R v Teleiai CA 203/05

[2006] NZCA 404

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 203/05

THE QUEEN

v

MICHAEL FITUALII UAITI TELEIAI

Hearing:         10 April 2006

Court:            Glazebrook, Williams and Ronald Young JJ Counsel: O Woodroffe for Appellant

M T Davies for Respondent

Judgment:      28 April 2006

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS

(Given by Ronald Young J)

[1]      The appellant was convicted by a jury of six counts of sexual violation by rape and six counts of indecent assault, ten of which were representative charges. There were two grounds of appeal against conviction, both involving evidence which the appellant says should not have been heard by the jury and an appeal against

sentence  where  the  appellant  says  14  years  imprisonment  with  an  eight  year

R V TELEIAI CA CA 203/05  28 April 2006

minimum period of imprisonment was objectionable as being disparate with a sentence imposed on the complainant’s stepfather who had also offended against her.

Facts

[2]      The offending here occurred between 1996 and 2001 when the complainant was between eight and 12 years of age.  The complainant’s grandmother lived with the appellant at the time of the offending.   The offending began when the complainant’s grandmother was admitted to hospital for five days in June 1996.  The appellant then raped and indecently assaulted the complainant on each night the grandmother was in hospital.  From then until 2001 the appellant regularly raped and indecently  assaulted  the  complainant  whenever  her  grandmother  and   family members were away from the house.   The offending involved the appellant penetrating  the  complainant’s  labia  and  rubbing  his  penis  against  her  until ejaculation onto her stomach.  The indecent assaults involved the appellant sucking the complainant’s nipples and inserting his tongue into her mouth.

[3]      From February 2000 until December 2000 the complainant was also being sexually assaulted by her defacto stepfather, one Manuele Kolio.  As a result of the rapes by Kolio the complainant became pregnant and gave birth to a child.  Kolio pleaded guilty to a substantial number of charges of sexual assault and abduction and was  sentenced  to  15   years  imprisonment  reduced,  on  appeal,  to  13   years imprisonment (R v Kolio CA 219/01 1 November 2001).  At about the same time as the complaint was made about Kolio’s conduct (early 2001) the complainant also made allegations of sexual assault against Kolio’s uncle.  The police did not pursue the investigation into this complaint because the uncle died soon after the complaint was made.   In May 2003 the complainant first complained to a school counsellor about the events which led to these charges.

First ground of appeal - s 23A Evidence Act

[4]      A s 23A application, seeking leave to cross-examine the complainant about two incidents of previous sexual conduct was made by trial counsel.  One related to

the sexual assaults by Kolio.   Trial counsel told the Judge hearing the pre-trial application that the defence would allege that the complainant had transferred details of proven abuse by Kolio to the appellant and that the complainant had an ulterior motive for the complaints of sexual assault by this appellant.  The second application for leave to cross-examine the complainant related to the complaint of sexual assault by Kolio’s uncle.  The reason for this application, as identified by trial counsel, was to establish that the complainant had been in a position to make a complaint of sexual assault against the complainant in early 2001, as she had done with respect to Kolio and his uncle, but had not done so until 2003.

[5]      The  two  s  23A  applications  came  before  Winkelmann  J  pre-trial.    She allowed the application with respect to the evidence of sexual assaults by Kolio of the complainant.  As to the second application relating to the complaints of sexual assault by Kolio’s uncle, this application was refused.  The Judge said:

[26]I am satisfied, on the balance of probabilities that it would not be contrary to the interests of justice to exclude cross-examination on this  point.     There  is  some  limited  relevance  to  the  evidence. However,  its  probative  value is  slight.   There  is  no  information before me as to the circumstances in which the complaint was made or the conduct complained of.  The cross-examination could be very distressing for a young complainant.   Notwithstanding the stated purpose of the cross-examination, it could suggest to the jury that the complainant is a habitual complainer.  The jury may well conclude, in the absence of full details regarding the alleged abuse, and the Police reasons for not pursuing the investigation, that the complaint in respect of the uncle was a false complaint.   This would likely unfairly damage the credibility of the complainant.

Submissions

[6]      The appellant says the Judge erred in refusing him leave to cross-examine the complainant about the sexual abuse by Kolio’s uncle.  The appellant says the period of offending in this case overlapped that relating to Kolio’s uncle.   The appellant submitted “[t]he issue of transference ought to have been permitted” to be raised with respect to the uncle’s sexual assaults as well as the stepfather’s.   And the appellant submitted that if cross-examination had been allowed then the appellant could also have established that the complainant was in a position to complain about the appellant’s conduct at the same time as the other complaints she made in early

2001.  The appellant submitted in response to the Judge’s comments (see para [26] above) about the lack of detail regarding the uncle’s abuse that the extent of detail of the complaint was not relevant because the appellant wanted to establish the fact the complainant made a complaint.

Discussion

[7]      The application under s 23A with respect to the sexual assault by the uncle was not made by trial counsel on the basis of any alleged transference.   It could hardly be.   As the Judge pointed out, there was virtually no detail of the alleged offending by the uncle and so no comparison with what the complainant had alleged against the appellant could be made.  And so a case of transference did not have a credible factual base upon which a s 23A application might be granted.  This can be contrasted with the allegations relating to Kolio.   These complaints, as the Judge found, did contain significant detail, some of which was similar to Teleiai’s offending.

[8]      In summary, therefore, no error has been shown by the Judge.  She did not consider the question of “transference” as it related to the complaint with respect to the uncle because that was not the basis on which trial counsel put to her that such evidence should be admitted.   Even if transference had been argued there was insufficient evidence in any event to justify cross-examination of the complainant based on this allegation.

[9]      As to the alternative ground of appeal, relating to the opportunity to ask the complainant why she had not complained about the sexual abuse in this case when she complained about the sexual abuse of the uncle and Kolio in 2001, we consider the appellant was able to raise this issue at trial in his defence.

[10]     In  cross-examination  the  complainant  was  asked  with  respect  to  the allegations against the appellant:

Q.       If they are true why didn’t you complain about them at the time?

A.I was young.  I didn’t know what rape was and I didn’t know what sex was neither so I didn’t know what to do.

[11]     While this may not have been in the context of a complaint about the uncle’s conduct it put before the jury the appellant’s point that a complaint had not been made at the time of the abuse.

[12]     The Judge in summing up covered the Crown and defence positions on this aspect.  He said:

[29]      In this case, there is an issue, in fact it is right at the heart of the case, and that is why [the complainant] complained when she did and why she did not complain earlier.   The offending she alleges concluded when she became pregnant as a result of the abuse by Barnes Kolio.  She made a complaint at the time once her pregnancy was discovered about Barnes Kolio, she was interviewed about it and he subsequently admitted those offences so there is no issue about the truth of that complaint on her part.  But the question that does arise here is why did she not complain at the same time about Mr Teleiai?  The offending by Mr Barnes Kolio happened in 2000. The offending she says Mr Teleiai is responsible for began in 1996, some years earlier, and continued even when Barnes Kolio was abusing her.  It stopped when she became as a result of that abuse. Why didn’t she mention that as well?

[30]Now that is something that you are going to have to assess and I am going to come back to it in a moment but the law allows me to tell you that experience has shown that there can be good reasons, often deeply buried and personal, why people do not complain sometimes for long periods.   And so the fact that a complaint was not made earlier, or as early as you might expect it to be, does not mean that it is a false complaint or that the offending complained of never happened.    You  have  to  assess  the  particular  reasons  and  the particular context.  You may recall that I said to you at the beginning of this summing up you need to look at the evidence really carefully and don’t do it in a general way.  Do it really particularly.  And that is what I want to come to now and that is what the Crown and defence say to you about essentially that issue.

[13]     And further when summarising the case for the Crown the Judge said:

[34]She complained, the Crown says, not in any pre-meditated way but when she was upset in a class discussion about discussion of rape. She  went  to  the  counsellor  to  address  that  distress.    She  began talking about Barnes Kolio – she had been plainly raped by him – and then found herself speaking about Mr Teleiai.  The Crown asks why would she have wished to fabricate at that particular time and now that any issue of who was caring for whom has dissipated, why would she want in this Court to injure her grandmother whom she plainly loves?

[14]     And in summarising the case for the defence at paragraph 40 and 41:

[40]If she had really been abused as she said she had been, the defence says, why didn’t she complain at the time when she made her disclosure about Barnes Kolio?   At that time, although it my have been the result of her pregnancy that the complaint came to light, she was interviewed by the Police.  She did make a disclosure interview. There was the opportunity then for her to extend her complaint. Could it really be, the defence says, that she was overborne in her will by Mr Teleiai?  She had not lived with him all of the time, only some of the time.  He was at work a significant time.  She was away from her grandmother as well as him.   She was with her mother. Could she not have complained to her mother?  Is there any force to her statement, the defence says, that she didn’t wish to hurt her grandmother?   Recall that when Barnes Kolio first abused her she complained to her own mother and he was her mother’s partner at that time, so why the contrast?

[41]The defence is that the complaint came late.  It can be explained as coloured by the position in the family at the time.  It was not truthful or  reliable  and  you  ought  to  put  it  to  one  side.    Without  the complaint, the defence says, there is no Crown case and Mr Teleiai should be acquitted on all counts.

[15]     The appellant was able to tell the jury that the complaint about Kolio was made in 2001 and thus an opportunity arose then for the complainant to complain about the appellant’s conduct.

[16]     The appellant says that it could have been more effective for the appellant to be able to point out to the jury that complaints about two offenders were made at the same time in early 2001 but none regarding the appellant’s conduct until two years later.  We accept this point, however, overall this is a relatively minor point which could not have resulted in a miscarriage of justice.  The appellant was able to raise the fact that the complainant had failed to complain about these events when she had the opportunity in the context of another complaint of sexual assault at the time.  The case for the Crown and accused was thoroughly put by the Judge.   In those circumstances the essence of the case for the appellant was able to be put to the jury. In our view, therefore, there was no miscarriage of justice.  This ground of appeal will be dismissed.

Second ground of appeal – complainant’s videotape interview

[17]     During the course of the complainant’s video interview the complainant was asked whether there was anything the appellant had said to her about telling others of

the sexual assault.  A discussion followed, and the complainant said she thought the appellant might sexually assault her sister and seemed to allege he had sexually assaulted one of her sisters.  This was a repetition of evidence given earlier in the videotape interview when the complainant had told the counsellor to whom she complained that she believed the appellant had sexually assaulted her younger sister.

[18]     Trial counsel objected to the admissibility of this evidence.  The matter came before the trial Judge to decide what if any portion of the videotape should therefore be edited out.  The Crown accepted the allegation on the tape in relation to a sexual assault on the sister should be edited from the tape.  However, they maintained that other  portions  of  the  tape  where  the  complainant  described  what  she  saw  the appellant do to her sister and why she had not resisted the appellant’s abuse was relevant and admissible.

[19]     The Judge in response to counsel’s submissions and in giving judgment said:

[4]The complainant’s proposed evidence, I said, went further.   She described the accused taking her young sister into another room and to hearing her sister’s screams.   Though she confirmed to the interviewer that she saw nothing, and that she and her sister had never discussed what may have happened, her apparent belief was, as she told the school counsellor, that her sister also was abused. That allegation, unsupported by any complaint from her sister, or evidence to be called at trial, I said, appeared to me more prejudicial than probative.  Mr Juran objected, on that basis, to the full passage in which that narrative appeared.

[5]I am clear, as I told counsel, that any reference to the possibility that the younger sister may have been actually abused does need to be excised.  But I consider also that the jury is entitled to know, when assessing   the   credibility   of   the   complainant,   and   why   she complained when and as she did, that she says that the accused exerted his well, not just by coercing her directly, but by threatening, if only implicitly, to abuse her younger sisters.

[6]I  need  not  set  out  in  this  ruling  the  passages  in  which  the complainant says in effect that the sister was abused.  Mr Grieve QC confirms that the Crown takes no issue with the passages I consider should be excised.   Because, however, Mr Juran does object to a passage I propose should remain in, I need to set that aspect in context.

[7]       In the full passage, that I will allow to remain in, the complainant describes an occasion at Roscommon Road, when her grandmother was in hospital and others were at work, and she and her younger sister were with the accused.   When she resisted the accused, she

says,  he  hit  the  roof.   But  then,  and  this  is  the  most  strongly contested aspect, she says this:

... and then he goes, on well, and he turned round to my little sister [M], and he was pulling her and I thought oh!, he’s gonna do the same thing to her, I’m so scared!  I’m trying to remember Nana’s number at the hospital.

[8]Mr Juran contends that the implication has to be that the accused must then have abused the younger sister.   I do not agree.   That passage would carry that connotation, had the next part not been excised.  There the complainant goes on to describe how the accused took her younger sister into another room, and, as she inferred, even though she did not see anything, abused her.  Once that passage is excised, however, the most that can be taken, I consider from the passage just set out, is that the accused was attempting to coerce her, by implying that he would turn to her younger sister.  That is true to her complaint and involves no prejudice to the accused; and I allow it in.

[20]     As it turned out the edited version of the transcript played to the jury was as follows:

Was there anything else that you were scared about? Um no (shakes head).

Ok

Oh, I was scared that he might do it to my little sisters.  ‘Cos I was there, everyone, Nana went to the hospital ‘cos my great grandmother was sick, um

Uncle Mino and Charlotte went to work and we were the only ones there, it was his day off.

Uh uh.

And um he took my he I didn’t want to do it, ‘cos he asked me and I said no, it was like.

In Roscommon Road?

Yeah (nods head).  And it was the first time he did hit the roof.

Mhm.

The very first time, and he goes, oh well, and he turned round to my little sister [M], and he was pulling her, and I thought Oh!, he’s gonna do the

same thing to her.  I’m so scared!  I’m trying to remember nana’s number at

the hospital.  I love, I love my sisters, I just don’t want him doing it to my baby.

Submissions

[21]     The appellant submits that this portion of the video interview was highly prejudicial  to  the  appellant.  Counsel’s  written  submissions  maintain  that  the

inference from this section of the interview was that the appellant had sexually abused the complainant’s sister.  However, during submissions counsel accepted that no such inference was open from this passage.  We agree.

[22]     Counsel for the appellant then submitted that including the comment “I love my sisters, I just didn’t want him doing it to my baby” (the complainant’s child) was particularly prejudicial without any probative value.   The appellant submitted that the prejudice was heightened in this case because this was a young female complainant expressing concern that a young baby might be sexually abused by an older adult male complainant.

Discussion

[23]     We agree that this sentence should have been excised from the tape.  Given Keane J’s ruling, such an excise would have been consistent with it.  The Judge was properly prepared to allow evidence from the complainant that the appellant had essentially threatened to sexually assault her sister if she did not acquiesce to his sexual advances.   This was relevant to consent and to explain the complainant’s conduct.  It was highly probative and only prejudicial to the appellant in the sense that it helped established an element of the offences alleged and to explain the complainant’s conduct.

[24]     However, the reference to the complainant not “want[ing] him to do it to my baby” had none of these elements.   There was no suggestion the appellant ever threatened to sexually assault the appellant’s baby and so the comment by the complainant had no context.  Its probative value was in explaining the complainant’s submission.  However, its prejudice far outweighs its probative value given there is no suggestion of threats against the baby.  We also keep in mind that this was one sentence on a 35 page video interview transcript.  It would have been better to have been left out.   However, in our view it would have had little relevance when considering the case overall.  Any prejudice, therefore, in our view was minor and did not result in a miscarriage of justice.   We reject this ground of appeal.   The appeal against conviction is therefore dismissed.

Third ground of appeal – Appeal against sentence

[25]     The appellant was sentenced to 14  years imprisonment  on  six  counts  of sexual violation and three years imprisonment concurrent on the six counts of indecent assault together with a minimum period of eight years imprisonment.  The sole ground in support of the appeal against sentence was based on the submission that this sentence, and the minimum period of imprisonment, were manifestly excessive and inappropriate given the sentence the complainant’s step father Kolio received for what was said to be more serious offending.

[26]     Kolio was sentenced on 24 October 2001 to 15 years imprisonment having pleaded guilty to 18 counts including sexual violation by rape, sexual violation by unlawful sexual connection, abduction and indecent assault.  Kolio’s offending over

11 months involved full intercourse resulting in the complainant’s pregnancy and frequent  abduction  of  the  complainant  to  isolated  areas  where  the  offending occurred.  On appeal (R v Kolio CA 219/01 1 November 2001) the starting point of

17 years was confirmed for this offending.   However, this Court considered insufficient allowance had been given for the guilty plea and increased the allowance for such a plea to four years reducing the overall sentence to 13 years imprisonment.

[27]     The appellant submitted that Kolio’s offending was significantly worse than this appellant’s and yet the appellant had ended up with a longer sentence including a minimum period of imprisonment not  imposed  on  Kolio.    Counsel  submitted  a proper starting point in this case was 14 years with a one year deduction for personal circumstances being appropriate.  She submitted a minimum period of imprisonment of six years should have been imposed.

Discussion

[28]     There are features on the facts of Kolio’s abuse which are worse than the current  case.    The  acts  of  full  forcible  rape,  the  resulting  pregnancy  and  the abduction of the complainant are in this category.  On the other hand the offending in this case carried on for five years compared with 11 months in Kolio’s case, and the offending began here when the complainant was only eight years of age compared

with 11 years in the Kolio offending.  We also accept the Crown submission that this case could be seen to involve a greater breach of trust given the complainant was living with the appellant at the time of the offending and he was acting as her parent. The appellant in this case did not have the benefit of a guilty plea and clear expressions of remorse present in the Kolio case.   The appellant in this case was given a very generous deduction of one year for his lack of previous convictions. We note that the lack of convictions from 1996 onwards was not because of any lack of offending given the appellant’s continuous offending from 1996 to 2001.

[29]     We are satisfied that the sentence imposed was appropriate and that there was no unjustifiable and gross disparity between the sentence of this appellant and the stepfather.   We accept there was only a modest difference in the starting point sentences of 17 years for Kolio as against 15 years here.  A slightly wider gap could have  been  justified.    However,  the  one  year  reduction  given  by  the  Judge  for personal circumstances in this case could be seen as very generous.  Although Kolio had no minimum period of imprisonment imposed because his case was governed by s 90(1)(d)(i) of the Criminal Justice Act he will be required to serve a minimum of eight years and eight months imprisonment of his sentence.  In those circumstances the imposition of a minimum period of imprisonment with regard to this appellant, while justified given the very serious facts, is not in its effect different than the stepfather’s minimum period of imprisonment.  We consider the ultimate sentence imposed was neither manifestly excessive nor wrong in principle, nor did it create any inappropriate disparity with Kolio’s sentence.  The appeal against sentence will therefore be dismissed.

Solicitors:

Crown Law Office, Wellington