The Queen v Emile Tuagalu
[2001] NZCA 235
•2 August 2001
| NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE PENDING TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA159/01 |
THE QUEEN
V
EMILE TUAGALU
| Hearing: | 26 July 2001 |
| Coram: | McGrath J Robertson J Randerson J |
| Appearances: | C J Tennet for Appellant K Raftery for Respondent |
| Judgment: | 2 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RANDERSON J |
Introduction
The appellant was convicted after trial in the District Court on four counts, all relating to sexual abuse of his step daughter in the early 1980’s. These were:
[a]A representative count of indecent assault on a girl under 12 between 1 January 1980 and 5 November 1981.
[b]Three specific counts of sexual intercourse with a girl under the age of 20 who was living with him as a member of his family between 1 February 1984 and 31 December 1984.
He was discharged during the trial on a further count of indecent assault between 26 November 1981 and 25 November 1982. The jury could not reach a decision on a count of rape between 1 January 1984 and 1 March 1984.
On 26 January 2001, the appellant was sentenced on those counts of which he was convicted to a total effective sentence of three years and three months imprisonment. He now appeals against conviction and sentence. A re‑trial has been ordered on the rape count.
Background
By the time of the appellant’s trial in December 2000, the complainant was 31 years of age and had children of her own. However, the relevant events occurred much earlier at a time when the complainant was living with her mother and her brother at their home in Panmure. There was a dispute on the evidence (as well as some uncertainty) over the date when the appellant met the complainant’s mother and subsequently began living in her household. The appellant maintained he did not move into the home until about 1983 although he had met the complainant’s mother prior to that. The complainant’s evidence was that the appellant had moved into the household when she was about nine years of age. That would have been in late 1978. Because the complainant’s allegations related in part to a period prior to 1983, the time when the appellant moved into her home became a matter of some significance at trial.
Based on the complainant’s evidence, the Crown's case was that the appellant had begun indecently touching the appellant when she was about nine. She gave evidence that he came into her bedroom at night, touched her about the vagina and breasts, and began inserting his finger or fingers into her vagina. This happened frequently, as often as two or three times per week. She thought it might have been about six months after these things started to happen that she complained to her mother that the appellant was touching her. Although these incidents reduced in frequency, they did not stop.
In about 1979 or 1980, the complainant and her brother were looked after by an aunt because their mother was unable to look after them. The children stayed with their aunt for about six months and then returned to the family home where the complainant said her mother and the appellant were still residing.
The offending did not resume for a period but the complainant’s evidence was that the sexual contact between the appellant and herself recommenced and became more serious when she reached the age of 14. This would have been in late 1983. She described an incident in one of the upstairs bedrooms in the home where the appellant ripped off her underwear and had intercourse with her against her will. The mother saw her coming out of the bedroom and asked her what was happening. She told her mother what the appellant had done to her and her mother went to take the matter up with the appellant. The rape allegation arising from this incident was the one the jury could not agree upon.
The complainant went on to describe three subsequent occasions when she had intercourse with the appellant. She said he would offer her sums of money between $20 and $40. She described two incidents in the lounge or living room and a third in the bedroom shared by her mother and the appellant.
Apart from telling her mother, the complainant said she also told her best friend at school what was happening. She thought she was about 12 years old and in form 1 when that occurred. She told her friend about the appellant coming into her room in the middle of the night, touching her vagina with his fingers and inserting them into her. At this stage, that was all he was doing and it had stopped by the time she told her friend. She thought the conversation occurred after she had returned from the period living at her aunt’s home.
The complainant eventually left the home and commenced a relationship with a man we shall call M with whom she has had several children. It was not until 1995 that she made an oral complaint to the police. A written statement was eventually taken from her by the police on 21 March 1997.
It was alleged at trial that the complainant made the complaint to the police against the appellant as a result of certain allegations being made against her partner M. By way of background, the appellant and the complainant’s mother had four children, the first of whom was born in October 1981. In 1995, the police visited the complainant and M in response to an allegation by the appellant that M had kidnapped one of the children of the appellant and the complainant’s mother. This allegation was made at a time when the complainant and M were living at the same address as the appellant and the complainant’s mother. When the complainant was interviewed by the police, she made the present allegations against the appellant. In the end, the kidnapping matter was not pursued.
Later, there were some family group conferences over allegations that M was abusing one or more of the children of the appellant and the complainant’s mother. It was around this period that the complainant made the written complaint to the police of March 1997. M was charged with sexual abuse arising from these allegations but the jury were unable to agree and the matter did not proceed further.
In cross‑examination, the complainant strongly denied any connection between the allegations she was making against the appellant and those which were being made against M.
Ruling on recent complaint evidence
On the second day of the trial, the trial Judge made an oral ruling permitting the Crown to adduce evidence from the school friend as to what the complainant had told her about the indecencies alleged to have occurred up to that stage. Her evidence was that she had first met the complainant when she was 11 years of age in form 1. The complainant had told her that the appellant was going into her room at night and was “trying to feel her up”. She understood that to mean that the appellant was touching the complainant. She believed the complainant had already told her mother what was happening.
In cross‑examination, she conceded that at the time of the conversation with the complainant, she might have been in her second year at intermediate school but she could not be sure. She believed that, at that time, the complainant’s step sister was just a baby. This would have placed the timing of the complaint some time not long after October 1981. By that time, the complainant would have been 12.
The Judge identified two issues:
[a]Was the complaint “recent”?
[b]Was it admissible notwithstanding the earlier complaint to the mother?
After reference to authority, the Judge said:
Turning to the first issue, the question of ‘recent complaint’: in this particular case we are dealing with a young child, a nine‑year‑old child. The person whose conduct about which she is complaining is in locus parentis. She is living in the house with him; he is in a defacto relationship with her mother. It is obviously a dysfunctional family, from the evidence that she was removed from the house and the brief evidence she has given as to both parties drinking and it appears that she subsequently had a troubled adolescence.
Given the dynamics in the home, the age of the child and the relationship with the accused I am satisfied, on the balance of probabilities, that the timing appears to have been some time after she returned home and given that she was away for some six months and the offending stopped when she left the home to live with her aunt it would appear that complaint was made somewhere in the vicinity of a year after that particular offending ceased.
Given all the circumstances of this particular case the Crown has satisfied me on the balance of probabilities that the timing of this complaint is such that it should be admitted.
On the second issue, the Judge determined:
The general rule, of course, is that the second complaint is not admissible but here we have an unusual circumstance. Again, I refer back to the family dynamics and the facts that, on the complainant’s evidence, the mother ignored her complaint and the mother is still residing in a defacto relationship with the accused. Strength is added to that by the reading of the mother’s deposition when she gave evidence at the preliminary hearing. It is clear from that deposition that the mother is not prepared to remember anything and it is clear that, from that depositions evidence, her loyalties lie firmly with the accused.
Given that it has been put to the complainant that the charges arise as a result of the allegations against her own defacto partner and that there is a fabrication of a false allegation; given again, the family dynamics and the fact that the evidence sought to be admitted is a discussion between two school girls, I am satisfied, on the balance of probabilities, that it is appropriate to admit this evidence in the interests of fairness and ensuring that the proper picture is put before the jury.
It is common ground that the Judge accepted the Crown's submission that the evidence was properly admissible on the basis both of recent complaint and to rebut the suggestion that the complainant had fabricated her complaints in response to the allegations made against her partner between 1995 and 1997. Clearly, if the complainant had disclosed sexual abuse to her school friend around 1981, that evidence would tend to rebut the appellant’s contention as to fabrication and would also be material which the jury could treat as consistent with the complainant’s evidence in Court.
The Judge's reference to the mother’s deposition at the preliminary hearing needs to be elaborated upon. We have been provided with a copy of a detailed statement made by the complainant’s mother to the police on 26 July 1999. In it, she confirmed that she and the appellant had been living together since 1981 when their first child was born. She recalled that her daughter complained to her about the appellant interfering with her. This was when her daughter was 14 which would correspond to the time when the more serious offending is alleged to have started. She then related in detail an altercation she had with the appellant over the issue, including threatening him with a butcher’s knife.
The mother then relates (again in considerable detail) a meeting she had with her brother, T, a few days later when there were further discussions about the incident with both the complainant and the appellant present.
In contrast, at depositions the complainant’s mother (who has continued a relationship with the appellant throughout) was completely unco‑operative when called by the prosecutor. Apart from confirming her daughter’s date of birth, she could not recall any incident when her daughter was 14, nor any incidents between her daughter and the appellant. She said she had met the appellant in 1980 but believed he did not move into her home until 1982.
Other Relevant events at trial
Both the complainant and the appellant gave evidence at trial. The complainant was not moved in cross‑examination and maintained her account of the incidents. The school friend was called and gave the recent complaint evidence already described. The police videotaped interview with the appellant was shown in which he completely denied all the allegations. The appellant himself was called and again denied all the allegations. Effectively, the complainant and the appellant each claimed the other was lying. The issue was plainly one of credibility.
The accused also called evidence from the three daughters born to himself and the complainant’s mother as well as from a daughter from his previous marriage. Each gave evidence to the effect that the appellant had never interfered with them sexually at any time and he had never acted inappropriately, either to them or to any of their friends.
At the end of the defence case, the Crown applied for leave to call rebuttal evidence from T as to the time when the appellant had begun living or staying at the address of the complainant’s mother. Leave was granted, the Judge ruling:
Mr McNaughton, for the Crown, has sought leave to call rebuttal evidence. This arises because, during the course of the accused’s evidence he said that he did not move into the home of the complainant until 1984. This is not only in conflict with what the complainant says but it was never put to the complainant when she was being cross‑examined. She was cross‑examined on the basis that the accused started staying in her house at about the end of 1981 when the first baby was born. He says he did not live with the complainant’s mother until after the second baby was born.
Mr McNaughton seeks to call evidence to the effect that, in May 1981, the accused was already living in the house. The question of when the accused was living in the house is an important issue in that it relates to the age of the complainant at the relevant times and, in particular, in relation to the various charges; it not having been put properly in issue up until this stage I consider I have no option but to exercise my discretion to allow the rebuttal evidence to be called.
T gave evidence in which he was quite definite that the appellant was residing with the mother and her family from 1981 onwards. T did not give evidence about confronting the appellant with the allegations of sexual abuse at the time stated by the complainant’s mother in her police statement. That evidence had been ruled to be inadmissible by another Judge in a pre‑trial ruling.
Grounds of appeal
Mr Tennet submitted on the appellant’s behalf that there was a miscarriage of justice arising from:
[a]The decision to admit the recent complaint evidence.
[b]The decision to allow the Crown to call rebuttal evidence.
[c]Alleged misdirections in the Judge's summing up.
Recent complaint evidence
Mr Tennet submitted that the evidence should not have been admitted because it was not “recent” and because it was a second complaint, bearing in mind the complainant’s evidence about what she had earlier told her mother.
There is no substance in either of these submissions. What may be described as the orthodox view on recent complaint evidence is set out in this Court's decision in R v Nazif [1987] 2 NZLR 122. In sexual cases, evidence of prior consistent statements (which would otherwise be inadmissible) may be admitted where the complaint is made by the complainant to another person at the first reasonable opportunity after the offence. Whether the complaint was made at the first reasonable opportunity requires consideration of all the relevant circumstances including the age, nature, and personality of the victim, the relations with those to whom the complainant might be expected to complain, and the reasons for any delay in making the complaint. Where children are involved, more leeway may be given but there are no hard and fast rules.
More recent authorities of this Court include R v M [1994] 3 NZLR 641 and R v Accused (1997) 15 CRNZ 26. The latter drew attention to the need to consider the dynamics of family relationships and the possibility that a child in a relationship of dependency may have a natural unwillingness to disclose matters of intimacy.
The decision to admit the evidence is discretionary as well as a matter of fact and degree. In this case, the decision that the evidence was sufficiently recent was plainly open to the Judge. We are not persuaded that this experienced Judge erred in principle in any way.
As to the second issue raised, we accept that evidence of a second complaint, remote in time and circumstance from the first, will not generally be admitted. But there are a number of circumstances where the Courts have been prepared to admit evidence of second complaints, so long as each of the complaints may fairly be regarded as having been made at the first reasonable opportunity: see the discussion in R v M at 646 and cases referred to. We do not regard the prior disclosure to the mother as precluding the evidence of the later complaint to the school friend, given the mother’s obvious loyalty to the appellant and her lack of co‑operation when asked to give evidence at depositions. In the circumstances, the school friend’s evidence was the only reasonably available evidence of recent complaint. There would be an obvious denial of justice to the Crown if, in such circumstances, otherwise legitimate recent complaint evidence could not be admitted because it was a second complaint. We have no hesitation in rejecting the submission that the evidence should not have been admitted for that reason.
In any event, and quite apart from the recent complaint ground for admitting the disputed evidence, it was clearly admissible to rebut the allegation that the complainant had fabricated her evidence in response to the allegations made against her partner in the 1995‑1997 period: Adams on Criminal Law, chapter 2.11.05.
The rebuttal evidence
Mr Tennet did not pursue this ground of appeal with any vigour. He was right not to do so because we are satisfied that the decision of the trial Judge to allow the Crown to call the rebuttal evidence was amply justified. The date the appellant moved into the home of the complainant and her mother became a significant issue once the appellant, in his evidence in chief, claimed he did not move into the home until 1983. The Crown could not reasonably have anticipated the need to call such evidence until that point. As the Judge noted, the complainant was cross‑examined on the basis that the appellant moved into the property in late 1981.
Alleged misdirections
Under this heading, the first point taken by Mr Tennet related to the Judge's direction about the recent complaint evidence of the school friend. We did not understand Mr Tennet to challenge the Judge's direction about the use to which this evidence could be made. Rather, the suggestion was that the Judge ought to have made it clear that it related only to the indecent touching allegations rather than those of rape or sexual intercourse. In the context of a short trial, we cannot see that this could have caused any misunderstanding in the jury’s mind either as to the relevance of the evidence or the purpose to which it could be put.
In the same context, Mr Tennet submitted that the Judge had prejudiced the defence by commenting that it would have been open to the defence to have called the complainant’s mother. The Judge's statement to that effect arose in part because Mr Tennet had been critical in his address about the school friend being the only witness to give evidence as to what she was told. The Judge also dealt with the issue because the jury had asked a question during the trial about whether they would be hearing from the mother or the aunt with whom the complainant had stayed for a period. At the time, the Judge responded to the jury’s question by reminding them that they must decide the case on the evidence they had heard and must not speculate as to what a witness might have said if called. She also advised the jury that she would mention this again in her summing up.
At the time of the summing up, the Judge referred to the purposes for which recent complaint evidence could be used (quite correctly) and then said:
However, the rules as to who can give that evidence are strict. Mr Tennet levelled some criticism at the fact that only Irene gave evidence as to what she was told. I have to tell you it would be extremely unusual for the exception to be made in respect of more than one witness. Only one person can usually give that evidence. So on the point that it was troubling you before, the Crown could not have called the aunt to give evidence. I ruled that Irene could give evidence rather than the mother. It would however have been open to the defence to call the mother, but you should not speculate on what she might or might not have said if she had given evidence. But I stress, in the event of a complainant in a case such as this telling a large number of people, only one, usually the first, will be allowed to tell what she told him or her.
Clearly, the Judge was explaining to the jury why the Crown could not call evidence of any complaints made to the mother or the aunt and was pointing out that the defence could have called the mother if they had wished to do so. However, the Judge was careful to repeat that the jury should not speculate as to what evidence the mother might have given if called. We observe that it is somewhat ironic for complaint now to be made about the Judge's comments in this respect because the complainant’s mother was present at Court and indeed, as trial counsel, Mr Tennet had gone out of his way to obtain from the complainant in cross‑examination a description of her mother so the jury could recognise her when she came into the Court at the conclusion of the complainant’s evidence. He cannot now complain that any tactical advantage he may have sought by that means was dealt with by a perfectly appropriate direction by the Judge in answer to the jury’s concern that they were not being given the full picture. Clearly, there was no obligation on the Crown to call the mother in view of her response at depositions. Mr Tennet’s concerns about calling her himself were understandable but that does not detract from the Judge's proper warning to the jury.
The next alleged misdirection related to the standard direction given in accordance with s 23AC of the Evidence Act 1908 where there is long delay in bringing a complaint. Mr Tennet did not challenge the form of the direction but said it was inappropriate in a case where there was evidence of complaint at an early stage.
Again, the Judge prefaced her directions on this issue by noting that the defence had commented that the complainant said nothing about these events until long after they occurred. In those circumstances, the appellant can scarcely complain now that the Judge's direction was inappropriate. We are satisfied it was quite appropriate and that the jury would have understood it to refer to the delay in the complainant making a formal complaint to the police.
The next ground is a complaint of misdirection on character evidence. While we have reservations about the relevance and admissibility of the character evidence, (which seemed to go solely to the issue of propensity and was, at best, of marginal relevance and weight) the evidence was admitted and the issue is whether the Judge misdirected the jury as to how they were to treat it. In that respect, the Judge said:
In this case, the defence has called the accused’s four daughters to give evidence as to his character and behaviour insofar as it related to them. That sort of evidence is primarily relevant to the credibility of the accused, i.e. you may give it such weight as you think appropriate in deciding whether or not you believe what the accused says. You may also take it into account as part of the evidence as a whole in deciding whether it is likely that a person who is said to have that sort of character is likely to have committed a crime. Again, how much weight you give it in that context is entirely for you. It needs to be borne in mind of course, that having a previously good character is not in itself a defence. It is a matter of logic that people can offend for the first time. You will also know from your experience in life that people can behave quite differently to a person who is not one of their own children, to the way they behave to their own children. It is entirely a matter for you how to assess this evidence.
The central complaint made is in relation to the penultimate sentence. It was submitted that the Judge had effectively taken away from the jury any benefit the appellant could have expected to obtain from the character evidence. We do not read the Judge's remarks in that way. As a matter of fact, the comment which the Judge made is obvious and we do not consider the jury would have treated the comments she made as directing, as a matter of law, that they could not take into account the character evidence in a way which would assist the appellant. It is equally obvious that people can behave in different ways in other circumstances. That could not have escaped the jury’s attention and the Judge made it clear in the last sentence in this passage that she was leaving the matter entirely to them.
The final alleged misdirection relates to the way the Judge dealt with the allegations made against the complainant’s partner. In that respect, the Judge said:
I need to warn you about the evidence relating to the complainant’s partner. He is not on trial here. He has not been convicted of any offences against young girls and he is, of course, entitled in our law to be treated at [sic] innocent. It would be quite wrong for you to indulge in speculation as to whether or not he abused the girls. That is an entirely separate matter from this trial and bears no relationship to it. The only reason it was mentioned was for the defence to suggest that there might be some motive for the allegations by the complainant. You must not speculate as to whether or not there was any basis for those allegations against the complainant’s partner or on what happened at the family group conference. That does not involve this matter, so do not go down those tracks, they bear no relevance to the trial other than what I have told you.
Two of the appellant’s children gave evidence that they had been sexually abused by the complainant’s partner. We are surprised that this evidence was permitted at all given that the truth or otherwise of the allegations against M were entirely collateral in the context of the appellant’s trial. The only relevant issue was whether the fact of those allegations (whether true or false) sparked the complainant’s allegations against the appellant. The Judge was right to warn the jury in blunt terms that the evidence should be limited in that way. Mr Tennet submitted that the issue had the potential to affect the complainant’s credibility because she denied in cross‑examination that there was any validity in the allegations against M. We are not persuaded by that submission. The issue of M’s guilt or otherwise was not a material issue before the Court and the Judge was under an obligation to ensure that the jury did not become distracted by such a plainly collateral issue. In doing so, she made clear its potential relevance to the complainant’s motivation.
We are satisfied there is no substance in any of the points taken on behalf of the appellant and that the appeal against conviction should be dismissed.
Appeal against sentence
After summarising the facts, the Judge referred to the victim impact report, noting that the offending had a profound effect on the complainant as one would expect. Amongst other things, she had lost the support of her mother as a result of the offending. The Judge referred to the aggravating factors as being the gross abuse of trust and the exploitation of a very young girl who, having lost her father, was in an extremely vulnerable position. The Judge also noted that the offending had continued over a period of five to six years (although with a gap of some three years during this period).
The only mitigating factors the Judge could discern were the appellant’s work record and the fact that some of his family appeared to support him. He was effectively a first offender.
The Judge was well aware that the offending was of an historical nature which pre‑dated the increase in penalties for sexual offending in 1993. After reference to R v Crime Appeal (CA178/92, 19 October 1992) the Judge imposed a sentence of three years and three months imprisonment. In her sentencing remarks, the Judge did not impose a separate sentence for each count but we assume she intended the same sentence to apply to each, all to be served concurrently.
In support of the sentence appeal, Mr Tennet referred us to R v Klarwill (CA24/87, 14 May 1987) and R v B (1986) 2 CRNZ 528. In the first, a three year sentence was upheld but the circumstances were rather different from the present case. The appellant had pleaded guilty to three representative charges of indecent assault over a three year period. Here, there were more serious charges of sexual offending and the appellant was found guilty after trial. R v B was a Solicitor‑General’s appeal where a sentence of 18 months imprisonment was increased to three years, the Court noting that five years might well have been necessary. In that case, the respondent had pleaded guilty at an early stage. The charges involved indecent assaults upon and sexual intercourse with two girls over a period of five years.
The Crown submitted that these authorities supported the sentence. We agree. Notwithstanding the lighter penalties prevalent at the time of this offending, this was a serious case of sexual abuse by any measure. The indecent assaults were frequent and extended over a period of up to two years. After 1985, they would have constituted sexual violation by unlawful sexual connection. Then there was the further offending which amounted to exploitation of a vulnerable young girl who had been conditioned to expect abuse from the appellant. As the Judge noted in her sentencing remarks, the complainant had little choice but to accede to the appellant’s demands. We accept the Crown's submission that this puts the later offending into a category close to rape and was serious, notwithstanding the gap of three years after the earlier indecent assaults. The degrading and demeaning feature of payments for sexual favours is also an aggravating factor.
In those circumstances, we are satisfied that the sentence was well justified and can certainly not be regarded as manifestly excessive.
Result
The appeals against conviction and sentence are dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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