The Queen v M
[2002] NZCA 3
•6 March 2002
| PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985 |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA231/01 |
THE QUEEN
V
M (CA231/01)
| Hearing: | 26 February 2002 |
| Coram: | Blanchard J Tipping J Durie J |
| Appearances: | G J King and C J Milnes for Appellant J C Pike for Crown |
| Judgment: | 6 March 2002 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
Introduction
The principal issue in this appeal against conviction concerns the trial Judge’s decision to allow the Crown to cross-examine the appellant on a previous conviction. The Judge thereby exercised the discretion available to him under s5(4)(b) of the Evidence Act 1908. That section is the equivalent of what used to be s1(f) of the Criminal Evidence Act 1898 (UK). The present provision in the United Kingdom is s1(3) of the Youth Justice and Criminal Evidence Act 1999 (UK). The New Zealand and United Kingdom sections deal with the same topic in different ways. The United Kingdom provisions constitute a prohibition on cross-examination of an accused person as to previous convictions, subject to specified exceptions prescribing when such cross-examination may be permitted. The New Zealand legislation gives the Court a general discretion to deal with the matter as best suits the interests of justice. The New Zealand Courts have, however, in exercising that discretion, always been influenced by the United Kingdom jurisprudence on the subject.
In the present case the appellant raises three points. He contends:
(1)that the Judge should not have allowed the cross-examination in question at all;
(2)that having allowed it, the Judge did not appropriately control the nature and extent of the cross-examination which followed; and
(3)that the Judge failed to give the jury proper directions on the purpose of the cross-examination and the use to which the evidence elicited could be put.
We will examine each of these three contentions after setting out the circumstances in which they arise.
Background
The appellant was convicted on two counts of indecent assault and two counts of sexual violation following a jury trial in the High Court at New Plymouth. The charges were representative. He was sentenced to five years imprisonment on the more serious sexual violation charge with concurrent sentences of four and three years imprisonment in respect of the other charges.
The complainant was the appellant’s 12 year old granddaughter. She and her sisters were placed in their grandparents’ care in 1995. In 1999 the appellant’s wife, the children’s grandmother, was convicted of wilfully ill treating the complainant and one of her sisters. The appellant was convicted of being a party to the ill treatment in the sense of permitting it to happen, albeit he was not responsible personally for any of the conduct constituting the ill treatment. The children were taken out of their grandparents’ care in March 1999. In April 2000 the complainant alleged that while she had been living with her grandparents her grandfather had committed various sexual acts on her. He denied that anything of this nature had ever occurred.
At the appellant’s trial the complainant gave detailed evidence of being forced to perform oral sex, having her genitalia penetrated by his fingers, various instances of being touched around or under her underwear and having sexual intercourse simulated with her. The doctor who examined the complainant, the complainant’s father, and police officers who spoke to the appellant also gave evidence for the Crown. The appellant gave evidence denying any abuse and called his wife to give evidence of lack of opportunity. The complainant’s mother also gave evidence for the defence, claiming that the complainant was not telling the truth and had admitted this to her. The basis of the defence was that the allegations could not and should not be believed. Particular attention was drawn to the failure of the complainant to make any complaint at an earlier stage, the lack of medical evidence in support and the fact that there was little opportunity for the offending to occur.
During the course of his evidence-in-chief, in answer to a question from his counsel (not Mr King) as to what he had to say about the complainant’s allegations against him, the appellant said:
I don’t believe that’s true. I wouldn’t do anything to harm even my own children. If I had done that I would possibly be doing it to the other girls that were in our care. I wouldn’t do it to my own children; I had two daughters. I wouldn’t harm them at all, my grandchildren, I just love them all.
Based on this evidence and against the fact that the Crown knew the appellant had been convicted of permitting his wife to ill treat two of his grandchildren, including the complainant, counsel for the Crown sought leave to cross-examine him under s5(4)(b). The Judge granted leave against the appellant’s opposition. His ruling was in these terms:
[1] The Crown has applied for leave to cross-examine [the appellant] on a previous conviction, the conviction being he was a party to the ill-treatment of this girl and her sister while he and his wife had custody of them. His wife was convicted of the charge.
[2] I am prepared to allow the application. It seems to me the Defence has been conducted in such a way as to suggest this accused is of very good character indeed. He himself has endeavoured to give such impression in his evidence-in-chief and also in the answers so far given in cross-examination. The clear picture given is he is a lover of his children and grandchildren and would do no harm to them or condone harm being done to them.
[3] It seems to me in the interests of justice the total family set up and the relationship between the various parties who have featured in this case are relevant. The true relationship between the accused and the complainant particularly goes to the heart of this case. I do not consider with an adequate direction there will be any prejudice to the accused arising from any questioning.
[4] Leave granted.
Issue (1) : Was the Judge correct to grant leave?
Section 5(4) of the Evidence Act 1908 is in these terms:
(4) A person charged and called as a witness in pursuance of subsection (2) of this section—
(a)May be asked any question in cross-examination notwithstanding that it would tend to incriminate that person as to the offence charged; and
(b)Is liable to be cross-examined like any other witness on any matter, though not arising out of that person's examination in chief; but so far as the cross-examination relates to any previous conviction of that person, or to that person's credit, the Court may limit the cross-examination as it thinks proper, although the cross-examination may be permissible in the case of any other witness.
As noted above, the discretion given to the Court by this section is not the subject of any express criteria. But the English approach has always been influential in how the discretion should be exercised in New Zealand: see R v Anderson [2000] 1 NZLR 667, and the earlier cases in this Court cited at paragraph [30] of the judgment of the Court delivered by Elias CJ.
One of the United Kingdom grounds for allowing cross-examination of an accused person about a previous conviction is that the accused has given evidence of his own good character. This is usually referred to for short as “putting character in issue”. The Judge obviously thought that the appellant had done so and that he had accordingly rendered himself vulnerable to cross-examination on a relevant previous conviction.
There are, however, problems in the ruling the Judge gave. The contention that the defence had been conducted in such a way as to suggest that the appellant was “of very good character indeed” seems to have been something of an over-statement. The only relevant evidence is that referred to above. The answers the appellant had given in cross-examination up to the point when leave was sought, and contrary to what the Judge said, in no way involved any assertion of good character. The Judge then referred to “the total family set up” and the “true relationship between the accused and the complainant”. The latter was said to go to the heart of the case. The problem is that, as it was put in Anderson at paragraph 31
Where leave under s5(4) is given, evidence of previous convictions is relevant only to the credibility of the accused. It is not relevant to the likelihood of his having committed the offence.
This distinction, subtle as it may be, and perhaps subject to some qualifications which did not need to be addressed in Anderson, is undoubtedly correct in general terms. It is, for example, supported by Phipson on Evidence (15th ed, 2000) at paras 18-38, 18-45 and 18-62. The need for the jury to be appropriately directed is also noted by Phipson, and the Judge himself referred to the need for an adequate direction. The law being as indicated, the Judge directed himself wrongly when deciding to allow cross-examination. His focus was at least implicitly on the relevance of the previous conviction to the question of the likelihood of the appellant having committed the offence, rather than to his credibility, to which it certainly could have been regarded as relevant.
It may well be, however, that had the Judge properly directed himself as to the purpose of the proposed cross-examination, it would have been appropriate for him to exercise the discretion as he did. We do not need to decide that question, and thus whether the Judge’s misdirection vitiated his ruling. This is because of the conclusions to which we have come on the remaining two issues. It was certainly well open to the view that the appellant had said enough to put his character relevantly in issue. He said what he did in evidence-in-chief. His remarks were not dragged or provoked out of him in cross-examination. What he said can be seen as going significantly beyond simply a robust denial of guilt. His statement that he wouldn’t harm his grandchildren, and that he loved them all, his children and his grandchildren, was hardly a fair reflection of the whole truth. Had the Judge correctly directed himself, he could well have seen this as a case where cross-examination should be permitted in the overall interests of justice, but on a properly focused basis, and with appropriate directions to the jury.
Issue (2) : The nature and extent of the cross-examination
If cross-examination is allowed under s5(4)(b) it is necessary for the Judge to control its nature and extent so that the inherently prejudicial nature of the exercise for the accused is properly managed. There is some analogy with the need for the Judge appropriately to control cross-examination of a hostile witness: see R v O’Brien [2001] 2 NZLR 145.
The necessary judicial control should focus on the purpose of allowing cross-examination and the need to avoid any unnecessary reinforcement of what the evidence elicited may not be used for. In the present case the cross-examination proceeded as follows:
QMr [M] in your evidence yesterday you said that you wouldn’t hurt the children didn’t you?
AThat’s right.
QIn 1999 when your wife was charged with cruelty to [the grandchildren] you were charged with being a party to that weren’t you?
AActually I don’t know what to say there cause you said I committed it but I never committed it myself.
Court Q: Arising out of the police investigation was your wife charged?
AYes
QWhat was she charged with … Cruelty wasn’t it?
ACruelty to the children I think
QThat is to the complainant and sister?
AYes
QWere you also charged by the police?
AI hadn’t permitted to let it happen.
XXD continued:
QAnd you were convicted of permitting that ill treatment to the children weren’t you Mr [M]?
AThat’s right.
QThose charges related to the children being hit with sticks and punched?
Court Q Each one separately did they relate to the children being hit with sticks?
AMy wife, what I said in the Court yes.
QWould you please answer it, the question is straightforward?
AYes
XXD continued:
QAnd they related to the children being punched?
AThat’s right.
QAnd to little [J] being deliberately burned with hot water?
AThat’s right.
QThat trial in 1999 came about because people saw marks on the children, you know that don’t you?
AThat’s right.
QYou were sentenced for your part in permitting that in August 1999 weren’t you Mr [M]?
AThat’s right.
In the United Kingdom, even if the case may otherwise qualify for cross-examination, the Judge has a discretion to decline leave if the prejudicial effect of the evidence would outweigh its legitimate probative value: see Phipson at 18-44, Selvey v DPP [1970] AC 304, and Davison-Jenkins [1997] Crim. L.R. 816. The position is the same in Australia: Donnini v The Queen (1972) 128 CLR 114 and Matusevich v The Queen (1977) 137 CLR 633. As the New Zealand legislation is couched on the basis of a general discretion, the need to balance prejudice with probative value is inherent in any event. It follows that the discretion involved in s5(4)(b) may be exercised not only to decline cross-examination altogether, but also, as the subsection expressly says, to limit its nature and ambit to such an extent as may be necessary to ensure a fair trial and to avoid illegitimate prejudice: see Cross on Evidence, New Zealand loose leaf edition at 14.21. The English authorities are there said to be unclear but the New Zealand subsection is entirely clear.
We consider the Judge did not exercise the necessary control. The crucial point was the existence of the appellant’s conviction for permitting his wife to ill treat the complainant and her sister. He could have been asked how he reconciled that fact with his claim that he loved his grandchildren, but it was not necessary for the jury to be made aware of the details of the ill treatment. To do so was to encourage the use of the conviction in an illegitimately prejudicial way. Had this point stood alone, it may not have been enough to cause a miscarriage of justice. But it must be viewed in combination with the third issue, to which we now turn.
Issue (3): The summing-up
The need for the Judge to give an appropriate warning to the jury in cases of this kind is summarised by Phipson at 18-62 in these terms:
It is firmly established that, where there is a danger of the jury taking previous convictions as going to the issue as well as or instead of as going to credibility, the judge must warn the jury that they should use it only for its permissible purpose and should eschew use of it directly to show guilt.
The leading English authorities are R v Morrison (1911) 6 Cr App R 159, R v Inder (1977) 67 Cr App R 143, and R v McLeod [1994] 1 WLR 1500, 1513. The learned authors of Phipson refer to certain difficulties but there is no doubt that the jury should be directed as indicated. While doubting the effectiveness of the warning, the learned authors of Cross on Evidence (New Zealand edition) proceed on the basis that the warning is nevertheless required: see paragraph 14.21. We consider that to be the correct approach. Unless the Judge gives such a warning, the jury may use the evidence in an impermissible way contrary to the rule confirmed in Anderson and noted in paragraph [11] above.
The question is whether the Judge’s direction in the present case was satisfactory. This is what he said to the jury:
Now there’s been some evidence here of what we call character evidence – character evidence. It’s a bit unusual in a criminal trial to be told that an accused has got previous convictions and in this case you have heard that Mr [M] has apparently had conviction involved somewhere linked to the ill-treatment of the two girls in a prior time. Now that has been allowed so that you can get an overall picture of what has been going on in the household, to see whether it assist you at all and also because you will remember that, a matter for you to determine, but you may have felt that the impression was being given that he was a person who would no way harm, or protect his children, grandchildren from harm and therefore I took responsibility of allowing cross-examination to bring out that other matter so that you got a picture of the household. Now having said, it really just goes to help you or assist you to the extent that you think of whether or not you believe what he’s told you. Did it help you in weighing up what you can accept from either side or from any of the witnesses because you now know for example Mrs [M] has a number of convictions. Well with those convictions does that help you to assist whether you would regard her as a woman of truth on this issue. Now keep it in perspective, don’t go overboard on it, it’s just simply another factor to help you, if it does in any way, to assess the credibility of the witnesses and what you of course will not do, is you won’t say, ‘look, he was a party or in some way involved in the assault upon the girls, therefore he’s been guilty of sexual offences’ and that would be a total no no, and I direct you, it’s a very limited tool which you have to use.
It is obvious that the first half of this direction was in error. It mirrors the reasoning in the Judge’s ruling giving leave to cross-examine. The Judge’s references to “an overall picture of what has been going on in the household to see whether it assists you at all and also …..” suggests the evidence had a dual purpose as being relevant (a) to the issue of guilt, and (b) (at this stage the point is unclear) to credibility. The further reference to getting “a picture of the household” is a reinforcement of the earlier and erroneous direction. There is then a suggestion that the primary purpose is to assist with the accused’s credibility – “whether or not you believe what he’s told you”. But this move in the right direction is immediately followed by a reference to “weighing up what you can accept from either side or from any of the witnesses”. The first point is seemingly a reference to considerations of guilt.
The next passage is focused on Mrs M. It is only when the Judge came to the final part of the direction that he got close to what the jury should have been told. There was, however, no retraction or countermanding of what had gone before. Mr King naturally invited us to the view that the jury would have been thoroughly confused and were certainly not given a clear and consistent direction not to use the evidence as directly relevant to the issue of guilt. Mr Pike did his best to support the direction, contending that in the end the Judge had put the jury on the right track.
We are unable to regard the Judge’s direction, when viewed as a whole, as other than confusing and thereby, potentially at least, misleading. It is difficult to be sure what the jury or individual members would have made of the inconsistency of what the Judge was saying. Some might have remembered the first part and others the second. The jury were not directed with any clarity to avoid the impermissible process of reasoning. Indeed initially they were invited to adopt such reasoning. We consider there was too great a risk that the jury would have reasoned that because the appellant had the conviction for permitting his wife to ill treat the complainant, he was thereby the more likely to have sexually abused her. That is a possible process of reasoning unless you are clearly and consistently warned not to adopt it.
All the Judge needed to say was something along these lines.
You will recall that Mr M was asked whether he had been convicted of permitting his wife to ill treat the complainant and her sister. He agreed he had been convicted of that offence. His conviction has only limited relevance in the case. It is relevant to his credibility when he told you that he loved his children and grandchildren and would not harm them. That evidence must be assessed against the fact of the conviction which you now know about. What you must not do is to reason that because he has this conviction relating to his wife’s non sexual abuse he is thereby the more likely to have committed the sexual offences with which he is charged. That would be an improper and unfair process of reasoning, so please guard yourself against thinking along those lines. The essential issue is whether, in the light of what you make of the complainant’s evidence and that of the accused, the Crown has satisfied you to the required standard of the accused’s guilt.
There is no question in this case of applying the proviso. The case turned essentially on the evidence of the complainant as against that of the appellant. We cannot possibly say that had the jury been properly directed they would undoubtedly have convicted. There is also the problem about the nature of the cross-examination already discussed. Having reached this conclusion it is unnecessary for us to examine the other grounds of appeal or the appeal against sentence.
Conclusion
For the reasons given the appeal is allowed and the convictions are quashed. We direct a new trial.
Solicitors
Crown Law Office, Wellington
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