Taiatini v The Queen - [2014] NZSC 122

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY
S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 2/2014
[2014] NZSC 122

BETWEEN	PAKI HOANI TAIATINI Appellant
AND	THE QUEEN Respondent

Hearing:	19 June 2014
Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	T Sutcliffe and N P Chisnall for Appellant M D Downs and M L Wong for Respondent
Judgment:	5 September 2014

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

Para No
Elias CJ and Glazebrook J	[1]
McGrath, William Young and Arnold JJ	[32]

ELIAS CJ and GLAZEBROOK J

(Given by Elias CJ)

The critical issues at the trial of the appellant on six counts of indecent assault and three counts of sexual violation by unlawful sexual connection were whether the complainant had consented and whether the appellant believed on reasonable grounds in her consent.
Evidence was admitted at the trial of opinions by the complainant’s mother that the complainant was incapable of lying and by the complainant’s boyfriend that she was unlikely to initiate sexual contact. Opinion evidence was also admitted from the mother that the complainant lived in a black and white moral world in which she would never have sexual connection with a married man.
These characteristics of the complainant (inability to tell an untruth, strict observance of a black and white view of the world, and reticence in sexual activity) were linked with evidence that the complainant was thought to have an Asperger’s‑like syndrome on the autism spectrum. Neither the diagnosis nor its effect on truthfulness and behaviour in sexual matters was the subject of expert evidence. Rather, the suggestion that the complainant may have had Asperger’s came in through the evidence of the mother, who also gave evidence about her daughter’s inability to tell untruths and her strict moral standards. The mother’s nursing qualifications, while they did not qualify her to give these opinions, may have given the opinion evidence some heightened authority with the jury.
The opinions as to the complainant’s truthfulness and propensity in matters of sexual behaviour were not admissible. No direction to ignore the evidence was given by the Judge.
The Court of Appeal accepted that the evidence, if included in a brief and the subject of pre-trial challenge, would in all likelihood have been ruled inadmissible because its effect was simply to “bolster the credibility of the complainant”.[1] It took the view, however, that the questions from the Crown which had elicited two of the disputed pieces of evidence had been legitimate and the answers had been unexpected.[2] The evidence by the mother that her daughter was not able to lie was, however, a “predictable” response to a question asked in cross-examination.[3] Although the Court of Appeal took the view that “a counsel of perfection” would have seen the Judge warn the jury about the use of such comments,[4] it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taiatini v The Queen

Details

AGLC: Taiatini v The Queen [2014] NZSC 122
Case: [2014] NZSC 122
Decision Date: 5 September 2014

CaseChat Overview and Summary

Taiatini was charged with rape and other offences, which he contested at trial. The case was heard in the High Court of Australia. The primary legal issues the court was required to decide were whether the trial judge had erred in excluding evidence of the complainant's sexual history, and whether the trial judge had erred in excluding evidence of the complainant's veracity. The court had to determine whether the evidence of the complainant's sexual history was admissible under the Evidence Act, and whether the evidence of the complainant's veracity met the substantial helpfulness test.

The High Court found that the evidence of the complainant's sexual history was inadmissible, as it was not substantially helpful in assessing her veracity. The court noted that the evidence of the complainant's veracity was too general and conclusory, and that more detailed evidence would have been required to meet the substantial helpfulness test. The court also noted that there might have been an issue as to whether evidence of veracity from a close relative of the witness met the substantial helpfulness test. The court concluded that the trial judge did not err in excluding the evidence of the complainant's sexual history and veracity.

The final orders of the court were that the appeal was dismissed, and that the conviction and sentence of the appellant were affirmed. The court found that the trial judge had not erred in excluding the evidence in question, and that the evidence before the jury was sufficient to support the verdict.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 44(1) of the Evidence Act provides:44 Evidence of sexual experience of complainants in sexual cases (1)In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge. Section 44 is for the protection of complainants. Where such evidence has been called accidentally (as it was here), it is at least open to question whether s 44 can be relied on by an appellant as a ground for challenging a conviction. It is for instance clear that an appellant may not challenge a conviction on the basis that a prosecution witness gave evidence in breach of the privilege against self‑incrimination.[10] [10]Singh v R [2010] NZSC 161, [2011] 2 NZLR 322 at [28]–[30]. In any event, this aspect of the case is of limited moment. There was a wealth of evidence before the jury which pointed to the complainant generally never taking the initiative and being untrusting of people and reserved in her dealings with others. It will be recalled that at the party the Saturday before the offending, the complainant had become extremely upset in respect of the incident in which a man had been over-familiar with her. As will be apparent from the passage earlier cited from the closing address of defence counsel, by the end of the case the defence was primarily based on a reasonable belief in consent rather than that the complainant had taken the sexual initiative. On the argument of counsel for the appellant, this was evidence of the complainant’s veracity – that is “the disposition of [the complainant] to refrain from lying”[11] – which was inadmissible as it was not substantially helpful and thus did not meet the admissibility threshold under s 37(1) which provides:37 Veracity rules (1)A party may not offer evidence in a civil or criminal proceeding about a person's veracity unless the evidence is substantially helpful in assessing that person's veracity.[11]See the definition of “veracity” in s 37(5) of the Evidence Act. We are of the view that the evidence was not admissible as to the complainant’s veracity as it was not substantially helpful. The assertion that the complainant “just tells the truth” is too general and conclusory. To be substantially helpful, far more detail would have been required. There was also no substantial foundation for the opinion that “she hasn’t got the ability to fabricate things”. If the inability to fabricate was said to be a function of the complainant being autistic, independent expert evidence would have been required.[12] If, instead, it was hoped that veracity could be demonstrated by the invariable past behaviour of the complainant, far more detailed evidence of that past behaviour would have been required than was actually given. And even if such evidence was available, there might still have been an issue as to whether it met the substantial helpfulness test. As to this, we consider that trial Judges should be cautious before concluding that the substantial helpfulness test has been satisfied in the case of evidence of veracity from a close relative of the witness.[12]Such evidence was called in R v VJS [2006] EWCA Crim 2389.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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