SLH v District Court at Lower Hutt HC Wellington CIV-2004-485-2808

[2005] NZHC 1302

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2004-485-2808

BETWEEN

[S L H]

AND

DISTRICT COURT AT LOWER HUTT

First Respondent

AND

ATTORNEY-GENERAL

Second Respondent

Hearing:

10 March 2005

Appearances: W M Johnson for Applicant

B A Gibson for Respondents Judgment:  16 March 2005

JUDGMENT OF GODDARD J

[1]    The applicant seeks judicial review of a refusal by Judge Henwood in the District Court to require four complainants, in respect of whom the applicant faces charges of rape and indecent assault, to give oral evidence at his depositions hearing. The review is brought on three broad grounds.

[2]    First, that the governing provision, s 185C of the Summary Proceedings Act 1957, was not enacted until 1985 and can therefore not apply to offending alleged to have occurred prior to that amendment coming into effect.

[3]    Second, that the written statements taken from the four complainants are vague, in that the now adult complainants are portrayed as speaking like children in parts of their statements.

[S L H] v LOWER HUTT DISTRICT COURT and anor HC WN CIV-2004-485-2808 [16 March 2005]

[4]    Third, that the case falls into the “exceptional” category of cases for  a number of reasons. These Mr Johnson articulated as, the historical nature of the complaints and age of the complainants at the time the alleged offending; the comparative age at which the complainants made their complaints; the presence of rape crisis counsellors when the complainants gave their statements; and the childish language used in parts of those statements.

Ground one

[5]    This ground of review can be dealt with quite shortly. As Judge Henwood correctly found, s 185C of the Summary Proceedings Act provides for the manner in which a preliminary hearing is to be conducted in sexual cases and the date of the alleged offending  is  not  relevant  to  that  procedural  direction.  The  objective  of s 185C is, as Thomas J observed in Attorney-General v B [1992] 2 NZLR 351 at 359, is to spare complainants the stress of giving oral evidence at the preliminary hearing unless the giving of that evidence viva voce is “necessary”. Likewise Smellie J said in Singh v Simpson [1989] 1 NZLR 52 at 55:

Towards the end of the 1970s there was what has been described as a ‘legislative wave’ which moved steadily through the common law jurisdictions leaving in its wake reforms which were designed to make the giving of evidence in trials for sexual crimes less of an ordeal and less embarrassing for complainants. Section 185C is a manifestation of that movement. Another manifestation is to be found in the provisions of the Evidence Amendment Act (No 2) 1985 which prohibits questions relating directly or indirectly to the prior sexual experience of complainants or the reputation of complainants in sexual matters without the leave of the Court.

[6]    The retrospectivity principle does not in general apply to changes to procedural law and clearly does not apply to s 185C, which is intended to protect complainants in sexual cases from the time of its enactment onwards. In relation to this the Court of Appeal in T v Attorney-General CA175/97 27 August 1997, said:

This court recognised in R v Accused CA (160/92) that shifts in trial practice effected by legislation, particularly in cases of sexual abuse, have not affected the basic ingredients of a fair trial. Significant  safeguards apply. Procedural changes, changes to the law of evidence and changes in trial practice, even if they are said to shift the balance towards the prosecution, will seldom prejudice a fair trial. The shift from the earlier requirement of a warning where there is no corroboration is in that category.

[7]This ground of review must fail.

Grounds two and three

[8]    Mr Johnson advised that the second and third grounds of review, which overlap, are the substantial grounds of review. He submitted that the issues raised by these grounds ‘cut to the chase’ of the credibility of the complainants and their memories, and highlights the importance of the defence being able to establish, prior to trial, whether there are material inconsistencies in each complainant’s statement. Leaving aside the situation of the youngest complainant (in respect of whom it is conceded the application is no longer pursued) Mr Johnson submitted that the fact that three now adult women have described historical offending (allegedly committed between 1976 and 1984) in childish language raises credibility issues which require to be explored at depositions. He further submitted that the issue of credibility is exacerbated by the fact that a rape crisis counsellor was present when some or all the three women made their statements and that these counsellors helped them to read through their statements.

[9]An example of the childish language used by one complainant is as follows:

He was whispering because he obviously didn’t want Nanna and Granddad to wake up.

I don’t recall questioning what he was doing.

I didn’t know what he was doing, but I didn’t think anything of it at this stage.

His hands were going up and down my back and over my bottom, with his arms keeping me in place on top of him.

Suddenly there was an unbearable stinging pain from my bottom.

I didn’t know what was causing it at first, but then I realised he had put his finger into my hole.

I could feel his hands between my legs.

This was not the hole that you go poos from, it was my front hole.

I am not sure how exactly his fingers got there, whether it was from behind me or from the front.

I think it was from behind me, over my bottom. I just froze.

My whole body went tense. I was terrified.

[10]   A further example, from a similar passage in another complainant’s statement, is as follows:

I then felt something hard being pushed into my thigh.

I understood enough to know that it was his ‘thing’ but I didn’t understand why it was hard.

This ‘thing’ was for men to use to go to the toilet with.

[11]   Mr Johnson was also critical of the officer in charge of the case for not expressly asking any of the three older complainants if they wished to give evidence at depositions.

[12]   The difficulty with the matters raised by Mr Johnson is that whether they are regarded individually or cumulatively they raise no more than credibility issues. Whilst issues of credibility can be of overwhelming significance in the adversarial process, they are not determinative of a prima facie case. The principles in W v Attorney-General 8 CRNZ 427 (CA), extensively reviewed and summarised by Fisher J in Brown v Attorney-General [1993] BCL 782, instructed as follows:

(f)The desire to cross-examine at the preliminary hearing with a view to setting up a prior inconsistent statement to be used later at trial could not in itself qualify, since that potential advantage would be present in every case.

(g)Similarly, a desire to cross-examine merely for the purpose of persuading the tribunal not to believe the complainant will not of itself be sufficient, since that question is properly left to the  jury. For that reason at a preliminary hearing it is pointless to allow an exercise in chipping away at credibility on matters of fine judgment and impression.

[13]   The relevant test is whether a complainant’s depositions evidence appears on its face “creditable” as opposed to “credible”. This means that leave to cross- examine will not be given unless:

(h) … thereare  grounds  for  thinking  that  cross-examination  might  reveal not merely that the complainant should not be believed (not “credible) but that her evidence is not reasonably capable of being believed at all (not “creditable”)

[14]   In the present case, whilst it is correct that some of the language employed by the complainants to describe the alleged offending against them is in childish terminology, that does not render the substance of their complaints not creditable. The reason why they chose to describe the offending in such terms will be a matter for Mr Johnson to cross-examine about at trial if he deems that prudent. Likewise, the historical nature of the complaints and the effect of the time lapse on the accuracy of the complainants’ memories is a credibility issue to be cross-examined on at trial. The historical nature of the complaints does not of itself render them not credible or a committal unsafe or contrary to the interests of justice.

[15]   Insofar as the remaining matters are concerned, the officer in charge of the case was clear, from her dealings with the complainants, that although she did not expressly enquire whether they were prepared to give evidence at the depositions hearing, she had no doubt that they did not wish to attend the depositions hearing  and that they were apprehensive about the necessity to give evidence at trial. The officer said:

… because of what they have said in the past I knew they did not wish to come to Court at depositions.

[16]   The presence of rape crisis counsellors, whilst any of the complainants gave evidence or read their statements through after making them, is not of concern to the Court and is in accordance with accepted practice. Again, any concern arising out of this aspect is able to be the subject of cross-examination at trial, if that is wished.

[17]The second and third grounds of review also fail.

Conclusion

[18]The application is dismissed.

Solicitors:

W M Johnson, Wellington, for Applicant

Luke, Cunningham & Clere, Wellington, for Respondents

Delivered on 16 March 2005 at 1.00pm