The Queen v Taina Stewart Webb
[2000] NZCA 357
•29 November 2000
| PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA247/00 |
THE QUEEN
V
TAINA STEWART WEBB
| Hearing: | 29 November 2000 (at Auckland) |
| Coram: | Gault J McGrath J Penlington J |
| Appearances: | P T Birks for Appellant M A Treleaven for Crown |
| Judgment: | 29 November 2000 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
The appellant has appealed against his conviction for the rape of his thirteen year old stepdaughter during the latter part of July 1998. The grounds advanced by Mr Birks, in support of the appeal, are first, that the Judge should have given the jury a warning in terms of s12C the Evidence Act 1908 in that the complainant, as a witness, may have had a purpose of her own to serve which might have led her to give false evidence against the appellant. Secondly, Mr Birks argues that amendments allowed by the trial Judge to the indictment which concerned the date of the alleged offending were improperly made.
The circumstances according to the complainant's evidence were, that the appellant entered her bedroom at home one evening while she was asleep. He took off his clothes and got under the bed clothes with her. He commenced kissing and cuddling her and fondling her breasts. She woke up but gave him absolutely no encouragement. According to the complainant’s evidence the appellant then hopped on her and raped her.
The complainant did not tell her mother what happened the next day. During the following month at some stage she left the family home to live with her grandmother in Murupara. This was at the instance of the Social Welfare agency CYPS and it appears that the cause for the move was concern at some bruising on the complainant. It was not related in any way to the incident of the alleged rape, which was not disclosed by her till some months later. The move from home was however one that was welcome to the complainant, who had earlier made contact with her grandmother seeking that she be able to leave the home in Mangakino and move to stay with her grandmother. There was also evidence of the complainant’s general unhappiness with her life with her parents and she herself had told CYPS of bashings and beatings which were in part behind the decision that she should move to be with her grandmother.
While the complaint was living with her grandmother a letter which had been sent by the appellant to the complainant was discovered by the grandmother. It contained some sexual innuendo. The grandmother then asked and regularly continued to ask the complainant, if she had been abused by her stepfather. The complainant denied that had happened for some time. A few days before Christmas however, she did tell her grandmother of the rape and this complaint ultimately led to the charges that were faced by the appellant.
At the trial the complainant and her grandmother both gave evidence and both were cross-examined extensively by experienced counsel. In particular the complainant was questioned as to whether the rape had occurred and she gave her evidence firmly asserting that was so. The reason she gave at the trial for her earlier denials was that she thought that to confirm she had been abused would cause trouble for others and, by the others, she meant her mother, and the appellant. She was also cross-examined on whether or not she had wanted to leave the home:
Do you say you were ill-treated by them…Mmm.
And you were desperate to get out of that house…I wasn’t desperate to get out of that house, mum would tell me to go sometimes and I would, and then she would tell me to get back.
Where did you go…To the telephone box to ring my nanny to come and get me.
Nanny…Yeah
How many times did you do that…Oh, a few times, twice.
Did she come…Nah, because she said, what would happen to her and Koro, because I was under the custody of my mother.
The evidence given by the complainant was not, however, totally one way concerning her relationship with the appellant and, in particular, at one stage of the cross-examination she said, referring to the appellant "she missed dad". When asked why did she miss him, she answered “because he was just there for me when I needed help sometimes”.
Section 12C, which was introduced to the Evidence Act in 1986, reads:
12C. Witnesses having some purpose of their own to serve -
Where in any criminal proceedings it appears to the Judge that a witness may have some purpose of his or her own to serve in giving evidence and that for that reason there is a risk that the witness may give false evidence that is prejudicial to the accused, the Judge shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness.
Cross on Evidence (NZ edition) at para 8.6 says of the section:
It is thus mandatory to consider whether such an instruction would be appropriate, but not to give it. Any witness with a clearly proved motive for ingratiating himself with the police, and he might thus be prepared to exaggerate the accused involvement in the crime charged, would be a witness covered by 12C, but no listing of categories would ever sufficiently cope with the individual circumstances of each trial situation. Where the existence of such a purpose is merely speculative, the Judge is not required to give a s12C direction.
We emphasise that it is not the policy of the section to require a Judge to consider giving a warning in every case where a complainant in a sexual abuse trial of allegations against a family member raises concerns about her life at her home. The history of the section indicates the principal concern was with evidence given by accomplices. But the language of s12C is generally expressed and there may be special circumstances which would make a warning in some cases appropriate in relation to the evidence of a person who has complained of sexual abuse. That is however not the present case. Here the evidence at the trial did not form a basis for any argument that the complainant was a witness covered by s12C. The concerns that were expressed in her evidence overall were not out of the ordinary in relation to her family life and, as indicated above, were balanced by other evidence indicating affection for the appellant and a desire not to get him into trouble. Given also that s12C does not directly address this type of situation, there was no error by the trial Judge in relation to the matter, even assuming he gave no consideration to the possible application of s12C.
The second argument on appeal concerned the Judge’s decision to allow an amendment to the indictment which, as originally framed, alleged the offending took place on the 20 July 1998. The amendment substituted a period during which the tape allegedly took place between 20 July and 1 August 1998. The complaint made by Mr Birks in this regard is that the amendment was made pursuant to s345D of the Crimes Act. Clearly that was the wrong section because it only permits amendments to be made to the indictment prior to commencement of the trial. It is s335 of the Crimes Act which gives jurisdiction to a trial Judge to allow such an amendment during the trial, and then provided that the accused has not been misled or prejudiced in his defence. The test that was applied by the Judge under the incorrect section was whether the amendment was conducive to the ends of justice. In the circumstances however the application of that test did not result in any error of principle. In concluding the amendment met the standard of being conducive to the interests of justice the Judge also implicitly accepted there was no unfairness to the appellant in making the amendment. It follows that there was no miscarriage of justice in the allowing of the amendment. In all of the circumstances that was the only possible principled approach to dealing with evidential developments which created uncertainty as to the precise date in July 1998 when the alleged offending took place.
Accordingly this ground for appeal also fails. The appeal therefore is dismissed.
Solicitors
Crown Law Office, Wellington
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