsel:     J W Watson for Appellant

K B F Hastie for Crown

Judgment:      18 July 2007         at 3 pm

JUDGMENT OF THE COURT

Time for the filing of the appeal is extended, but the appeal is dismissed, both as

to conviction and sentence.

REASONS OF THE COURT

(Given by Wild J)

R V T (CA11/07) CA CA11/07  18 July 2007

Introduction

[1]      This appeal is against both conviction and sentence.   It was brought out of time.  As the delay is explained, and is not objected to by the Crown, we extend the time for appealing to 10 January 2007, the date on which the Notice of Appeal was filed.

[2]      The basis for the conviction appeal is that a ruling given by the Judge at the start of the trial was wrong, and resulted in a miscarriage of justice.  This is the way the appellant framed his appeal against conviction in his Notice of Appeal:

The ruling was wrong in law which led to a miscarriage of justice and that the judgment of the District Court for which I was convicted should be set aside on the ground that a wrong decision was made on a question of law.

[3]      The Judge’s ruling was under s 23A of the Evidence Act 1908, declining the appellant leave to question the complainant about complaints she had made of sexual misconduct by three other men.  We will call the complainant R.  She is related to the appellant.  The trial proceeded, resulting in the jury finding the appellant guilty on each of the four charges he faced, all of them representative.

[4]      The sentence of seven and a half years imprisonment subsequently imposed by the Judge is appealed on the ground that it is manifestly excessive.

[5]      Appeal  specifically from  a  s 23A  ruling  only lies  before  the  trial  starts: s 379A(1)(g) of the Crimes Act 1961; R v Watson [1999] 3 NZLR 257 at 259 – 260 (CA). But there is nothing to prevent an appellant, post-trial, appealing on the ground that the s 23A ruling resulted in a miscarriage of justice. That is the basis on which we deal with the appeal against conviction.

[6]      The four charges on which the accused was found guilty were all of sexual offending against R, all in the same small provincial town.  Summarised they are:

(a)      Indecent assault between 15 January 2001 and 15 January 2002, when

R was aged under 12 (15 January 2001 was her 11th birthday).

(b)Indecent assault between 15 January 2002 and 25 November 2004, when R was aged between 12 and 16.

(c)       Sexual violation by digital penetration between 15 January 2002 and

25 November 2004.

(d)      Sexual violation (R’s mouth on the appellant’s  genitalia) between

15 January 2002 and 24 November 2004.

[7]      The charges reflect escalating sexual misconduct toward R by the appellant over the four year period they span.  It began with the appellant touching R’s breasts and buttocks as he walked past, escalated to touching and sucking R’s breasts in the shower, and culminated in the appellant sexually violating R while she was in the appellant’s bed, often with R’s mother.

Background

[8]      Toward the end of 2004 R was removed from her parents in Northland and placed in the care of the Child, Youth and their Families Service (CYFS). Subsequently, CYFS enrolled her in a special residential school in a South Island town.  On 25 November 2004, when speaking to a support worker at the school, R said that two uncles had been sexually abusing her.  The support worker arranged for R to speak to a senior counsellor at the school.   On 29 November R told this counsellor that, since she was seven, the appellant and three maternal uncles whom she named had been sexually abusing her.  She said they had put their hands under her clothing and had done other things to her.   R repeated these complaints at a meeting with the school support worker and two CYFS officers on 2 December, and at four subsequent meetings with a psychotherapist.  At this meeting she expressed reluctance to give details about what the appellant had done to her as she would get “into trouble if [he] found out”.

[9]      R subsequently gave evidential interviews about her complaints of sexual abuse by the appellant, the first on 6 December 2004 and a second on 4 April 2005.

Subsequently, on 6 and 8  April 2005, she  gave evidential interviews  about  her complaints against each of the three uncles.

[10]     The  charges  summarised  in  [6]  followed.     Following  committal,  the appellant’s trial was scheduled to begin before Judge Duncan Harvey in the District Court  at  Whangarei  on  Monday  2  October  2006.    On  the  afternoon  of  Friday

29 September, Judge Harvey was notified that Mr Watson wished to apply under s

23A for leave to cross-examine R about the complaints she had made of sexual misconduct by her three uncles.  Judge Harvey heard that application on 2 October after empanelling the jury and sending them away until 2.15 pm.   That proved insufficient time, so at 2.15 pm the Judge invited the Crown to open its case and he then sent the jury away again for the remainder of the day.  He gave his ruling later that afternoon.

[11]     We  detail  this  to  acknowledge  that  the  Judge  was  placed  under  time constraints.  This is not a criticism of Mr Watson, who had some time earlier made application under s 23A, only to have it adjourned unheard by a Judge who took the view that the application was best dealt with by the trial Judge.

Conviction

[12]     Mr Watson does not take any “process” point based on what we have just referred  to.    Nor  does  he  challenge  the  Judge’s  statement  of  s  23A  principles. Ms Hastie’s summary, accepted as accurate by Mr Watson, therefore suffices:

(a)  Leave will not be granted unless the evidence is of such direct relevance  to  the  facts  in  issue  that  to  exclude  it  would  be contrary to the interests of justice.

(b) The mere fact that the evidence may be relevant is not enough; it is a question of degree.

(c)  It is not enough that the evidence does no more than raise an inference as to the general disposition or propensity of the complainant in sexual matters.

[13]     Mr Watson’s challenge is to Judge Harvey’s application of the principles. The key section of the Judge’s ruling is this:

[25]     The  Court  needs  to  ask  itself  how  the  evidence  of  what  the complainant  says  about  these  other  three  men,  can  have  such  direct relevance to the facts at issue here, that to exclude it would be contrary to justice.    In  my  view,  it  has  no  such  relevance.    To  suggest  that  the complainant may have subconsciously or consciously transferred what these other men did to her onto her father, is simply, in my view, untenable.  Not only are the factual scenarios and the various complaints different, but also much of what the complainant alleges against her father, was apparently witnessed by her mother.  If that is accepted, transference cannot even be a possibility.

[14]     Judge Harvey then dismissed a submission by Mr Watson that the possibility of malice on R’s part toward her father also justified leave under s 23A.  The Judge said that neither separately nor together did he regard the matters suggested by Mr Watson as “coming anywhere near to what I would regard as potential malice”.

[15]     Even if this were a pre-trial appeal against Judge Harvey’s s 23A ruling, we would not have allowed it.  A ruling under s 23A involves the exercise of a judicial discretion.  Although a different view from that taken by the Judge was open, we would have been quite unable to say that the Judge’s view was “plainly wrong”, the test established by this Court in May v May (1982) 1 NZFLR 165.  But, as both the notice of appeal and Mr Watson’s submissions acknowledge, post-conviction, the hurdle facing the appellant is to persuade us that the Judge’s ruling resulted in a miscarriage of justice.

[16]     In contending that it did, Mr Watson explained that, with leave under s 23A, his questions to R would have established that:

(a)      R had made allegations of sexual misconduct against three other men.

(b)      All three men were close family members, either true uncles or men R

regarded as “uncles”.

(c)R complained that the things each man had done to her were similar to those she alleged the appellant had done to her.

(d)The misconduct R alleged against her  uncles  was  either contemporaneous with, or around the same time as, the misconduct on which the charges against the appellant was based.

[17]     While accepting in principle that R’s answers to collateral questions of this sort would have been final, Mr Watson suggested that he could and should have been permitted to go further, in particular to question R about the specifics of what she complained her uncles had done to her.  We doubt that any trial Judge would have permitted that, because of the risk of diversion into the detail of collateral matters.

[18] Armed with R’s answers to whatever questions were permitted, Mr Watson submitted that at least three options would have been open to him in closing to the jury. He claimed all of them would cast doubt on the credibility and reliability of R’s evidence, which was fundamental to the Crown case. First, he could have contended to the jury that R was a “serial” complainer, and that the jury should have doubts about the veracity of her several complaints, in particular those against the appellant. Second, he could have suggested that R was confused, and had “muddled up” her complaints. Third, he could have put it to the jury that this was an instance of transference, in the sense outlined by Judge Harvey in the passage in his ruling we have set out in [13]. The second and third of these seem at least to overlap.

[19]     For five reasons, we are not persuaded that any of this might have altered the outcome of the trial.   First, R was cross-examined by Mr Watson rigorously, at considerable length and in considerable detail.  She stood firm on her fundamental allegations against the appellant.  Mr Watson sought to counter this by pointing out that  R  had  often  answered  his  questions  “I  don’t  know”.    Whilst  the  notes  of evidence bear that out, the following examples put this in perspective, and demonstrate R not budging from her allegations, and rejecting that they were made up:

And  today  when  I  am  asking  you  questions,  I  am  asking  you  to  give substance to the answers that you give and to avoid giving those answers and your response is “I don’t know”, what is your response to that, could it be [R] that you give the answer “I don’t know” because you have not been telling us the truth?  …  I have.  I just don’t know.

If you say you don’t know, and you say you don’t know how many times your father put his fingers inside your vagina today, you tell me why it is that when you were interviewed by Ms I on 4 April 2005 you were able to tell her how many times your father put his fingers inside your vagina?  …  I don’t know.

You don’t know [R] because you were making up a story when you spoke to

Ms I on 4 April 2004 weren’t you?  …  No.

…

Why is it R, that you’re able to give such a clear answer to those 2 questions, yet when I talk to you and ask you questions about what your father did, how many times he did it, and you answer “I don’t know”?  …  I don’t know.

I suggest to you R that you answer the questions “I don’t know” because the things which you tell did not happen, what is your answer to that question?

…  They did.

[20]     Mr Watson was not, of course, permitted to widen his cross-examination of R to her allegations against her three uncles.   But  no  “cracks” emerged  from  his questioning of R about her allegations against the appellant to suggest that those allegations were an instance of “serial” unfounded complaining.

[21]     Second, we accept Ms Hastie’s submission that R’s complaints about the appellant and her three uncles were “compartmentalised”: she distinguished the person, the time (or time period), the place and the circumstances.   There is no indication of confusion.

[22]     Third, and reinforcing this, was the corroborating evidence of R’s mother. She said she had witnessed the appellant sexually violating R in the matrimonial bed on several occasions, after R had come into her parents’ bed.  Her explanation as to why she did not stop this or do anything about it at the time appears to have been a combination of her being fearful as to what the appellant might do to her, and her concern that it might result in her daughter being taken away from her.

[23]     Fourth, and a related point, it was not put to the mother, or for that matter to R either, that they had colluded in making false allegations against the appellant. Under cross-examination, the mother admitted that, almost immediately after signing her deposition statement at the Police Station, she had told a family friend that the statement was “a bunch of lies” which she had told because she “just wanted her

daughter back (with her)”.  She was closely cross-examined and re-examined about this.

[24]     Fifth and last, we accept Ms Hastie’s submission that the defence would have needed an evidential basis before it could contend to the jury that R had transferred to the appellant sexual misconduct by her uncles.  We think Ms Hastie is correct in submitting that such a basis could only have been provided by an expert (psychiatrist or psychologist) who had worked with R at the relevant time.  Mr Watson conceded that transference is a theory, problematic in its application to cases such as this.  He accepted he would have needed an evidentiary basis to advance it.

[25]     To  summarise,  when  Judge Harvey  gave  his  ruling  at  the  start  of  the appellant’s trial, there was nothing to indicate that R’s allegations against her uncles were either false or inherently suspect, or that R had, whether consciously or unconsciously, falsely implicated her father in sexual misconduct by her uncles. That remains the position.   Further, the jury had ample opportunity to assess the credibility and the reliability both of R and of R’s mother when they gave their evidence.  Both were rigorously and comprehensively cross-examined.  R stood firm on her allegations against the appellant.  The jury also had the benefit of close cross- examination of R’s mother about her statement that what she had told the Police was a “bunch of lies”.   In the face of all that, we are unable to accept that any cross- examination of R permitted by leave under s 23A had any real prospect of affecting the outcome at trial.  Differently put, we are satisfied that the appellant received a fair trial, and that justice did not miscarry.

[26]     Accordingly, we dismiss the conviction appeal.

Sentence

[27]     Mr Watson advanced the sentence appeal more as a challenge to the Judge’s sentencing process, than to the effective end sentence he imposed.   Early in his sentencing  remarks,  Judge Harvey  identified  seven  aggravating  features  of  the appellant’s offending.   Mr Watson took exception only to the last of those seven

features.  We agree with Mr Watson that the fact that the appellant’s wife knew of some of the offending does not make it worse.

[28]     The  point  taken  by Mr  Watson  emerges  from  the  following  part  of  the

Judge’s sentencing remarks:

[26]     I am of the view, that the lead charge here is Count 3 which is the digital  penetration  of  the  complainant’s  vagina.    I am satisfied  that  the appropriate  starting  point  for  that  offending,  before  factoring  into  the sentence the aggravating features, is a term of imprisonment of six years.

[27]     When the aggravating features are taken into account, however, including the length of time over which the offending occurred, the abuse of trust, the premeditation and the knowledge, if not compliance of your wife, I consider that the appropriate addition for those aggravating features is two years, making a total of eight years.

[28]      The only mitigating factor that I can see in your offending is the fact that you have no previous convictions and I am prepared to make an allowance of six months to acknowledge that.

[29]      Accordingly, on the charge of sexual violation by digital penetration you are sentenced to imprisonment for a term of seven and a half years.

[29]     Ms Hastie was unable to resist Mr Watson’s submission that, in that part of his sentencing, the Judge departs from the sentencing approach mandated by this Court in R v Taueki [2005] 3 NZLR 372 at [8]. In short, the Judge ought to have factored in all the aggravating features of the offending when arriving at his sentencing start point. To nominate a sentencing start point, and then increase the sentence to allow for aggravating features of the offending, is not sound sentencing practice.

[30]     However, the question for us is whether the effective end sentence of seven and a half years imprisonment on the lead charge is manifestly excessive.  We do not think it was.  In R v Tranter CA486/03 14 June 2004 at [95] this Court reiterated that there is no tariff for sexual violation by digital penetration, and that a sentencing start point in excess of five years may be appropriate in more serious cases.   This is a more serious case.   It involved sustained sexual offending by a father against his daughter over a four year period when the daughter was between 11 and 14 years old.  There was nothing spontaneous about the offending.  We agree with Ms Hastie that it had all the hallmarks of the appellant “grooming” R for the increasingly

serious sexual abuse he inflicted on his daughter.  The breach of trust was the more acute, because of the appellant’s knowledge  of his  daughter’s  disabilities.    The evidence justified the Judge’s observation that the appellant had used his own daughter as a sex toy for his sexual gratification.  The profound and likely permanent impact of the appellant’s offending both on R and on the family unit, is borne out by the content of R’s victim impact statement.

[31]     We cannot regard the sentence as manifestly excessive, indeed we view it as entirely appropriate.

[32]     The sentence appeal also is dismissed.

Solicitors:

Crown Law Office, Wellington