R v T HC Wellington CRI 2008-091-1598

[2009] NZHC 365

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-091-1598

THE QUEEN

v

T

Hearing:         23-25 March 2009

Counsel:         G J Burston and T J Gilbert for Crown

I M Antunovic, S Antunovic and C Parkin for Accused

Judgment:      26 March 2009

JUDGMENT OF RONALD YOUNG J

(Reasons for Discharge pursuant to s 347(3) Crimes Act 1961)

Introduction

[1]      The accused, who faced one count in an indictment alleging rape, applied at the end of the complainant’s evidence pursuant to s 347(3) of the Crimes Act 1961 that I discharge him on that count.

[2]      Having heard counsel’s submissions I concluded that I should discharge the accused.  I did so in open Court in front of the jury and briefly explained to the jury why I had done so.  I advised that I would give my detailed reasons for doing so.  I

now do so.

R V T HC WN CRI 2008-091-1598  26 March 2009

[3]      The accused’s submission is that having heard the complainant’s evidence, that evidence had been so undermined that no jury properly directed could rationally accept her evidence as truthful on the vital facts of the case.

[4]      In considering the application it is proper at the beginning to acknowledge the respective functions of myself as Judge and the jury. Generally, the jury decide the facts and assess witness’s credibility other than in the most exceptional circumstances.

[5]      In Parris v Attorney-General [2004] 1 NZLR, CA 519 at 523/524 the Court considered that the appellate test, whether a verdict delivered by a jury was unreasonable or could not be supported having regard to the evidence, was a useful test for trial Judges in such circumstances.  The Court stressed that in all but the most unusual or extreme circumstances questions of credibility are for the jury ([14]).

[6]      However, in exceptional cases, where a Judge concludes that no jury properly directed could rationally accept the complainant’s evidence and where there is no other evidence upon which such a jury could properly reach a verdict of guilty then a Judge has a duty to withdraw the case from the jury.   If a Judge concludes that a verdict, which relies upon a particular witness’s evidence, would be unsafe then the Judge has a duty to withdraw the case from the jury.  As the Court of Appeal said in R v Flyger [2001] 2 NZLR 721, CA at [15] “witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue”.

Brief background facts

[7]      The complainant and the accused were members of an on-line dating service. They met “on-line” and began exchanging emails and then telephone texts.   Over several weeks their exchanges became increasingly sexually explicit.

[8]      They decided to meet and did so at a bar at Whitby.  After some drinks and discussion they agreed to return to the complainant’s house for sex.

[9]      The complainant has three children.  When she and the accused arrived home the complainant sent the children’s babysitter home.   The oldest child, a daughter then aged nine years, was sent to bed in her bedroom.

[10]     The complainant says that she then gave the accused oral sex to ejaculation in her lounge.   In the accused’s video interview he said that he and the complainant went to the complainant’s bedroom where they had mutual oral sex, for him to ejaculation.

[11]     Shortly afterwards the complainant and the accused went to a party at a neighbour’s house.  The neighbour was gay.  The complainant spent a considerable portion of the evening dancing with this neighbour.  She claimed the accused did not like this.  The complainant and accused then agreed to return to her house for sex. The complainant’s evidence was that immediately after they entered her house when she turned to lock the sliding door into the lounge, the accused hit her over the head and dragged her to her bedroom and raped her.   She says that in the lounge she yelled at the accused to get out of her house but he took no notice.

[12]     When they got to the bedroom she says she stopped yelling because she was concerned she would wake her daughter who was in the next bedroom.   The complainant said that after the rape the accused said how much he disliked her voice, dressed and left.

[13]     The accused said in his video interview that after they returned to the house they had consensual sex in the complainant’s bedroom on several occasions and in several different positions.  Eventually he said he was tired and fell asleep.  When he awoke he said they had sex again but he lost interest when she bit him on his finger. He said he then began dressing to leave.   The accused said the complainant then became angry with him.  They had an angry exchange and when he said that he did not like her voice she became angrier and demanded he leave and he did so immediately.

Submissions and discussion

[14]     The Crown’s response to the s 347(3) application was to accept that if the complainant’s evidence was considered in isolation the Crown case was weak given the complainant’s evidence had been undermined in a number of ways.   By itself, however, they submitted that would not be enough for me to exercise my function under s 347 of the Crimes Act.

[15]     However, they accepted that it was properly open to me to discharge the accused given the additional evidence that the complainant had made a series of false complaints to the Police about criminal conduct when she had become angry or upset by a person that she had known.  They accepted the current factual circumstances could legitimately be seen as an example of this.

[16]     I now turn, therefore, to a consideration of the complainant’s evidence.

[17]     The complainant changed her evidence in a number of ways from her initial video interview, a later statement to the Police and to her evidence in Court.  Several examples illustrate the point.

[18]     The complainant said in her video statement to the Police shortly after these events that when she was dragged into the bedroom by the accused there were no lights on in the bedroom.  In her evidence she said the bedroom had a light on when she was dragged in and raped.

[19]     This change had some importance.  The complainant described two tattoos on the accused’s torso and arm.  On the complainant’s evidence the only chance she had to see his torso and arms were when he raped her in the bedroom.  However, if there were no lights on in the bedroom it is difficult to see how the complainant could so accurately have described the accused’s tattoos given they were either dark blue or black.

[20]     The complainant, in her statement to the Police, said that after the rape she had slept in her bed.  In her evidence the complainant said she was too traumatised to

sleep and had sat in the lounge through the night.  The complainant’s evidence was that when the accused raped her on the bed he had pulled her jeans down to her ankles and had ejaculated inside her.  Initially the complainant said in her evidence that she had pulled up her jeans when her children had woken a few hours later.  She said she did not wear any underwear.  Later in her evidence she appeared to resile from her earlier evidence regarding her jeans.  She claimed she had worn a dressing gown after the rape and through the morning.  This change seemed to be triggered by cross-examination regarding the results of forensic testing.

[21]     The forensic testing of the bedclothes, her jeans and other clothing and a vaginal swab showed no sign of any seminal fluid.   This evidence supported the accused’s statement that he had only ejaculated during oral sex.  If the complainant had put her jeans on after the rape then seminal fluid on her jeans might have been expected.   The complaint’s change in her evidence could have been designed to explain why no seminal fluid was found on her jeans.

[22]     In June 2008 the complainant sent a detective involved in the investigation of the allegation a text telling the detective that she had just remembered that the accused had moved her heater in her bedroom before she and the accused had gone to the neighbour’s house for the party.   However, in cross-examination the complainant said she was simply wrong when she had said the accused had shifted her heater.  The complainant said that in June when she had sent the text she was confused.

[23]     However, as counsel pointed out, if the complainant’s recall of the accused shifting her heater in her bedroom before going to the party at her neighbour’s place was  true,  then  that  supported  the  accused  statement  that  they  had  gone  to  her bedroom before the neighbour’s party and contradicted her own evidence that they had not.

[24]     Finally, in this aspect of the case the complainant gave evidence that the accused had not worn a condom when he had raped her.  She said in evidence she would  never  agree  to  have  sex  without  a  condom.     It  was  put  to  her  in cross-examination that she had had sexual relations with another Police Officer and

that she had done so without using a condom.  She agreed that she had had sexual relations with the other Police Officer but said that it was only on the first occasion they had intercourse that he had worn a condom.   Subsequently she said she had agreed to have sex without him wearing a condom.

[25]     This evidence was, on the face of it, in conflict with evidence previously given by the complainant that she had no recollection of the first sexual encounter between herself and the other Police Officer because she was so intoxicated. As counsel pointed out if she could not remember the incident how did she know a condom had been worn?  The complainant claimed that she had later seen a condom on the floor and presumed it had been used.  The complainant’s evidence relating to this cross-examination was wholly incredible.   Her evidence clearly “changed” to take account of a clear contradiction to try to account for it.

[26]     There were also significant differences, on important points, between the pre-recorded video evidence of the complainant’s nine year old daughter who was in the house at the time of the alleged rape and the complainant.   Indeed overall the child’s evidence favoured the accused’s version of events rather than the complainant’s.  This was despite the fact that the child was obviously anxious to help her mother and despite the fact that the child said that her mother had told her everything about the incident afterwards.  I note that this was disputed by the mother but for reasons I will give the child’s evidence was almost certainly correct on this point.

[27]     When considering the child’s evidence it was difficult to distinguish between what she was saying from her own observations and what she had adopted as her own from her mother’s description of events to her.

[28]     The young child supported the accused’s statement that the initial sexual contact was in the complainant’s bedroom rather than the lounge.  The child said she saw and heard her mother and the accused go to her mother’s bedroom and stay there for about an hour before they went to the neighbour’s house.  She gave some detail of the surrounding circumstances under which this occurred.   This was in conflict with the complainant’s evidence but matched the accused’s statement.

[29]     The child’s evidence regarding the first occasion on which the complainant and the accused were in the complainant’s bedroom matched the accused’s evidence in important ways.  For example, the child said that she could hear the complainant and  the accused  talking and  laughing in  the  bedroom  and  that  she  heard  them mention her and the complainant’s other children.   This  matched  the  accused’s description of what was discussed in the bedroom.

[30]     Importantly, the child said that when her mother and the accused returned from the neighbour’s house she was in the lounge playing on the computer.  She said her mother and the accused came into the lounge, turned on the stereo and then sent her to bed.

[31]   This was a crucial difference from the complainant’s evidence.   The complainant’s evidence was that as soon as she and the accused entered the house through the lounge door and as she tried to lock the door she was hit on the side of the head by the accused.   Given the child’s evidence that she was within a few metres of her mother and the accused and saw nothing, a serious discrepancy with the complainant’s evidence was revealed.

[32]     I note a subsequent medical examination revealed no overt injuries to the complainant’s head, which she said had been struck a severe blow.

[33]     Of less importance but relevant, was the fact that the complainant, when she gave evidence, at times refused to provide direct answers to questions.

[34]     Further, at the time of the incident the appellant had been taking medication for depression and although she may not have taken medication on the day of the alleged rape she acknowledged that when she mixed her medication with alcohol she did become irrational.

[35]     The complainant, on the morning following the alleged rape, sent texts to the accused.  No mention was made of rape in those texts.  Mention was made about bad behaviour by the accused but the complainant’s emphasis appeared to be on the fact that the accused had said he could not stand her voice.  In one sense that emphasis

matches the statement by the accused who said that the complainant had become especially angry after he mentioned his dislike of her voice.

[36]     I  have  already  observed  that  the  complainant’s  daughter’s  evidence  if anything favours the accused’s account.   It is clear from the child’s evidence that significant portions are a repetition of what the complainant has told her happened. The complainant denied telling her daughter any detail of the events that occurred that  evening.    That  cannot  possibly be  true.  The  young  child  in  her  videotape interview said her mother had told her everything that had happened.  It is clear from the child’s evidence that the complainant provided her with significant detail about what the complainant said were the events of the evening.

[37]     To take one example.  In her interview the child mentions that she heard the accused say to the complainant that he had a bit of an anger problem.  It is clear from the evidence that if this was said it was said either inside the neighbour’s house or on the  neighbour’s  balcony,  certainly  not  within  the  child’s  hearing.    There  are  a number of other examples, which illustrate some of the child’s evidence is from her mother’s account.  This includes the type of language used by the child and further detail, which only the complainant would know.

[38]     This assessment illustrates the complainant contradicted herself on important matters, gave evidence which had no forensic support where such expert might reasonably have been expected and gave evidence which was in conflict with other credible and reliable evidence on vital points. My conclusion is that taking into account the complainant’s evidence about what happened that night together with the other evidence available the complainant’s credibility and reliability was severely undermined.   However, if this had been the only relevant evidence in assessing credibility I would probably have left an assessment of the complainant’s credibility to the jury and on this basis alone I would not have discharged the accused.

[39]     However, there is evidence of other complaints of criminal conduct against others by the complainant, which appear to be false which were made in similar circumstances to the current complaint.  I turn to those complaints now.

Other complaints

[40]     The complainant alleged in August 2006 that another Police Officer had had non-consensual intercourse with her.  I granted a s 44 Evidence Act 2006 application by the accused and allowed cross-examination of the complainant on this previous sexual encounter and the complaint arising from it.  In the circumstances I made an order suppressing the name and occupation of the Officer.

[41]     This Officer and the complainant met on an internet dating site in the later half  of  2007  and  became  sexually  involved  shortly  afterwards.    They  parted company in January 2008.  When the alleged rape occurred the complainant rang the Officer the following morning to ask his advice.

[42]     In August 2008 the complainant made what seems to have been an allegation of rape against the Officer arising from the first occasion on which they had sex in approximately November 2007.  Although the complainant stressed throughout her evidence that she did not use the “rape” word in her complaint to the Police her complaint was effectively that she had been raped.

[43]     The complainant said that the Police Officer had had sexual intercourse with her without her consent, she being too drunk to give any such consent. Understandably there has been a Police investigation based on an allegation of rape. The investigation concluded that no charges should be brought against the Officer who had for some months been stood down from duty while the investigation took place.  The Crown accepted that there was no truth in the allegations made by the complainant against the Police Officer.

[44]     After  the  Officer  and  the  complainant  stopped  seeing  each  other  the complainant attempted, unsuccessfully, to convince the Officer to resume the relationship.  In cross-examination, counsel made the point that it was surprising the complainant had turned first to the Officer, whom she effectively said had raped her, after she had allegedly been raped by the accused.  Counsel also made the point to the complainant that she had made a complaint of rape against the Officer only when it was clear that he was rejecting her advances.

[45]     In 2008 the complainant took a woman in as a boarder at her house.  After about  six  weeks  they  fell  out  and  the  woman  left.     Shortly  afterwards  the complainant alleged the woman had stolen four items of jewellery from her valued at

$14,000.   The complainant made a complaint to the Police of theft and made an insurance claim.  In evidence, however, the complainant seemed reluctant to admit she had made a complaint to the Police and that she had made an insurance claim.  It is clear from the documents given to her and produced in Court that that is exactly what she did do.

[46]     In evidence she said that six weeks after the complaint of theft she had looked in her jewellery bag and found the four items of jewellery.  She did not then ring the Police or the insurance company and tell them she had found the items.  In February 2009 the complainant put one of the four items of jewellery on the internet for sale.

[47]     The circumstances under which the complainant alleged her jewellery had been stolen, her claim of discovery six weeks later and her failure to mention the “discovery” of the jewellery to either the Police or the insurance company were simply incredible.  I also note that although the complainant said that she discovered the jewellery six weeks after her complaint of theft it seemed clear from the evidence that she was still pursuing the Police complaint and the insurance claim almost eight weeks after the complaint of theft.

[48]     A similar situation seems to have arisen with respect to the complainant’s current partner.   The complainant seems to have complained about her partner assaulting her and possibly sexually assaulting her daughter after a serious argument with him.  Subsequent to the complaint about her partner’s alleged violence towards her the Crown accepts that she rang the Police and said her complaint was false and subsequently said that she had only told the Police part of the story as far as the complaint of assault was concerned.  The complainant denied she had claimed her daughter had been sexually assaulted by her partner.

[49]     I accept the defence contention not disputed by the Crown that there is a very concerning pattern of behaviour exposed by these false complaints.   The pattern

seems to be that when the complainant and a close friend have a disagreement or they fall out then on at least the three occasions, including one where an allegation of rape was made, the complainant makes false allegations of criminal conduct.

[50]     I should also mention the proposed evidence of  Doctor Kerry Thornbury. Two aspects of her evidence were relevant to the case.

[51]     Firstly, she described some tenderness to the posteria forshette area of the complainant’s genitalia consistent with forceful penetration of her vagina.   This evidence is neutral.  The accused’s evidence is that he and the complainant indulged in  vigorous  sex.    This  evidence  is  just  as  consistent  with  consensual  as  with non-consensual intercourse.

[52]     Secondly, there were a number of small bruises on the complainant’s arm and legs and some redness at the base of her throat.  The complainant’s evidence as to how these occurred was equivocal.  She initially asserted that they had been caused during the alleged rape.  However, she accepted that she had engaged in vigorous dancing with her neighbour when she and the accused had gone to the neighbour’s party.  She accepted that she had danced on a table during the evening and that on two occasions at least she had fallen while dancing.  She accepted that some of the injuries could have occurred at her neighbour’s house.  Other than the redness on her chest, which she claimed had occurred when she was pushed by the accused, no attempt was made to tie any of the particular injuries to any particular action by the accused.  In the end it could not be said that the forensic medical evidence together with the complainant’s evidence provided any corroboration of the complaint of rape.

[53]     The  evidence  of  the  three  false  complaints  seriously  undermines  the credibility of a complainant.  On three occasions, at least, the complainant has made a false statement about criminal offending including an allegation of rape in circumstances where she has fallen out with or had a serious argument with another person.

[54]     In this case the accused’s statement was made when he could not possibly have known of these false complaints.   He describes a situation where the complainant became angry with him.  He made an unkind remark about her voice, which seriously upset her.  Her actions from then on followed a pattern established on the other three occasions of a complaint to the Police of serious misconduct.

[55]     This  combination  of  seriously weakened  evidence  of  the  complainant  as detailed in [16] to [38] together with the pattern of false complaints as identified in [39] to [49] fundamentally undermined the complainants credibility and reliability.

[56]     To return to the appropriate tests.  In my view the complainant’s credibility and reliability as a witness has been so undermined that it would be unjust for the trial to continue.   I am satisfied that no jury could rationally rely upon the complainant’s evidence on the important points as truthful and to do so would make any finding of guilt unsafe.

[57]     The Crown accepted that if I reached that conclusion and they did not dispute that that was a conclusion properly open to me then they could not resist a discharge pursuant to s 347(3) of the Crimes Act.  Without the complainant’s evidence there could not possibly be sufficient evidence to convict the accused.

[58]     For  those  reasons,  therefore,  I  discharge  the  accused  in  open  Court accordingly.

Ronald Young J

Solicitors:

G J Burston, Luke Cunningham & Clere, PO Box 10357, Wellington,  [email protected]

I M Antunovic, Principal, Wellington, email:  [email protected]