R v Toru
[2018] NZHC 1144
•22 May 2018
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2017-043-1229
[2018] NZHC 1144
THE QUEEN v
TEINA TORU
Hearing: 14-18 May; 21-22 May 2018 Counsel:
C E Clarke and J E Bourke for Crown T T Bolstad for defendant
Verdict:
22 May 2018
REASONS FOR VERDICT OF DOBSON J
Contents
Background......................................................................................................................................................... [2]
The charges......................................................................................................................................................... [7]
The Crown case............................................................................................................................................... [11]19 July 2017................................................................................................................................................. [12]
21 July 2017................................................................................................................................................. [19]
Complainant recanting.................................................................................................................................. [25]
The rest of the narrative............................................................................................................................... [41]
Statements to others....................................................................................................................................... [52]
Pressure to provide the recorded interview?........................................................................................... [58]
Confusion caused by PTSD........................................................................................................................... [64]
The elements of the 19 July charges.......................................................................................................... [71]
The elements of the 21 July charges.......................................................................................................... [83]
Attempting to pervert the course of justice.............................................................................................. [88]Verdicts............................................................................................................................................................ [105]
R v TORU [2018] NZHC 1144 [22 May 2018]
[1] Mr Toru went to trial before me as a Judge sitting alone on 16 charges. These are set out at [7] and [8] below. At the outset of the trial, he pleaded guilty to a single count of assault with intent to injure.
Background
[2] All but one of the charges arose out of alleged violent and sexual offending committed on 19 July 2017 and alleged violent offending committed on 21 July 2017, in Mr Toru’s domestic relationship with the complainant.
[3] Mr Toru is a committed Seventh Day Adventist, studies biblical scriptures as they are focused on by that faith, and gives online counselling to others about the spiritual guidance provided by the Seventh Day Adventist faith. The complainant and members of her family adhered to the Jehovah’s Witnesses faith.
[4] The defendant and the complainant met online, and after initially spending about a week together in Taranaki in April 2017, Mr Toru decided to relocate to Taranaki in or about June 2017 to be with the complainant.
[5] They developed a vigorous sexual and emotional relationship. In about mid- July 2017, the complainant’s mother left her New Plymouth home to spend a period in Wellington and the complainant and Mr Toru moved in. On the complainant’s narrative provided in a recorded interview with Police on 29 July 2017, an argument developed on 19 July 2017 over the amount of time Mr Toru was spending conversing online with another woman. In reliance on the narrative in her interview, that argument led to the conduct giving rise to the nine charges against Mr Toru relating to 19 July 2017, as described below.
[6] The complainant spent time recovering on 20 July 2017. In her recorded interview, she then described a further series of confrontations on 21 July, which resulted in the six charges against Mr Toru allegedly arising on that day, as also described below.
The charges
[7]The charges brought in respect of the conduct on 19 July 2017 comprised:
· one each of kidnapping, assault with intent to injure, male assaults female and indecent assault;
· three charges of sexual violation by unlawful sexual connection;
· two charges of rape.
[8] The second series of six charges arising out of incidents on 21 July 2017 comprised:
· one charge of kidnapping from the defendant’s unlawful detention of the complainant;
· one charge of male assaults female;
· three charges of assault with intent to injure; and
· one charge of threatening to kill.
[9] Sometime after Mr Toru’s arrest, he was released on bail. However, in breach of his bail conditions, he did not take a bus to Hawke’s Bay as arranged and was found in the company of the complainant. Thereafter he was remanded in custody. From very soon after Mr Toru’s arrest at the end of July 2017, the complainant wanted to withdraw the description of events in her recorded interview and sought ways to deny its impact. She involved a friend of Mr Toru’s, Mr Anderson, and the three of them then engaged in dialogue over a period of months in which Messrs Anderson and Toru considered ways in which the complainant could deny the impact of her recorded interview, and encouraged her to remain committed to that course. More than 70 telephone calls from Mr Toru (on remand in custody) to Mr Anderson, including occasional discussions between Mr Toru and the complainant when she was staying
with Mr Anderson and his partner, were recorded and formed the basis of a charge against Messrs Anderson and Toru for attempting to pervert the course of justice.
[10] Charge 16 of the charges faced by Mr Toru was that he did, with Mr Anderson, attempt to pervert the course of justice. Mr Anderson pleaded guilty shortly before trial.
The Crown case
[11] The essence of the Crown case is taken from the narrative described by the complainant in her recorded interview.
19 July 2017
[12] The immediately relevant events on 19 July 2017 began with the complainant questioning Mr Toru about online communications he was having with another woman. Mr Toru became angry at being challenged about that, pushed the complainant down onto a mattress that they had placed on the floor of the living room in the house and pinned her there. He crouched on top of her, pinning her knees to the mattress with his own, and slapped her a number of times on her ears. This conduct gives rise to charge two, assault with intent to injure, laid on a representative basis.
[13] In the course of manhandling the complainant, Mr Toru at one point held her up off the floor by her ankles, swinging her back and forth while simulating having intercourse with her. That conduct gives rise to charge three, a separate one of male assaults female.
[14] Mr Toru continued to pin the complainant down on the mattress for a period of hours, verbally abusing her about her religion, her family and her former partner or partners. That conduct led on to a sexual assault while the complainant was still pinned down on the mattress. It involved Mr Toru licking, sucking and kissing around the complainant’s mouth and breasts, and progressing to licking her vagina. The conduct in the allegedly unwanted kissing was the basis of charge four of indecent assault. Mr Toru’s conduct in connecting his tongue with the complainant’s genitalia gives rise to charge five, the first charge of sexual violation by unlawful sexual connection.
[15] The conduct just described progressed to Mr Toru inserting a finger in the complainant’s genitalia, and that conduct gave rise to the second charge of sexual violation by unlawful sexual connection.
[16] The complainant then described Mr Toru positioning himself on his knees in front of her, and pulling her legs apart, with one over each of his shoulders to give him access to her groin area. She described him placing his penis in her vagina and that gives rise to charge seven, the first of the two charges of sexual violation by rape. Mr Toru then inserted his penis into her anus. That conduct is the subject of charge eight, the third of the charges of sexual violation by unlawful sexual connection.
[17] The complainant described Mr Toru removing his penis from her anus when she made it difficult for him by tightening her legs, but thereafter he again put his penis in her vagina. That conduct gives rise to charge nine, the second charge of sexual violation by rape.
[18] The complainant also described Mr Toru as detaining her in the room in which all these events occurred on 19 July 2017, preventing her from leaving the room to get medication or to go to the toilet or to eat. That detention continued for a number of hours and gives rise to the charge of kidnapping (charge one) involving the unlawful detention of the complainant without her consent with intent to cause her to be confined.
21 July 2017
[19] The complainant described a second series of incidents with Mr Toru that occurred two days later on 21 July 2017. Her recorded interview described the events on that day as starting with an agreement between them that they would watch a biblical movie. The complainant started watching it, but Mr Toru was communicating via the internet with another woman. By the time he indicated he was ready to start watching the movie, the complainant did not want to continue watching it and indicated she did not want to be with him. This caused Mr Toru to lose his temper. As the complainant attempted to leave the room, Mr Toru tripped her, making her fall in the area of the mattress on the floor. His conduct in tripping her is the basis of charge 10, male assaults female.
[20] Mr Toru then set about a prolonged attack on the complainant, rated by her as worse than the attack two days previously. There was a pattern of him slapping her about the head, which gave rise to charge 12, assault with intent to injure, laid on a representative basis. That is the charge to which Mr Toru pleaded guilty on the first morning of the trial. The attack also included Mr Toru punching the complainant about her head, giving rise to charge 13, laid as a representative charge of assault with intent to injure.
[21] The attack also extended to Mr Toru strangling the complainant by squeezing a hand or hands around her neck and that conduct gives rise to charge 14, the third on this day of assault with intent to injure.
[22] The verbal confrontation between them included Mr Toru threatening to kill the complainant, and that is the subject of charge 15, threatening to kill.
[23] The complainant described Mr Toru again confining her to the room in which these activities occurred. The complainant thought she might have a broken arm and Mr Toru would not allow her to go to hospital to have it checked. That confinement gave rise to charge 11, kidnapping by unlawfully detaining the complainant without her consent with intent to cause her to be confined.
[24] The last of the charges faced by Mr Toru is that of attempting to pervert the course of justice, which arises out of the conduct after he had been arrested in respect of all the other charges and had been remanded in custody as described in [9] above.
Complainant recanting
[25] Domestic violence is a pervasive scourge affecting New Zealand society. The victims are not only those, mostly women, who suffer physical, psychological and sexual abuse within a relationship, but also the extended families and especially children who are psychologically and emotionally, if not physically, scarred by it as well. A recurring phenomenon in the attempts by Police and the Crown to prevent and deter domestic violence is the recanting complainant. I can readily take judicial notice of the circumstances in which complainants wish to withdraw complaints of domestic violence because, although they want the violence to stop, they would rather continue
in a potentially violent relationship than live without their abusive partner. In some cases, complainants recant out of fear of retaliation, and in others out of feelings of guilt (often misguided) that they have contributed to the causes of the abuse.
[26] There is also the prospect that complaints have been exaggerated or fabricated as a means of applying pressure on a partner for other reasons, or to provide grounds for a protection order as part of a strategy for the complainant to exit a domestic relationship.
[27] Parliament has confronted this predicament in amendments to the law. Section 71 of the Evidence Act 2006 removed what had been a long-standing exemption that meant spouses were not compellable to give evidence against their partners. Further, the prospects of using an out-of-court statement, such as the complainant’s recorded interview in this case, have been expanded by s 90, which permits such documents to be put to a witness in certain circumstances for the purpose of refreshing the witness’s recollection.
[28] As the Supreme Court commented in 2010, in the context of prosecutions for domestic violence:1
Much has changed with the Evidence Act 2006. Spousal immunity has been abolished. Prior out-of-court statements by a witness now have independent evidential value … The consequence is that a prosecutor in a domestic violence case is now far less dependent on the co-operation of the complainant. We are satisfied that this represents a conscious legislative policy decision based on the recommendations of the Law Commission.
[29] Section 89 of the Evidence Act contains a general prohibition on the use of leading questions in examination-in-chief or re-examination. Although the Supreme Court decision in Hannigan v R did not arise in the context of domestic violence prosecutions,2 the potential relaxation of the restriction against asking leading questions in examination-in-chief also increases the options available to a prosecutor when confronted with a reluctant or recanting complainant. In Hannigan, the majority of the Supreme Court upheld a trial ruling that had authorised prosecuting counsel to ask questions of a Crown witness about a prior inconsistent statement without there
1 Singh v R [2010] NZSC 161, [2011] 2 NZLR 322 at [23].
2 Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612.
being a finding that the witness was hostile. Leave to ask leading questions under s 89(1) of the Evidence Act may be appropriate to enable counsel leading a witness to explore ambiguities or apparent inconsistencies between a prior statement by the witness, and the evidence being given. The analysis in Hannigan suggests that counsel given such liberty ought to be careful in broaching such inconsistencies, dealing with the topics in as open a way as possible and avoiding the challenging form of closed questions as used in classic cross-examination.
[30] After the complainant took the oath, she indicated her resolve not to give evidence. I warned her of the prospects of adverse consequences, including the prospect of a finding of contempt against her. I adjourned the trial and arranged for the Registry to obtain independent legal advice for her on the consequences of refusing to provide evidence on matters relevant to the issues in the trial. Advice of that type was provided by a practitioner not involved in the proceedings, and the complainant had with her a support person who had been arranged to sit next to the witness box during the giving of her evidence.
[31] After conferring with the provider of that advice, the complainant indicated that she would give evidence. The 10 hours the complainant spent giving evidence were plainly an ordeal for her. Throughout the trial process, she has professed her love for Mr Toru and wants him to be released so that they can spend the rest of their lives together.
[32] However, the physical and emotional harm inflicted on complainants in cases of serious domestic abuse does not leave them as the only victims. Substantial harm can be inflicted more widely on the community. Where the Crown considers that proof of serious violent or sexual offending within a domestic relationship exists, generally it will be obliged to prosecute. If such offending has occurred, the community has an interest in the offender being held accountable, the conduct being denounced and a deterrent signal being conveyed to others. As acknowledged by the Supreme Court in Singh, that prosecutorial decision is to be made in light of the procedures available where the complainant is likely to recant.
[33] The ruling in Hannigan was relevant in this case because I gave the Crown permission to put parts of the complainant’s recorded interview to her in evidence-in- chief when she was unable to recall detail and acknowledged that she was likely to be aided by having resort to it. With obvious reluctance and numerous qualifications, the complainant eventually gave evidence-in-chief more or less consistent with the essence of her recorded interview. She sought to share the blame for the violence that occurred and suggested that the “intimate” behaviour between her and Mr Toru was consensual. She also stated that the recorded interview did not tell the whole story, and enabled matters to be taken out of context.
[34] In cross-examination, she readily agreed with propositions that directly contradicted her recorded interview, including that:
· there was only one incident of violence, namely on 21 July 2017 and that she was in error in describing incidents on two separate days;
· there was no rape;
· Mr Toru had not inserted his penis in her anus; and
· all sexual activity between them had been consensual.
[35] When it came to re-examination, I ruled that the complainant was hostile, as defined in s 4(b) of the Evidence Act, in that she had given evidence in cross- examination that was inconsistent with a statement made by her in a manner that appeared to exhibit an intention to be unhelpful to the Crown as the party that had called her as a witness.
[36] In re-examination, the complainant had difficulty rationalising her conduct in the days after she first described her complaints of Mr Toru’s conduct, first to her relatives and then to Police and medical personnel. She admitted numerous contacts with Mr Toru in the months that followed as to how she could explain a narrative inconsistent with the recorded interview, but claimed that those dealings were only to ensure that the truth was told. She maintained that she was pressured into completing
the recorded interview, that she was confused and in a state of shock at the time. She claimed that a pre-existing diagnosis of post-traumatic stress disorder (PTSD) had contributed to her, in effect, transposing unspecified bad experiences from earlier in her life into her description of what had occurred with Mr Toru.
[37] The complainant did agree with closed questions regarding the incident on 21 July that Mr Toru was punching her on the chest, that she feared for her life and that he threatened to kill her. She also agreed that Mr Toru had threatened to rape her and that she had told others of that threat. In other respects, she maintained her denials of any sexual offending, consistently with her answers in cross-examination.
[38] The complainant made criticisms of her dealings with various Police officers after making her recorded interview. In re-examination, she conceded that complaints the Police would not listen to her were inconsistent with the opportunities that she was given to view the recorded interview again and tell a nominated Police officer what was incorrect in its content.
[39] The complainant has had a broader involvement in the proceeding than simply giving evidence at trial. She supported Mr Toru’s application for bail. She also asked to address me when I heard an unsuccessful pre-trial application by the Crown for orders that her recorded interview be played as part of her evidence-in-chief, and that she be screened from the defendant during the giving of her evidence. Her attitude at that time was that the charges should not proceed, that she did not consider the matters that were the subject of the charges should be before a criminal court in New Zealand, and she sought Mr Toru’s early release from custody. She warned me that she would challenge the Court’s power to require her to give evidence.
[40] In the course of its pre-trial application, the Crown applied for an order that a medical report be prepared about the impact on her mental health of giving evidence in the presence of the defendant. The report obtained from a psychiatrist did not support the need for the use of a screen during the giving of her evidence. Whilst acknowledging previous diagnoses of PTSD, the effect of the psychiatrist’s report was that stress was likely to be caused by the continued existence of the charges and the
complainant’s attitude towards them, rather than the stress of giving evidence in the presence of the defendant.
The rest of the narrative
[41] The Crown called six other witnesses whose evidence was material on numerous matters of corroboration and, by agreement, two further witness statements were read without challenge. The primary issue on all but the charge of perverting the course of justice was whether the Crown had established beyond reasonable doubt the elements of each of the violence and sexual offences. This depended on my being satisfied of a version of events consistent with the description provided by the complainant in her recorded interview.
[42] The complainant’s recorded interview describes Mr Toru preventing her leaving the property for some days until he accepted that he should leave. The complainant drove him in her car to another location where he had left his own vehicle, and they parted at that stage. She went directly to the home of a female cousin, K. From that point on, the narrative in the recorded interview is corroborated. K gave unchallenged evidence of the complainant arriving at her home on the evening of Thursday, 27 July 2017, sometime around or after 8.30pm. The complainant asked K for help, saying that she had been beaten up and raped by Mr Toru and that he had threatened to kill her. The complainant showed K injuries consistent with those subsequently observed and professionally recorded by a doctor.
[43] Mr Toru arrived separately at the address. Other relatives had been called and when Mr Toru returned to K’s property some time later, he had appeared at the door with pizzas and coffee or hot chocolate, which he described as a “peace offering”. K’s aunt dealt firmly with him, denied him access and he left.
[44] K took the complainant to Taranaki Hospital, where her injuries were assessed. Police officers attended at the hospital and obtained an initial outline from her of what had occurred. The following morning, she was examined at another facility in New Plymouth by Dr White, a general practitioner trained in the assessment of persons allegedly subjected to sexual assaults. Dr White recorded that the complainant advised her she had been physically and sexually assaulted and that the
assaults had occurred on two separate days. The physical assaults included hitting and punching, strangulation and threatening to kill. The sexual assaults were reported as penile and digital vaginal penetration, penile-oral and penile-anal penetration and oral genital assault.
[45] The doctor’s unchallenged evidence described bruising on the lower jaw and left side of the neck, plus areas of swelling and tenderness on the jaw and neck, including the thyroid cartilage. The complainant had been concerned at the time of the attacks of leaking from her ear in which she had previously had an ear infection, and the doctor observed redness on the left ear lobe, swelling and scaly skin.
[46] The doctor also observed nine bruise sites on the complainant’s right arm, two bruises on the back of her right hand, eight bruises on her left arm, two substantial areas of bruising on her upper front trunk, plus bruises to various points on her legs. The doctor supervised the taking of photographs that were produced, showing injuries consistent with those the doctor had described.
[47] Dr White also conducted an examination of the complainant’s anus and genital area, finding no signs of tenderness or injury. The doctor observed that her inability to confirm whether or not sexual contact had occurred was not unusual.
[48] The doctor could not attribute the bruising to a specific cause, but I am satisfied on all the evidence that it is consistent with the infliction of a substantial level of blunt force. The complainant had reported strangulation and feelings of being “woozy”, which the doctor related to the bruising on the left side and tenderness over the right side and front of the neck. The symptoms and signs of soft tissue injury to the front of her neck and the description of diminished consciousness by the complainant were considered by the doctor to be in keeping with an episode of strangulation.
[49] Police personnel dealing with the complainant from the time the Police were called to K’s house gave evidence of her volunteering details of attacks on her consistent with the detailed account provided in her recorded interview. No credible challenge was mounted to their evidence that such details were volunteered by the complainant without any form of pressure from Police personnel she was dealing with.
The details provided to Constable Carr, who attended on her at the hospital, focused on assaults that had happened two or three days earlier, that she had been restrained and held down and threatened, and that Mr Toru had attempted to rape her but she had managed to fight him away. The date the complainant attributed to the assault she described to Constable Carr was 25 July 2017 and she made no mention of complaints about conduct on 19 and 21 July.
[50] The complainant dealt initially with Detective Stanton about the prospect of completing a recorded interview. That detective gave evidence that on 28 July 2017 he discussed the options with the complainant, without going into any detail of what the content of an interview would cover. On that day, the complainant indicated she would prefer to defer any formal interview until the following day.
[51] Detective Sole, who is a trained specialist enhanced cognitive interviewer, conducted the recorded interview on 29 July 2017. An aspect of the complainant’s explanation for recanting on the recorded interview is that she was pressured into completing it in the terms she did. Detective Sole’s evidence was that she had made clear to the complainant that completing a recorded interview was entirely her choice, and that the content of what she might say was also entirely over to her. At her own request, the complainant was given 20 minutes on her own to pray before the interview began. The detective’s evidence was that the complainant told her before the interview began that she was in a much better emotional and mental space than she had been over previous days and felt in a better position to talk about what had happened to her. Detective Sole was not credibly challenged on her denial of exerting any pressure or any form of bullying of the complainant.
Statements to others
[52] The complainant’s early Facebook and text contacts with Mr Anderson are consistent with her recorded interview. On 31 July 2017, she Facebook messaged Mr Anderson, commenting:
I love him but my life was in danger I may not of been alive today. He strangled me badly and beat me up cos I asked him question of his baby.
[53] On the same day, the complainant stated to Mr Anderson that the detectives had forced her to make a statement against Mr Toru and to get a protection order, which she did not want to do. She asked Mr Anderson how the charges could be dropped.
[54] On 1 August 2017, the complainant texted Mr Anderson, commenting that she did not know if she and Mr Toru could get back together. That sequence of texts included:
He beat me up over me asking who he’s talking to? I am lucky to be alive bro and I deserve way better treatment. I was going to give him so much … and sexual too 2 x he beat me went in [sic] for two days bro I couldn’t tolerate the intolerable.
[55] On 4 August 2017, there were extensive Facebook exchanges between the complainant and Mr Anderson, with Mr Anderson suggesting scope for sympathy for Mr Toru. The complainant commented:
I jus want him make it right and confess he hit and violated me.
And some hours later:
He has left it too late to get help on himself. He is a narcissist. Sexual addictions and anger management needed. I didn’t consent. Rape can happen in a relationship as well. He’s a liar too.
[56] In a letter dated 22 August 2017, the complainant wrote to Mr Toru in terms including:
Please explain your sexual behaviour when you assaulted me. Is this how you are in relationships and talk about who you slept with, what to get me jealous or to submit to you to hurt me?
[57] Comments of this type were being conveyed by the complainant at the same time as she was pursuing options to have the charges dropped. They are consistent with an attitude that her concerns at Mr Toru’s sexual behaviour should be left as a private matter, to be resolved between the two of them. She did want an apology and an explanation as an aspect of mediating an improved relationship with him for the future.
Pressure to provide the recorded interview?
[58] A substantial volume of communications between Messrs Toru and Anderson and the complainant were recorded, with the more important aspects being played during the trial. These began with text and Facebook communications on 30 July 2017, and continued until the end of November 2017. A dominant theme of the dialogue the complainant had with both Messrs Anderson and Toru was that the Police had tricked her into providing a statement against her will, had distorted the matters she talked about and had then refused to engage with her about not using the statement in a prosecution when she indicated an intention to resile from it. The vigorous and colourful ways in which Messrs Toru and Anderson put those propositions to the complainant, and the number of times the topic was traversed, provide a measure of understanding as to why the complainant expressed the view in her evidence with some conviction that she had been pressured or bullied into providing the recorded interview, and that the statements she made were being used by the Crown out of context.
[59] The complainant had gone to her cousin’s home on the evening of 27 July 2017, was seen in hospital that evening, was examined by Dr White on the morning of 28 July, discussed the prospect of providing a recorded interview that day and expressed a wish to defer until the next day. She then completed the interview on the evening of 29 July 2017. Preliminary dialogue with the interviewer began at about
7.30 pm, with the interview itself beginning at 7.55 pm. It finished at 10.34 pm. During the interview, the complainant requested and was given a 10 minute break shortly after 10 pm.
[60] Throughout the interview, the complainant presents as thoughtful, measured and coherent in responding to questions that were posed in open terms. The content of her narrative is internally consistent on material details in that she provided an outline of the events on each of the two days to begin with, and then gradually provided details in response to questions posed in tentative terms about the events on each of those days. In re-examination, she agreed that what she had told the Police was the truth, “according to what it was at the – that time”. There is no plausible basis for
suggesting, from her demeanour or the content of her narrative, that she was being pressured during the interview to say what she did.
[61] I am also satisfied from all the evidence about the circumstances in which the recorded interview was arranged and undertaken, and from observing the videoed recording of it, that there was no duress or pressure imposed on the complainant by the Police to take part in it.
[62] A specific aspect of her disavowal of the content of the interview in cross- examination was that she had been wrong and confused in describing events on two separate days, when there was in fact only a single incident on one day. In closing, Ms Bolstad submitted that this explanation in her evidence, and in particular in her cross-examination, should be accepted as accurate and that it led to rejection of the “confused” allegations the complainant had made in her recorded interview. An important aspect of the answer to each of the charges was, on Ms Bolstad’s analysis, the need to reject the description of events provided in the recorded interview because the complainant’s answers in cross-examination must at least have raised a reasonable doubt about the accuracy of the version in the recorded interview.
[63] There are a number of passages in the recorded interview where the complainant coherently and logically distinguishes what occurred on the first occasion from what occurred on the second. The confrontation on the first occasion led to various forms of unconsented sexual activity, whereas there was no sexual offending on the second occasion. The level of physical violence used against her was comparatively greater on the second occasion, and persisted for a longer period of time. There is one occasion on which her responses to the interviewer raised the prospect of one or other of them being confused as to whether it was the first or second occasion that she was talking about at the time. That was then clarified, and there is no basis for suggesting that the whole of her defined narrative about the two events was confused or incorrectly separated.
Confusion caused by PTSD
[64] The complainant also offered as a reason for disavowing the narrative in her recorded interview the influence of her pre-existing condition of PTSD. She referred
in general terms to other “bad stuff” earlier in her life, and suggested that her PTSD caused or contributed to her mixing up anything that had happened on these occasions with bad experiences she was recalling from her past. Her suggestion appeared to be that her mental condition transposed those bad experiences onto the recent incidents. Again, Ms Bolstad submitted that the complainant’s PTSD condition contributed to an explanation that she had wrongly described the events in her recorded interview. Ms Bolstad urged that the way in which the complainant had explained the impact of her PTSD should be respected, at least to the extent of raising a reasonable doubt about the accuracy of the inconsistent narrative in her recorded interview.
[65] The vague references to previous experiences do not provide any foundation for assessing whether past experiences might have influenced the quality of the complainant’s recollection of what had occurred on 19 and 21 July 2017. Nor was there any indication of how old those earlier experiences were. Assessing all other aspects of the relative reliability of her recorded interview, with respect to the complainant and the legitimate basis she may have for concern about PTSD, I am satisfied it has not affected the reliability of her description of events in her recorded interview.
[66] The complainant made various private comments after completing the recorded interview that were consistent with the description of the offending provided in it. In relying on those consistent statements, I have considered the possibility that they were similarly affected by the trauma influencing the reliability of her description of events in the recorded interview. Given the period during which such statements continued to be made, and the contexts in which they were made, I am satisfied that any prospect of on-going confusion causing her to make inaccurate statements as to how she had been treated by Mr Toru can be dismissed entirely.
[67] Mr Toru was questioned by the officer in charge, Detective Reid, in a recorded interview on 29 July 2017. The detective described the subject of the questioning as “an assault matter that occurred a few days ago” and Mr Toru protested on a number of occasions that he did not know what he was accused of. He admitted a minor assault by holding the complainant firmly by her arms in the course of an argument about biblical doctrines. He insisted this had occurred only on Friday, 21 July 2017. He
emphatically denied any non-consensual sexual activity and also denied any more serious physical assaults. When the seriousness of the complainant’s injuries was put to him, he unconvincingly suggested that the complainant had weak flesh, and that bruising could move away from the site of impacts. Mr Toru was composed and articulate throughout the interview.
[68] During her closing submissions, I invited Ms Bolstad to describe how a reasonable doubt might arise that could bridge the substantial gap between the recorded extent of the complainant’s injuries, and the substantially more minor extent of any injuries that would have resulted from the single assault that Mr Toru acknowledged had occurred on 21 July 2017. Ms Bolstad suggested that the recorded extent of injuries might have resulted from the extent of the assault acknowledged by Mr Toru, when seen in light of the complainant’s exculpatory explanation in cross- examination to the effect that she had contributed to the consequences of the altercation in what was a lot of “rolling around”. In particular, Ms Bolstad submitted that the complainant now considered Mr Toru tripping her when she fell onto the mattress and bumped her head against a chair on the way down was accidental on his part.
[69] I am satisfied that the acknowledgements offered by Mr Toru of his contributions to violence, and the complainant’s attempts to excuse him, all fall well short of the type of violence that must have been inflicted on the complainant to cause the observed injuries.
[70] When assessed in light of all the other evidence in the case, including his contribution to the three-way dialogue with the complainant and Mr Anderson after he was arrested, Mr Toru’s explanations do not raise any reasonable doubt as to the veracity of the complainant’s recorded interview does not reflect what occurred between them on 19 and 21 July 2017.
The elements of the 19 July charges
[71] Turning to the elements required to be proved by the Crown, the charges reflect the description of events given by the complainant in her recorded interview and I have accepted that as an accurate description of what occurred. In corroborating that
narrative by reference to her statements to other witnesses, I appreciate there are discrepancies in the dates on which she says the incidents occurred. Those inconsistencies are to be expected in such a matter, and do not lessen the reliability of what the complainant says occurred.
[72] As to the violence charges on 19 July 2017, I am satisfied that charge two, assault with intent to injure laid as a representative charge, is made out in that I accept Mr Toru had a pattern of slapping her about the head in the course of the incident. It involved a level of violence consistent with an intention to injure. As to charge three, male assaults female involving him holding up her in the air by her ankles, the factual basis for that was made out on the evidence, including an acknowledgement in re-examination. In the context in which it occurred, I am satisfied that constitutes the elements of male assaulting female.
[73] The nature and extent of Mr Toru’s detention of the complainant in the room in which it all occurred reflected an intentional confinement of her, and the elements of kidnapping as charged are made out. In assessing the relative seriousness of various aspects of Mr Toru’s conduct, this is to be treated as a lesser aspect of the course of conduct in offending against her, but I do not consider the extent of confinement is below the minimum required to make out the offence of kidnapping.
[74] As to the charges of sexual offending on 19 July 2017, the course of conduct made out includes kissing the complainant on the face and on her chest, and it extends to connections between Mr Toru’s tongue and a finger with the complainant’s vagina.
[75] I am also satisfied that vaginal intercourse occurred twice, interposed with the unlawful sexual connection by insertion of Mr Toru’s penis in the complainant’s anus.
[76] That evidence makes out the actus reus of charges four to nine inclusive. Issues remain as to whether the complainant consented to some or all of these activities, and separately whether Mr Toru had grounds for believing that she did consent to any of it.
[77] The description of the events in the complainant’s recorded interview makes it clear that she did not consent to sexual activity as a component of the assaults being inflicted on her at the time. That description included her saying no, and attempting resistance that would be entirely inconsistent with consensual sexual activity.
[78] Her evidence in court, and in particular in cross-examination, was to the effect that whatever sexual conduct occurred on that day was consensual. However, that version is inconsistent with both the recorded interview, and the complainant’s subsequent communications with others, including Messrs Toru and Anderson. The consistency of the recorded interview and the subsequent comments is to be preferred to the contrary statements in the complainant’s evidence.
[79] I am satisfied beyond reasonable doubt that the complainant did not consent to the conduct comprised in the sexual offending charges on 19 July.
[80] I need also to consider the prospect of a belief by Mr Toru in consent, irrespective of whether it was given. His position is that there was no sexual activity linked to any altercation between them, which on his view occurred only once on 21 July 2017, and that there had never been any sexual activity between them that was not consensual. His interview did not canvass the prospect of any sexual activity which the complainant may have conveyed was not wanted, but which he believed to be consented to.
[81] On the basis of the narrative in the recorded interview, all of the sexual activity founding the charges took place with the couple being at odds, and there being no reasonable scope for an honest belief by Mr Toru, in the midst of assaulting her in various ways and her protests at what was occurring, that she would consent to the sexual activity I find occurred.
[82] I accordingly reject the prospect of reasonable belief in consent as a defence to the charges of sexual offending on 19 July 2017.
The elements of the 21 July charges
[83] As to the elements of the charges on 21 July 2017, Mr Toru has pleaded guilty to charge 12, comprising assault with intent to injure arising from his slapping her, which is laid on a representative basis. As to charge 13, being the same charge in relation to Mr Toru punching the complainant, I am satisfied that he intentionally hit her to injure the complainant to the extent subsequently observed by the doctor. The complainant’s exculpatory suggestion that she may have punched herself was not credible.
[84] Charge 14, the most serious of the assault with intent to injure charges, relates to Mr Toru strangling the complainant. On the basis of her description and the corroboration from the doctor as to the likely source of injury to the complainant’s neck, I am satisfied that charge 14 is also made out. Mr Toru suggested that he may have placed a hand on her neck, without any intention to harm her. The complainant’s exculpatory comment in cross-examination that she was wrong to refer to possible loss of consciousness, when it was instead a state of shock in disbelief, do not raise a reasonable doubt that he lacked an intent to injure. The original account accords with the doctor’s analysis and that does not admit of the prospect of accidental choking.
[85] Similarly with charge 15, threatening to kill, the complainant’s description in her recorded interview, as confirmed in her evidence in court and her telling K of the threat soon after she was free of Mr Toru, makes out that Mr Toru issued such a threat. She thought he was going to kill her.
[86] Charge 10, the remaining violence charge of male assaults female, was brought in respect of Mr Toru tripping the complainant, which caused her to fall on the mattress. The complainant’s version in evidence was that she thought he did not intend to do that. In terms of the level of violence that followed, that inconsistent explanation is not plausible and I am satisfied there was an intentional assault, albeit of a comparatively minor form. Charge 10 is therefore established.
[87] Charge 11, the remaining charge from 21 July 2017, is kidnapping. The context was violent offending at a more serious level than on the earlier occasion, and
the constraint lasted longer. Consistently with the analysis of the detaining with intent to cause her to be confined on 19 July, I am satisfied that charge 11 is made out.
Attempting to pervert the course of justice
[88] The Crown case on the charge of attempting to pervert the course of justice is that shortly after completing her recorded interview, the complainant wished to prevent it being used in court for charges against Mr Toru. She was in touch with Mr Anderson for help as to how they could achieve that. On the Crown case, the complainant did not want to change what she had said, in particular about the sexual offending, but only that she considered such intimate matters should remain private. She still wanted Mr Toru to privately acknowledge and explain the sexual offending, from her perspective as a part of mediating their long-term relationship.
[89] As to the legal elements of the offence of wilfully attempting to pervert the course of justice, Ms Clarke submitted that it is not necessary for the Crown to prove that a defendant knew that the evidence the relevant witness was being pressured to give was untruthful. It is sufficient if the defendant pressures the witness to give evidence that is inconsistent with the evidence that the defendant knows the witness would otherwise give, absent the pressure exerted on the witness.
[90] The unlawful interference occurs when improper pressure is applied to change the terms of evidence that would otherwise be given. As to what constitutes improper pressure, that does not necessarily involve the making of threats.3
[91] Ms Clarke also cited from the commentary in Adams on Criminal Law, which refers to a Western Australian decision where the Court observed:4
It is a legitimate end to seek to persuade a witness, by reasoned argument, to tell the truth. It is not a legitimate end to seek to intimidate a witness by threats or otherwise to give evidence different to that they would give if left to their own choice, even if the accused believes the intended evidence is false.
3 R v Taffs (No 2) (1990) 6 CRNZ 266, R v Taffs (1990) 6 CRNZ 274 (CA) at 277, 278.
4 Simon France (ed) Adams on Criminal Law - Offences and Defences (looseleaf ed, Thomson Reuters) at [CA117.06] citing Librizzi v Western Australia [2006] WASCA 237, (2006) 167A Crim R 26 at [80].
[92] Mr Anderson was a willing helper, motivated by his existing anti-Police attitude: he readily assumed that “the pigs” had tricked or pressured the complainant into adding sexual offending complaints to those of assault by Mr Toru, that they would have twisted her words and that the truth (that is, the complete absence of any sexual offending and a much reduced level of assault) would come out in the end.
[93] Mr Anderson took Mr Toru’s side in this continuing difference between the complainant and Mr Toru. Whilst accepting that he was not present at the time, he denied the prospect of her being raped within a relationship, and rejected the prospect that Mr Toru would have forced himself on his partner. Mr Anderson also readily adopted Mr Toru’s explanation for a minor assault, downplaying the seriousness that the complainant attributed to it.
[94] In these communications, Mr Toru maintained the stance articulated in his Police interview. He maintained there had only been one “incident”, involving him holding the complainant firmly by the arms and possibly shaking her, denying any more serious assault than that and categorically denying any non-consensual sexual activity. Once the complainant and Mr Anderson had opened their line of communication, Mr Toru used it to encourage the complainant to adopt his reconstruction. Because he was convinced that there had been no sexual offending, urging the complainant to agree with that did not, on his view, involve any pressure on her to tell lies. Both Messrs Anderson and Toru encouraged the complainant to adhere to the truth as they saw it, which denied any sexual offending and confined the physical assault to a single, relatively minor, incident. That is a fundamentally different narrative from the account in her recorded interview.
[95] Mr Toru deflected the complainant’s requests that he address her private concern that he should apologise for and explain the sexual offending that she continued to refer to, instead repeatedly stressing that “the truth” was that no sexual offending had occurred.
[96] There was a large number of communications over several months, mostly indirectly with Mr Anderson relaying Mr Toru’s views to the complainant and, less frequently for a period at the end of October and in early November 2017, directly
between Mr Toru and the complainant using Mr Anderson’s phone whilst she was staying with Mr Anderson and his family. Mr Toru, aided by Mr Anderson, urged the complainant to commit to his version of the incidents. The message was conveyed with very fulsome expressions of Mr Toru’s love for the complainant and his wish to be with her. None of the many communications that I was taken to recorded Mr Toru addressing her concern that he should acknowledge and apologise for sexual offending. The urging by Messrs Anderson and Toru extended to having the complainant complete affidavits that acknowledged she had been wrong to describe the incident on 19 July 2017 as including sexual offending. I do not need to make a factual finding on the point, but I consider the most likely rationalisation by the complainant was that if she could not prevent the Police using her recorded interview in court, that would be a breach of what she considered to be her rights to privacy, and that would justify recanting from the version of events she had given honestly in her recorded interview.
[97] All three participants in these communications were aware that the telephone calls would be monitored. There are references to needing to be careful as to what they said, clearly because they were aware of the prospect that the Police would make use of what they said. On the Crown case, that attributes to Mr Toru a form of double- speak: he was only urging the complainant to tell the truth, it being very clear to her that his version of the truth involved a denial of any sexual offending, and substantially downplaying the seriousness of the physical assaults. It was obvious that his urging for her to maintain her commitment to help him to facilitate their future life together necessarily involved her denying the most important elements of her recorded interview.
[98] Ms Bolstad argued that the complainant was committed to denying the effect of her recorded interview, and was not materially pressured or threatened to continue with that course by Mr Toru. Arguably, all he did was support and encourage her commitment but his involvement fell short of any improper pressure that would be a necessary element of the charge.
[99] I am satisfied that the Crown has made out a course of conduct by Mr Toru which did cross the line between legitimate support for a course the complainant was
already committed to, and forms of improper pressure for her to do so. I do not accept the Crown characterisation of the complainant as a vulnerable witness to the extent Ms Clarke suggested, but there was inarguably a power imbalance between the two. She was desperate to help Mr Toru and the dialogue he maintained directly, and indirectly via Mr Anderson, amounted to an improper form of pressure on her.
[100] The complainant initiated the dialogue seeking help to deprive the Police of reliance on her recorded interview. I am satisfied that her communications with Messrs Toru and Anderson substantially bolstered her resolve to recant on the description of events in her recorded interview. As Ms Clarke pointed out, Messrs Toru and Anderson were charged as parties and were each aware of, and agreed to, the contributions that the other made to encouraging her to disown the statements in the recorded interview.
[101] In the narrow sense, the attempt to pervert the course of justice was successful because the complainant followed Mr Anderson’s recommendation that she refuse to give evidence. When faced with the potentially serious consequences of that course, she did resile from important elements of the narrative in her recorded interview. These circumstances make out the requisite elements of the charge.
[102] Another plank of Mr Toru’s defence to the charge depended on the Crown failing to prove the remaining charges against him. Particularly, the counts of sexual offending on 19 July 2017, but also the more serious violence charges beyond the single count of assault on 21 July to which he pleaded guilty. If he was acquitted of those charges, the Crown could not rely on its primary proposition to argue that Mr Toru’s pressure on the complainant to tell a version of “the truth” that denied such offending was knowingly urging her to lie.
[103] I have dismissed the prospect that Mr Toru had reasonable grounds for belief that the complainant consented to the sexual activity she described as occurring on 19 July 2017. His course of conduct was intended to, and I find did, pressure the complainant to resile from an accurate description of those events in her evidence. The conduct amounts to a wilful attempt on his part to pervert the course of justice by having a complainant deny a truthful recollection of offending by him.
[104] I accordingly find the elements of charge 16 of attempting to pervert the course of justice to be made out.
Verdicts
[105] The outcome is a guilty verdict on each of the remaining 15 charges to which the defendant pleaded not guilty.
Dobson J
Solicitors:
Crown Solicitor, New Plymouth
Counsel:
T T Bolstad, New Plymouth
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