R v Tepu

[2008] NZCA 460

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ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA322/2008 [2008] NZCA 460

THE QUEEN

v

IVAN POURAUMATI TEPU

Hearing:         14 October 2008

Court:            Arnold, Hugh Williams and Wild JJ Counsel:  J L Cagney for Appellant

M T Davies for Crown

Judgment:      3 November 2008 at 10.30 am

JUDGMENT OF THE COURT

A        The appeal is dismissed.

R V TEPU CA CA322/2008  3 November 2008

BThe judgment is not to be published in the news media or on the internet or other publicly accessible database until final disposition of trial. Publication in a law report or law digest is permitted, however.

REASONS OF THE COURT

(Given by Arnold J)

[1]      The appellant is charged with various counts of sexual violation (by rape), indecent assault, unlawful sexual connection and violence against the same complainant arising out of an incident in the evening and early morning of 6 – 7

March 2007.

[2]      The Crown alleges that the appellant and an associate met up with the complainant at a caravan park in West Auckland.  She had some drinks with them. The appellant drove the complainant, in his car, to a supermarket in Takapuna to purchase some more alcohol.  On the way back the appellant took the complainant to a rural area.  The complainant became concerned and asked the appellant to take her home.  The appellant stopped the car, went round to the passenger side and pulled the complainant from the car.  She attempted to fight back, but he put his hands to her throat and applied pressure.  He also threatened her with violence.  The appellant removed the complainant’s clothing and committed a variety of sexual acts on her. He then drove her back to the caravan park and dropped her off.

[3]      The complainant reported the matter to the police.   The appellant gave a video interview around mid-morning on 7 March 2007.  In that video interview he denied that he had travelled to the supermarket in Takapuna and denied that he had been involved in any sexual activity with the complainant or anyone else that night. Those denials were, the appellant now accepts, false.   Videotape footage obtained from the supermarket shows the appellant and the complainant together at the supermarket around midnight that evening, and DNA analysis of saliva taken from the complainant’s body indicates that it came from the appellant.

[4]      Mr Cagney advises that the appellant’s stance at trial will be that he did go to the supermarket with the complainant and that some sexual activity did later occur between them, but it was consensual, or at least he had a reasonable belief that it was consensual.

[5]      Against this background, Mr Cagney sought a ruling that the untruthful parts of the appellant’s statement to the police were inadmissible at trial.  He did so on the basis that, if they were admitted and the Crown cross-examined the appellant on them, the Crown would be challenging the appellant’s veracity contrary to s 38 of the Evidence Act 2006 (the Act).

[6] In the District Court Judge Gittos ruled that the appellant’s statement was admissible in its entirety and, if the appellant gave evidence, he could be cross- examined on it: DC AK CRI-2007-090-002092 26 May 2008. This Court granted the appellant leave to appeal from that ruling: [2008] NZCA 279. In doing so it said:

[5]       The appeal will … involve consideration of an important issue as to the inter-relationship (if any) between s 27(1) of the [Act] on the one hand, and s 37 (the veracity rules), and s 38, on the other.  The question, which has not previously been before this Court, is whether the prosecution has the right to produce a defendant’s statement under s 27(1) without any limitation arising from ss 37 and 38.

Statutory provisions

[7]      The three provisions of the Act principally at issue in this appeal are ss 27, 37 and 38.  Section 27 provides:

27        Defendants’ statements offered by prosecution

(1)Evidence offered by the prosecution by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.

(2)However, evidence offered under subsection (1) is not admissible against that defendant if it is excluded under section 28, 29 or 30.

(3)Subpart  1  (hearsay  evidence),  subpart  2  (opinion  evidence  and expert  evidence),  and  section  35  (previous  consistent  statements rule) do not apply to evidence offered under subsection (1).

[8]      Sections 37 and 38 relevantly provide:

37       Veracity rules

(1)       A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.

(2)In a criminal proceeding, evidence about a defendant’s veracity must also comply with section 38 or, as the case requires, section 39.

(3)In  deciding,  for  the  purposes  of  subsection  (1),  whether  or  not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:

(a)lack of veracity on the party of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):

(b)that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:

(c)      any previous inconsistent statements made by the person: (d)        bias on the part of the person:

(e)      a motive on the part of the person to be untruthful.

…

(5)For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.

38       Evidence of defendant’s veracity

(1)A defendant in a criminal proceeding may offer evidence about his or her veracity.

(2)The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if–

(a)the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and

(b)      the Judge permits the prosecution to do so.

(3)In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:

(a)       the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence:

(b)the time that has elapsed since any conviction about which the prosecution seeks to give evidence:

(c)      whether any evidence given by the defendant about veracity was elicited by the prosecution.

Basis for appeal

[9]      As we have said, Mr Cagney advised us that the appellant intends to give evidence at trial to the effect that he did go to the supermarket with the complainant and that they engaged in sexual activity. He intends to say, however, that the activity was consensual, or at least that was his understanding.  Mr Cagney submitted that the Crown would use the appellant’s false denials in his interview to argue that the jury should not believe his evidence as to consent or reasonable belief in consent. This, he said, would amount to an attack on the appellant’s veracity, which could not be justified unless either of the two elements in s 38(2)(a) were met.  Mr Cagney said that the defence would be conducted in a way that did not raise either element; that is, the appellant would not be offering evidence about his own veracity and would not be challenging the complainant’s veracity other than by reference to the facts in issue.

[10]     Mr Cagney referred us to Mahoney and others The Evidence Act 2006: Act and Analysis (2007) at [EV38.02].  There it is said that one interpretation of s 38(2) is that it prohibits the Crown from suggesting to a defendant in cross-examination that he or she lied when giving evidence of his or her innocence unless the defendant opens up the issue of his or her veracity in terms of s 38(2).  Opening up the issue of veracity requires more than simply claiming innocence.   He also referred us to Robertson (ed) Adams on Criminal Law: Evidence (looseleaf ed) at [EA37.13(1)], where it is said:

A defendant could argue that any prosecution attempt to attack the defendant’s  evidence  of  innocence  is  evidence  about  the  defendant’s veracity, prohibited by s 38(2), because it is evidence about the defendant’s disposition (not) to refrain from lying in the proceeding.

(Emphasis in original.)

[11]     Mr Cagney acknowledged that the evidence of the appellant’s denials was relevant to the issues at trial (s 7) and was not unfairly prejudicial (s 8).  He said that

he was raising a technical point, based on the plain meaning of ss 37 and 38.  He accepted  that  the  interpretation  which  he  advanced  was  probably  not  what Parliament had in mind, but said that that was a matter which Parliament should resolve, not the Court.

Discussion

Mr Cagney acknowledged that, if his submissions are correct, s 38 has brought about a significant change in the law, apparently inadvertently, which would probably require  rapid  amelioration  by  way  of  amending  legislation.    However,  we  are satisfied that the Act did not intend to change the law in the way suggested by Mr Cagney, and that the appeal must fail.

Section 27

[12]     We begin with s 27.  Mr Cagney submitted that it is subject to s 38, which, he said, is couched in “absolute” terms.   We do not agree that s 27 is affected by s 38 in the way Mr Cagney suggested.   Rather, we consider that s 27 applies to the present case.

[13]    Section 27 is in subpart 3 of the Act, entitled “Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil  proceedings”.    It  provides  that  evidence  offered  by  the  prosecution  of  a statement made by a criminal defendant is admissible against him or her but not against a co-defendant (s 27(1)), except where it is excluded under ss 28, 29 or 30 (s 27(2)).   Sections 37 and 38 are not mentioned in s 27(2) as exceptions to the general rule set out in s 27(1).

[14]     Mr Cagney noted that s 27(3) goes on to provide that nothing in subparts 1 or

2 of the Act, or in s 35, applies to such evidence, and does not mention ss 37 and 38. But, as Mr Davies said, the purpose of subsection (3) is to confer certain benefits on the prosecution (for example, it does not have to give a hearsay notice in relation to a defendant’s statement).  The subsection provides no assistance in the present context.

[15]     We find support for our view concerning the scope of s 27 in s 124.  That section applies if evidence offered in a criminal proceeding suggests that the defendant has lied “either before or during the proceeding” (s 124(1)).   In those circumstances the judge may need  to  give a  lies  warning.    As  we have  noted, Mr Cagney submitted that when the prosecution leads evidence of a defendant’s statement which contains material falsehoods, and intends to submit on the basis of those falsehoods that the defendant’s evidence at trial should not be believed, it is necessarily attacking the defendant’s “veracity”.   If that submission were correct, s 124 would have very limited scope.

[16]     Further, Mr Cagney’s submission is inconsistent with the important change to the previous law brought about by s 124.  A jury or other fact-finder may now rely on a defendant’s lie as evidence of guilt: see Adams on Criminal Law: Evidence at [EA 124.02].  Again, if Mr Cagney’s approach were correct, that change would have limited impact.

[17]     In summary, s 27 deals specifically with defendants’ statements in criminal cases.  We are satisfied that such a statement is admissible against a defendant even if it contains a material lie which the prosecution will be able to use as evidence of guilt, and/or as a basis for suggesting to the jury that a defendant’s evidence at trial is not to be believed.  Where the latter occurs, it will not, without more, amount to a challenge to the defendant’s veracity for the purposes of ss 37 and 38, as we now go on to discuss.

Sections 37 and 38

[18]     Sections 37 and 38 appear in subpart 5 of the Act, entitled “Veracity and propensity”.  They do not, in our view, operate to prevent the Crown from leading evidence of the appellant’s statement.

[19]     Section 37(5) defines veracity to mean “the disposition of a person to refrain from lying, whether generally or in the proceeding”.  “Disposition” in this context means a natural tendency or inclination to act in a particular way (The New Zealand Oxford Dictionary (2005)).   It goes to the defendant’s character or qualities as a

person.  While the definition envisages that a “disposition” may be manifested “in the proceeding”, it must still be a tendency or an inclination.  An allegation that a defendant lied in a statement to the police does not, of itself, involve an allegation that he has a disposition to lie.  That confuses lying on a particular occasion with a tendency or an inclination to lie more generally.

[20]     In our view, there is an illogicality in Mr Cagney’s position.  He submitted that the requirements of s 38(2) are not met where a defendant simply denies guilt and gives evidence of innocence, or challenges the credibility or reliability of a prosecution witness by reference only to the matters at issue in the trial.  We accept that.   But the defence may legitimately challenge the credibility or reliability of a prosecution  witness  in  relation  to  the  facts  in  issue  by  reference  to  a  prior inconsistent statement of the witness, as s 96 of the Act makes clear.  Clearly, the use of a prior inconsistent statement by the defence to challenge the credibility or reliability of a prosecution witness in relation to the facts in issue does not constitute a challenge to the veracity of the witness in terms of ss 37 and 38.  We see no reason in principle why the use of a defendant’s prior inconsistent statement by the prosecution for the same purpose should be regarded as an attack of the defendant’s veracity in terms of the sections.

[21]     Mr Cagney acknowledged in argument that if he is right, ss 37 and 38 will have effected a significant change to the law.  But there is nothing in the background material to support the view that Parliament intended the change he identified.   In this context we refer to the report of the Justice and Electoral Select Committee on the  Evidence  Bill  (2006).    Dealing  with  clause  34  (which  became  s 38),  the Committee said (at 6):

We recommend that clause 34(2) be amended to reinstate the existing law that limits the opportunity for the prosecution to call evidence as to the defendant’s bad character.  We consider that the clause as introduced would move the balance in favour of the prosecution.  In addition, we recommend the inclusion of a provision giving the Judge more guidance when determining whether  to  allow the  prosecution  to offer evidence  about  a defendant’s veracity.   We consider it important to limit the ability of the prosecution to offer character evidence against an accused, and to provide clear direction for the Judge.

Clearly, then, the Select Committee did not consider that s 38 effected a major change to the law by equating a challenge to a defendant’s credibility by reference to lies in a police statement with leading evidence about a defendant’s “veracity”.

[22]     Accordingly, we consider that ss 37 and 38 do not apply in the circumstances of the present case.

[23]     For the sake of completeness, we note that Mr Davies advanced an alternative argument, to the effect that the prosecution would have to lead evidence of the appellant’s statement, as the appellant has made no admissions of fact for the purposes of trial.  The statement provides the only account currently available from the appellant about his movements on the night in question, and provides some support for the complainant’s account (in the sense that it confirms what she said happened at the caravan park).  In his written submissions Mr Davies said that the statement was being led “to prove the truth of some of its contents … and to show consciousness of guilt, not lack of veracity.”   Accordingly the statement was not “about” the appellant’s veracity, or was not led for the purpose of challenging veracity, so that s 38 did not apply: see The Evidence Act 2006: Act and Analysis at [EV37.09(1)].

[24]     While it is unnecessary for us to reach a concluded view, we do have some reservations about this line of argument.   It involves what may become an overly subtle and somewhat artificial analysis of the role of a defendant’s statement in the prosecution’s case.

[25]     We accept, of course, that one or other party may use a prior inconsistent statement as part of a challenge to veracity in terms of s 38.   The effect of our decision in the present case is simply that the use of a prior inconsistent statement does not necessarily mean that veracity in the s 38 sense is being challenged.

Decision

[26]     We consider that Judge Gittos was correct in his ruling.   We dismiss the appeal.

Solicitors:

Crown Law Office, Wellington