The Queen v Wiremu William Te Hiini
[2002] NZCA 170
•19 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA134/02 |
THE QUEEN
V
WIREMU WILLIAM TE HIINI
| Hearing: | 15 July 2002 |
| Coram: | McGrath J Robertson J Gendall J |
| Appearances: | D A Laurenson for the Appellant Cou |
| Judgment: | 19 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J |
The Appeal
The appellant was convicted after trial by jury on one charge of sexual violation by rape and one charge of indecent assault, the offending having occurred over a six month period during the second half of 2000.
The complainant in each case was a child who was born on 17 January 1990 so she was at all times under 11.
The appeal is advanced on the basis that:
(a)There was insufficient evidence to convict the appellant on the charge of sexual violation by rape. Counsel at the hearing rephrased this ground as a miscarriage of justice because the only available evidence of rape was from the complainant and she was an unreliable witness.
(b)The District Court Judge had erred in permitting one Quinton Hiini to give evidence of recent complaint which resulted in a miscarriage of justice, and
(c)The District Court ruling on the application under s23D of the Evidence Act 1908 with regard to mode of evidence was in error in that the Court should not have been satisfied that the complainant could give evidence by way of evidential video prior to further examination and cross examination behind a screen.
Litigation history
The appellant stood trial twice. At a first trial in March of 2002 the jury was unable to reach unanimous verdicts. The original indictment contained the two counts noted above although it is apparent from the summing up at that first trial that, by its conclusion, the jury had been advised that if they returned a not guilty verdict on the rape count they needed to consider as an alternative an attempt to commit sexual violation by rape.
At the retrial in April, the indictment specifically included as an alternative a charge of attempted sexual violation by rape.
In addition to the 2 trials, the District Court heard 3 applications under s347 of the Crimes Act 1961. The first was at the conclusion of the Crown case at the first trial, another prior to the commencement of the second trial, and a third after the jury’s verdict but before sentencing at the second trial.
It appears that there were various rulings made prior to, or in the course of the first trial, on points which were not raised again or challenged at the second trial as might have been the case R v Cossey [1991] 1 NZLR 566. We have not considered these issues on that technical basis but have rather viewed the total situation. We remain nonetheless persuaded that the verdicts were sustainable, that no error in process arose and there was no miscarriage of justice.
Rape conviction unsustainable
In a comprehensive and careful submission on the first ground, Mr Laurenson argued that there was inconsistency and a lack of precision in the evidence of the complainant to such an extent that it could not be relied upon. We are not persuaded that this is a fair categorisation of the position. We are dealing with a child of 10 who, on the evidence, had been subjected to sexual abuse from more than one person.
It appears that, as a result of prior incidents, she knew exactly what was involved in penetration. In the evidential video she talked, a number of times, about the appellant “trying to put his thing in my thing”. When this is read in context it is clear that, even there, she was clear that there had been a touching by the penis in the ‘middle’ of her vagina. At the first trial some confusion was created, although it appears in part properly attributable to the complex, ambiguous or compound questions asked of her.
However, on the crucial point of penetration in the second trial, the complainant was directly asked:
Q: And it didn’t actually go into your fanny, did it?
A: Um, it did a little bit.
The complainant was cross-examined about what she had said at the first trial on the basis that there was a prior inconsistency. Again she could not be budged on her assertion that “it did go in a little bit”.
Despite being persistently challenged about the activities of other people and what she had previously said, this young girl remained adamant that there had been a ‘little bit’ of penetration.
As against this evidential scenario, at both trials the presiding Judges were at pains to identify and clarify for the jury the difference between actual penetration and an attempt to penetrate. There is nothing which leads us to conclude that the jury were not fully cognisant of the critical issue which they had to decide.
There had been a total denial by the appellant of any sexual misconduct. It was made clear to the jury that they first had to be satisfied beyond reasonable doubt that something sexual had in fact occurred and then they were required to be satisfied beyond reasonable doubt that there had been some degree of penetration of the genitalia before they could convict on the rape charge.
There is nothing unusual about this case and there is no basis upon which the Court could conclude that this complainant was unreliable or that her testimony was incredible on the critical position. It was a classic jury issue.
Associated with this ground were arguments that s347 applications for discharge should have been granted at the various stages they were made. Without doubting the ability of a Court to intervene where the interests of justice so require, we are sure that there was nothing in this case which would have warranted such a course.
There was material tendered on appeal which was submitted to be new evidence which should also be weighed. We are not satisfied that it passed the test for admissibility, but even if it did, it does not in our judgment, alter the fact that there was always a proper evidential base to continue with the trial. The jury were fully acquainted with their duty and obligation and there is accordingly no basis on which the conviction for rape could have been challenged successfully or should be interfered with now.
Evidence of Complaint
We are not satisfied that there is substance in the ground relating to recent complaint evidence. This had been ruled upon by a third District Court Judge prior to the first trial and was not subject to further challenge. The Judge found that the complaint made to Mr Hiini was made so close to her comment to her girl cousin that it should be considered as being made on the same occasion. The Judge also concluded that both were made at the first reasonable opportunity. The issue was treated as a developing complaint.
This is a challenge to the exercise of a discretion. We could not hold that the Judge had been wrong in the view that there had been disclosure to two people as part of a developing chain. The fact that there was a period of three or four weeks since the last incident of abuse is unremarkable or out of the ordinary in dealing with a 10 year old, particularly one who had been subject to substantial abuse at the hands of a number of people over a period of time. There is nothing in this exercise of discretion which is contrary to what was said by this Court in Nazif [1987] 2 NZLR 123, or R v Accused (CA 289/95) (1986) 14 CRNZ 399.
Mode of Evidence
The application under s23D for an order under s23E of the Evidence Act 1908 was accompanied by an affidavit from Sally Ann Holland, the officer in charge of the investigation. She deposed that she had been working in the field of child abuse for 2 years and offered some generalised comments about the experience of complainants having to give evidence in the presence of an accused person. She also indicated matters which had been conveyed to her in conversations with the complainant and her guardians. This was criticised by counsel before us as had been the case in the District Court.
Counsel properly noted that there is no presumption in s23 about any particular mode and accepted that what must be balanced is the need to minimise stress and the accused’s right to a fair trial.
Particular emphasis was placed by counsel on the decision of Fisher J in R v Teariki (1999) 16 CRNZ 540. It is to be noted that, in that case, the Judge was dealing with the position of a 14 year old, not a 10 year old. Although the Judge was critical of some aspects of the evidence presented, he nonetheless granted the application in the form sought.
In this case there was no other evidence. The Judge who heard the matter properly assessed the issues which were put to her and reached a conclusion that the material was sufficient. The Judge noted, in particular, that she was dealing with a girl who was still only 11 years of age, that the matter involved a complaint about a person who had been brought up virtually as her brother and the Judge concluded that, even without expert evidence, it was established (on a proper foundation) that giving evidence in open Court would be traumatic.
There is no basis upon which we could conclude that that was not an available decision for the Judge to reach. It is to be noted in any event in this case, that had the matter not proceeded on the basis of the video interview first being received, it is virtually inevitable that, to challenge the complainant about her various responses and reactions, it would have been necessary to introduce it at some later stage. This aspect of the appeal has no validity.
Conclusion
None of the grounds of appeal are sustainable and the appeal is accordingly dismissed.
SOLICITORS
Govett Quilliam Solicitors, New Plymouth
Crown Law Office, Wellington
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