The Queen v Turner

[2007] NZCA 427

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/07
[2007] NZCA 427

THE QUEEN

v

CAREY DEAN TURNER

Hearing:28 August 2007

Court:Glazebrook, Baragwanath and Heath JJ

Counsel:C J Tennet for Appellant

D La Hood for Respondent

Judgment:1 October 2007 at 3pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]        Mr Turner was tried before Judge Adeane and a jury in the District Court at Napier on one count of sexual violation by rape and two counts of sexual violation by unlawful sexual connection.  He was found guilty on all counts.  He appeals against the convictions.

[2]        Six grounds of appeal were advanced.  They were:

(a)Comments made by Mr Turner during the course of a videotaped interview with the Police ought to have been excised from both the videotape played to the jury and the transcript produced as an exhibit. Mr Turner acknowledged that he had previously been convicted of other offences.

(b)Evidence given by the complainant was incorrectly admitted as recent complaint evidence.  Further, no recent complaint direction was given by the Judge.

(c)The Judge failed to give an appropriate direction on the standard of proof to which the Crown was required to prove its case.  In short, this complaint is that the Judge did not direct in accordance with the formula set out in the majority judgment in R v Wanhalla [2007] 2 NZLR 573 at 49 (CA).

(d)The Judge erred in directions given on the status of the accused’s videotaped interview with the Police.  It is contended that the way in which the Judge directed the jury on that issue undermined the tripartite direction on the way in which the jury ought to consider evidence given by the accused at trial.

(e)The Judge erred in raising the issue of corroboration with the jury, notwithstanding the fact that it was raised in order to make clear that corroboration of the complainant’s evidence was not required in order for the jury to convict.

(f)The directions given by the Judge on the issue of consent were inadequate.

[3]        The first ground of appeal was abandoned at the hearing of the appeal.  Mr Tennet, for Mr Turner, recognised, rightly in our view, that in the absence of any counsel error complaint the issue raised went to a tactical decision which was open to trial counsel.

[4]        Mr Tennet, for Mr Turner, submits that, individually or collectively, the remaining five alleged errors rendered the verdicts unsafe.

The facts

[5]        Mr Turner elected to give evidence at trial.  In order to return guilty verdicts, the jury must have rejected his evidence.  On that basis, the jury must have been satisfied of the following facts.

[6]        In August 2006, Mr Turner and the complainant were casual labourers.  They had known each other for about four years.  Both travelled around the country, obtaining seasonal work when available.  At the time of the incidents, Mr Turner was 38 years old, while the complainant was aged 24 years. 

[7]        On 21 August 2006, Mr Turner and the complainant arranged for her to visit Mr Turner en route from work in Gisborne to her home in Wellington.  At that time, Mr Turner was staying with a friend at a rural property near Napier.  Mr Turner invited the complainant to that property.  His friend was not present at that time.

[8]        When the complainant arrived at the property, she and Mr Turner spent the afternoon conversing, consuming alcohol and a small quantity of cannabis.  Those activities went into the early evening.

[9]        Later that evening, Mr Turner massaged the complainant’s shoulders.  Shortly after, the complainant said she was tired and decided to retire to her camper van to sleep.  As she walked to the door Mr Turner grabbed her, pushed her up against a wall and told her he intended to have sex with her.  She protested.  Mr Turner became agitated and demanded that she remove her clothes. 

[10]     The complainant feared for her safety and complied.  Mr Turner made the complainant perform oral sex on him.  He then performed oral sex on her.  Finally, he raped her.

[11]     Eventually, the complainant left the property, immediately driving to a friend’s home in Wellington.  The incident was reported to the Police the following day.

[12]     Mr Turner was interviewed by the Police on 11 September 2006.  He admitted sexual activity had occurred between himself and the complainant but claimed it was all consensual.  He denied that he had threatened or forced himself upon the complainant. 

Analysis of points on appeal

(a)      Introductory comments

[13]     In our view, four of the remaining five grounds of appeal had no merit at all.  We intend to deal with those four issues briefly, simply to explain the basis on which we find they must fail.

[14]     The only point of substance is one relating to the admission of evidence that Mr Tennet contends had the character of recent complaint evidence.

(b)      The “recent complaint” point

[15]     Mr Tennet submits that the complainant’s evidence of what was said to her friend in Wellington amounted to recent complaint evidence and was wrongly admitted.  Two reasons were given to support that submission; that it was a developing complaint and the friend was not called to give evidence.

[16]     There are, in fact, two discrete issues.  The first is whether the evidence of what was said to a friend in Wellington was, as a matter of law, recent complaint evidence.  The second is whether the Judge gave an adequate direction on the relevance of the evidence.

[17]     We called for copies of counsel’s closing addresses and received further submissions from counsel after the transcripts were provided.  We sought that material so that we could understand better how the evidence was used by the Crown in closing.

[18]     As part of the narrative of events, trial counsel for the Crown elicited evidence from the complainant about what she did from the time she left Mr Turner until she departed from a service station in Waipukurau on her way to Wellington. Evidence was also led from Mr Robinson, the garage attendant in Waipukurau, who spoke of offering the complainant the use of a telephone, an offer she declined.  Mr Robinson’s evidence was that the complainant said that she “was going to drive away from her troubles”.  The complainant had no recollection of that discussion.

[19]     The complainant was asked about what happened from the time she left Waipukurau until she spoke to a friend in Wellington.  The relevant extracts from her evidence in chief follow:

Did you have a plan at that point as to what you were going to do?….I was going to drive to Wellington back home.

What, well that is the answer to the question I was about to ask, why Wellington?….Oh it’s my home.

Did you know where you were going to go when you got to Wellington?….Yeah I was going over to my friend’s house.

What is your friend’s name?….[A].

How close a friend is she?….She is like my best friend.

So did you drive directly from Waipukurau to Wellington?….Yeah.

And did you go to [A’s] house?….Yeah.

Do you know what time approximately you arrived in Wellington?….It was about 3 in the morning.

And just generally, whereabouts in Wellington is [A’s] house?….In Miramar.

Miramar, was she home?….No.

So what did you do?….Just parked up in her driveway.

Hm hm….And just laid in the back of my van and just tried to go to sleep.

So you were in her driveway but sleeping in your van?….Yeah.

And she wasn’t home?…..No.

Did make any effort to contact her again in the morning?…I rang her at about 7 in the morning.

And did you, do you know where she was?….She was at her Mum’s.

Does she have any children?….She has got one kid.

Did you say anything to her about what had happened the night before?….When I rang her on the phone I told her could she come, that I was at her place and can she come home.

And did she?….Yeah.

And once she got home did you tell her what had happened?….Yeah.

The night before?….Yeah.

Do you have family in Wellington as well?….Yeah.

Is your mum there?….In Wellington?

At that time?….No.

Was she contacted?….Yeah [A] rang her and told her to come over.

And did she?….Yeah.

And following on from that were the police called?….Yeah.

And then you met I take it with the police and provided them with a statement?….Yeah.

Just finally [complainant] any of the sexual contact that took place in between you and Mr Turner, did you agree to that?….No.

Did you do anything that could have led him to believe?….No.

You wanted him to do that?….No.

[20]     Trial counsel for the Crown addressed the jury on this evidence.  After referring to the central issue of consent, he said:

Members of the jury, look beyond that.  What does she do immediately afterwards?  She gets out of that house and she drives.  It’s about 11.00pm.  It’s dark.  It’s winter.  She’s out in the country.  Never been there before.  She drives.  Get out of there and then we know she calls into the petrol station.  You heard from the witness yesterday Mr Robinson and you might think that evidence is particularly helpful for you in considering what went on, because it shows what state she was in about half an hour later and you’ve got the docket that confirms the time she went through and purchased diesel.  And his evidence was interesting.  She was looking down.  She didn’t want to have eye contact with him.  She looked upset.  She looked tired and she said she was driving away from her problems and she was.  And where does she drive, to her best friend’s house.  All the way to Wellington through the night.  Best friend not home.  She rings her first thing the next morning -–7 o’clock.  Then her mother’s involved.  Then the police are involved.

So this is not a case where a woman has sat back for weeks, months or years before deciding that she was raped.  Everything you have heard in this case, I suggest to you, of what she did afterwards, is consistent with what she says happened.  Upset.  She’s driven away, complained at the first opportunity to the first person you would expect her to complain to.  Her best friend, followed by her mother, followed by the police.  So if My Friend makes the suggestion, oh well she could have used the phone at the police station or her cellphone, I just want you to think about that.  11.30 at night in Waipukurau, a town she couldn’t even remember at a police station, sorry at a petrol station.  Do you really expect her to pick up the phone and ring the police?  That’s where your experience of human nature comes in.  It makes far more sense doesn’t it, to tell your best friend.  To seek support from people you know, love and trust.  And that’s what she did.  So look at that as well, members of the jury, because I suggest to you that that will be particularly helpful.

[21]     No reference was made to this evidence in the closing address of counsel for Mr Turner. 

[22]     Before the Evidence Act 2006 came into force on 1 August 2007, recent complaint evidence was treated as an exception to the general rule that previous consistent statements were inadmissible.  In White v The Queen [1999] AC 210 at 215 ‑ 216 (PC), Lord Hoffmann described the nature of the exception as follows:

If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent.  But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made.  If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent. …  (our emphasis)

[23]     The practical significance of recent complaint evidence was articulated by Casey J, delivering the judgment of this Court, in R v Kincaid [1991] 2 NZLR 1 at 9 (CA):

… The immediate question is - "How is one to know she is a truthful girl telling of her complaint?". The answer - that her own assertion that she did complain will help the jury to assess her truthfulness - needs only to be stated to be recognised for its logical absurdity. Without independent confirmation of what she said, the girl's own evidence-in-chief that she complained takes the jury nowhere in deciding whether she is worthy of belief. The doctrine of "recent complaint" in sexual cases allowing the prosecutor to adduce evidence of a prior complaint is not to be confused with the rule allowing recourse to such a statement in order to rebut a specific charge of recent intervention.  (our emphasis)

That passage was approved by the Privy Council in White v The Queen at 216.  Unless evidence of complaint is admitted for that purpose, it will be unnecessary for the Judge to direct on it. 

[24]     Here, the evidence was not directed at bolstering the complainant’s credibility by reference to a prior statement of complaint made at a time proximate to the alleged offence.  It was admitted to establish the way in which the complainant acted immediately after the alleged sexual violations.  Indeed, no evidence of the words used by the complainant to her friend was led.  It was the complainant’s conduct that was used to support her credibility; not a prior consistent statement of the type to which Kincaid and White refer.

[25]     If the complainant’s words had been led, the evidence could not have been admitted as recent complaint evidence because the person to whom the complaint may have been made was not called to give evidence:  see R v Kincaid at 9 and White v The Queen at 215 ‑ 216.

[26]     Judge Adeane dealt with evidence of post-incident conduct while summarising the Crown case.  He said:

[32]  Likewise, [counsel for the Crown] asked you to look at what happened straight after the events.  This young woman taking herself away, getting in a vehicle, fuelling up and heading right back to Wellington where apparently she was able to complain to people she knew and trusted.  That is a matter for you to take into account too, members of the jury, when you assess the overall conduct of the parties.  It may include wondering whether you could reasonably expect her to complain of this sort of matter to a teenage boy in a service station late at night or whether it is understandable that she might hold her complaint until she was amongst friends and family.  (our emphasis)

[27]     Given the limited purpose for which the evidence was admitted and the way in which counsel for the Crown addressed the jury on it, it was unfortunate that the Judge referred to the issue of “complaint” in his summing up.  Out of fairness to him, he was very likely influenced by Crown counsel’s reference to a complaint to her friend.

[28]     However, as in R v Walker CA417/03 15 June 2004, no point was taken on this issue at trial.  We think it can be safely assumed that the issue was viewed by trial counsel for Mr Turner as insignificant.  At [29] of Walker, Anderson P, delivering the judgment of this Court, said:

[29]     Counsel submitted this evidence offended against the rule excluding prior consistent statements.  But again no objection was taken at trial, no doubt because in the context of trial the matter would have seemed inconsequential.  It is not, of course, in the nature of recent complaint evidence.  It is merely evidence that a complaint was made to another child about the same time as the girl told her parents.  Juries obviously know a complaint has been made at some time because of the fact of a trial itself. There is nothing of substance in the point taken.

[29]     Although it would have been preferable for the Judge not to have referred to the evidence by reference to a “complaint”, we are satisfied that no miscarriage of justice could have resulted from the way in which the Judge directed the jury.  The directions were given soon after short closing addresses from counsel for the Crown and the accused.  The jury were well aware of the limited purpose for which the Crown sought to use the evidence, namely to establish a consistent course of conduct by the complainant after the sexual violations she said had occurred.  This ground of appeal cannot succeed.

(c)       Was an appropriate direction given on the standard of proof?

[30]     Mr Tennet submits that the direction on standard of proof given by the trial Judge does not accord with that suggested in R v Wanhalla. 

[31]     Wanhalla does not suggest a uniform approach to the standard of proof direction.  All that is required is to convey to the jury that they need to be sure of guilt before convicting. 

[32]     Although, at [49], a plurality (William Young P, Chambers and Robertson JJ) suggested a direction that might appropriately be used by a trial Judge, the Court was careful to avoid any suggestion that slavish adherence to that suggested formula was mandatory.  At [52], the plurality said:

[52]     One of the problems with this area of the law is that on the one hand there is no single formula which is required, but, on the other, life is much easier if trial Judges use a single, safe and approved formula. Further, in the interests of consistency, there is much to be said for a single formula being employed. On the other hand, we are not to be taken as asserting that the formula just stated is mandatory. It is not. Further, we wish to discourage too close a focus on the precise nuances of judicial directions. It is sufficient to make it clear that the concept involves a high standard of proof which is discharged only if the jury is sure or feels sure of guilt.  (our emphasis)

[33]     The trial Judge’s direction on standard of proof was in the following terms:

[6]       The standard of proof simply refers to the quality of evidence needed before you would be justified in returning a guilty verdict in reliance upon it.  And the position here is that the required standard of proof is proof beyond reasonable doubt.  That simply means you are sure.  I will tell you in a minute of the things the Crown has to prove.  If you are sure that those things have been proved then you have a duty as a jury to return a guilty verdict and if you are not sure you have a corresponding duty to return a not guilty verdict.  And in this case you will have to apply that test to each of the three charges.  They have a tremendous amount in common and certainly, your findings of credibility or believability may well affect each of the charges in a similar way.  But you must still consider each particular allegation separately.

[34]     We are satisfied that the Judge made it clear that the jury had to be sure.  That complied with Wanhalla.  This ground of appeal also fails.

(d)      Was there a misdirection on the status of Mr Turner’s videotaped interview?

[35]     The complaint is that the Judge undermined the tripartite direction given when an accused elects to give evidence in the way he directed on the use of the videotaped statement.

[36]     The Judge dealt with those two issues as follows:

[22]     The accused has made a statement out of Court.  You will recall it was showed to us by Detective Moore in the form of a long video statement.  That is not sworn evidence in the case but it is part of the factual material for you to consider and to attach as much weight to as you see fit.  You can accept that statement in whole or in part.  Obviously it is another one of the features of the case where large chunks of the scenario are not in dispute.  It is for you to decide what weight you put on parts of that statement.

[23]     You have also seen and heard the accused give evidence and the thrust of that evidence is that he believed he had this young woman’s consent.  More than that, he said she initiated it.

[24]     Now, remember first of all that the accused did not have to give evidence and he does not have to prove anything in the case.  It is often said that where an accused gives evidence it can have three possible effects.

[25]     The first is that a jury accepts entirely the important parts of his evidence and where that happens and if it happens here then obviously you are going to find this accused not guilty without hesitation.  If you accept that this young lady initiated the sexual activity, became angry about some extraneous matter afterwards and has made up these allegations then of course he is not guilty.

[26]     The second possibility is that the accused’s evidence might cause you reasonable doubts about the things the Crown has to prove.  Again, if you are in reasonable doubts about what the Crown has to prove after hearing from the accused, then he is entitled to be found not guilty.

[27]     There is a third possibility about which you have to be careful.  If you do not accept the evidence of the accused about the material parts of these events, that does not automatically mean he is guilty.  Put the unacceptable evidence to one side.

[28]     Remind yourself who has got to do the proving.  Go back to the evidence of the complainant and ask yourself whether it satisfies you beyond reasonable doubt that her allegations are true.

[37]     There is no basis on which it can be contended that the proper direction on the use of the videotaped statement could, in any way, have undermined the tripartite direction which dealt, quite separately, with the jury’s approach to the evidence given by Mr Turner before them.  The Judge was dealing with different issues.  There is nothing in this point.

(e)       Did the Judge err in raising “corroboration” with the jury?

[38]     The Judge raised the issue of “corroboration” in summarising the case for Mr Turner.  He said:

[37]     [Counsel for Mr Turner] says to you that there is no independent corroboration of what the complainant says on the material matters.  That is correct, members of the jury, but the counterpoint has to be put straight away.  The law does not require independent corroboration of a woman’s allegation in circumstances such as these.  It used to, many years ago, but as a result of modern thinking, the law now recognises that a jury is quite entitled to accept a woman’s version of events on a matter of this kind, standing alone and without the need for any independent evidence to support her before a conviction can be returned.

[39]     Counsel for the Crown had told the jury that there was no need for corroboration in his closing address.  Counsel for Mr Turner then raised the topic of corroboration.  Once that happened, the Judge had no option but to confirm the Crown submission that independent confirmation of a complainant’s allegation was not required as a matter of law.

[40]     We do not accept any prejudice was caused to Mr Turner’s case by the approach the trial Judge took.  Likewise, this point fails.

(g)      Did the Judge err in failing to direct the jury adequately on questions of consent?

[41]     The final point relates to an alleged failure on the part of the Judge to direct adequately on issues of consent.  Judge Adeane said:

[11]     Now it is the Crown who must prove that this occurred without the female’s consent.  Consent has the same meaning and implications in relation to each of the three counts in this indictment.  Consent means a true consent, given by a woman who is in [sic] a position to make a conscious decision and choice.  The material time for you to consider whether there was consent, is at the time the sexual connections takes place.  You are entitled to remember that true consent can still be given reluctantly or hesitantly.  True consent can sometimes be regretted afterwards.  Even if consent is given in that manner, provided it is given without threats or force or under coercion, then an act of sexual connection to which that kind of consent has occurred, simply is not rape.

[12]     On the other hand, submission to the inevitable, or submission out of despair when one is trapped and has no alternatives is not a real and valid consent.  Consent must be freely and willingly given to be valid in the eyes of the law.  Likewise, paralysed submission to some sort of unexpected and unwelcome sexual advances does not amount to free, valid consent.

[13]     Now obviously, if you are satisfied that a woman has refused intercourse or connection of some other kind, or has resisted by her words or by her conduct, then you are able to take that as evidence of a lack of consent.  The law, however, goes on a little bit further on this question of consent and it specifically refers to certain matters which in particular circumstances are not to be taken as consent simply by themselves.  This includes the fact that a person does not protest or offer physical resistance to sexual connection.  The law provides that that does not, by itself, indicate that she is giving some sort of tacit or unspoken consent.  Nor does the fact that a person acquiesces or goes along with sexual connection if she does so in the face of actual force or a threatened application of force.  That is not true consent either.

[14]     It is important to remember in every case of this kind, that rape is not sexual intercourse by force.  It is simply sexual intercourse without valid consent and without a belief on a part of the man that the woman is consenting such belief having to be on reasonable grounds.  And the same applies to all forms of sexual violation.  They do not involve sexual violation by force and that does not have to be proved.  What has to be proved is sexual violation without valid consent and without an honestly and reasonably held belief that the woman is consenting.  If the Crown satisfies you of those two things, then the sexual connection will be unlawful.

[42]     Those directions were entirely orthodox.  The use of a different form of words to convey the same concepts to the jury could have made no difference.  This ground of appeal cannot succeed.

Result

[43]     For those reasons, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington