The Queen v Walker

NO PUBLICATION UNTIL AFTER RE-TRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA106/00

THE QUEEN

JEREMY WALKER

Hearing:	28 June 2000
Coram:	Tipping J Heron J Williams J
Appearances:	S Gill for Appellant N M Crutchley for Crown
Judgment:	11 July 2000

JUDGMENT OF THE COURT DELIVERED BY HERON J

This is an appeal against conviction on a charge of sexual violation by rape following trial by jury in the District Court at Wellington on 6 March 2000.

Background

On the evening of 11 June 1999 the complainant was visiting a friend who flatted with three other persons, two women and one man, in Lower Hutt. At that address they had a few drinks and whilst there, the appellant arrived. The group went on to a night-club and the appellant and the complainant danced together. They returned to the flat by taxi.
The appellant and the complainant went upstairs to a bedroom and there smoked and listened to music. They became affectionate to one another and there was kissing. Matters progressed to the stage where with the consent of the complainant the appellant took some of her clothes off. The complainant says he wanted to have sex with her but she said she would not have sex without a condom. She mentioned that two or three times. Despite her indicating that she would only have sex with him if he wore a condom, he had intercourse with her notwithstanding. She said that he ejaculated inside her and then she called out to her friend Felicity who came into the room. She said that she felt upset and went into Felicity’s room before having a shower and changing her clothes.
Felicity’s boyfriend, Scott, apparently went into the room where the appellant and complainant had been, and spoke to the appellant. Others in the group became involved culminating in the appellant being asked to leave.
The complainant agreed that she had had quite a deal to drink and that she had been affectionate downstairs with the appellant before they had gone upstairs together. She agreed that in the end they were both naked and that they were kissing and fondling one another and indeed that matters had progressed to the extent of mutual oral sex. She stated that the conversation about the condom had not come after sexual intercourse had begun, and she did not agree that the appellant had stopped when she again raised the question of a condom. Her story was, no condom, no sex. But it was strongly put to her in cross examination that there had been consensual intercourse, interrupted only by conversation about the condom, whereupon sexual intercourse ceased.
The complainant was extensively cross-examined about events after intercourse had occurred which were designed to show that she had in fact not made any complaint but that others on her behalf had taken up the matter, resulting in a situation where she was pressured to continue with the allegation of rape when it had not in fact occurred Those matters require no detailed examination for the purposes of this appeal.
The complainant laid a complaint with the police at 7.45am that morning. Medical evidence confirmed the presence of spermatozoa in the vagina and that intercourse would have occurred within 48 hours preceding the examination which was carried out later on that day.
The appellant was interviewed the same day for approximately 40 minutes at the police station. The appellant told the police that he had been with the complainant that evening and that they had gone to a room in the flat and they were intending to sleep the night there. The appellant agreed that he and the complainant were virtually undressed at one point, and that everything that had happened between them had been consensual but the appellant resisted any suggestion that there was intercourse between them. He was prepared to agree that they had got pretty close to intercourse, but that because of the absence of any protection, both of them refrained. He then said that things began to wind down a bit and she had left the room. He agreed that later there was some concern about the complainant’s well being and it was shared with others. He was vague as to just what he believed their concerns to be. The appellant maintained his position that no intercourse occurred because he did not have protection. That was as much his idea as hers. He agreed that the complainant was equally concerned about it and she would not have had sex without protection.
When it was put to him at interview that she had said intercourse had happened, he replied as follows:
ZSExcept for a couple of little fine points, - (1) that she is saying that intercourse happened.
JMOh okay.
ZSDid it?
JMNo. Not, well I know we probably would have touched but it didn’t happen.
ZSNo, I’m talking intercourse as in penetration.
JMNo, not full on intercourse.
ZSAnd that you even ejaculated inside her.
JMNo. No. Not full on intercourse.
The detective then indicated that a medical examination had been carried out on the complainant and he asked for any comments if they found any semen in her vagina. At that point, he indicated that he had not recalled ejaculating, that they had been touching but that it was not intercourse. He indicated the possibility of semen being on the complainant but not inside her.
He finally said on this topic:
JMThe only thing I can even think is when we were cuddling and getting close is maybe I was inside her or could have gone inside her, but that’s probably if that happened that would have been when the condom and that got brought up. You know, when we were getting closer and closer to it but I doubt that I even went near inside her, well I didn’t feel myself go inside her.
Cross examination of the complainant at trial however was as follows:
Q.There was fondling of the body in the usual way, kissing and inevitably that lead to the clothes being taken off by you each or him or whoever. Right? The end result of that was that you were both naked?
A.yes.
Q.You were kissing and cuddling and mutually fondling one another, foreplay the usual love making stuff, right?
A.Yes.
Q.Oral sex, you on him and him on you, yep?
A.Yep?
Q.You get him on to the bed, you’re lying on top of the bed aren’t you?
A.Yes.
Q.Your legs are apart and he starts making love to you, starts having full sexual intercourse with you?
A.Without my consent.
Q.Just answer the questions. You and he start having sex on the bed, full sex?
A.No.
Q.And this goes on for some 10 minutes or so and then you say, “you want a condom?”
A.No.
…..
Q.And at that point the sex stopped, didn’t it? Didn’t it. When you said that you wanted a condom, or that you shouldn’t be doing this without a condom, that’s when the sex stuff stopped wasn’t it.?
A.No I said I wanted to use one before.
….
Q.At some point after that you say “I don’t want to carry on unless I’ve got a condom or we shouldn’t be doing this without a condom?
A.I said before that anything happened.
Q.And at the point you said “We shouldn’t be doing this” he stopped and rolled off you didn’t he.
A.No.

Lies

The first ground is that the Judge should have directed the jury on lies by giving the standard direction in that respect. It was not suggested that the claimed lies added to the Crown case but that something should have been said about lies and the role they played in the credibility of the appellant including a warning against coming too readily to conclusions of guilt once lies had been proved. This case is complicated because no transcript of the Judge’s summing up is available and counsel rely on a memorandum from Crown counsel at the trial as to what the Judge said on a variety of topics. On the subject of lies it is common ground he gave no direction. In his report requested under Rule 12 of the Court of Appeal Criminal Rules 1997, the Judge said:
I did not direct on lies because I came to the view that the accused had not been shown to have lied in a true sense. Immediately after the offence when he was confronted by the complainant’s friends, and in the course of his video interview, he maintained that there had been no act of intercourse. There was no mention then of consent. At trial, the defence put to the complainant and other witnesses in cross examination, and in closing to the jury, was that there had been a consensual act of intercourse. The Crown criticised that on the basis that he had changed his stance so as to accommodate the DNA analysis, which made it virtually inevitable that the jury would accept that intercourse had taken place. However he did not give evidence at trial and thus it could not truly be said that the had been caught out in, or had acknowledged, a lie. It seemed to me that the worst that could be said was that the defence put forward at trial was inconsistent with what he had said earlier.
Counsel did not ask the Judge to direct on lies, but in the notice of appeal which was written out by the accused in person, he complained that the Judge had not said anything about lies. This was acknowledged by Mr Gill as being something that he had advised him about. It is clear that the appellant’s video interview presented an entirely different picture from what was being advanced on the appellant’s behalf in cross-examination of the complainant. In the interview the appellant acknowledged a degree of intimacy leading up almost to intercourse, with the possibility of some ejaculation outside the vagina, merging into a suggestion of possible unrealised intercourse, terminated once the subject of a condom was raised. Prompted possibly by the DNA analysis, in cross-examination voluntary intercourse until mention of a condom was the accused's stance. Both could not be right. To that extent, the version given to the detective could be regarded as a lie or series of lies or at least a substantial inconsistency, underlined by the fact that the appellant no longer relied on a denial of intentional intercourse or penetration.
Generally speaking, when the Crown relies on the issue of lies and it is plain that the jury may regard them as figuring in the evidence, a direction as to lies should be given, making the distinction, if necessary, between those lies which go to credibility only, generally the vast majority of lies, and those that go to strengthen the Crown case. See R v Toia [1982] 1 NZLR 555, R v Manapouri [1995] 2 NZLR 407 and R v Atkinson & Ors CA546/99, judgment 19 April 2000. In R v Oakes [1995] 2 NZLR 673, 684, this Court said:
Where the issue for a jury is simply the credibility of the evidence given by the accused, no direction as to lies is normally required. But where the accused has, or is alleged to have, told lies out of court and that fact is said to be relevant to credibility, no more than a simple direction is usually needed to explain the possible reasons for lying, and that lying is not to be regarded as evidence of guilt. What is said must be adapted to the particular case. Only in the rare instance, where it is alleged that lies point to guilt, is anything more elaborate needed …..
In this case, the closing address of counsel for the Crown, gave a clear indication that credibility was the central issue. As the memorandum from Crown counsel notes the Crown’s address included the following:
On the issue of penetration, the complainant clearly gave evidence of penetration, compare that to the video interview where there appellant denied penetration and merely said that their genitals were touching at one stage, but they did not have intercourse.
If you had had sexual intercourse, you would clearly know and the appellant had lied about this on the video in addition to the cross-examination which averred full sexual intercourse.
The Crown’s note of the defence closing address records as an individual item:
When the issue of the condom was raised sex stopped, however there had been consensual sex up until that point.

All of that throws into relief the conflict of evidence and the different version given by the accused out of court.

In those cases where a direction as to lies has not been considered necessary, generally the question of lies has not been put in issue or relied on by the Crown. See R v Mou-hi (CA 82/96, 13 August 1996). In that case the Judge, in referring to the evidence in his summing up, drew attention to the fact that a medical certificate contained a different name, date of birth and address from the appellant, who had when producing the certificate explained that as a result of her occupation she used a different name. The Judge said:
Well it’s a matter for you. She said that because of her employment she likes to keep a degree of privacy. The document on its face suggests someone of a different name, a different address and a different date of birth. Now they may all be explicable as she said to you. But one could be forgiven perhaps for having the impression that the accused is someone who will change the facts when it suits her if that is necessary.
The Court in dealing with the obvious reference to the credibility of the appellant and lies that may have been told by her said:
The Crown made no comment adverse to the appellant arising from the certificate on final addresses, so we are informed. Mr Trehey suggested that put this way a lies direction may have been required. We do not think a formal direction as to lies was required from this material. An explanation had already been tendered by the appellant as to the reasons for the information in the medical certificate and was not challenged by the Crown.
In R v Maagdenberg (CA 119/95, 16 April 1996), the Judge in summing up when referring to the appellant’s evidence, described the discrepancies as minor matters and told the jury to place little or no weight on those discrepancies. The Court said:
Mr Field however said that there was evidence which indicated the appellant had told lies to other persons on some three occasions. The first to his mother about a week before the homicide, when he told her his relationship with the deceased was all over. The second was his denial to another witness that he was responsible for a series of telephone calls made to the deceased. The third was his reply to a neighbour's enquiry of him when he was leaving the deceased's property after the homicide as to what he had done to her. The neighbour had heard the earlier breaking of glass and was concerned about the situation. The appellant's reply was "she's all right". The first two matters are of no significance. The only relevance of the third was to the state of mind or composure of the appellant shortly after the homicide. We are advised that no other use of the answer was made by the Crown. In the circumstances we do not consider the normal lies direction was required, and in context the danger which such a direction guards against did not arise.
In R v Henwood (CA 121/97, 23 June 1997) the vagueness of the answer which it was said created the lie, was considered as having minimal significance in the trial as a whole and not therefore requiring a lies direction.
In R v Worden (CA 111/99, 8 July 1999), this Court said:
The remaining conviction issue is the belated question of lies. Mr Stevens seemed at one point to be arguing that every time the Crown attacks the veracity of the accused's evidence in the witness box or his out of Court statements, a lies warning is required. That would be to require such a warning in almost every case. The very suggestion from the Judge that the accused might be lying is unlikely to be helpful to the accused and a lies warning is necessary only when there is some real danger of inappropriate reasoning. An appropriate way to deal with a suggestion from the Crown that the defence version of events is false or mistaken is to direct the jury that if that is their view they must not jump straight from their rejection of the accused's version to the conclusion that he must be guilty. Whether the accused is guilty in such circumstances requires an assessment of all the evidence the jury does accept against the standard of proof required of the Crown. The fact that here the Crown was challenging the veracity or reliability of the accused's evidence did not of itself require a lies warning, as opposed to the sort of direction just mentioned, which the Judge in essence gave in his direction about the position if the jury rejected the accused's evidence.
The Court went on to say:
In view of the Crown’s lack of reliance on the accused’s lie and the general tenor of his defence the Judge was in our view entitled to take the view that a lies-credibility warning was unnecessary and indeed could do more harm than good.
…..
If no request is made by the defence for a lies direction at trial, this Court will not generally be sympathetic to an ex-post facto suggestion that a miscarriage of justice has occurred through its absence.
Here the accused did not give evidence and to a certain extent did not rely on his video statement. By shifting the focus away from what he said on the video statement and adopting the approach that full intercourse was acknowledged, and that the condom was suggested only during intercourse, was capable of being seen as evidence of earlier lies. The Crown contended that the suggestion he was advancing in cross-examination should not be accepted because of that fact.
We think the dominating concern in this case must be the fact that the Crown made considerable play of the importance of the discrepancies in the video statement as against what was being advanced in cross-examination. It represented a different line of defence albeit arguably one which the appellant had mentioned at the end of the video statement.
There was a danger in our view of the jury simply assuming guilt as a result of the earlier inconsistent story told by the appellant. That earlier story was plainly inconsistent with what the accused was now saying, through cross-examination and final address. The position for the jury was not made any easier because it appears the defence of reasonable grounds for belief in consent was also being advanced. This is a case where it was appropriate for a lies direction to be given because the appellant's out of court statements conflicted with the case advanced by him at trial. He was therefore vulnerable to the conclusion that his out of Court statement contained deliberate falsehoods. Furthermore the Crown relied on the inconsistency to advance its case.
We agree with the Judge that there were inconsistencies but the wider picture painted in the video was different overall from the proposition now being put in cross-examination and the jury were entitled to appropriate help in dealing with the video in that respect. The case required at the very least a direction of the kind mentioned in R v Worden. The jury were being asked to reject the version in the video but they were still required to find the elements of the offence proved against the appellant's stance at the trial. The jury could have been left uncertain as to the need to do that by focussing on the video evidence.
In this case lies or overall inconsistency could have been explained by an initial reluctance on the accused's part to admit full intercourse, in the particular circumstances of the case.

Complaint Evidence

A further ground of appeal was that the Judge should not have admitted the recent complaint evidence. The complainant herself said she said nothing representing an actual complaint to the complaint witnesses. That notwithstanding those people did report complaints from the complainant as to what had happened. Whilst no doubt the absence of any direct evidence by the complainant casts doubt on whether complaints were made at all, the fact that they were made can emerge from evidence of the person to whom the complaint is directed. See R v Nazif [1987] 2 NZLR 122 (CA) 126. Mr Gill’s contention was that as the complainant had denied on two separate occasions saying anything to the recent complaint witnesses that distinguished the present case from R v Nazif.

Recent complaint evidence can be given even though the complainant does not herself depose to having made such complaint. The question for us is whether the same rule applies when the complainant denies making any complaint. We consider such denial should be regarded as going to weight rather than to admissibility. It is open to the jury to come to the conclusion that, despite the complainant's denial, she did make the complaint deposed to by the complaint witness or witnesses. If the jury come to that view, the consistency of conduct which the complaint evidences can be relied on by the Crown. Of necessity in a case where the complainant denies making any complaint, the jury would have to be very sure they should reject that denial and find the making of the complaint proved, by reference to the evidence of the complaint witness or witnesses. Whether the "standard" direction on recent complaint evidence, which the Judge has reported he gave, suffices in these unusual circumstances may be doubtful. No final conclusion is, however, necessary on that point. It is inherent in what we have said that the complainant has attested to the event or events to which the complaint witness or witnesses are referring. If there is no evidence of such an event from the complainant, it cannot be proved via the complaint witnesses, nor would there be any relevant consistency. This is because there would then be no primary evidence with which the complaint evidence could represent consistency of conduct.

Conclusion

There is in the circumstances no need for us to consider the appellant's contention that the Judge did not adequately put his defence to the jury. We are satisfied that at least in combination, the absence of a record of the summing-up, the absence of any lies or equivalent direction, and the concern about whether a standard recent complaint direction was sufficient in the circumstances, have led to a miscarriage of justice. The appeal is accordingly allowed. We quash the conviction, and order a new trial.

Solicitors

Gill & McAsey, Lower Hutt, for Appellant

Crown Law Office, Wellington

[2000] NZCA 121

11 July 2000