The Queen v Eruera Tyrone Simon Tahau
[2001] NZCA 156
•17 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA433/00 |
THE QUEEN
V
ERUERA TYRONE SIMON TAHAU
| Hearing: | 15 May 2001 |
| Coram: | Blanchard J Doogue J Randerson J |
| Appearances: | P V Paino for Appellant J C Pike for Crown |
| Judgment: | 17 May 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RANDERSON J |
Introduction
After a jury trial in the District Court, the appellant was convicted on 3 November 2000 of two charges of sexual violation. The complainant was a five year old girl at the time the offences were alleged to have occurred on 26 September 1998.
The appellant was sentenced on 24 November 2000 to a term of imprisonment of two years and three months.. He now appeals against conviction but has abandoned any appeal against sentence. The appeal against conviction is brought on the following grounds:
[a] The complainant should not have been permitted to refresh her memory by viewing her videotaped interview prior to trial.
[b] The complainant’s grandmother should not have been permitted to view the videotape with the complainant.
[c] Defence counsel should have been informed about the viewing of the videotape and the presence of her grandmother.
Background facts
The families of the child and the appellant respectively lived in Wellington and had been known to each other for some time, including a period when both families lived in Gisborne. On the day of the alleged incident, the two families had a combined garage sale at the appellant’s home in Wellington. Later in the morning, the child’s mother and the appellant’s wife went shopping together and were away from the home for a period which even on the defence case was about 70 minutes. During that time the appellant was left in charge of the complainant, her younger brother, and the appellant’s daughter.
The complainant’s evidence was that she was sitting on the appellant’s lap while he read her a story. While that was happening he put his finger into her vagina. She told him to stop it because she did not like it and it hurt. She said the appellant took her to his bedroom and she was lying down on the bed naked from the waist down. She said the appellant then licked her vagina. Her mother and the appellant’s wife came back later but nothing was said at that stage.
The next day the child’s mother deposed that she was driving her children to Napier where she intended to meet her step father and her mother who were going to take the children to Gisborne to stay with them. On the way she warned the children about not letting others touch their private parts. In response to that the complainant told her mother the appellant had touched her. She said he had put his finger inside her and it hurt very much and that he had licked her. She confirmed it had happened the day before.
The following day, the complainant’s mother delivered a letter to the appellant’s wife telling her what her daughter had disclosed. The next day, the appellant’s wife came to visit her at her place of work and later that evening the appellant himself came. He was upset. He denied the allegations and alleged that the child was a liar.
A paediatrician examined the complainant on 16 November 1998. There was nothing abnormal upon examination and his findings were neutral as to whether the alleged abuse had occurred. On 18 November 1998, the child made an evidential videotape about the incident.
The appellant was not interviewed by the police about the incident until 7 March 2000 by which time he had moved to Rotorua. When first approached by the police on that occasion, the appellant said the complainant’s family had “set him up”. He gave a written statement in which he basically denied the offending. The appellant also made some comments which could be construed as partial admissions, including the possibility that he might have touched the complainant’s private parts while picking her up and that he may have hurt her in some way and made her cry. The Detective who conducted the interview explained the delay in interviewing the appellant by saying that the file had started in Upper Hutt and moved between there and Rotorua as efforts were made to locate the appellant. We do not regard any adverse inference the jury might have drawn on that issue to be material and defence counsel did not pursue it in cross‑examination.
The child’s mother gave evidence at trial as did the appellant’s wife. The appellant himself did not give evidence. The child’s mother agreed in cross‑examination that her step father had sexually abused her until she was about 16 years of age while they were living in Gisborne. By the time of trial, she was 30 years old. She agreed that her step father could be manipulative and she remained concerned about him, mostly for her own part but also partly for the children. She also confirmed she had moved to Opotiki at one stage to get away from her step father and then moved back to Gisborne. She later moved to Wellington which she agreed upset her step father.
There was evidence that the step father was regularly in touch by telephone with the complainant, both before and after the incident, and that the complainant went to Gisborne to stay with her grandparents from time to time during school holiday periods. There was also evidence that the complainant had been upset after a telephone discussion with her grandfather some time in July 1998.
Against that background, the defence advanced at trial was that the allegations were untrue or if any sexual offending occurred, it was the grandfather and that he had the opportunity to sexually interfere with the complainant. It was also suggested that the grandfather might have suggested to the complainant that she should make false allegations against the appellant. There was no evidence that either of those things actually happened so the defence was obliged to invite the jury to draw inferences from the established facts already identified. In cross‑examination, the complainant firmly rejected any interference by her grandfather or that she had “made things up”.
The complainant’s videotape
The trial took an unusual course in relation to the complainant’s evidential videotape. The day before the trial, the interview was ruled to be inadmissible for breach of reg 5(3) of the Evidence (Video Taping of Child Complainants) Regulations 1990 which requires that an analogue clock with a second sweep hand correctly recording the time be clearly visible throughout the videotape. Unfortunately, there was a malfunction with the clock which was not detected until the interviewer took a monitor’s break. Despite the availability of evidence as to the time when the interview started and the time of the monitor’s break approximately 40 minutes later and despite the appellant’s then counsel accepting there was no resulting prejudice to his client, the Judge ruled the videotape to be inadmissible, applying the decision of Tipping J in P v Attorney‑General and District Court (High Court, Invercargill, CP.25/95, 28 November 1995).
We did not hear argument on the correctness of the trial Judge's ruling and we do not express any view about it. We observe, however, that the breach was a purely technical one and there is no suggestion of any impropriety in relation to the content of the interview or the way it was conducted.
As a consequence of the late ruling on the admissibility of the complainant’s videotape, the complainant was shown the videotape on the morning of the trial at the office of the Crown Solicitor. We were informed from the Bar that the child’s grandmother was present throughout the showing of the video which was undertaken by a police officer. It is not clear whether the police officer was present for the whole period. There is no evidence that the grandmother made any comments to the child about the video or her evidence. It is not in dispute that defence counsel was not informed of these events.
As a result of the Judge's ruling, the complainant gave her evidence viva voce but on closed circuit television. During the course of that, she was accompanied by her grandmother as a support person and a member of the Court staff. No‑one else was present in the room where she was filmed while giving evidence. We were informed by counsel for the appellant (who was not counsel at the trial) that objection was taken to the grandmother being present but the Judge ruled she could be. There is no record of any such ruling available to us but we accept counsel’s advice on the issue.
Should the complainant have been permitted to refresh her memory by viewing the videotape?
Mr Paino for the appellant accepted that, in the usual case of a child complainant giving evidence by videotape (after approval to that course under ss 23D and 23F of the Evidence Act 1908) there could be no objection to a complainant viewing their evidential video prior to trial. He acknowledged that this was permitted under reg 10(c) of the Evidence (Video Taping of Child Complainants) Regulations and that in any event, the child normally views the videotape at the same time as it is being played to the jury. The video interview ordinarily constitutes the child’s evidence in chief.
However, it was submitted that there was a combination of factors in the present case which should have militated against that course. First, it was submitted that given the age of the child (7 years at the date of the trial), the delay between the incident and the date of trial, and the fact that the videotape had been ruled to be inadmissible, the complainant should not have been permitted to view the videotape or, at least, not without the consent of the trial Judge.
Second, while accepting that the usual practice of an adult witness refreshing memory by reading their statement prior to trial was permissible, counsel submitted there was a need to consider the position more carefully where a child witness is concerned, given the possibility that the child may, when giving evidence, be remembering what he or she has just seen on the videotape rather than recalling the incident itself. In that respect, Mr Paino submitted that the proper course was for the Crown to apply to the trial Judge who, after ascertaining whether the child had any independent current recollection of the events, would have a discretion to permit the child to view the videotape before giving evidence at trial.
There can be no doubt that a witness is normally permitted to refresh memory prior to trial (or in some instances even during trial) by reference to a prior statement whether made contemporaneously or not (Rooke v Auckland City Council [1980] 1 NZLR 680, R v Naidanovici [1962] NZLR 334 and Equiticorp Industries Group Ltd v R [1995] 3 NZLR 243). For the reasons already given, there could be no objection to the child being shown the videotape where he or she is to give evidence in chief by that means. The question is whether the position should be any different where the child’s videotape has been ruled to be inadmissible and the child is to give evidence viva voce.
We are not persuaded that, as a general rule, the mere fact that a videotape has been ruled to be inadmissible means that the child should not be permitted to refresh his or her memory from it. Indeed, counsel’s submission did not go that far. The “working copy” of the tape remains subject to the relevant regulations and is under the control of the police. As such, it may be shown to the complainant or Crown counsel in terms of reg 10.
However, the power of the police to show a videotape to a complainant is discretionary and is to be exercised on proper grounds. There may be instances where it would be inappropriate for the complainant to be shown the videotape. For example, if the videotape has been ruled to be inadmissible on the grounds that the interview was conducted improperly or was contaminated in some way, then it may well be inappropriate for the child to be shown the videotape to refresh memory. That is not the case here. The videotape was excluded on purely technical grounds and there is no suggestion that the recorded interview had been conducted unfairly or improperly.
We accept that after two years, some children may well have forgotten the details of an incident. Indeed, that is the very reason for the practice of conducting and videotaping a careful interview with the child at an early stage. We consider that a child of the age of this complainant would almost always need to refresh his or her memory before giving evidence and we see nothing in the circumstances of the present case which would persuade us that there was anything unfair or improper in doing that.
Nor, as a general rule, is the permission of the Court necessary before the child is shown the videotape. Counsel referred us to the decision of the Court of Appeal (Criminal Division) in R v Thomas [1994] Crim LR 745 where a new trial was ordered after difficulties arose with the evidence of a child witness. There, the appellant had been convicted of murder. A child aged eight at the time of the incident and nine at the date of trial, had been interviewed by the police soon after the relevant events and gave the police a statement that she had seen the deceased alive at a certain time and place. Her evidence was helpful to the defence and Crown counsel agreed to call the witness and make her available for cross‑examination by the defence.
An issue then arose as to whether the child should be permitted to refresh her memory from her police statement before entering the witness box. The Court of Appeal agreed with the trial Judge's ruling that it was inappropriate to show a child of that age her police statement before giving evidence. However, defence counsel was unable to make much progress with the witness during cross‑examination without reference to her police statement. Upon his conviction, the Court of Appeal ruled that in those circumstances, defence counsel should have been entitled to use the earlier statement when cross‑examining the witness. A new trial was ordered.
While we agree with the result of the appeal in Thomas, in view of the comments we have already made, we disagree with the suggestion that it was inappropriate that the child be permitted to refresh her memory from her statement prior to giving evidence. We consider it was likely to be essential and the course which the trial took supports that view. Except possibly in exceptional circumstances, we do not consider it necessary to go through the formality of establishing whether the child has any current independent recollection before permitting the refreshing of memory from the police statement. Experience shows that the answer to that question will most likely either be negative or that the event is recalled but not as to detail. It would be asking too much of adults to expect clear recall two years after the event without refreshing of memory and we see no reason to treat children any differently.
Should the grandmother have been present when the videotape was played to the complainant prior to trial?
It was submitted for the appellant that the grandmother should not have been present when the videotape was played because of her close relationship with the child’s grandfather and the allegation that he had interfered sexually with the complainant or had persuaded her to give false evidence against the appellant.
We do not consider this point has any substance. First, and most significantly, there was no suggestion at the trial or before us that the complainant’s evidence differed in any material respect from the videotaped interview given approximately seven weeks after the alleged incident in 1998. Had the grandmother attempted to influence the child in relation to her evidence during the course of the videotaped interview or indeed at any time between then and the time she gave her evidence at trial, then one would have expected that such influence would have manifested itself by some material change in her evidence. There being no suggestion of that, the jury was entitled to assume that the complainant’s viva voce evidence was consistent with her earlier videotaped interview.
If that is so, then the appellant was left with the option of suggesting that the grandfather or grandmother or both had somehow influenced the appellant on a prior occasion before the video interview took place. The transcript shows that those issues (at least in relation to the grandfather) were fully explored at trial and were dealt with at some length in the trial Judge's summing up. Plainly, in convicting the appellant, the jury rejected any suggestions of that kind. It does not appear to have been suggested at trial that the grandmother may have influenced the child despite her close relationship with and support for the grandfather. We are not persuaded that knowledge of the additional fact that the grandmother was present when the videotape was played before trial would have made any material difference to the appellant’s defence.
Mr Paino submitted that reg 10 amounts to an exclusive list of the persons to whom the police may show a videotaped interview and that the list does not include a support person for the complainant. However, we agree with authorities such as R v W (1994) 11 CRNZ 439 that once a videotape has been produced in evidence at depositions, it is then available for the prosecution and defence to examine further. The principal purpose of the Regulations is to ensure the security and confidentiality of the tapes. Provided those purposes are met, we see no reason why an appropriate support person should not be present when a child complainant is being shown the videotape to refresh memory. That would be consistent with the discretion given by reg 4(2) to permit such a person to be present even during the interview itself. Any such person must not of course attempt to influence the complainant’s evidence.
We add that, in terms of s 375A of the Crimes Act 1961, the complainant was entitled to have a support person present while giving evidence. The fact that this was the grandmother was known to the appellant’s trial counsel and no doubt the issue could have been explored in cross‑examination if it had been considered appropriate. We note the presence of a member of the Court staff while the complainant was giving evidence on closed circuit television meant that the grandmother could not have had any opportunity to influence the complainant during that time.
While in the unusual circumstances of this case it may have been desirable for someone completely independent to be present when the complainant was viewing the videotape, we do not consider the appellant was prejudiced in any way by the grandmother’s presence.
Should defence counsel have been informed?
We agree it would have been desirable in the special circumstances of this case, for the Crown to have informed defence counsel that the child had viewed the videotape prior to giving evidence and that the grandmother had been present while that occurred.
However, we have concluded this did not have any prejudicial effect an the appellant’s trial. First, defence counsel must have appreciated in the light of the Judge's ruling as to the admissibility of the videotape, that the child’s memory would have to be refreshed by some means. Given her age, the obvious way for that to be done was by showing her the videotape. The issue could have been explored in cross‑examination but it was not.
Even if counsel did not anticipate the child’s memory would need to be refreshed in some way, one has to consider the likely outcome if counsel had been informed and had sought to cross‑examine the complainant on the issue. Once the issue was broached with the complainant, the appellant ran a serious risk that the Crown would obtain the trial Judge's leave to introduce all or part of the complainant’s video. That could have occurred if, for example, an inconsistency had been suggested or as a result of suggestions of fabrication or recent invention. The video would have shown consistency with the complainant’s evidence at trial which would likely have been very damaging to the appellant’s case. Any tactical benefit in having the videotaped evidence excluded would have been lost. Plainly, that would not have been in the appellant’s interest.
Conclusion
None of the grounds of appeal is made out, whether considered singly or in combination. The appeal both as to conviction and sentence is dismissed accordingly.
Solicitors:
Paino and Co, Upper Hutt
Crown Law Office, Wellington
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