R v Waikato CA274/05

[2006] NZCA 382

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [16]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE 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 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA274/05

THE QUEEN

v

MAURICE MORO WAIKATO

Hearing:         14 February 2006

Court:            William Young P, Potter and Rodney Hansen JJ Counsel:      P L Borich for Appellant

J M Jelas for Crown

Judgment:      28 February 2006

JUDGMENT OF THE COURT

A        Leave to appeal is granted but the appeal is dismissed.

BOrder  prohibiting  publication  of  the  judgment  and  any  part  of  the proceedings (except the result as set out in [16]) in news media or on

R V WAIKATO CA CA274/05  28 February 2006

internet or other publicly available database until final disposition of trial.  Publication in Law Report or Law Digest permitted.

REASONS

(Given by William Young P)

Introduction

[1]      This is an application for leave to appeal against a pre-trial ruling made under s 344A of the Crimes Act 1961 by Judge Harvey on 21 July 2005.  The application was filed slightly out of time but, in the context of the case as a whole, this is of no moment and an extension of time for the application is granted accordingly.

Background

[2]      The appellant is alleged to have committed sexual offences (including sexual violation by digital penetration) on 13 June 2004 against the complainant, a girl who was then 12 years of age.

[3]      On the day of the alleged offending the appellant and the complainant’s parents had been at a birthday party.  In the late afternoon they returned to the house in which the complainant lived.   It was decided that the appellant would stay the night there.   The sleeping arrangements involved the complainant sleeping in a double bed in the lounge with her younger brother and the accused sleeping on a pull-out couch in the same room.

[4]      On the Crown case the offending occurred at around 9.30pm that night and, in its immediate aftermath, the complainant managed to wriggle away from the appellant and ran from the lounge.   It is clear that the complainant rang her grandmother who lived nearby.   Her grandmother came around and picked the complainant up.  The complainant spent the rest of the night with her grandmother.

It is not entirely clear on the depositions evidence why the complainant did not wake her parents, a point to which we will revert in [7] below.

[5]      The complainant made complaints first to her grandmother (late on the night of 13 June or in the early hours of 14 June) and secondly to her mother at about

8.30am on the morning of 14 June.  The complainant told the grandmother that the appellant “tried to touch me” and that “I think he put his fingers inside me”.  The evidence of her mother as to the second complaint is that the complainant told her that the appellant had put his fingers “up inside” and that she was “sore inside”. Further, in the second complaint, the complainant said that her underwear was down, something that she had not mentioned to her grandmother.

[6]      The appellant challenged the admissibility of the evidence associated with the second complaint and this resulted in Judge Harvey ruling that the evidence in question was admissible.

The ruling under appeal

[7]      In the course of his ruling, Judge Harvey referred to a number of authorities including R v B CA211/98 3 August 1998.  He then went on to say:

[12]     When one looks at the general principles, coupled with the specific case of B, it suggests quite strongly as does the evidence in this case, the background facts which are accepted for the purposes of the present application, that the second disclosure could be said to add more information than the first.  Detail as to sensations and feelings was added.  The second complaint confirmed  actual  penetration  by the fingers  as opposed  to  an attempt.   Secondly, I would suggest that the nature of the information disclosed  and  indeed  the  very  context  of  the  disclosure  demonstrates  a natural progression.  The first person the complainant goes to is her mother, who regrettably is in an alcoholic stupor.   She goes to the next available person, the grandmother, who initially hears what had taken place and it is clear that the complainant was in an upset and distraught state, and it would be logical to conclude that that particular context of her emotional state could colour the quality of the information that she provided.  Subsequently she comes back to her mother and gives further and/or significant detail, I would suggest.

[13]      In addition, we have a progression of information from first stop to the mother, to the grandmother, and then back to the mother again.   The absence of the second complaint could well create the false impression, the misleading impression, that nothing had been said to the mother.

[14]     I consider that within the context of this particular case the second complaint should be admitted primarily because it does provide additional information, it is in the nature of an incremental complaint, and it is sufficiently proximate to the event to fulfil the requirements of the complaint tests.  So the evidence of the second complaint is admissible.

(Emphasis added)

The passage  which  we have italicised  was  not  based  on  evidence  given  at  the preliminary hearing.  Hence the comment made in [4] above.

Discussion

[8]      The orthodox position in New Zealand is that recent complaint evidence is admissible if it is made at the first reasonable opportunity.   In R v Nazif [1987]

2 NZLR 122 (CA) Somers J, for the Court, observed (at 125):

It is a prerequisite of the admission of evidence of a complaint that it is made at the first reasonable opportunity after the commission of the offence. It is for the Judge to determine whether the evidence meets this threshold test, see eg R v Cummings [1948] 1 All ER 551, and for the jury to decide what credence they give to the evidence if admitted. There are no hard and fast rules as to the time within which a complaint must be made in order to be admissible. Matters to be taken to account will include, age, nature and personality of the prosecutrix, her relations with those to whom she might be expected to complain, the reasons for delay in complaint and all other circumstances the Judge regards as relevant.

[9]      Once consistency is established by evidence of a first complaint, there will ordinarily be no need to adduce evidence of a subsequent complaint.  However, the Courts have held that in some circumstances evidence of a second complaint may be admitted.  As this Court put it in R v Accused CA273/91 20 December 1991:

The events which follow a sexual assault are often of a developing kind with more than one confidence being made within a short period of time.  All of the confidences can then properly be said to have been made on the same occasion. It is a matter of degree in the individual case.

It is thus established that evidence as to successive complaints to different people will be admissible where they form a “single process of disclosure” (R v I [2002]

3 NZLR 477 at [19] per Panckhurst J) or where the “complaint emerged by a close process of development” (R v I at [23]).

[10]     It will be recalled that Judge Harvey relied on R v B.  In that case, an alleged rape occurred in the evening.  The complainant waited until the accused had fallen asleep and then crept out of bed and away from the house.  She went to a cousin’s place at 6.15am.  In obvious distress, she was taken to the house of another cousin where in the carport she made a limited disclosure.  She was then taken to an aunt where  she  completed  the  disclosure  in  more  conducive  surroundings  at  about

8.15am.  This Court upheld the admissibility of both complaints with Thomas J for the Court concluding that “in a real sense the events are all part of the one occasion.”

[11]     So, even putting aside, as we must, the reason given by Judge Harvey for the complainant not waking her parents, his conclusion that the evidence of the second complaint was admissible remains very orthodox.

[12]     We accept, as Mr Borich argued, that recent complaint evidence and the associated judicial direction as to relevance may well be very important factors for a jury in a case where the evidence of the complainant is otherwise uncorroborated (using that expression in a non-technical sense), cf the comments of Eichelbaum CJ and Heron J in R v H [1997] 1 NZLR 673 at 680. We also accept that this highlights the necessity for a careful evaluation of the relevance and admissibility of recent complaint evidence.

[13]     Mr Borich contended that the legitimate probative value of the complaint evidence in this case was spent once evidence as to the first complaint was admitted. At this point, we part company with him.   The complainant went further and was certainly more explicit in her second complaint than she was in the first complaint. In her evidential interview the complainant alleged actual digital penetration. Assuming her evidence at trial is to the same effect, there will be at least an apparent semantic inconsistency between what she told her grandmother and what she tells the jury.  For this reason the second complaint is relevant to the question whether the complainant’s behaviour (including what she said) in the immediate aftermath of the alleged offending is consistent with her evidence at trial.

[14]     Mr Borich suggested that there was an element of a “staged retelling” in the second complaint made to the mother.  That submission goes beyond the evidence

which was that the complainant’s grandmother told her to tell her mother what the accused had done to her but did not otherwise lead the complainant as to what she should say. In any event, the complaint to the mother was such a natural sequel to what she had told her grandmother that it is right to regard it as essentially just another step in the process which the complainant herself had initiated the night before.

[15]     We are therefore satisfied that Judge Harvey’s ruling was correct.

Disposition

[16]     We grant leave to appeal but the appeal is dismissed.

Solicitors:

Rice Craig, Papakura for Appellant

Crown Law Office, Wellington