S (CA514/2008) v The Queen

[2009] NZCA 622

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN THE NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE IS PROHIBITED UNTIL FINAL DISPOSITION OF THE RETRIAL, ALTHOUGH THE RESULT MAY BE REPORTED.  PUBLICATION IN A LAW REPORT OR LAW DIGEST IS PERMITTED, HOWEVER.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA514/2008 [2009] NZCA 622

BETWEEN  S (CA514/2008) Appellant

ANDTHE QUEEN Respondent

Hearing:         25 November 2009

Court:            Arnold, Potter and Heath JJ Counsel:    P H B Hall for Appellant

K A L Bicknell for Respondent

Judgment:      22 December 2009

Reasons:        3 March 2010 at 10.30 am

JUDGMENT OF THE COURT

A        We grant the appellant leave to adduce further affidavit evidence from

Professor Garry.

B        We allow the appeal.  The appellant’s conviction on count 3 is quashed

and a retrial is ordered.

S (CA514/2008) V R COA CA514/2008 [22 December 2009]

C        The question of bail is to be dealt with by the District Court.

DPublication of the reasons for judgment in the news media or on the internet or other publicly available database is prohibited until final disposition   of   the   retrial,   although   the   result   may   be   reported.

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

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

Para No.

Introduction  [1] Factual background  [4] Basis of appeal  [11] Discussion      [13] Further evidence   [14] Miscarriage of justice  [26]

(i)     Trial Counsel error  [26] (ii)    Wrongful admission of expert evidence  [27] (iii)   Inappropriate directions on the expert evidence  [38] Propensity evidence  [47] (i)     The Judge’s ruling on propensity evidence  [49] (ii)    The Judge’s instruction on propensity evidence  [57] Warning under s 122 of Evidence Act  [62] Inconsistent verdicts  [67] Overall assessment  [69]

Decision  [70]

Introduction

[1]      The appellant faced trial by jury before Judge P A Moran on three counts of sexual violation by rape between 1 January and 31 December 1993 (counts 1 – 3) and one count of sexual violation by rape between 1 January and 31 December 1995 (count 4).   In relation to the three 1993 counts, he was acquitted on count 1 and convicted on count 3.  The jury could not agree on count 2, and a retrial was ordered. The appellant was acquitted on count 4.

[2]      Judge Moran sentenced the appellant to seven years imprisonment.1     The appellant appealed against his conviction.  He had also filed an appeal against his sentence, but the appellant’s counsel, Mr Hall, advised us at the hearing that the sentence appeal would not be pursued. Accordingly, we treat it as abandoned.

[3]      In  a  results  judgment  delivered  on  22  December  2009  we  allowed  the appeal.2    We now give our reasons.  There was no one ground of appeal that was determinative.   Rather, it was a combination of matters that caused us concern. Taking an overall view, we considered that there were several unsatisfactory features about the trial, which meant that we must allow the appeal.

Factual background

[4]      The appellant is a physician.  He suffers from depression and has a history of alcohol  abuse.    The  complainant  is  his  daughter,  although  the  appellant  had separated  from  her mother before the incidents  complained of  are said  to  have occurred.  In 2005 the complainant told the police that her father had raped her on several occasions in 1993 or 1994 while she and her sister were staying with him on weekend visits at what had been the family home.  She was eight or nine years old at the time.  (By the time of trial she was 22 years of age.)

[5]      The complainant said that on each occasion the appellant had come into her bedroom when she was asleep and had sat on the edge of the bed.  She said he was drunk – unsteady on his feet, smelling of alcohol and slurring his words.   The complainant alleged that the appellant climbed onto her, pinned her down and had sexual intercourse with her.  She said that, after one incident, she found a patch of blood towards the top of her sheets the following morning.

[6]      The complainant has had a history of psychological difficulties and has, from the age of 16, been treated by various mental health professionals.  In the course of her treatment, she had been asked on numerous occasions if she had suffered sexual

abuse, but denied that she had.  It was not until October 2003 that the complainant

1      R v S DC Christchurch CRI-2006-009-1956 29 July 2008.

2      R v S (CA514/2008) [2009] NZCA 622.

told her mother that she had been abused by her father.  The complainant said that she did not tell anyone about what had happened at the time as she felt ashamed and thought that it might have something to do with her.  Also, she did not think anyone would believe her.   When explaining her subsequent denials that she had been subjected to abuse she said that she had concerns about telling health professionals what had happened because her father was a doctor and knew many people working in the mental health system.  She was concerned that her father might have access to her medical records.   She also said that her father’s partner, Y, was a psychiatric nurse working in a forensic unit, which heightened her concerns.  She said that she felt her father was attempting to control her.

[7]      At trial the Crown called evidence from Dr Earthrowl, a consultant forensic psychiatrist.      In   opening   the   case,   Crown   counsel,   Mr   Zarifeh,   said   that Dr Earthrowl’s evidence would deal with the question whether the complainant was likely to have any memory impairment or distortion as a result of her psychological problems or medication.  However, at the end of the first day of the trial, when the complainant was under cross-examination, Mr Zarifeh advised the Court that he proposed to lead further evidence from Dr Earthrowl to deal with the issue of the complainant’s failure to complain at the time she alleged the incidents occurred, and her willingness to have further contact with her father despite what she said had happened.

[8]      Behaviour of this sort is often described as counter-intuitive because it is considered  to  be  inconsistent  with  common  beliefs  about  the  conduct  of  child victims of sexual abuse at the hands of relatives or adult friends.  Mr Zarifeh handed the Judge and defence counsel, Mr Davies, a copy of a brief of evidence from Dr Suzanne  Blackwell,  a  clinical  psychologist,  in  which  she  addressed  counter- intuitive behaviour.   Dr Blackwell had prepared this brief for another trial.   She described its purpose as being “to provide the jury with educative information about the dynamics of child sexual abuse without drawing a specific nexus between that information and the actual case”.  Mr Zarifeh also provided a copy of Stevens J’s

decision ruling Dr Blackwell’s evidence admissible.3    Crown counsel indicated that he had received the material earlier that day, and proposed to lead similar evidence from Dr Earthrowl.   There was some discussion between the Judge and counsel, during which the Judge said that if Dr Earthrowl was qualified he could give the evidence but told counsel to “sort it out and if there’s a problem about it then I’ll deal with it”.

[9]      Dr Earthrowl gave evidence after the lunch adjournment the following day. His evidence on counter-intuitive behaviour covered several pages of the notes of evidence.  Dr Earthrowl said that children often did not report sexual abuse when it occurred.   Some never reported it at all, but others did, albeit some years after it occurred.   Delay was most likely where the abuser was a close family member. Some children did not disclose sexual offending against them even when directly questioned and would continue to have friendly contact with a person who had abused them.  Dr Earthrowl said that his opinions were based both on the literature and on his clinical experience.

[10]     The appellant did not give evidence at trial.  However, he made a statement to the police in which he strongly denied that the incidents had occurred.  He said that whenever the girls had stayed with him, there was another adult present, initially his then partner, X, with their young daughter, or later a subsequent partner, Y.  He indicated that he believed the complainant’s allegations were a result of her psychological difficulties and her being manipulated by his former wife.

Basis of appeal

[11]     Mr Hall, who was not trial counsel, advanced four grounds of appeal:

(a)       There  was  a  miscarriage  of  justice  under  s  385(1)(c)  of   the

Crimes Act 1961 as a result of:

trial counsel error;

3      R v Thompson HC Auckland CRI-2007-090-5246, 30 May 2008.

wrongful admission of expert evidence; and

failure to give appropriate direction to the jury about how to approach the expert evidence.

(b)       Propensity evidence should not have been admitted, and in any event

the Judge’s directions on propensity were inadequate.

(c)       A warning under s 122 of the Evidence Act 2006 should have been given.

(d)       The verdicts were inconsistent.

[12]     Mr Hall also sought leave to adduce further evidence, which we describe below.4   The Crown opposed this application.

Discussion

[13]     Before dealing with each of the four grounds of appeal individually, we outline the further evidence that Mr Hall sought leave to adduce.   The evidence consists of an affidavit from the appellant, an affidavit from Professor Maryanne Garry and two affidavits from Dr Yolande Lucire.

Further evidence

[14]     The appellant’s affidavit relates to the conduct of the trial and the instructions which he gave Mr Davies.  He said that he was not aware of Mr Zarifeh’s advice to his counsel that he proposed to lead further evidence from Dr Earthrowl concerning counter-intuitive behaviour.  He said that, had his counsel informed him of this, he would have instructed him to seek an adjournment so that he could seek expert advice on the proposed evidence.  Mr Davies confirmed in a letter to Mr Hall that he had not sought instructions from the appellant as he was unclear of exactly what the

proposed evidence was.

4      At [14] – [19].

[15]     Professor Garry is a cognitive scientist who teaches and researches in the School of Psychology at Victoria University of Wellington.   She is an expert on memory.     Her  affidavit  challenges  some  of  the  scientific  underpinnings  of Dr Earthrowl’s  evidence  about  counter-intuitive  behaviour  of  sexually  abused children.

[16]     Professor Garry summarised her views in two important passages.  The first is:

5.10     Taken together, a scientifically-grounded answer to the question Do sexually abused children typically delay telling someone about their abuse? is not straightforward.   In broad, general terms, the answer is yes.   But science is rarely so tidy and a closer look suggests that the “Yes” answer must be qualified.  The first qualification is about the method of inquiry in these studies.  Most of the research addressing this question asks adults to remember back to their childhood – more specifically, to remember if they told anyone (and if they did, when did they tell).  But retrospective reports in any research area are fraught with problems because memories fade, become contaminated by our own thoughts, imagination, discussions with others, and our difficulties in remembering periods when we were aware of some event and when we were not.   In the area of child sexual abuse, retrospective report study carries with it two additional problems: some research includes people who claim to have repressed their memories, and none of the research tells us if anyone ever asked children directly about their abuse.

Accordingly, she said, she would have given a more detailed and nuanced answer to the question “do sexually abused children typically delay telling someone about their abuse?” than was given by Dr Earthrowl.

[17]     The second passage from Professsor Garry’s evidence is:

6.10     Taken together, a scientifically-grounded answer to the question Do sexually abused children typically reveal their abuse if someone asks them directly?  is  yes,  with  the  following  qualifications  drawn  from [London, Bruck, Ceci and Shuman “Disclosure of Child Sexual Abuse: What Does the Research  Tell  Us  About  the  Ways  That  Children  Tell?”  (2005)  11

Psychology, Public Policy and Law 194; and London, Bruck, Wright and

Ceci “Review of the contemporary literature on how children report sexual abuse  to  others:  Findings,  methodological  issues,  and  implication  for forensic interviewers” (2008) 16 Memory 29].  First, boys are less likely to reveal abuse than girls; older children are more likely to reveal abuse than younger children; children are less likely to reveal their abuse if a parent is the perpetrator.

[18]     Professor Garry addressed Dr Blackwell’s brief of evidence in the Thompson case in some detail, and was critical of it.  She said that had a student presented it to her as a paper she would have given it a failing grade.

[19]     Dr Lucire is a consultant psychologist.  She prepared her first affidavit after having read the complainant’s video statement and a transcript of evidence.  She had not examined the complainant’s medical files.    In her first affidavit she deposed that, in her opinion, the complainant had been poisoned as a result of medications that she was prescribed while she was still at school, to the point that she was at risk of developing Neuroleptic Induced Deficit Syndrome.   She opined that the complainant’s allegations about her father involved “assisted confabulations [story telling] and contaminated pseudo-memories”. Dr Lucire described the complainant’s allegations as “not plausible” and her allegations as “unreliable”.  She recommended that the complainant undergo blood tests, and said that it would take two years after medication had ceased for the complainant’s brain functioning to return to normal.

[20]     As we have said, Ms Bicknell for the Crown opposed the granting of leave to adduce further evidence, on the grounds that the evidence was not sufficiently fresh and, in the case of Dr Lucire, was not cogent.  Further, Ms Bicknell submitted that even if the evidence was fresh, its admission was not required in the interests of justice as the evidence did not demonstrate that there had been a miscarriage of justice.

[21]     The   Crown   did,   however,   file   two   additional   affidavits,   one   from Dr Earthrowl commenting on the affidavits of Professor Garry and Dr Lucire and one from Dr Blackwell.  Dr Lucire then filed her second affidavit, by way of reply.

[22]     There was no dispute between the parties as to the relevant principles.  They were set out by this Court in R v Bain.5   In argument before us, Mr Hall concentrated on the evidence of Professor Garry.  In relation to the evidence of Dr Lucire, Mr Hall was inclined to accept that it was problematic, both because of its tone and content. Dr Lucire’s affidavits are tendentious and are couched in extreme language.  Despite

the fact that Dr Lucire had limited material to review, she expressed firm opinions

5      R v Bain [2004] 1 NZLR 638 (CA) at [22] – [23].

about the reliability of the complainant’s evidence and said that the offending did not occur, in a way that goes beyond the legitimate scope of expert evidence.  Further, her affidavits contain obvious errors.  For example, on one occasion she draws an adverse conclusion about the complainant on the basis of a misquoted sentence from the complainant’s video interview.

[23]     Accordingly, we decline to receive Dr Lucire’s affidavits.  However, we give leave in relation to Professor Garry’s affidavit, and in relation to the Crown’s affidavits in reply from Dr Earthrowl and Dr Blackwell, for the following reasons.

[24]     Mr  Zarifeh  did  not  advise  Mr  Davies  of  the  additional  evidence  that Dr Earthrowl  proposed  to  give  until  the  end  of  the  first  day  of  the  trial,  in circumstances where Dr Earthrowl was scheduled to give evidence the following day.   Given the lateness of this advice, Mr Davies could legitimately have either objected to the leading of the proposed evidence or sought an adjournment to enable him to consider and take advice on it.  If that had occurred we think it likely that the Judge would either have required the Crown to proceed without the additional evidence or granted an adjournment to allow time for Mr Davies to take advice.

[25]     As we have said, the Judge left it to counsel in the first instance to consider the position in relation to the further evidence and said that if there was any problem, he would deal with it.  In the event, Mr Davies did not object to the admission of the further evidence or seek an adjournment and Mr Zarifeh led the evidence from Dr Earthrowl.   In his closing address, Mr Zarifeh made much of Dr Earthrowl’s evidence, saying that it was not contradicted.   In these circumstances we consider that we should have regard to the material to which Mr Davies would have had access if he had sought and been granted an adjournment.  Only in this way can we reach a view as to whether what occurred at trial created a real risk of a miscarriage of justice.

Miscarriage of justice

(i)       Trial counsel error

[26]     As we have indicated, Mr Hall said that there had been a miscarriage for three reasons, the first being trial counsel error.  We have noted the errors alleged in addressing the fresh evidence application.  Our decision to grant leave in relation to Professor Garry’s affidavit essentially mitigates any errors by counsel in this respect. Accordingly, we turn to the second ground, the wrongful admission of the expert evidence.

(ii)      Wrongful admission of expert evidence

[27]     Again, we put to one side the process complaints that Mr Hall made about the admission of the additional evidence from Dr Earthrowl under this head.  We have mitigated the effect of those by receiving Professor Garry’s evidence.

[28]     The remaining question is whether there was a risk of a miscarriage of justice given  that  defence  counsel  did  not  have  access  to,  and  the  jury  did  not  hear, Professor Garry’s evidence.  To assess that, we need to be clear about the extent of Dr Earthrowl’s evidence on this aspect of the case.

[29]     What is noteworthy about Dr Earthrowl’s evidence is that it was general, in the sense that he said that a child’s failure to complain promptly, or at all, or a child’s continued association with a family member, were not inconsistent with the child having suffered sexual abuse by that family member.  He did not say that this was the position in relation to the complainant.  Rather, he said that such features were neutral – they did not indicate that a child had not been abused, nor did they indicate that he or she had.

[30]     The Judge emphasised this to the jury in his summing up:

It may be in the community that there is held a belief that young children who are sexually abused will tell someone about it.  It may be thought that they’ll certainly tell somebody about it when they are asked specifically. Well  Doctor  Earthrowl’s  opinion  supported  by  research  and  bodies  of

literature demonstrates the contrary.  Children who are sexually abused do not always tell.  Many do not.  Many carry the secret to their graves.  Of those who do tell many of them don’t tell until their adult years, until late. Children who have been sexually abused will deny that they have been sexually abused when they are asked specifically about it.   So Doctor Earthrowl has really come along to disabuse you of any false notions you might have had about what abused children typically do.  His evidence is to the effect that children … who are abused, may even continue in a, in their relationship with their abusers especially if the abuser happens to be a family member.   But Doctor Earthrowl is giving evidence about generalities.   He was very careful not to give evidence about [the complainant] because he hadn’t examined her.  He was here to give you evidence about the body of knowledge that there is in his field of expertise.

The Judge then went on to deal with other aspects of Dr Earthrowl’s evidence which

are not relevant for the purposes of the appeal.

[31]     The two essential points of Dr Earthrowl’s evidence for present purposes were first, that children who suffer sexual abuse often do not complain immediately and continue to associate with their abusers and second, that it is normal or common for children not to complain even when specifically asked.  Taking the delay point first, we consider that Professor Garry’s evidence is substantially the same as that of Dr Earthrowl.  In her affidavit Professor Garry accepts that in general terms it is true that sexually abused children typically delay telling someone about their abuse: see [16] above.    In most cases, that will be all that the jury needs to know.  It will be sufficient to offset any preconception that jurors may have that a child who claims to be the victim of sexual abuse should not be believed because he or she did not complain promptly, or continued to associate with the abuser.  The legitimacy of this

analysis was recognised by the Law Commission6  and is implicit in s 127 of the

Evidence Act 2006, under which a judge may explain to the jury that there can be good reasons for a complainant to delay making a complaint.   Further, this Court accepted the legitimacy of counter-intuitive evidence in R v Aymes,7 albeit under the

earlier evidence legislation.

6      Law Commission Evidence (NZLC R55, 1999) at [C111].

7      R v Aymes [2005] 2 NZLR 376 (CA) at [112].

[32]     We note, however, that such evidence has not been admitted in every case of this type.   In R v S(CA181/2009)8  this Court upheld a ruling by Clifford J that proposed evidence from Dr Blackwell concerning counter-intuitive behaviours was inadmissible because, in the particular case, it did not meet the “substantial helpfulness” test in s 25 of the Evidence Act.  This was because the brief was general in nature and not particularly directed towards the issues arising in the case.9   In that case the male complainants were 16 or 17 at the time of the offending.  The Court accepted, however, that it was open to the Crown to apply to have a revised brief admitted.

[33]     Professor Garry is critical of Dr Earthrowl for not giving longer and more nuanced answers to questions on the delay point.  She says that, in her opinion, “an expert must take pains to give a complete, nuanced answer rather than a pithy answer, and sometimes the complete, nuanced answer is tediously long”.   But a criminal trial is not the place for detailed discourse or academic debate about the subtleties and nuances of research studies.  For most jurors, long, nuanced answers are unlikely to be helpful, and such answers may well provoke an intervention from the Judge.

[34]     However, Professor Garry does appear to differ from Dr Earthrowl on the second point, namely whether sexually abused children typically reveal their abuse when asked directly.  While she accepts that some children do not reveal their abuse when  asked,  she  appears to  consider that  it  is  less  common  than suggested  by Dr Earthrowl.  However, context is important.  The summary of Professor Garry’s views quoted above10 contains several qualifications, including the propositions that

younger children who suffer abuse are less likely than others to acknowledge abuse

8      R v S(CA181/2009) [2009] NZCA 195.

9 At [13].

10     At [17] above.

when asked, as are children who suffer abuse at the hands of a parent.  Both of those features are present in this case.

[35]     Finally, we should note that Dr Earthrowl based his opinion on his clinical experience as well as on the literature.  As we have said, Professor Garry criticised Dr Earthrowl’s understanding and interpretation of the literature, arguing that he did not give sufficiently nuanced and lengthy answers to questions.  But Professor Garry is not a clinician and was in no position to challenge Dr Earthrowl’s opinions based on his clinical experience.

[36]     In the result, then, there seems to be little significant difference between Dr Earthrowl and Professor Garry in relation to delay but some difference of opinion in relation to refusal to disclose in response to direct questions.   The difference relates  to  the  frequency  of  refusals  to  disclose  in  response  to  questioning, Dr Earthrowl suggesting it is common, Professor Garry less so.  Further, given that

the complainant explained why she did not disclose the abuse when asked,11  there

must be a question as to the helpfulness of expert evidence of a general nature on this point, as in S (CA181/2009).

[37]     Mr Zarifeh made much of Dr Earthrowl’s evidence in his closing address, emphasising that he had said it was “quite common” for victims to deny that they had been abused when asked.  He also noted that Dr Earthrowl’s evidence was not contradicted.  Given that:

(a)       The complainant’s credibility was critical to the Crown case;

(b)Dr Earthrowl’s evidence supported the Crown’s theory of the case by normalising the complainant’s refusal to disclose;

(c)       Dr  Earthrowl’s  evidence  was  general  in  nature  and  did  not  take

account of the complainant’s specific explanations for declining to

disclose;

11 See [6] above.

(d)There  was  some  difference  between  Dr  Earthrowl  and  Professor Garry on the question of the frequency of non-disclosure in response to questions, which is significant  given the Crown’s emphasis on Dr Earthrowl’s evidence not being contradicted;

we consider that there was a risk of injustice in the way that Dr Earthrowl’s evidence emerged, albeit that it may have been capable of being cured in the summing up. Accordingly we turn to that.

(iii)     Inappropriate directions on the expert evidence

[38]     Mr Hall submitted that the Judge’s directions on the topic of expert evidence

were inadequate.  The Judge introduced this topic as follows:

I want now to deal with Doctor Earthrowl’s evidence and its relevance in this trial.   Now Doctor Earthrowl is an expert and people who have specialised qualifications and experience are entitled to come along to a jury trial and give the jury the benefit of their opinions about matters within their expertise and they are allowed to do that because expert knowledge may help a jury understand subjects that are outside the ken of a layman.

The Judge then carried on with the passage which we have quoted above12  and summarised other aspects of Dr Earthrowl’s evidence.

[39]     After the jury had retired, the Judge called them in again to address further matters  that  counsel  had  raised  with  him.    One  of  these  related  to  the  expert evidence.  He said:

I also told you that you could accept the evidence of opinion by Doctor Earthrowl and of course you can.  Equally you can reject it.  I can’t imagine why you’d want to but it is open to juries to reject expert evidence because it’s trial by jury not trial by expert.

[40]     Mr Hall was critical of these directions, on the basis that they were not sufficiently explicit in emphasising that it was open to the jury to accept or reject

Dr Earthrowl’s evidence and to assess what weight should be given to it.

12 At [30].

[41]     As  Dr  Earthrowl’s  evidence  was  not  challenged  at  trial,  it  is  easy  to understand the Judge’s comment that he could not imagine why the jury would want to reject it.   However, the Judge was unaware of a material difference between Dr Earthrowl’s evidence and what Professor Garry would have said if she had been called on the disclosure point.  The difference is significant because of the way in which the Crown used Dr Earthrowl’s evidence in closing.

[42]     Further,  as  we  have  said,  the  complainant  explained  why  she  had  not disclosed the abuse when asked by various health professionals.  Her explanations related in part to her perception of her father as controlling and having connections with other health professionals.  In our view, the complainant’s explanations for her failure to respond to questioning should have been the focus of the Judge’s directions on this aspect of the case. That is, the jury should have been directed to consider the complainant’s explanations carefully, rather than to focus on the more general counter-intuitive evidence concerning non-disclosure.  The jury had to be sure that the complainant was telling the truth, which meant that they had to consider the explanations that she gave for her failure to disclose the abuse when asked.

[43]     The Judge did refer to her explanations, in part at least, when summarising the Crown case.  He said:

[The Crown says the complainant] didn’t tell anybody about [the abuse] even when she was specifically asked she denied it.  Why?  Because she was afraid that she would not be believed.  She was afraid that she would lose the love of her mother and her sister and this sort of reasoning on the part of abused children is not uncommon says the Crown and Doctor Earthrowl has told you that.

Sure she continued to have contact with her father, the abuser.  That’s not uncommon either in sexually abused children.  Doctor Earthrowl told you as much.

[44]     But  we  consider  that  the  Judge  should  have  gone  further  than  simply mentioning (in part) the complainant’s explanations in his summary of the Crown’s case.  We consider that he should have addressed the explanations in the context of the discussion of the complainant’s evidence and that of Dr Earthrowl, and the jury should have been told to focus on them in determining whether or not they believed the complainant.  Without this focus, the jury were left with the Crown’s assertion

that Dr Earthrowl’s evidence was “not contradicted” and with the Judge’s indication that he could not imagine why they would want to reject Dr Earthrowl’s evidence.

[45]     We do not intend to be critical of the Judge in saying this.  The question of counter-intuitive evidence arose in an unfortunate way, and neither counsel dealt with it as well as they might have.  But it does leave us with a real concern about the safety of the verdict.

[46]     There is one final point.  Professor Garry said that Dr Earthrowl should have given longer and  more  nuanced  answers to  the questions  put  to  him about  the research findings, to the point of being “tediously long”.  As we have said, there are real difficulties about such an approach in criminal jury trials, which do not lend themselves to scientific discourse or debate about the subtleties of research findings. It may be that the difficulties involved in this type of evidence could be avoided if judges were to instruct juries on the basis of what seems to be uncontroversial from the scientific research, as occurred (we understand) by consent in Thompson. However, this is an issue which is best left for consideration by a Permanent Court.

Propensity evidence

[47]     The Crown wished to lead propensity evidence from the complainant’s sister, to the effect that when she was 12 or 13 years old and staying overnight at her father’s house, the appellant came into her bedroom and woke her up.  He was either sitting on the bed or kneeling beside it, was intoxicated and was slurring his words. The complainant’s sister said that the appellant then said “I want to touch your breasts”.  His then partner, X, appeared at the door and took him away.  The Crown said that this showed a propensity to initiate sexual activity with his young daughters when intoxicated.

[48]     Judge Moran ruled that this evidence was admissible.13  Mr Hall argues that he was wrong to do so.  He also submits that the Judge misdirected the jury on how

it should approach the propensity evidence.  We deal with each point in turn.

13     R v S DC Christchurch CRI-2006-009-001956, 23 June 2008.

(i)       The Judge’s ruling on propensity evidence

[49]     In ruling the evidence admissible, Judge Moran said:

[4]       The issue in the trial will be [the complainant’s] credibility.  It is the defence case that her allegations are fabricated.  Not only is the accused [the complainant’s] father, he is a doctor.  It is, on the face of it, incredible that such a man would rape his young daughter.  The fact (if it be a fact) that he made sexual advances to another young daughter goes a good way to dispelling initial incredulity.  The fact (if it be a fact) that he made sexual advances to [the complainant’s sister] is cogent evidence that [the complainant] is telling the truth.

Both girls are the accused’s daughters;

They were both young;

Both were asleep in their beds while in his care;

Both allege that the accused was inebriated and slurring his words. [5]      It  is  true that some four years had elapsed between the last rape

alleged by [the complainant] and [her sister’s] allegation of improper sexual advances, but that does not detract from the cogency of the evidence of [the sister’s] allegation. The telling similarities remain.

[6]       It is true that the allegation of misconduct that [the complainant’s sister] makes goes no further than his saying “I want to touch your breasts” and is not an allegation of rape.  But his partner interrupted him before he had the opportunity to go further.   The probative effect of [the sister’s] evidence  lies  in  the  fact  that  he  made  a  drunken  and  improper  sexual advance to [the sister] rather than the extent to which it went.

[7]       As  with  all  cogent  evidence,  prejudice  is  considerable  but  the question is whether [the sister’s] evidence is likely to unfairly predispose the jury against the accused and whether the jury would tend to give disproportionate weight to it.  That is a judgment call.  I consider that the risk that the jury might convict the accused out of hand because he is a bad person can be adequately addressed by appropriate directions to the jury. [The complainant’s] evidence, standing alone, is confronted by the inherent unlikelihood that a father, especially a father of the accused’s profession, would sexually abuse his young daughter.  To the extent that [the sister’s] evidence might diminish that inherent unlikelihood, her evidence might predispose the jury against the accused, but not unfairly so.

[8]       The jury will have to be warned, of course, against the possibility that the two sisters have collaborated.

[9]       [The sister’s] evidence is admissible.

[50]     Mr Hall said that this ruling involved a misapplication of ss 40 and 43 of the

Evidence Act.  He relied on R v Stewart (Peter) where this Court said that there was

a sliding scale – the greater the risk of improper prejudice from the evidence, the more compelling its probative value must be.14   Mr Hall said that the probative value of the sister’s evidence was low, but its prejudicial effect was high.

[51]     The majority (Arnold and Potter JJ) consider that the evidence was properly admitted.  Section 43(2) of the Evidence Act requires the Judge to take account of the  nature  of  the  issue  in  dispute  when  assessing  the  probative  value  of  the propensity evidence.   In the present case, the case turned on the complainant’s credibility.  On the face of it, her story was difficult to accept – a doctor was alleged to have raped his young daughter in her bed while heavily intoxicated.  The sister’s evidence, while not involving rape, does involve an inappropriate sexual comment by the appellant to a young daughter while he was heavily intoxicated and she was in bed, before his partner intervened to remove him from the room.  If the jury accepted the sister’s evidence as true, it provided important support for the complainant’s

account of what happened to her.15

[52]     In terms of the s 43(3) considerations, the propensity evidence related only to one  act  with  one  other  person  (s 43(3)(a)  and  (d)),  and  there  was  not  a  close connection in time between the events (s 43(3)(b)).   These are factors against admission.  But, as the Judge noted, there were significant similarities between the incident  alleged  by  the  sister  and  those  alleged  by  the  complainant  and  the

circumstances  were  highly unusual  (s  43(3)(c)  and  (f)).    In  R  v  S16   this  Court

approved Fisher J’s statement in R v Tulisi that:17

If a mature accused is alleged to have had improper sexual activity with young girls of a similar age during a similar period and in similar locations, very little more, if any, might be needed before the probative value of a similar fact link would be held to outweigh its prejudice.  Conduct of that kind is itself so distinctive, and the chances of its repetition so high, that it will already have substantial inherent probative value without more. Additional behaviour outside the ordinary is not required.

[53]     In the present case, the incidents related to the appellant’s daughters; both

were young, staying over with the appellant and in bed when the incidents were said

14     R v Stewart (Peter) [2008] NZCA 429, [2010] 1 NZLR 197 at [24].

15     See R v S CA300/05, 9 December 2005 at [45] and [47].

16     R v S CA208/06, 14 August 2006 at [23].

17     R v Tulisi (2000) 18 CRNZ 418 (HC) at [20](c).

to have occurred; the appellant was intoxicated and slurring his speech; while the precise conduct alleged was different (rape as opposed to an inappropriate sexualised comment), there was the similarity of inappropriate conduct of a sexual nature. Further,  account  must  be taken  in  this  context  of the sister’s evidence that  the appellant was interrupted when in her bedroom.

[54]     Finally,  the  majority  note  that  both  before  and  after  enactment  of  the Evidence Act 2006 this Court has accepted that subsequent conduct may be admissible on a charge involving earlier conduct, that is, it may indicate a pre- existing propensity.18    The Court has also held that, in appropriate circumstances, a

single act may be relied upon.19

[55]     Overall, the majority consider that the Judge was entitled to conclude that the probative value of the sister’s evidence outweighed its prejudicial effect, although the matter is finely balanced.  Given the acquittals, particularly on count 4, a fresh application will have to be made for the admission of the propensity evidence on the retrial.

[56]     Heath J considers that the propensity evidence was wrongly admitted.  In his view, the evidence was not capable of demonstrating a relevant tendency, for the purposes of s 40(1)(a) of the Evidence Act.  Heath J’s view is that conduct occurring some four years after an alleged offence, in circumstances where the conduct is far from  identical,  is  not  sufficiently probative  of  a  relevant  tendency  for  it  to  be admitted.

(ii)      The Judge’s instructions on propensity evidence

[57]     The Judge summed up on the propensity evidence in the following way:

[The evidence of the complainant’s sister] – [The sister] gave evidence of an incident when she was 12 that occurred at [address] and you will recall that she told you that one night she’s in her bed and her father comes in, he’s drunk and he says to her “I want to touch your breasts” and he makes a motion towards her and she brushes him off.   Why have you heard that

18     See R v O’Reilly CA151/97, 22 July 1997 at 10; R v Mata [2009] NZCA 254 at [45]; and

Solicitor-General v Rudd [2009] NZCA 401 at [17] – [27].

19     See R v Taea [2007] NZCA 472 at [36] – [46]; Mata at [46]; and Rudd at [34].

evidence?  What’s the relevance of that?  Well the Crown says that this is an example of the accused in a drunken state making sexual advances to a young daughter while she’s in her bed.  You see the Crown recognises that you might think that it’s impossible for any father to do such a thing.  That [the complainant] can’t be telling you the truth.  It’s monstrous.  Well the Crown says here’s evidence from another daughter to the effect that he got drunk and made sexual advances towards her.   And so the Crown says it should help you to accept [the complainant’s] evidence.  It should help you to accept that [the complainant] is telling the truth.   Well to be of any probative value at all you must be satisfied that what [the sister] says in fact happened  to  her.    You  have  to  be  satisfied  that  she  did  not  simply misinterpret some innocent remark on the part of her father and you would also have to be careful to ensure that these two girls have not got their heads together, collaborated to make false allegations against their father.  If it did happen in the way [the sister] describes.  The defence says so what.  [The sister’s] experience was a far cry from violent rape.

I want you to be careful please that if you are satisfied that it did happen to [the sister], that [the sister’s] giving you an accurate account of what the accused did to her, resist temptation to think, well the accused is a bad type, a bad sort and we will just convict him of these rapes.  We’ll allow this view of him as a baddie to influence us in our verdicts.  If you allow that thought process again you would be indulging in prejudice which would not be fair.

[58]     Later, when summarising the defence case, the Judge said:

With regard to [the sister’s] evidence it’s accepted by the defence that something inappropriate was said but it’s irrelevant.  It could well have been some  innocent  remark  misinterpreted  and  whatever  it  was,  whatever happened  to  [the  sister]  is  a  far  cry  from  violent  rape  so  [the  sister’s] evidence doesn’t help you to accept or believe [the complainant] at all.

[59]     Mr Hall submitted that this direction was incomplete and did not identify the steps accepted by this Court in Stewart as appropriate, at least in the context of that case.20   Those steps were:

(a)       State the purpose of the relevant evidence. (b) Explain what the propensity evidence is.

(c)       Identify the factors relied upon by the Crown establishing the relevant propensity in relation to the issue identified at (a) above and referring

to any defence contentions.

20     See R v Stewart (Peter) [2008] NZCA 429, [2010] 1 NZLR 197 at [30], [35] and [40].

(d)Direct the jury that whether propensity existed is entirely a matter for them.

(e)      Explain that if propensity is found to exist it is to be used as circumstantial evidence to be considered with all other evidence when assessing the issues, including the reliability and credibility of the complainant.

(f)       Explain that, if the jury does not accept that propensity is properly established, it should put the evidence to one side and not consider it.

(g)Warn the jury not to jump to the conclusion that because the accused has acted inappropriately on another occasion he or she must have done so in the manner alleged in the charge(s).

[60]     Although Stewart had not been decided at the time of trial, it does provide a useful statement against which to assess this aspect of the summing up.  The Judge did address steps (a), (b), (c) and (g).  He went some way towards addressing (e), although he did not remind the jury that this was only one item of evidence and that they should consider also the evidence that related more directly to the alleged offending.  The Judge did not mention (d) or (f), although (d) is perhaps implicit in what he said.

[61]     In the result, we consider that the Judge could have been a little fuller in his propensity direction, but, without more, we would not have seen this as fatal to the conviction.

Warning under s 122 of Evidence Act

[62]     Mr Hall argued that the Judge should have given a warning under s 122(1) of the Evidence Act.  Section 122(1) provides:

If, in a criminal proceeding tried with a jury, the Judge is of the opinion that that  any  evidence  given  in  that  proceeding  that  is  admissible  may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding–

(a)       whether to accept the evidence:

(b)       the weight to be given to the evidence.

Under s 122(2)(e) a judge must consider whether to give a warning where there is

evidence about an accused’s conduct that occurred more than ten years previously.

[63]     The Judge raised the question of the need to give a s 122 warning with counsel.   Mr Davies expressed the view that a warning was required because the evidence related to conduct that the appellant was alleged to have committed more than ten years previously.  The following exchange then occurred:

THE COURT:

But your case isn’t so much that she’s got a faulty memory of an event that she’s misinterpreted, your case is on the central issues she’s lying.

MR DAVIES:

Yes, didn’t happen.

THE COURT:

It doesn’t matter how long ago it was, she says it happened.

MR DAVIES:

No, could have been last year, could have been 30 years ago.

THE COURT:

But there is a difficulty around all the peripheral matters and it makes it devilishly hard to defend the charges.  It also makes it difficult to prosecute them.  Thanks for that.  All right.  I shall adjourn until 10 o’clock.

[64]     In the result, the Judge decided that a warning was not required.

[65]     We consider that the Judge was correct to conclude that no warning was required.   The defence case was not that, as a result of the passage of time, the complainant was genuinely mistaken in her recollection or had misinterpreted or exaggerated innocent behaviour.  Rather, the defence case was that the complainant had deliberately fabricated the allegations, at the instigation of her mother.  The fact that the conduct was alleged to have occurred more than ten years previously had no impact on that, as Mr Davies accepted.

[66]     The Judge did provide useful assistance to the jury as to how they should go about assessing the evidence given that the events had occurred some time ago (by reference to the use of “markers” to fix dates, for example).  We do not consider that anything further was required.

Inconsistent verdicts

[67]     Mr Hall argued that the jury’s verdicts were inconsistent.  He said that the evidence in relation to each charge was essentially the same and that there was no logical or rational explanation for the jury’s verdicts on the different counts.  There was a real risk, Mr Hall submitted, of a compromise verdict.

[68]     However, as Ms Bicknell submitted, there is a rational explanation for the conviction on count 3.  In relation to that charge, the complainant’s evidence was that she had “scooted” up the bed to avoid the appellant.  The following morning she had noticed blood on her pillowcase or on the sheet near her pillow, and her vagina was sore.  There was some limited corroboration for this in that the complainant’s mother said that she saw blood in the complainant’s underpants sometime in 1993, when she was aged seven or eight.  Accordingly, we see nothing in this ground of appeal.

Overall assessment

[69]     We consider that the conviction is unsafe in view of the combination of features to which we have referred.  These are the Crown’s late notification of the further evidence from Dr Earthrowl, Mr Davies’ failure either to object to the further evidence or to seek an adjournment to allow him time to take instructions and advice about it, the significance of the difference of opinion between Dr Earthrowl and Professor Garry on non-disclosure and the Judge’s emphasis in his summing up on the expert evidence, which was necessarily general in nature, rather than on the particular reasons that the complainant gave for her failure to disclose the abuse when questioned.

Decision

[70]     For these reasons the appeal is allowed.  The appellant’s conviction on count

3 is quashed and a retrial is ordered.  No doubt the retrial on this count will take place in conjunction with the retrial on count 2.  The question of bail is to be dealt with by the District Court.

[71]     Publication of the reasons for judgment in the news media or on the internet or other publicly available database is prohibited until final disposition of the retrial, although the result may be reported.   Publication in a law report or law digest is permitted, however.

Solicitors:

Crown Law Office, Wellington for Respondent