R v X (CA352/07)

[2007] NZCA 500

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF

RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA352/07 [2007] NZCA 500

THE QUEEN

v

X (CA352/07)

Hearing:         10 October 2007

Court:            Hammond, Baragwanath and Keane JJ Counsel:         S A Saunderson-Warner for Appellant

D J Boldt for Crown

Judgment:      14 November 2007         at 3 pm

JUDGMENT OF THE COURT

A        The appeal against conviction is allowed.

B        The conviction and sentence are quashed.

R V X (CA352/07) CA CA352/07 14 November 2007

C        A new trial is directed.

DOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in the news media or on the internet or in other publicly accessible database until final disposition of re-trial.

Publication in a law report or a law digest is permitted.

REASONS OF THE COURT

(Given by Keane J)

[1]      On 19 June 2007, after a trial of three days in the District Court, before Judge Callaghan and a jury, X was convicted of a single but representative count of indecently assaulting Y, a girl then aged four years, between 5 August 2003 and

4 August 2004. He was sentenced to imprisonment for two and a half years. He appeals his conviction but not his sentence.

[2]      During 2003 – 2004, and indeed after, Y spent occasional weekends with X, a friend of her parents, first with her older sister, then with her younger brother, often alone. She did so enthusiastically.  Even when video interviewed she still regarded him as her best friend. In September 2006, however, as a result of what Y then told her mother, and what she then said was not given in evidence, those visits ceased.

[3]      On 19 October 2006 X was spoken to by the police. He declined to make any statement. He was arrested and charged with indecently assaulting Y not just during the period for which he now stands convicted, 5 August 2003-4 August 2004, but also for further indecent assaults between 20 May 2005-25 September 2005. Until four days before the trial he faced a second count alleging that later offending but that was quashed by the Judge under s 345.

[4]      At  trial  the  Crown’s  case  rested  entirely on  Y’s  account.  There  was  no corroborating evidence. The trial turned, as does this appeal, on whether or on the extent to which Y remained constant in her complaint.

[5]      In her evidence in chief, her video interview, Y was unequivocal that X had indecently assaulted her more than once. On those occasions, she said, she shared his bed with him. She was unclothed, as it seems was he, and he licked her near her genitalia. She pointed to where he licked her and marked that on a diagram. When cross-examined, however, she retracted that account, on the face of it equally unequivocally. Yet when re-examined she resumed her original account. The Judge assumed that account when he questioned her.

[6]      On this appeal, X contends, Y’s evidence was so self contradictory that no jury, properly directed, could reasonably have convicted him; equally that no such verdict could be supported by the evidence. The Judge ought to have discharged him under s 347 of the Crimes Act 1961, he contends, when he applied for that to happen at the close of the Crown case. X does not and cannot challenge that ruling on this appeal. His grounds for appeal are nevertheless indistinguishable.

[7]      At the least, X contends, the Judge should have directed the jury to acquit him, unless they could be satisfied that, despite her retraction, Y was constant in her complaint. Instead the Judge did the opposite. He allowed counsel for the Crown, when re-examining Y, to lead her to retract her retraction. In his own questions, X contends, the Judge went beyond clarifying Y’s evidence. He reinforced her original account. He told the jury that they could accept some parts of her evidence though they rejected others.

Judge’s appreciation of Y

[8]      Just how Y came to depart from her complaint when cross-examined, and why, and why and how she resumed her complaint when re-examined, inevitably became the issue on which the outcome of the trial depended. In his s 347 ruling, adverse to X, the Judge’s own appreciation of Y was that she might only apparently have shifted ground. She might simply have become confused.

[9]      In the first of two passages in that ruling, at para [4], the Judge confirmed, as we read what he says, that this was why he asked her the questions that he did, questions to which we will need to return:

It is quite clear to me, having seen the complainant give her evidence, that yes, she did resile it would seem, on occasions in cross-examination, and there is a startling answer in cross-examination where she agreed that what she  had  said  about  him  licking  her  was  not  true,  however  she  said  in evidence in  chief, (I refer to the  videotape  interview)  the  contrary,  and indeed in re-examination she clarified the position, and in all fairness to her age I felt that I needed to clarify the position so she really understood what was being put to her. She confirmed to questions from me that she remembered in the video telling the interviewer that the accused had licked her, and pointed to where that had occurred, which was clearly obvious for the Court.

[10]     Two paragraphs later in his ruling the Judge said, and confirmed in a minute dated 25 June 2007 issued after the trial, that despite her retraction Y gave evidence on which the jury might safely rely. He said this:

On an overview of the evidence, taking into account the complainant’s age, the manner in which she answered questions, and to some extent the manner in which she may have been confused by some of the questions in cross- examination, in my view there is evidence here which a reasonably directed jury could consider as appropriate as proof for the purposes of proof beyond reasonable doubt.

Discretion on appeal

[11]     On this appeal X seeks to have the jury’s verdict quashed on the ground in s 285(1)(a) of the Crimes Act 1961 - that the verdict was unreasonable or could not be supported on the evidence – essentially the ground on which he sought discharge under s 347. As to that ground this Court held  in R v Ramage:

A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury.

[12]     This choice is only one of those able to be made under s 385.  Section 385(2) enables this Court to quash the conviction and enter a judgment and verdict of acquittal, or to direct a new trial, or to make any other such order as justice requires. Our own analysis must extend as widely.

[13]     Where a verdict is unsafe in the Ramage sense, this Court confirmed recently in R v E (CA 308/06) [2007] NZCA 404, the conviction may well need to be quashed and an acquittal entered. No safer verdict could be anticipated on a retrial. Where the

deficiency justifying the quashing of the conviction lies rather in the conduct of the trial, and the evidence is strong, the better course may be to dismiss the appeal. A fresh trial may appear unwarranted. Between the two a more nuanced analysis will be called for.

Complaint – Y’s video interview

[14]     Early in her video interview Y was asked, and confirmed, what it was she complained of:

H        Mmm, who have you talked to about him

B        (playing) mum and dad

H        Mmm what do mum and dad know about him.

B(playing) um, I said he had been licking in there (pointing under the table) and I said no don’t do it X (raises voice)

HMmm, and when, whereabouts is, whereabouts exactly is that, in there, is there a name for that part of your body

B        (playing) Um I don’t know

HMmm, what was, is, what, what was the licking, what, what was the licking with,

B        (playing) He licked with his tongue

HMmm huh and where did the licking, where did the tongue go on you

B        (playing) (pointing under the table)

H        Oh okay, was that with clothes on or clothes off or

B        (playing) clothes off.

HOkay and what was that, do, do you know a name for that part of your body, what would mum call that part of your body

B        (playing) Um, I don’t know

H        Mmm huh. Was that something that happened one time

B        (playing) Oh

H        or more than one time

B        (playing) more than one time

H        Mmm. Is there anything different that’s happened, as, to that

B        (playing) There was only it

H(nods) Is, any other, anything else happened with anything else, you said that was the tongue, is there anything else with any other things happened

B        (playing) no

[15]     Y explained that this had invariably happened in X’s bed. She got into the bed  first.  He  then  knelt  between  her  legs  on  his  hands  and  knees,  as  she demonstrated with dolls. She felt his tongue on her skin. It was ticklish. She was reluctant to say where she felt that happening. She did mark on a body diagram a point on her lower exterior torso. Later in the interview she pointed towards that part of her body as well as to the diagram.

[16]     X, she estimated, licked her in this way for as much as an hour. It was well open to the jury to find that she merely tolerated this and that eventually she told him to stop with some force, which she said he did very quickly. It could well have found especially telling the way in which she described that happening:

H        Mmm. And I’m just wondering when it stopped, what made it stop

B        (standing) (playing) Um, when I said stop, stop and he stopped and I

went phew. (raises voice)

H        And why did you go phew

B        (standing) (playing) Because it stopped (raises voice) H     Mmm.

B        (standing) (playing) and I think that’s it.

[17]     This evidence, had it stood alone, we are satisfied, could well have justified the jury’s verdict. The jury could have concluded that Y had no wish to malign X. As well, that she remained fond of him. The jury could have concluded as well, as it evidently did, that she could not have described what had happened to her unless it had. Equally, that what she described, and whether or not she appreciated it, had to be an indecent assault.

Retraction – Y’s cross-examination

[18]     When  cross-examined  Y  retracted  as  unequivocally  what  she  said  had happened to her. The question immediately became, as it has been on this appeal, whether she did that deliberately, understanding what she was doing, or did so out of confusion. The critical exchange was this:

Q.Remember on the video you said there was, X used to lick you do you remember saying that

A.       Yes

Q.       You said that happened when you were four

A.       Yes

Q.Now you went back to X’s house lots and lots of times since you were four didn’t you

A.       Yes

Q.       And you kept staying the night out there

A.       Yes

Q.       You get on pretty well with your mum don’t you

A.       Yes

Q.       You could have told your mum you didn’t want to go couldn’t you. A.      Yes.

Q.       You never told mum that you didn’t want to go to X’s did you

A.       I did want to go to X’s

Q.       You want to keep going even now

A.       Yes

Q.       Because you had fun out there didn’t you. A.       Yes, there was heaps of toys there.

Q.       And you did fun stuff on the computer

A.       Yes

Q.       And you went fishing

A.       Yes, lots of times

Q.       Was that fun

A.We don’t go fishing, we just go out to the beach and have a little walk

Q.Sometimes mum and dad came to the beach and had a walk with you and X

A.When  mum and dad come we went to go fishing, all we would do was go for a walk.

Q.Y the reason you like going to X’s house and you still want to go, is because the bad licking didn’t happen did it

BY THE COURT:

Q.       Y do you understand that question

A.       Yes

CROSS-EXAMINATION CONTINUES

Q.Y the reason that you still want to go to X’s is because the bad licking didn’t happen did it

A.       Yes

Q.       The reason you still want to go there Y is because nothing bad happened out there

A.       Yes.

Q.       Y has anyone told you about bad touching and good touching

A.       Yes

Q.       Did they tell you that at school

A.       Yes

Q.Has anyone told you what a man licking you would be, would that be good or bad

A.       Bad

Q.       And nothing bad has happened at X’s house has it

A.       Yes

Q.       If something bad happened there you wouldn’t want to go back

A.       Okay (OBJECTION – Mr Gresson: That was a totally inappropriate comment)

[19]    As that last objection indicates, counsel for the Crown considered these questions  confusing,  and  finally  inappropriate.  In  closing  to  the  jury  he  was explicitly critical. Y could not, he said, have understood that she was being challenged as to truth. She simply responded to propositions as they were put to her. Some of the questions she was asked, he said, had to have been confusing. They had two elements and were couched in the negative. What was she answering to?

[20]     To that counsel for X responded in closing that Y had confirmed to the Judge that she understood the truly critical question and when the question was repeated answered it unhesitatingly in the affirmative. Also that, as the questions ended, she confirmed that she knew full well what she was being asked. She retracted her complaint consciously and explicitly.

[21]     Counsel for the Crown was right, we think, to this extent. Counsel for X, when she cross-examined Y, pursued two themes. One was straight forward: that Y enjoyed staying with X, as clearly she did. The other was not. It called for Y to affirm a negative: that she would not have enjoyed staying with X had he abused her.

[22]     Y was not, we think, confused while counsel pursued the  first theme in isolation from the second. She could well have become so when  counsel tied the two together in the pivotal question put twice because the Judge was concerned enough when it was first put to ask Y whether she understood it. That question was this:

Y, the reason you like going to X’s house and you still want to go, is because the bad licking didn’t happen did it?

[23]     Y told the Judge that she did understand the question and when it was asked the second time she answered ‘yes’. The Judge appears then, despite what he said in his s 347 decision, to have been content. He did not intervene further. The question remains we accept, as is said still for the Crown on this appeal, what was Y then affirming? Was Y saying, ‘yes’, she still wanted to go to X’s? Or was she also saying, ‘yes’, the bad licking didn’t happen? Only the second really mattered.

[24]     Had the cross-examination ended there, counsel for the Crown might have had reason to be critical. It did not. Counsel for X once again divided the two

themes. She put each again to Y independently of the other. She elicited positive answers to each, ironically attracting an  objection  from  counsel  for  the  Crown. Moreover, Y made herself clear in the final exchange:

Q.       A (sic) do you remember X licking you, remember that

A.       Yes

Q.       That is not true is it

A.       It isn’t true

[25]     We are conscious that the record may not reflect how Y answered these questions as she did. But on the face of the record, in contrast to the Judge, we cannot see that her answers resulted from any confusion.  Nor can they be plausibly attributed to her having become tired, as counsel for the Crown suggested to the jury. She was not cross-examined for long and that was in the earlier part of the morning.

[26]     In that last exchange in particular, if not before, we consider, Y must be understood to have retracted her complaint and given the reason why. She agreed that she liked going to X’s home. She agreed that she would not have enjoyed continuing to visit him had he abused her as she first complained.

Retraction retracted – Y’s re-examination

[27]     Counsel for the Crown, understandably, was intent when he re-examined Y on restoring the Crown’s case. He went directly to Y’s original complaint and invited her to confirm whether or not it was true. But how he did so has been no less criticised on this appeal:

Q.       Now Y you remember the Judge the gentleman as the white hair as you said yesterday, asked you to speak the truth

A.       Yes

Q.       And you remember saying on the video interview how X used to lick you

A.       Yes

Q.       Was that the truth

Q.        And you said yesterday on the video how he used to lick you around the genital area, around (OBJECTION – Ms Saunderson-Warner: that is a misleading question, she didn’t say that)

Q.        And when we watched the video yesterday you pointed out to the lady who was asking you questions where X licked you, remember that

A.       Yes

Q.        What you pointed out to the lady who interviewed you, was that the truth

A.       Yes

Q.        Do you promise, are you able to promise to the jury, promise to us that you are telling the truth

A.       Yes

[28]     These questions, the Crown contends on this appeal, were open in character. Counsel asked Y whether she remembered what she had complained of in her video interview element by element. As to each element he asked her, neutrally, whether or not that was the truth. She was left free to elect between the one or the other.

[29]     Y’s answers cannot, the Crown contends also, be relegated to merely reflex responses.  She did not affirm everything in her video interview to be true. She had not, she admitted, seen X’s penis as she said in her video interview. She explained why:

Q.        When we watched the video yesterday you told the lady who was asking you questions that you had seen X’s diddle. Was that the truth.

A.       No

Q.       Why did you not say the truth on that occasion

A.       Because

Q.       Because what Y?

A.       Because I thought his hand was a diddle.

Q.        Y we couldn’t quite hear what you said then. Could you just repeat what  you  said  and  we  will  add  to  what  you  said  so  we  can

understand what you are saying. Why did you not to tell the truth about the diddle.

A.       I thought his hand was the diddle

Q.        Again I have to ask another awkward question. Why did you think his hand was the diddle

A.       I don’t know

[30]     X’s counsel contends on this appeal that, in reality, the questions counsel for the Crown asked Y were closed in character; they were questions of the kind deprecated in R v E (CA 308/06), paragraph [67]. Even though counsel asked her to confirm whether or not, when she made her complaint, she had told the truth, in effect he invited Y to confirm that she had told the truth.  Or that is how she could have understood him. That latter risk is  not one that we can exclude.

[31]     Before counsel for the Crown took Y through the elements of her complaint he reminded her that she had promised to tell the truth. He reminded her a second time once she had confirmed her complaint. Between the two he put each element to her in turn against that consistent refrain. Throughout, he kept before her the need to adhere to, and to have adhered to, the truth.

[32]     The most likely effect of these questions we think, and we do not suggest that counsel for the Crown intended it, was rhetorical. Y could well have understood counsel to be inviting her to confirm that her complaint was true. Or to take a much more unpalatable course. To disclose that, despite her promise to the interviewer to tell the truth, she had lied and seriously. At age seven that may have been something of which she found herself incapable.

[33]     When, moreover, counsel for the Crown then asked Y what her age was when the licking began and how many times it had happened she proved unable to say:

Q.        Y earlier today you told us first of all that you thought you were six when you started going to stay with X.  Then you changed that to four. Remember that.

A.       Yes

Q.        When you were, and you have told us about X licking you. You understand that

Q.       How old were you when the licking occurred

A.       I don’t know

Q.       Can you remember over what period of time it occurred

A.       No

Q.       Approximately how many times can you recall

A.       I don’t know.

Q.       Can you remember whether you were at school then or not

A.       No.

[34]     We are left with a real doubt whether counsel for the Crown did achieve what he set out to do, to have Y reaffirm, and credibly, her original complaint. Nor does her concession that she had been inaccurate as to one detail in her original complaint reassure us.  As  to  that  one  detail,  she  was  highly specific.  As  to  her  essential complaint she remained, in contrast to her original complaint, surprisingly abstract.

[35]     Counsel for the Crown did not, finally, ask Y to explain why she had so readily  conceded,  when  cross-examined,  that  what  she  had  complained  of  was untrue; or take her to her concession that she would not have continued to go to X’s house had he licked her as she first described. All that remained undisturbed and unaccounted for.

Y’s complaint confirmed - Judge’s questions

[36]     That  the  Judge  must  also  have  considered  the  status  of  Y’s  complaint remained at large despite the answers she gave when re-examined, is evident from his s 347 ruling. He felt obliged, as he said in his ruling, to clarify with her just what her evidence was, and with that we agree. In that he had no choice. How he went about it, unfortunately, raises yet a further difficulty.

[37]     The only way in which the Judge could have clarified the status of Y’s complaint effectively was to be as direct and comprehensive with her as counsel had been. He needed to put to her first that she had complained and then that she had

retracted her complaint and then that she had resumed it. He needed to ask her whether she adhered to her complaint or not and to elicit broadly the reason why she did or did not. That was the course taken by the trial judge, and endorsed, in R v Deverell CA 116/06 13 September 2006.

[38]     The Judge chose not to go that far. The course he chose was more modest and we can understand why. Y had already shifted ground twice. There was also a suggestion that she had become distressed. The Judge could have compounded any confusion or distress. Had Y been faced with questions of the kind we envisage, she might have found that beyond her ability to cope.

[39]     Instead, the Judge pursued one  fact only in the questions that he  asked: whether Y had pointed downwards during the video interview, when she described the licking that had happened:

Q.Y I just have one question for you. You remember watching the video yesterday don’t you

A.       Yes

Q.       And you remember telling the lady about X licking you

A.       Yes

Q.       And do you remember pointing to where X was licking you

A.       Yes

Q.       And you can remember where that was you were pointing

A.       Yes

Q.       Where was that. Were you pointing down

A.       (Nods)

[40]     This choice of questions carried with it difficulties of its own, the first of which was that, to obtain that answer, the Judge had first to put to Y her complaint and, as counsel for X said in a closing address to the jury, that did not assist them to understand better whether her complaint was true. The Judge had not put that to Y. Counsel for the Crown had just done that. All that he asked her was whether she remembered  what  her  complaint  was.  With  that  analysis  we agree.  The  second

difficulty is that the fact the Judge wished to elicit was already uncontested. Y had marked the diagram showing where she had been licked. The interviewer had given unchallenged consistent evidence.

[41]   These questions also carried a risk. It was this. The jury might have misinterpreted what the Judge was intent on and concluded that, counsel for the Crown having just had Y reaffirm her complaint, the Judge accepted she had done so and wished to assist them with one final detail. They might have concluded that Y’s complaint carried his warrant.

Directions to jury

[42]     Precisely because the reason why Y had shifted ground twice remained an enigma, counsel focussed on that in their closing addresses. Neither was able to fasten to any degree on what Y had said, or any factors beyond that, going to the truth  or  otherwise  of  her  complaint.  Each  to  an  unusual  degree  criticised  the questions the other had asked and attributed to that her shifts of ground.

[43]     That was the issue on which the Judge had also to focus in his directions to the jury and to a significant extent he did so. The final issue has, however, to be whether he put to the jury how critical the contradictions in Y’s evidence were to the reliability of her complaint and to the Crown’s case.

[44]     Early in his directions the Judge told the jury that the Crown case stood or fell on what they made of Y’s truthfulness and accuracy. He gave them a series of related mostly conventional directions. He told them that they were to assess her as they would an adult, using their every day experience and common sense; that they could accept some parts of what she said and reject others; that they could take account of her demeanour, and the difference between giving evidence by video interview and at trial.

[45]     The Judge warned the jury not to take any inference adverse to X from the mode of Y’s evidence. He told them not to speculate as to how she came to make her

complaint or what she might then have said. X, he said, enjoyed the presumption of innocence. It was for the Crown to prove his guilt. All turned on what Y had to say.

[46]     In his general review of the Crown and defence cases, to which we need not refer, the Judge said this:

[36]The Crown have said to you today you can regard Y as being a truthful witness by the way she answered and her demeanour in answering questions, particularly relating to the central issue here, and I have mentioned that earlier. The Crown have said to you, well any change in her testimony in cross-examination really has come about because of difficulties with her understanding questions in cross-examination, and cross-examination not fully putting to her that it was being alleged that she was being untruthful.

[37]Mr Gresson said to you that when questions were put to her without double negatives in a very basic fashion, that she could understand them, and he asked you to have regard to what she said, particularly in  re-examination  after  what  she  told  Ms  Saunderson-Warner  in cross-examination.

[38]Well Ms Saunderson-Warner said to you that in effect you cannot get over what Y has said in her cross-examination when she clearly told you that what she had said about X licking her wasn’t true. She said that  really shows that  the  Crown cannot  prove  this  beyond reasonable doubt, or you cannot be sure, which you need to be for proof beyond reasonable doubt.

[39]Ms  Saunderson-Warner  said  that  there  are  other  parts  of  Y’s evidence which you would find inconsistent – the brick house for example, then saying she hadn’t seen the accused’s genitalia, and that she wasn’t, contrary to what Mr Gresson has said to you, upset when she was talking about these issues. I say to you that you are the ones who have seen the evidence, you are the judges. It is entirely up to you to make what you will of her evidence.

[47]     The Judge’s directions as a whole, and in this last respect especially, might well have served if Y had merely wavered in the detail of her complaint and not shifted ground so completely twice. They might well have served if her evidence was supported in other ways. The Judge did not, we consider, unfortunately, bring home to the jury how radically Y shifted ground, not once but twice, or that why she did so remained unexplained or how far that affected the Crown’s case.

[48]     The  Judge  should,  we  think,  have  ended  by  directing  the  jury  that  Y’s evidence in chief was capable of sustaining the Crown’s case if they believed it.  But that to decide whether they did they needed to be sure that, when re-examined, she

had credibly resumed her complaint after having, when cross examined immediately before, abandoned it so apparently completely. That unless they could be sure that, when  cross-examined,  she  had  been  merely  deflected  from  her  complaint,  they should acquit.

Conclusions

[49]     For X’s conviction for indecent assault to be safe Y’s unsupported complaint had to be transparently secure. It was not. In each phase of her evidence she shifted ground completely. In part that may be attributable to the questions she was asked. In part she may have been more suggestible than she appeared to be. As to those possibilities the jury could only have speculated.

[50]     At the very least the jury needed to know how finely poised the Crown’s case was, and just how much Y’s shifts of ground eroded her complaint. The jury were not taken that necessary distance. For that reason ultimately, but also the reasons set out earlier, we consider the jury’s verdict has to be unsafe. We see no alternative but to allow the appeal and quash X’s conviction and sentence. We direct also that there be a fresh trial.

[51]     Y’s complaint was and still is, we consider, worthy of a jury’s consideration. While she retracted it seemingly completely she resumed it as completely. And though the way in which that happened was unfortunate, a retrial does not seem to us to be precluded. Whether there should be one should depend rather, we consider, on whether Y can sensibly and fairly be asked to give evidence a second time. That is a matter for the Crown.

[52]     X’s status until his retrial, whether he is to remain in custody or is to be granted bail, must now be decided as soon as practicable in the District Court.

Solicitors:

Aspinall Joel, Dunedin for Appellant

Crown Law Office, Wellington