R v T (CA255/05)

[2005] NZCA 398

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

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN

LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA255/05

THE QUEEN

v

T (CA255/05)

Hearing:         22 November 2005

Court:            Robertson, Baragwanath and Doogue JJ Counsel:       J H M Eaton for Appellant

K B F Hastie for Crown

Judgment:      24 November 2005

JUDGMENT OF THE COURT

A        The appeal against conviction is allowed.

B        The convictions are quashed and a new trial ordered.

CNot to  be published  in  news  media  or on  internet or other publicly accessible database until final disposition of trial.  Publication in law

report or law digest permitted.

R V T (CA255/05) CA CA255/05  24 November 2005

REASONS

(Given by Robertson J)

Introduction

[1]      T was found guilty in the District Court at Christchurch on 21 April 2005 of three  charges  of  indecent  assault  of  a  girl  under  12  and  one  charge  of  sexual violation by unlawful sexual connection.   All four charges were representative charges and covered the period between 1 February 2001 and 10 September 2001. He was found not guilty on a charge of rape and other charges of sexual violation.

[2]      On 10 May 2005 Judge Saunders sentenced him to four and a half years’ imprisonment on the sexual violation charge and three years’ imprisonment on each of the three indecent assault charges to be served concurrently.  T originally appealed against his conviction and sentence but subsequently abandoned his appeal against sentence.

Factual background

[3]      At the time of trial, the complainant was 13 years old.  T is her stepfather, having married her mother in November 2000.  The allegations against him did not surface until March 2004.

[4]      Between  March  and  September  2001  the  complainant’s  mother  regularly worked Monday to Friday shifts at a rest home, beginning at 7am.  The appellant, along  with  the  children,  would  drop  her  at  work  early  in  the  morning,  before returning home to prepare for the school day.   During this time, T was alleged to have performed various sexual acts on the complainant.

[5]      The charges of indecent assault involved T, first, kissing the complainant on the lips and putting his tongue in her mouth, secondly, kissing her in the genital area and thirdly, rubbing his penis on the complainant’s body.

[6]      The charge of unlawful sexual connection related to an incident where T

made the complainant perform oral sex on him.

[7]      The abuse became known in two ways.  First, in March 2004 the victim told one of her friends at a slumber party what her stepfather had been doing to her.  The friend gave evidence of recent complaint.  Secondly, in June 2004 the complainant placed a note in a question and answer box during sexuality education at her school. That note was read by her school teacher and led to police investigations into the allegations.  On 23 June 2004 the complainant was video-interviewed by the Police.

[8]      On 10 August 2004 T went to the Papanui Police Station as requested. There, acting on legal advice he had earlier obtained, he exercised his right to silence.  T was asked if he wanted to see the video-interview of his stepdaughter in order to know the allegations being made against him.  He said he did not and left the Police Station.

[9]      On the same day the Police executed a search warrant at T’s address and seized pornographic videos.  One of the videos depicted a scene consistent with a scene that the complainant stated she had watched with T.

[10]     The defence case at trial was a complete denial.   It was argued that the complainant lacked credibility, there being inconsistencies in her evidence.  T’s case was that the complainant had disliked him intensely from the day he married her mother and that she was intent on breaking them up and returning to live with her biological father.

Grounds of appeal

[11]     Mr Eaton argued that there has been a miscarriage of justice as a result of:

(a)Inappropriate  questioning  and  submission  by  the  prosecutor  and material misdirection by the trial Judge  critically undermining the appellant’s right to silence; and/or

(b)      Inadequate directions as to onus of proof; and/or

(c)      Material misdirection by the trial Judge as to the relevance of recent complaint evidence.

[12]     It was argued that the cumulative effects of these misdirections have led to a real risk of a miscarriage of justice.

Discussion

Right to silence

[13]     Mr Eaton submitted that it was inappropriate for the prosecution to adduce evidence about the appellant’s exercise of the right to silence, beyond eliciting a confirmation that he had declined to answer questions based on legal advice.

[14]     In  the  trial,  not  only  did  the  prosecution  adduce  further  evidence,  but Mr Eaton submitted it was the subject of improper comments in the prosecution’s closing address, and was the subject of a material misdirection on the part of the trial Judge.

[15]    The relevant passages from the notes of evidence contain the following exchange in the examination in chief of Detective Bruce, the interviewing officer:

Q:That’s right.  Now just another thing I wonder if you could tell us about you said during your brief that the accused of course was given a right to make a statement if he wanted to and as was his right declined to do it, you said he declined to watch the complainant’s evidential interview or hear the allegations against him, how much had you told him at that stage of the allegations.

A:       Very little, just that a sexual abuse allegation had been made against him by [the complainant].

Q:Okay. And can you just tell us what, as far as you can remember what the exchange was between you and him when you made the offer to hear the allegation, for him to explain the allegation, could you just tell us about that please.

A:He ah, was reluctant to sit down to hear what I had to say, he said he had better things to do and um, pretty much make it snappy, it was almost like do it or I’m leaving.

Q:Okay, Now you said he declined to hear the allegations against him before he declined what had you said in terms of making the offer of putting the allegations to him or expanding on them so you were explaining what exactly was alleged against him.

A:Yes, as I said, I introduced myself, that I was a detective with Child Abuse Unit, that I’m the person handling a case with [the complainant] that she’s made from a complaint against you of sexual allegations, sexual abuse, and I would like to put her allegations to you, she’s made a video interview and I have it here, would you like to see it and he didn’t want to see it, he didn’t want to hear the allegations from me, um, and he didn’t wish to make any statement and said he’s got better things to do and the whole exchange was over in less than 10 minutes.

[16]     Defence trial counsel (not Mr Eaton) addressed the same point in cross- examining Detective Bruce:

Q:… T was in receipt of legal advice right from the word go you know that don’t you.

A:Um, he put a covering 258 on the file and I don’t know if it had any mention of a lawyer’s involvement.

Q:       You knew I was involved very early on didn’t you.

A:No, he advised me when he came to see me at the Papanui Police Station that he had a legal, he had been advised by his lawyer not to say anything so at that point I was aware that he had been in contact with a lawyer.

Q:Yes, so when he didn’t make a statement, when he didn’t want to see the video he had had legal advice hadn’t he.

A:       Yes.

[17]     In her closing address to the jury, the prosecuting counsel said:

Now there is just one other thing before I finish and that is his behaviour when  he  was  arrested.    Now  I  want  to  make  it  absolutely  plain  that everybody when they are being spoken to by the Police has a perfect right not to make a statement.  That is as it should be, that is as it is and I am not for a moment suggesting that there is anything sinister or wrong in that or

that any weight should be attached to that.  But what I do suggest to you was rather strange,  is  that  he  was  given  the  opportunity first  of  hearing the allegations, specific allegations that had been made against him and second, given the opportunity of actually seeing the evidential video tape containing the allegations against him, and he didn’t take that, didn’t want to bow out of it.  Now you might want to ask yourself if that is consistent with innocence. If allegations were made against you that you had sexually interfered with a child, wouldn’t you want to know what had been said, wouldn’t you want to know if you were innocent what they were.  You would be thunderstruck, would you not and you would want to know surely as soon as possible just exactly what’s been said, how serious is it supposed to be.   Where was it supposed  to  have  happened,  perhaps  you  would  be  able  to  disprove  it, perhaps you’d have an alibi.   But you would be beside yourself, surely, wanting to know what had happened.  Why would he turn down the chance to hear, to see.  He didn’t have to commit himself to making a response, just to hear and to see it as soon as possible.  Well I would suggest to you, the answer is that is that he didn’t need to see, he didn’t need to hear, because he knew perfectly well what he would see and hear, because he is guilty and he knew what he had done.

[18]     The trial Judge dealt with the right to silence twice in summing up:

[9]       It is important to remember that there is no obligation on an accused person in New Zealand to give evidence at trial, to expose themselves to cross-examination and equally under the Bill of Rights there is no obligation on an accused’s person to have to answer questions when spoken to by a police officer.  The accused exercised those legal rights in the course of this investigation and trial and what I say to you is you must draw no adverse inference against him because he exercised that right.   That right is guaranteed to him by our law.

…

[34]      The accused chose not to answer any questions about this matter when he was first spoken to and I have covered with you his legal rights to do so.  The Crown has said to you you might have thought though that he would want to know what sort of allegations it was that were said to have occurred while he would have had care of her.   He did quite clearly have sole care of her when her mother was at work and that he chose not to and the Crown says you might draw from that that he did not need to know because he knew exactly what he had done and that is why he did not want to  get  involved  in  discussing  that.    Again  that  is  a  matter  for  you  to determine.    You  know  that  from what  Mr  Ruth  [T’s  trial  counsel]  has suggested to you and established through the detective that before he was spoken to formally about these matters he knew that an investigation was under way, he had been given his rights and that he had taken legal advice and simply acted upon that.

[19]     Basically, counsel argued that the prosecution attempted to undermine T’s exercise of the right to silence by submitting to the jury that T did not need to know

what allegations had been made against him because he already knew what they were.  He knew what he had done.

[20]     The right to silence is guaranteed by the New Zealand Bill of Rights Act

1990 s 23(4) which provides:

23       Rights of persons arrested or detained

…

(4)Everyone who is— (a)     Arrested; or

(b)      Detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

[21]     This right has always been protected by the Courts.   Where an accused’s exercise of the right to silence is the result of legal advice not to make any statement, the prosecution asking a jury to draw an adverse inference therefrom is unacceptable. In R v Coombs [1983] NZLR 748 at 751-2, Cooke J said for this Court:

As New Zealand case law stands, there are three relevant principles. First, in general a suspect has a right to silence under interrogation by police or other law   enforcement   officers,   whether   before   or   after   caution.   This   is elementary. Secondly, while a Judge may properly comment upon the fact that an explanation has been given for the first time at the trial, such observations have to be made with care and fairness to the accused in all the circumstances of the case: R v Ryan [1973] 2 NZLR 611, 615. Thirdly, while occasionally the accused’s silence when confronted with an allegation may amount to evidence of acceptance of it by him, this is exceptional – and especially so when the allegation has been made by or in the presence of a police officer on other investigating authority: R v Duffy [1979] 2 NZLR

432.

…

When the accused has made no prior statement, comment on the belatedness of explanation advanced for the first time at the trial will usually not be fair unless his right to silence is also clearly explained and the jury are warned not to draw an inference of guilt from silence.

[22]     Cooke P reaffirmed the continued application of these pre-Bill of Rights Act principles in R v Butcher [1992] 2 NZLR 257 at 268. Only very exceptionally can an accused’s silence before trial be used against him:

As emphasised in Coombs, it is elementary that in general a suspect has a right to silence under interrogation by police or other law enforcement officers,  whether  before  or  after  caution;  and only exceptionally can  an accused’s silence under interrogation be evidence against him. I do not see sufficient  ground for any  discarding  by  the  Courts  of  these  well-settled principles.

[23]     The same Judge in R v McCarthy [1992] 2 NZLR 550 at 555 noted:

The topic of comment by the prosecution on the accused’s unwillingness to make a statement to the police was dealt with by this Court in R v Coombs [1983] NZLR 748. There it was pointed out that even at the stage of questioning before the administration of a caution there may be intimidating circumstances explaining a suspect’s reticence. It was said at p 752 that there had been an unfortunate attempt by the prosecution to make something of a refusal to answer questions at the police station after earlier arrest and caution at the house raided by the police. In the present case the police evidence is that, although not immediately arrested, from the outset the accused was warned that he was not obliged to say anything and that he indicated that he was acting on legal advice. To say that silence in these circumstances should be counted against him is to treat the warning with cynicism. The Crown should not have advanced this argument.

[24]     Mr Eaton also relied on R v Fulton CA280/96, 7 April 1998 where Tipping J

for the Court said:

… we wish to reaffirm the importance of the Crown not improperly commenting on the accused's silence prior to trial: see R v Coombs [1983] NZLR 748 and R v McCarthy [1992] 2 NZLR 550. In this case the Crown Prosecutor, within the first page of his cross-examination, asked the appellant whether he could give any reason for not, when first interviewed, giving the police “this innocent explanation [a night out with friends followed by a return home to bed]”. Almost immediately, the appellant explained that he had spoken to a solicitor who had told him to say nothing. That is where the Crown Prosecutor should have stopped, and with respect, where the Judge should have intervened to prevent further questioning on this line. But the Crown Prosecutor chose and was allowed (there being no intervention by the Judge or objection by defence counsel) to carry on about the lack of explanation until trial, for about two more pages of cross- examination. He also relied substantially on the point in his closing address. The Judge made no reference to the topic in his summing up. Obviously a new trial would ordinarily have to be ordered for this persistent and substantial breach of the appellant's rights. It is only the cogency of the fingerprint evidence which avoids that course. Those appearing for the Crown must scrupulously observe their responsibilities in this area. If there is a breach, the Judge should intervene to prevent its continuance at the earliest possible stage. In the summing up the Judge should firmly correct the wrong impression the jury may have got. Even if the Crown has not stepped out of bounds in this area, it is usually wise for the Judge to explain to the jury that the accused was acting within his rights in remaining silent at interview, and no adverse inference should be drawn from that fact.

[25]     We have no doubt that the appeal must succeed on this ground alone.  There can be no room for degrees or gradations of the right to silence within the law as it stands in New Zealand.   In the United Kingdom, Parliament has legislated for a different regime (see the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers issued pursuant to s 66 of the Police and Criminal Evidence Act 1984 (UK) and s 34 of the Criminal Justice and Public Order Act 1994 (UK)).  However, it is not appropriate for the Courts to introduce such a fundamental shift in a right which Parliament has not seen fit to limit, and which it has in fact enshrined in the Bill of Rights Act.   The examination in chief of the Detective should not have occurred.  Even although there was no objection from T’s then counsel, the intrusion on the utility of the right must have been apparent and should in any event have been stopped.  It was an intolerable position for defence counsel to have to cope with.   Questioning about it in cross-examination only succeeds in drawing more attention to it.

[26]     Had the matter not gone further, the Judge may have been able, by careful and judicious direction, to have lessened the problem.  However, prosecuting counsel then used this material in her final address.  The damage became irreparable when the Judge, in summing up, repeated what Crown counsel had said without criticism or comment.

[27]     The Crown responsibly did not seek to suggest that an infringement of this sort could be met by the proviso in s 385(1) and we agree.

Onus of proof

[28]     Secondly, the appellant contends that there was an error made with respect to the onus of proof because of comments made by the prosecutor in closing which were not corrected by the trial Judge. The Judge gave a standard onus direction.

[29]     There had been evidence presented on behalf of T that frequently there were two other adults present in the house during weekday mornings, Snow and Chas, who were a friend and a brother respectively of T.

22.      Now what about this Snow and Chas being there all the time, so they would have seen the business that was put to her.   Well of course they weren’t there all the time.  Of course he didn’t do these things to her when either of them were there, other adults in the house.   You might ask yourselves too, where are Snow and Chas.   Now Snow is supposed to be such a good friend of T over here, that he was practically at the house sort of, you know, all the time, according to Ms Freeman.  Well, why didn’t we hear from him.  Chas I think was his brother, wasn’t he.  Why don’t we hear from him.

[31]     In Mr Eaton’s submission,  as  well  as  suggesting to  the  jury that  it  was incumbent on the accused to call Snow and Chas to give evidence, this passage is very close to an adverse comment on the failure of the accused himself to give evidence contrary to s 366(1) of the Crimes Act.  In other words, the question “well, why didn’t we hear from him?” invites the jury to ask the same question about T.

[32]     Section 366(1) of the Crimes Act provides that where a person charged with an offence refrains from giving evidence as a witness, no person other than the person charged or his counsel or the Judge shall comment on that fact.

[33]     In R v L [1996] 1 NZLR 53 at 54, Eichelbaum CJ described the purpose of s 366 as:

… to protect accused persons against the danger of having their right not to testify at trial presented in such a fashion as to suggest that their silence was a cloak for their guilt (McConnell v Beer and Queen (1968) 69 DLR (2d)

149, 155); to make the law as to freedom from coercion to give evidence real and complete (R v Ellis (1925) 37 CLR 147, 157); that the accused must be under no compulsion of any kind to give evidence as otherwise the capacity to give evidence would be a source of disadvantage to an accused (Bridge v R (1964) 118 CLR 600, per Barwick CJ at p 603); a proviso to the statutory right of an accused to give evidence on his own behalf, designed to prevent that right being turned to his disadvantage (Bridge v R, per Windeyer J at p

611). The common underlying theme is that the object is to prevent undermining the accused's right not to testify, and to forestall coercion to do

so. In this country the right of an accused not to be compelled to be a witness

is embodied in s 25(d) of the New Zealand Bill of Rights Act 1990.

[34]     In L no transcript was available of what the prosecutor had said but before the Court was a Minute of the Judge which noted “Only evidence in rebuttal what L said in video – not on oath, not subject to cross-examination, in pressure of witness box,

cross-examination occurring. Way L gave evidence on video – (compare) R”.   At

[56] this Court said:

Perusal of the Australian cases cited, and others, demonstrates however the "very narrow limits" within which such a statement must be confined if it is not to amount to a comment upon the accused refraining from giving evidence. See per Barwick CJ in Bridge v R at p 605, and compare R v Cormack (1979) 1 A Crim R 471 with R v Greciun-King [1981] 2 NSWLR

469.  As  Windeyer J  said  in  Bridge,  quoting  a  United  States  text,  such comment is playing with fire. In R v McCarthy this Court drew attention to

the desirability of prosecutors avoiding the risk of submissions which may

be seen as an implied comment, in breach of the statutory prohibition. In the present  instance  the  mention  of  the  witness  box,  in  particular  (in  R  v Greciun-King such a reference was fatal) brought the case very close to the line; and the same may be said of the remark drawing attention to "the only evidence in rebuttal".

[35]     Nonetheless this Court found that what the prosecutor had said did not cross the boundary of what was permissible under the section.

[36]     We are of the view that the prosecutor’s comments in this instance did breach s 366(1) of the Crimes Act.   In our judgment the rhetorical question asked “why didn’t we hear from him” admits of only one answer, namely that Snow or Chas would  not  have  corroborated  the  evidence  already  heard.    Worse,  however,  it suggests that the onus had been on the defence to call particular witnesses while the jury was being asked to speculate as to what the evidence of those witnesses (who could have been called by the accused but were not) would have been.  In real life jury dynamics, this cannot be viewed as anything less than a comment on the failure of the accused himself to give evidence.

[37]     We  consider  that  the  situation  in  the  instant  case  is  properly  to  be differentiated from that in L on the facts.

[38]     The Judge did not deal with this issue at all.   Had he reiterated that the accused did not bear the onus of proof and was not required to call witnesses in his defence, salvage may have been possible.  But again we cannot be satisfied that in this situation with no response from the Judge there was not a real risk of a miscarriage of justice.

[39]     The final ground of appeal was that the Judge misdirected the jury in relation to the relevance of the recent complaint evidence.  The Judge’s direction was:

[25]     You have heard some reference to what has been termed complaint evidence or recent complaint and reference to delay in complaint and I now just want to talk to  you  about  that.    Sometimes  the  evidence of recent complaint is termed as evidence of first complaint and there are some rules that  are  thrown  around  the  admissibility  of  evidence  of  that  kind.    As Mr Ruth [T’s trial counsel] said to you, evidence of what one person says to another out of court and out of the hearing of the accused is termed hearsay evidence.  Normally that is regarded as inadmissible.  There is an exception in cases where there are sexual allegations made that the Crown may lead evidence of recent or first complaint, but it is led for a very limited purpose and has limited relevance. … [The Judge restated some of the evidence].

[26]      Turning back to the warning and what I must say to you about recent complaint evidence is firstly you have to be satisfied whether a complaint was in fact made.   Secondly, you must remember the fact that what [the complainant] said to [her friend].  Obviously if [the complainant] was wrong about it then what she said to [her friend] then she is still wrong about it now.  The relevance of such evidence of complaint is that it may show that there is a consistency between what she said soon after the event and what she now says about it.   That may be of assistance to you in assessing the issue of credibility.   That is whether you believe her or not.   How much weight you give is a jury matter and it is a matter for you.

[40]     This Court in R v T [1998] 2 NZLR 257 said at 270:

It is trite law that evidence of recent complaint is not evidence of its truth or of any other fact than that it was made. In particular (although consent was not an issue in the present case) it is not evidence of absence of consent. Recent complaints are admitted only as showing consistency between the complainant’s conduct at the time and his or her evidence at the trial thereby supporting the credibility of the witness’s testimony, see (eg) R v Nazif [1987] 2 NZLR 122 at p 125.

Evidence is put before a jury on the tacit understanding that it is relevant and of probative value. Where evidence can only be used in a particular way, generally Judges are required to explain this to the jury. One may readily think of examples such as incriminatory remarks made by a co-accused in a statement, or prior inconsistent statements the truth of which is not accepted by the witness. Directions of this kind are predicated on the underlying view that to a lay person, it will not be self-evident that such testimony is not directly probative of the particular subject-matter. While we have not found any New Zealand case in point it is the invariable practice of trial Judges to explain the limited purpose of complaint evidence to juries and we have little doubt the reason is the same underlying concept, namely that without such an explanation a jury may assume that the fact that a witness has given a

previous consistent statement is a permissible way of establishing the truth of the evidence given by the witness at trial.

[41]     In the trial, no attention appears to have been given to whether this dialogue between two pre-teenage girls at a slumber party at least two years after the alleged incident could have been, as a matter of law, a recent complaint.   Although this exception  to  the  hearsay  rule  has  developed  a  long  way  from  its  historical antecedents (particularly since 1995 with s 23AC of the Evidence Act), it does not mean that in every case there will be evidence of the first occasion on which a complainant spoke to another about the allegations.

[42]     The authorities are clear that such evidence is admitted not as evidence of the truth of the allegation but only as evidence of the fact that the complaint was made. Although we need not reach a concluded view, it is not necessarily the case that what the complainant said about events which had occurred in 2001 (which she mentioned to a school friend at a slumber party about three years’ later) falls into that category. Nor will the criteria necessarily be met because a little later she indicated she wanted help in a school question and answer exercise on sexuality.

[43]     However,  the  matter  having  come  before  the  Court  unchallenged,  this complaint evidence came to receive extraordinary prominence in the summing up. There was a substantial quotation of the evidence but insufficient direction as to the very limited use it could have.

[44]     Mr Eaton referred to the direction at [27] where the Judge said:

There was then the evidence a little later on because this slumber party, as I understood it, took place in and around March that the teacher was told in the sexuality education class through a note in the drop box in about June of last year.  Now the Crown were careful not to lead the discussion that took place at that time because of course it did not qualify as the evidence of first complaint.  It was of course the first complaint to an adult and it is perhaps explained and assisted the Crown to explain why then an investigation was launched and what happened from the date in June when Mrs E was told, the evidential interview and the subsequent search warrant.

[45]     He submitted that this could only reasonably be interpreted by a jury as a direction that there was a second but relevant complaint made to an adult.  Since it was inadmissible as complaint evidence (not being a first complaint), Mr Eaton

argued that the above direction was unfair to the accused.  He also argued that the treatment of delayed complaint was unfair.  Counsel submitted:

It is wholly unhelpful to a jury to be given a direction as to the relevance of recent complaint when such a complaint relates to events that occurred up to two years previously and then within a short breath to direct the jury regarding the absence of a prompt complaint and the question of delayed complaint.

[46]     This issue has given us serious cause for concern.  Whether the direction was so inadequate as to have of itself created a sustainable ground for a re-trial we leave as an open question.

[47]     There needs, however, to be meticulous care in ensuring that, when juries hear this exceptional category of evidence, they are fully conversant with the limits within which it can be used and are diverted from any possibility of concluding that, simply because a complainant has said on some occasion in the past what they are saying in the Courtroom, it makes the evidence more potent.

Conclusion

[48]     We are satisfied that the convictions are not safe and that they must be quashed and a new trial ordered.

Solicitors:

Crown Law Office, Wellington