The Queen v Hart

[2009] NZCA 276

IN THE COURT OF APPEAL OF NEW ZEALAND

CA609/2008
CA97/2009
[2009] NZCA 276

THE QUEEN

v

PHILIP WAYNE HART

Hearing:21 April 2009

Court:O'Regan, Hugh Williams and MacKenzie JJ

Counsel:S J Shamy for Appellant

J M Jelas for Crown

Judgment:29 June 2009 at 10.30 am

JUDGMENT OF THE COURT

A         An extension of time to appeal is granted. 

B         The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hugh Williams J)

Introduction

[1]        On 28 February 2008 a Christchurch District Court jury convicted the appellant, Mr Hart, on one count of indecently assaulting one M, a girl under 12, and one count of sexual violation of M by digital penetration.  The offences occurred between 7 March 1999 – 21 November 2002.  Both were representative. 

[2]        In the same trial, the jury acquitted Mr Hart on other counts of indecently assaulting M and inducing her to do an indecent act on him during the same period and representative counts of doing an indecent act on M and sexually violating her between 6 June 2005 – 31 December 2005.

[3]        On 16 April 2008 Judge Crosbie, from starting points of respectively three and six years’ imprisonment for the indecent assault and sexual violation, sentenced Mr Hart to concurrent terms of those lengths.

[4]        Mr Hart now appeals to this Court out of time against his convictions on two grounds which will be discussed as this judgment proceeds – two other grounds being abandoned – and against his sentence on the ground it was manifestly excessive.

Facts

[5]        For present purposes, no more than a broad outline of the facts is pertinent.

[6]        The offending allegedly occurred when M was aged between seven and thirteen.  Mr Hart had an “on again, off again” relationship with M’s mother, M and M’s younger brother for most of that period.

[7]        That earlier offending took place when Mr Hart asked M to sit on his knees to read to him, regularly rubbed her genitalia and digitally penetrated her.

[8]        The offending was said to have begun when M and her family were living at an address in one suburb of Christchurch in 1999-2000.  After a break, M and her family moved to an address in another Christchurch suburb in 2002 where it was alleged offending re-commenced.  There was then a break of about two years in Mr Hart’s cohabitation with the family, though the children continued to visit him and further offending was said to have occurred.

[9]        M’s evidence did not clearly distinguish between the addresses at which the offending was alleged to have occurred, but it is reasonably clear the later alleged offending – that which resulted in at least some of the acquittals – was said to have occurred when the family was living out of Christchurch.

Course of prosecution

[10]     The appellant was originally charged with nine counts.  A preliminary hearing took place in relation to those on 16 January 2007.  The witnesses included a Mr Loos in respect of whose evidence a ground of appeal relating to the admission of prior complaint evidence arises.

[11]     Mr Shamy, counsel for Mr Hart on the appeal though not trial counsel, said his understanding was the first trial took place in September 2007.  At that stage there were seven counts in the indictment, but the appellant was discharged on one under s 347 of the Crimes Act 1961.  The Crown witnesses were M and the officer in charge of the case.  Mr Shamy’s understanding was that when the jury announced not guilty verdicts on two counts and were asked the conventional question as to unanimity, one juror indicated unanimity had not been reached.  The Court accordingly took no verdicts, entered no verdicts and ordered a re-trial.

[12]     At the trial with which we are concerned the Crown additionally called Mr Loos, M’s mother, an ACC officer and a Mr Russell (whose read evidence was confined to describing the television set at the address).

General

[13]     The defence to allegations such as those in issue in the appellant’s trial is commonly that no offending occurred, or at least nothing untoward which might constitute offending.   That is commonly coupled with assertions of fabrication, concoction and, sometimes, collusion, especially where more than one child complainant is involved.  In order to meet the obvious question “why would the complainant lie?” (R v T [1998] 2 NZLR 257 at 265 (CA)), defence counsel not infrequently include assertions that the allegations have been suggested to the complainant by a mother who is antagonistic following breakdown of a relationship with the accused, or that, for a range of reasons, the complainant herself has fabricated the allegations in response to a breakdown in her relationship with the accused, sometimes by an accused entering into a new relationship. And, since the availability of ACC for sexual abuse claims has become widely known, eligibility for ACC payments is not uncommonly suggested as motivation for fabrication of sexual abuse assertions.

[14]     An additional difficulty facing trial counsel – both generally and for the appellant – is that cross-examination of child complainants suggesting fabrication, concoction or collusion is notoriously delicate and difficult.  Yet, even before the statutory codification of the rule in Browne v Dunn (1893) 6 R 67 (HL) in s 92 of the Evidence Act 2006, counsel were obliged to put their client’s case to witnesses whose evidence they were intending to ask the jury to disbelieve. But cross-examination of child complainants, unless handled sensitively, risks damaging an accused’s case by emphatic reiteration of the complaint.

[15]     In the appellant’s trial, most of those motivations were suggested.  There was the breakdown in M’s mother’s relationship with the appellant and his forming a relationship with another woman.  That situation was aggravated by the appellant and the other woman assaulting M’s mother, for which they were later convicted.  M’s mother received a lump sum payment from ACC for prior sexual abuse and an issue at trial was when that payment was received and M’s knowledge of its detail relevant to her complaint to the police of sexual impropriety by the appellant.  That, coupled with M taking counselling at ACC’s expense after her police complaint, was also suggested as motivation for a concocted complaint.

[16]     It must be said that the conduct of the appellant’s trial did not clearly define the chronology of events nor clearly differentiate between the various suggested motivations for fabrication by M.  That lack of clarity was complicated by differences in terminology employed by witnesses, especially M in her complaint to Mr Loos and between her evidence during the two trials.

[17]     A further difficulty which arose during the appellant’s trial was that the matters discussed were not the subject of considered pre-trial hearings but arose during trial and were dealt with by the trial Judge without opportunity for full submissions and reflection on the legal complexities posed by them.

[18]     Despite that, it is important to bear in mind that, while a number of aspects of the appellant’s trial were advanced by Mr Shamy as being unsatisfactory, the only point taken on appeal concerning the way in which the hearing was conducted related to what was submitted to be an incorrect ruling that M’s complaint to Mr Loos was admissible coupled, necessarily, with the question of the admissibility of prior consistent statements under the 2006 Act.

First ground of appeal: inadmissible prior consistent statement evidence

(1)      How ground of appeal arose

[19]     M said in evidence in chief that the appellant had her sit on his knee to read to him and he “put his hands down my pants and started touching me” under her underwear around her vagina.  She said that happened repeatedly and that he “tried to put his finger in the one time”.  She said he did digitally penetrate her on one occasion at the first Christchurch house.

[20]     She also gave evidence which formed the basis of the other counts in the indictment but, since the appellant was acquitted on those, it would be inappropriate to detail that evidence. 

[21]     However, during cross-examination counsel for the accused – without warning to the Court or the Crown – asked M about differences in detail arising from her evidence at the first trial.  The Judge interrupted.  There followed a discussion between Judge and counsel in the absence of the jury, during which the Judge said counsel was not “anywhere near getting to cross-examining her on a prior inconsistency because you hadn’t put today’s evidence to her correctly”.  On the jury’s return, the Judge advised it of the earlier trial but told them events at that trial had no relevance other than to the extent they became evidence in the trial then in progress.

[22]     Cross-examination continued challenging the accuracy of M’s recall of detail but the Judge again intervened and, again in the absence of the jury, directed trial counsel that challenges on the basis of evidence Mr Hart might later give were required to be put directly if trial counsel intended asking the jury to put weight on the answers.

[23]     Further cross-examination then occurred in relation to M’s failure to disclose the claimed abuse to anyone, including family members, and an assertion that the “abuse didn’t occur” and was fabricated.  M denied those propositions.

[24]     M then agreed she was aware her mother claimed to have been sexually abused as a child.  The following exchange occurred:

Q.Did your mother make you aware of the fact that she’d been abused.

A.Yes I knew a few years ago at [R] Street.  That’s when I found out about it.

Q.And you were aware that in late 2005/2006 your mother received a substantial amount of money from the Government.  Do you recall that.

A.Yes.

Q.And it was quite a lot of money wasn’t it.

A.Yes.

Q.And were you aware of why she received that money.

A.No I was not.

Q.You were aware that your mother was making a claim to the Government weren’t you.

A.No I just knew that she got a lot of money.  That’s all I knew about it.

Q.See I put it to you that you were aware of why she got that money.

A.No I wasn’t.

Q.Pardon.

A.I wasn’t.  I didn’t know.

Q.I put it to you that you were aware that she had money in her account from ACC.

A.What do you mean money in her account.

Q.That she received money from ACC.

A.I was aware she received money but I didn’t know where she got it from.

Q.Now you have received counselling over your allegations of sexual abuse from ACC, correct.

A.Yes.

Q.And I put it to you you’re aware that at a later stage you could be entitled to make a claim for a lump sum payment.

A.Yes.

Q.You’re aware of that.

A.       Yes I am.

[25]     Further cross-examination then ensued about new relationships into which the appellant and M’s mother had entered and her reaction to those.  Further allegations of fabrication were again denied.

[26]     That led the prosecutor, in the absence of the jury, to apply under s 35 of the 2006 Act to call evidence from M as to the circumstances of her complaint to Mr Loos on 27 May 2006 and to call Mr Loos on the basis the cross-examination had attacked M’s veracity or accuracy.  M’s police complaint seems to have occurred in late July – early August 2006.

[27]     A further discussion then took place between Judge and counsel in the absence of the jury (and the accused) as to the lack of direct challenges that M’s evidence was recent invention and, as the Judge put it in relation to ACC, “mum got a payment, mum’s put her up to it, she’s put herself up to it”.  The Judge said if he did not grant the Crown’s application he might not let the defence close on the basis of fabrication or recent invention.  Trial counsel then withdrew his objection to the Crown’s application.  The Judge minuted:

JURY RETIRE:          4.00 PM

THE COURT

[T]he complainant has just been cross-examined by counsel for the accused.  Following that cross-examination and because of questioning that arose relating to an ACC claim made by the complainant’s mother in relation to sexual abuse, the possible influence of the mother on the complainant in that regard and in addition the complainant having received ACC counselling that the ability of the Crown to lead evidence on recent complaint pursuant to s 35(2) of the Evidence Act was brought into play.  This appears to be an issue that has previously been discussed between counsel and after discussion at Court counsel advised that there was no objection to the Crown questioning the complainant on that basis.
WITNESS AND JURY RETURN: 4.27 PM

[28]     In re-examination M said she first went to counselling before the abuse happened, having had counselling at school for her behaviour.  That suggests she understood the question as asking about any counselling, not just that relating to the alleged offending.  When asked “who gave you the idea about going to a counsellor” she replied that it was either the woman police officer in charge of the case or a doctor.  She later said it was the counsellor who told her she could claim for a lump sum payment from ACC for the abuse she alleged occurred at the hands of the appellant.  That was after her complaint to the police.

[29]     Later in re-examination she said the first person she told about Mr Hart’s abuse of her was Mr Loos.  That elicited the following questions:

Q.Do you remember when that was.

A.No, I don’t remember the date.

Q.Roughly do you know.

A.No.

Q.Can you tell us about what had happened that night before you told Timothy Loos?

A.I was at the park with my step dad [T], Timothy Loos, watching the rugby and Mum and [T] had had a fight and then we went back to the house and [T]’s car had been moved and yeah, we could hear another car running and then Mum was in the car and she tried to gas herself.

Q.So what happened after that.

A.Well, Tim got out of the car and we had to stay at Tim Loos’ house.

Q.Do you remember what you talked about with Tim Loos.

A.Yeah.

Q.What was that.

A.I just told him that Phil had sexually abused me.

Q.What were you talking about when you said that to him.

A.I can’t remember it just kinda came out.

Q.What did Tim say to you.

A.I asked him what I could do and he said maybe I could send Mum a text about it or something like that.

Q.Did you say anything more to Tim Loos about the sexual offending against you.

A.I just basically told him that he sexually abused me and told him he had been doing it for a while and I can’t really remember what else I said to him.

[30]     Giving evidence the next day, Mr Loos said the event M mentioned was “around the beginning of May several years ago, three years, four years ago” but later amended that to “two years ago… 2006”.  He said that, having been out socialising, the party came home, heard the car running, noticed M’s mother inside and it “looked like she was trying to harm herself with a hose pipe”.  They got her out of the car, calmed the situation and M went with Mr Loos to his house.  He managed to get her to stop crying and “she told me that she’d been raped when she was younger and how was she going to tell her mother now”.  She named the appellant as her abuser.  Mr Loos told her she needed to tell her mother and speak to the police or a counsellor.  He confirmed that in cross-examination, saying:

Q.And when you got back there do you recall [M] telling you that her mother had been raped.

A.Yeah, yep.

Q.And later on in the discussion she said that she also had been raped when she was younger, is that correct.

A.Yeah, that’s right.

Q.And those were the words she used.

A.Yeah.

Q.“I was raped when I was younger.”  Did she say how much younger.

A.No.

Q.And that was all the detail she gave regarding it except for the fact that it was Mr Hart that had done it.

A.That’s when I said that I didn’t know much about it.  I told her to seek professional help.

[31]     Relevant in this context is evidence from a team manager for ACC who said ACC agreed to meet the cost of four counselling sessions for M.

[32]     M’s application for payment for counselling was received on 14 September 2006.  Counselling occurred up until 24 October that year.  The witness said that, in 2006, M was unable to receive a lump sum but could have received five years’ weekly independence allowance paid out in a single payment.  No application for an independence allowance or lump sum payment had been made by M.

[33]     In her evidence, M’s mother said there were occasions at the first Christchurch address when she walked in on M sitting on the appellant’s knee reading.  Concerning her ACC payment, she said her doctor organised counselling for her.  The counsellor suggested she make an ACC claim for loss of potential earnings.  She received $258,000 gross but refunded nearly $200,000 for payments received by way of invalid’s benefit.  The balance was taxable.  She received about $36,000 net after tax when M was about 14.  She said she never spoke to M directly about her travails but said: “She knows I was abused and that’s it”.  She adhered to that in cross-examination.  In re-examination she said it was “never gone into in any detail” but M and her brother knew their mother received some money with which she bought a house.

[34]     When interviewed by police, Mr Hart denied any wrongdoing as far as M was concerned.  He said her motivation to fabricate the complaint against him was to get money from ACC, something he repeated in cross-examination.

[35]     In closing, the Crown placed significant emphasis on M disclosing rape by the appellant to Mr Loos in May 2006, several months before either complaining to the police or learning of the availability of ACC for such matters. It rejected any suggestion the complaint was motivated by M’s knowledge her mother received money from ACC as a result of rape prior to the disclosure to Mr Loos.  The Crown also relied on M making no application which might result in her receiving a lump sum from ACC plus the generality of M’s mother’s evidence as to M’s knowledge on the topic.  It was thus suggested there was no basis for any defence assertion M’s mother was responsible for M making her sexual offending complaint to the police or it was motivated by knowing of ACC availability. 

[36]     Defence counsel read Mr Loos’ evidence to the jury in his submissions, emphasized the difference between “rape” and “sexual abuse”, and submitted she knew from her mother of the availability of ACC for sexual abuse before alleging abuse to Mr Loos.

[37]     In summing up in relation to Mr Loos’ evidence the Judge directed the jury, first to decide whether M made the complaint to him; secondly, as to the truth of what she said happened; and thirdly:

The relevance of such evidence is that it may show that there’s a consistency between what she said to Mr Loos and what she says about it now.  That may be of assistance to you in assessing her credibility and her truthfulness.  It is whether you believe her or not, and how much weight you give to it is a matter for you to decide…

(2)      Submissions

[38]     Before summarising counsels’ submissions on this part of the appeal, it is helpful to set out s 35.  It reads:

35Previous consistent statements rule

(1)A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2)A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3)A previous statement of a witness that is consistent with the witness’s evidence is admissible if –

(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b)the statement provides the court with information that the witness is unable to recall.

[39]     Mr Shamy submitted that because M made no prior statement inconsistent with her evidence the only basis on which evidence of her complaint to Mr Loos was admissible was if it was necessary to respond to a challenge to M’s veracity or accuracy based on a claim of recent invention on her part.  He relied on R v H (1989) 5 CRNZ 13 at 16 (HC), where the point was made that where concoction is asserted, the alleged consistent statement must be before, not after, the time of the alleged fabrication. Section 35, Mr Shamy submitted, confirmed that previous consistent statements were only admissible in response to challenges to veracity or accuracy if made at a time earlier than the alleged concoction of the witness’s version of events.

[40]     Mr Shamy relied on R v S [2008] NZCA 152 where, in a case the facts of which echo this appeal to some degree, the young complainant gave two video-taped interviews some four months apart. Sexual offending was only alleged in the latter. The defence challenged the complainant’s veracity on grounds of recent invention by alleging her family “got at” her between the interviews. After noting s 35 is a codification of the pre-2006 concerning previous consistent statements – but omits the common law on recent complaints – this Court observed:

[14]      Prior to the Evidence Act 2006 the common law provided a number of exceptions to the general rule that evidence may not be given of a prior consistent statement. The exceptions included the introduction of statements to rebut a suggestion of recent invention: R v Felise [1985] 1 NZLR 186 (CA); R v Wilson (2004) 21 CRNZ 418 (CA). In Felise the Court cited with approval the following statement of the principle from the judgment of Dixon CJ in Nominal Defendant v Clements (1960) 104 CLR 476 at 479-480:

The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance.

(Emphasis added.)

[15]      As this Court observed in Wilson at [21]:

The task of the trial judge is to determine whether the line of questioning is suggesting to the witness that his or her evidence has been invented or fabricated after the event at issue. As Menzies J noted in Nominal Defendant v Clements at 488, it does not matter whether that impression is created by direct questioning or “skilful circuitry of interrogation”, if the same meaning is conveyed.

[16]      We consider that a similar approach is applicable to consideration of the issue of whether there has been a challenge to the witness’ veracity on the basis of a claim of recent invention under s 35(2). It was not enough at common law, and it will not be enough to engage s 35(2), that the complainant is subjected to robust cross-examination designed to attack his or her credibility or reliability. Nor will it be enough if counsel puts directly to the witness that they are lying and that their evidence is contrary to the defendant’s story. While no specific form of words is required, the cross-examination must be able to be categorised as attacking the witness’ veracity on the basis that his or her account is a recent invention or is reconstructed, even though without conscious dishonesty. In this context, recent means after the event, not late in the sense of a time scale: R v Wilson at [20].

[41]     This Court took the view this was an area where the trial Judge’s assessment of the cross-examination was of assistance and the Judge’s conclusion that the complainant’s veracity had been challenged in cross-examination should be accorded significant weight.  There, the trial Judge’s ruling was upheld that disclosure by the complainant to a social worker with the Department of Child Youth and Family Services of the matters in the second video statement a month before the first video interview was admissible.

[42]     Mr Shamy submitted the appellant’s first ground on appeal could arise either from an incorrect decision by the trial Judge or a mistake by trial counsel concerning admissibility.  Here, as trial counsel acquiesced in the course taken, the Judge erred in acceding to the Crown’s s 35 application. 

[43]     He further submitted that there was no explicit putting to the complainant that her allegations were manufactured because she resented the appellant entering into a relationship with a woman other than her mother.  It further was only implied that she fabricated her allegations because she knew of a possible ACC payment.  He made the point that disclosure to Mr Loos occurred four months after the assault on M’s mother by Mr Hart and his later partner and was about two months before the complaint to the police.  He argued the complaint to Mr Loos could not therefore be to rebut an allegation that M’s motivation for the allegations against the appellant arose from the assault by him and his partner on M’s mother as the complaint and the disclosure post-dated the assault and the relationship.  He submitted it was difficult to see any connection between the ACC payment possibility and the disclosure to Mr Loos.  Thus his evidence should not have been admitted to rebut any such proposition.

[44]     Mr Shamy submitted the summing-up was deficient in that it gave the jury no assistance as to the use it might make of Mr Loos’ evidence.  Saying prior consistent statements are admissible if there is an assertion that motivation for the allegations is financial was incorrect and misleading.  The latter part of the direction was effectively one concerning recent complaint and failed to assist the jury on the use to which evidence of consistent behaviour might be put.

[45]     He submitted that even if evidence of the complaint to Mr Loos was admissible or of assistance in assessing credibility it was not admissible because it was consistent.  It was only admissible if it was inconsistent with a contention by the appellant that the motivation for the allegations was jealousy towards the appellant’s new partner or, more realistically, because the complainant may have been seeking compensation.  In either event, the jury was entitled to guidance as to how Mr Loos’ evidence was relevant, guidance which was not given.  He submitted the direction as to consistency was in error because prior consistent statements are not admissible on the basis of consistency and it was wrong in law for the jury to be so directed.  He relied on the decision of this Court in Wilson at [26] that prior consistent statements are only admissible to disprove allegations of recent invention and cannot be admitted to prove the truth of their contents. 

[46]     For the Crown, Ms Jelas submitted the evidence displayed both a challenge to M’s veracity and her accuracy on the basis of recent invention.  Accordingly her prior consistent statement to Mr Loos was admissible to respond to that challenge.

[47]     Ms Jelas made the point that M’s assertions of rape or sexual abuse preceded her knowledge of ACC availability for sexual abuse victims.  Thus the trial Judge was correct to regard that as triggering s 35.  The Judge clearly took the view there had been a sufficient attack on M’s veracity to justify the Crown’s application.  That was also consistent with the appellant’s police statement that M’s allegations were ACC motivated and also consistent with his cross-examination and the assertions put to M’s mother.  Trial counsel also closed on that issue.  Thus, Ms Jelas submitted, M’s veracity having been attacked, the next question under s 35 was whether the prior consistent statement was appropriately admissible to rebut the proposition of recent invention – and Mr Loos’ evidence was open to acceptance by the jury for that purpose.

[48]     Ms Jelas submitted the relevant point in time to assess the suggested fabrication would have been when M contacted ACC.  That was well after the complaint – and may have been at police instigation.

[49]     She emphasised that M’s complaint to Mr Loos was in May 2006, two months before her police complaint and possibly before learning of ACC availability.  It was longer still before ACC-funded counselling. 

[50]     Ms Jelas sought to meet Mr Shamy’s criticisms of the summing-up on this topic by submitting that once a prior consistent statement has been admitted under s 35(2), the statement is admissible to prove the truth of its contents and goes to credibility: R v Barlien [2009] 1 NZLR 170 at [20] (CA).

(3)Discussion and decision

[51]     We preface our discussion of this ground of appeal by noting the sole basis on which Mr Loos’ evidence was ruled admissible was to rebut the assertion that M’s evidence was fabricated to entitle her to ACC.  His evidence could not have been admissible to rebut the various other motivations put to her in cross-examination and it was not relied on as such by the Crown.

[52]     Even though the matter was not fully argued nor the subject of a reasoned decision, it is very clear from the Judge’s remarks that he regarded the cross-examination of M as amounting to an assertion she was lying in the allegations she made about the appellant.  He also clearly regarded the cross-examination as amounting to an assertion of recent invention on her part.  It thus amounted to an attack on M’s veracity under the section, opened the way to evidence on that topic under s 37 and also justified the Crown applying for an order that M’s statement to Mr Loos was admissible under s 35(2) as being consistent with her police complaint some two months later and her evidence.  Section 35(3) also provides for admissibility of a prior consistent statement but it is not relevant to the present appeal.

[53]     As S, Wilson, and the cases discussed in those authorities make clear, the view of the trial Judge on such topics is deserving of weight, particularly where, as here, trial counsel’s approach to the suggestion of recent invention had been more oblique than direct.  There was a sufficient evidential foundation for the Judge taking that view.  Accordingly, we see no basis for intervening in the Judge’s decision on the s 35 application.

[54]     The remaining issue on this aspect of the appeal is accordingly whether the trial Judge’s direction to the jury was correct.

[55]     In that regard, we note that in Wilson the following appears:

[26]      It was accepted there should have been a clear direction to the jury that the prior statement was introduced solely for the purpose of disproving the allegation of recent invention and could not be relied upon to prove the truth of the contents of the statement.  In the circumstances, there was a real risk that the jury would improperly rely on the prior consistent statement as corroborating the complainant’s evidence in Court.

(Emphasis added)

[56]     In Barlien this Court said:

[20]      If the evidence was in fact admissible in terms of the exceptions to s 35, the Judge was being overly conservative in directing that the statements were not proof of their contents.  Although some commentators have expressed doubt about this point, we agree with the view, expressed in Mahoney and others, The Evidence Act 2006: Act and Analysis (2007), para [EV35.04](1) that, if the statements are admissible under s 35, they are admissible to prove the truth of their contents. 

(Emphasis added)

[57]     In that regard the learned authors of Mathieson (gen ed) Cross on Evidence (looseleaf edition) at [EVA35.5] observe of Barlien that:

The Court of Appeal has held that once evidence is admitted under s 35 it is admissible for all purposes and no direction to the jury is required on limiting consideration of the evidence to consistency. 

[58]     In regard to those matters, the difference between this Court’s observations in Wilson and Barlien are readily explicable by the fact that Wilson was concerned with the law as it stood prior to the passing of the Evidence Act.  That Act amended the law as to the circumstances in which previous consistent statements can constitute proof of the truth of their contents.  The law on the topic is now as set out in Barlien.

[59]     Therefore, what s 35(1) and the first part of s 35(2) effect is to make prior statements by a witness which are consistent with the witness’s trial evidence inadmissible unless rendered admissible by those provisions.  If admissible, such statements are, now, admissible as truth of their contents

[60]     Returning to the summing-up in the appellant’s case, there is a certain force in Mr Shamy’s submission that the Judge’s direction as to the use the jury might make of Mr Loos’ evidence of M’s complaint to him was more reminiscent of directions on prior consistent statements – nearly always complaints of sexual offending – regularly given prior to the 2006 Act coming into force than to the terms of s 35 itself, but given the difficulties arising from the way in which the case was run at the appellant’s trial, that is perhaps understandable.

[61]     The nub of the direction, however, was that the jury was told M’s statement to Mr Loos was, depending on its view of the evidence, consistent with M’s trial evidence and that was a factor the jury could take into account in assessing the credibility and truthfulness of her trial evidence.  If anything, that direction was helpful to the appellant because, as Balien says (at [20]), once the evidence is given, it is admitted for all purposes.  This ground of appeal is accordingly dismissed.

Second ground of appeal: inconsistent verdicts

(1)Submissions

[62]     Mr Shamy correctly submitted that verdicts will be unsafe if no reasonable jury, properly applying its mind properly to the evidence, could have arrived at the verdicts it reached.  The test as to whether verdicts are unreasonable is if the jury could not properly have been satisfied to the required standard of guilt: R v Owen [2008] 2 NZLR 37 at [17] (SC).

[63]     Mr Shamy pointed to the alleged offending falling into separate time periods, the earlier giving rise to four counts and the latter to two.  He submitted the arithmetical decision of the jury convicting and acquitting the appellant on exactly half the counts relating to the earlier period was suspect because, in his submission, there was no difference in credibility.  All the alleged offending occurred at the same addresses and during the same time-span.  The Crown case was almost wholly based on M’s credibility.

[64]     In that regard, he relied on the trial Judge’s observations on sentencing that the verdicts:

[6]       …reflected a discerning approach by the jury, and acceptance of the complainant’s credibility but also a reflection of some doubts that may have been thrown up by evidence relevant to the later allegations of offending.

[65]     Ms Jelas relied on the observations of this Court in R v Nevin [2008] NZCA 16:

[11]     An appeal against conviction will ordinarily be allowed if an appellate Court was satisfied that the verdict was unreasonable and a miscarriage of justice has resulted: s 385(1)(a) Crimes Act 1961.  A verdict will be regarded as “unreasonable” if, on the basis of all of the evidence, a jury acting reasonably ought to have entertained a reasonable doubt as to an appellant’s guilt: see Owen v The Queen [2007] NZSC 102 at [14] and [15], which approved R v Munro [2007] NZCA 510 at [86] and [87] (CA).

[12]     To succeed on an appeal based on inconsistent verdicts, an appellant must demonstrate that no reasonable jury, applying its mind properly to the evidence, could have arrived at the different verdicts it returned: R v Irvine [1976] 1 NZLR 96 at 99 (CA), as applied subsequently in R v O (No 2) [1999] 1 NZLR 326 at 333 (CA) and R v H [2000] 2 NZLR 581 (CA).

[13]     A concise summary of the circumstances in which an appeal on this ground might succeed was given in R v H:

[27]     To summarise to this point, a guilty verdict which is apparently inconsistent with an acquittal might be held to be not “unreasonable” if:

•    the verdict is not so inconsistent as to call for interference by an appellate Court (Archbold [Criminal Pleading, Evidence and Practice 2000 at 901]); or

•    if the record contains evidence for a proper conviction and there is no need to defer to the acquittal (Supreme Court of Canada in Koury v R [[1964] SCR 212]); or

•    the innate sense of fairness and justice of the jury might properly have been applied in reaching the verdict of acquittal, for instance to avoid an unnecessary double conviction (King CJ in R v Kirkman [(1987) 44 SASR 591], approved by the High Court of Australia in MacKenzie v R [(1996) 190 CLR 348]; see the related suggestion by Sir Francis Adams mentioned in Irvine).

[14]     If the evidence disclosed a reasonable basis on which the jury could accept part (but not all) of the complainant’s evidence (enough to prove the essential elements of the two charges on which guilty verdicts were returned) an appellate Court will not interfere with the verdicts.

(See also R v Shipton [2007] 2 NZLR 218 at [75] – [77] (CA)).

[66]     Ms Jelas submitted the fact two convictions and two acquittals arose out of offending alleged to have occurred in the same time-frame was irrelevant and coincidental, particularly given the time-frame extended over a two and a half year period and the evidence in relation to each count was distinct. 

(2)Discussion and decision

[67]     We can see nothing in the jury’s verdicts which supports the submission they were inconsistent.  The jury could easily have formed the view it did on guilt or innocence on each of the counts on the basis of the evidence relating to them.  Indeed, the convictions were explicable on the basis that there was at least some evidence independent of M – namely that of her mother – as to seeing appellant and M in the position the complainant described even though M’s mother saw none of the offending. 

[68]     Similarly, lack of any independent evidence concerning the other charges meant it was open to the jury to accept that proof of that offending did not reach the required standard.

[69]     That appears to be the view taken by the trial Judge in his sentencing remarks.

[70]     This ground of appeal accordingly fails.

Appeal against sentence

(1)Remarks on sentencing

[71]     The Judge noted that the two counts where convictions had resulted were both brought on a representative basis.  From that the jury must have accepted that offending of the type alleged took place on at least one occasion at the first two Christchurch addresses.  The Judge accepted the indecent assaults were at the higher end of the scale.  He held the digital penetration probably took place on two occasions only – when M was aged between eight and 11 – but the indecent assaults occurred on some five to 10 occasions.

[72]     The Judge accepted the Crown’s submissions as to the aggravating circumstances of the victim’s vulnerability arising through her age and her relationship with the appellant.  The offending involved an abuse of trust.  It resulted in considerable harm to the victim.  The Judge was of the view there was premeditation.  He identified no mitigating features.

[73]     After reference to R v M [2000] 2 NZLR 60 (CA) and other authority, the Judge selected starting points of six years’ imprisonment for the sexual violation count and three years’ imprisonment for the indecent assault. The only factor personal to the appellant was a relevant previous conviction, which, because it occurred 29 years earlier, was not seen as justifying any uplift in sentence. The Judge therefore had no cause to depart from his starting points, and imposed concurrent terms of imprisonment of six years and three years.

(2)Submissions

[74]     Mr Shamy submitted, in reliance on M, that the starting point for digital penetration should be in the range of two to five years on conviction after trial.  He accepted there was a significant breach of trust and effect on complainant but submitted the offending was not as repetitious as in many another case.

[75]     He suggested the appropriate sentence on the sexual violation count would have been one of four years imprisonment.

[76]     Ms Jelas submitted that both the starting and end points chosen could not be described as manifestly excessive, pointing to this Court’s observation in R v Tranter CA486/03 14 June 2004 that the starting points in M were conservative, it being a Solicitor-General’s appeal.

(3)Discussion and decision

[77]     This was offending which, as the Judge said, occurred on a number of occasions at different addresses when the appellant took advantage of a child in his care.  It thus involved an inexcusable breach of trust with significant harm to the complainant resulting.

[78]     Having regard to the observations in Tranter that the starting points in M are conservative, no error is demonstrated in either the starting or the end points of the sentences imposed on the appellant.

[79]     The appeal against sentence is dismissed.

Appeal out of time

[80]     The appeal was lodged late, largely because of delay in Mr Shamy obtaining the file.

[81]     Although the Crown objected to time being extended having regard to the length of the proceedings and the lack of adequate explanation for the delay, we are of the view that the extension sought should be granted.  The issues raised were well capable of argument. 

[82]     The time to appeal will accordingly be extended, but the appeals against conviction and sentence are dismissed.

Solicitors:  

Crown Law Office, Wellington