Tuhaka v The Queen
[2015] NZCA 540
•13 November 2015 at 11.00 am
| NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA516/2013 [2015] NZCA 540 |
| BETWEEN | HETI TUHAKA |
| AND | THE QUEEN |
| Hearing: | 4 November 2015 |
Court: | Stevens, Fogarty and Mallon JJ |
Counsel: | N Levy for Appellant |
Judgment: | 13 November 2015 at 11.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
Following a trial before Judge Barry and a jury in the Wellington District Court, Mr Tuhaka was found guilty of six counts of sexual violation against two female complainants, Z and X, aged between seven and 10 years at the time of the offending. In respect of Z, Mr Tuhaka was found guilty of rape and unlawful sexual connection. In respect of X, he was found guilty of two counts of unlawful sexual connection, and one count each of rape and doing an indecent act. Mr Tuhaka was sentenced to 13 years’ imprisonment with a minimum period of imprisonment of six years.[1]
[1]R v Tuhaka DC Wellington CRI-2012-091-619, 2 July 2013.
Mr Tuhaka now appeals against his conviction on the basis that the Judge’s directions:
(a)as to the complainants’ motive to lie about the offending were inadequate;
(b)as to propensity evidence were inconsistent with recent authority; and
(c)as to the complainants’ demeanour needed to be specifically addressed and were not.
There is also a challenge to the adequacy of the question trail in that it failed to include written directions on the above topics. Mr Tuhaka contends these errors, either singularly or cumulatively, created a real risk of miscarriage of justice and therefore his appeal against conviction should be allowed.
Background
The offending occurred on a number of occasions when it is said Mr Tuhaka opportunistically took advantage of being alone with the girls. The circumstances of the offending for which Mr Tuhaka was convicted comprised:
(a)The occasion Mr Tuhaka came into the girls’ room, climbed on to Z’s bed, told her to pull her pants down, and raped her. She was seven years old.
(b)A week later, in a game of hide and seek, Z was hiding under the girls’ bunk beds, whereupon Mr Tuhaka entered the room and locked the door. He told her to come out from under the bed and to pull her pants down, and he inserted his finger into her vagina.
(c)On one occasion when X’s mother and sisters had left the house to get pizza, X entered her mother’s room where Mr Tuhaka was present. He told X to lie down and pushed her onto the bed, turned off the light and put his fingers into her vagina and then raped her.
(d)On a further occasion, Mr Tuhaka came into the girls’ room and whilst Z was sleeping, climbed onto X’s bunk. He pulled her pyjama pants down and inserted his finger into her vagina and made her touch his penis.
Motive to lie
Trial context
Because of the importance of the trial context to the question whether directions on the motive to lie should be given, we briefly refer to the submissions of counsel and the Judge’s directions. First, the prosecutor referred to the complainants’ evidence and whether they had a motive to lie twice in his closing address to the jury as follows:
You have heard two young girls each give evidence that [Mr Tuhaka] sexually abused them in a variety of ways. Each of the complainants, I would suggest, was compelling in her own way. Each told the sad truth about those incidents. Clearly the fact that two girls have indicated this has occurred is significant in this trial. You might ask why two girls individually would make up and maintain allegations of this nature … if it were not true.
You have to be careful, I should say. It’s not for Mr Tuhaka to prove that they had a motive to lie … . But the fact there is, I would suggest, no obvious or credible motive, explaining both of these girls inventing allegations of this nature against [the appellant], and then maintaining them for 18 months or so through the difficult process that you have seen play out in this courtroom, is a factor that you can take into account in assessing their credibility. Put another way, either Mr Tuhaka is guilty, or for some inexplicable reason, each of the two girls has invented and then maintained these various allegations.
Later in the Crown closing, the prosecutor said:
Again I would suggest that is what you would expect, similarly stories which are similar in theme but not so similar as to indicate the girls have got together to formulate a story in order to get [Mr Tuhaka] into trouble. I would suggest there’s been no credible suggestion as to why each of these girls would gang up on [Mr Tuhaka] like this and make these allegations unless they were true.
Again I stress though that it is important you recognise that it is the Crown that does the proving in the criminal case. Mr Tuhaka doesn’t have to prove anything but the lack of an apparent motive incredible motive, for making up these stories is something you can take into account in assessing their credibility. After all, I would suggest their credibility is the central issue in this case.
The truthfulness or otherwise of the complainants’ evidence was also addressed by trial counsel for Mr Tuhaka, in the following terms:
Madam Foreman, ladies and gentleman of the jury, the Crown case against my client rests entirely and solely on the credibility and reliability of the two complainants in this case, that is, what do you make of their evidence? Do you think they’re telling the truth, do you think they’re reliable? And on that basis, of course, the Crown case must fail. Their evidence, I submit to you, was utter nonsense, it was absurd, it was inconsistent, it didn’t make any sense whatsoever.
The one thing we can be sure of is that they’ve lied. Why they’ve lied, I wouldn’t have a clue, would I? How could anyone know what goes on in the mind of any teenage girl, let alone these two. It’s not part of the case really, we don’t have to prove motive to lie, we don’t have to prove anything, remember? All I’ve got to show you, in fact, is that there is doubt about what they say and their reliability and credibility.
Mr Tuhaka’s counsel continued:
Why they’ve said these things I’ll never know, and that’s the truth. You’ll never know, no one’s ever going to know. They might know but we’re never going to hear it now. These things have been said so often it’s possible the girls believe them. And they’re never going to change their story; it’s been said so often. It’s a stone that’s kind of rolled and rolled and rolled.
Judge Barry, in his summing-up, gave the usual direction on burden and standard of proof. As to the defence case, he said:
[17] The defence case is that [Z] is unbelievable. This is a false complaint. The defence submit it is physically and logically impossible that he could have had sexual intercourse on a single, top bunk with two sisters top and tailing on it, there was no room. The other sister would have woken. The mother in the next room, on her computer, would have been alerted. She would surely have cried out or tried to wake her sister. The defence submit she would have complained at the time. There was nothing stopping her. And the defence submit the evidence is that prior complaining to her mother, she has talked to [X], and they, the defence submit, have made this all up.
In directing the jury how to deal with the no motive to lie submission, the Judge said:
[40] Now the Crown, in reference to both of these complainants, has made submissions that neither of them had a motive to lie about what the accused did to them. If you are to accept that submission, then that is something that you can weigh in the mix in deciding whether you accept the evidence of one or another but what is important to remember is, that just because no motive to lie has apparently emerged, that does not mean of itself that either complainant is to be believed. It is just one factor to be taken into account but you need to consider all of the issues and all of the evidence. The defence, of course, is submitting they both got together and made it all up.
[41] Underlying the approach about a submission of no motive to lie, is the presumption of innocence. The accused does not have to prove anything. He does not have to suggest to you or prove to you why the complainants may have got together to lie. If he had to, that would invert the onus of proof. So exercise caution in considering that submission and give what weight to it you consider appropriate.
Challenge on appeal
Ms Levy for Mr Tuhaka submits Judge Barry’s directions on motive to lie were inadequate. Citing a decision of this Court in Penman v R, Ms Levy contends the Judge should have directed the jury to put the Crown submission on motive to lie “to one side”.[2]
[2]Penman v R [2015] NZCA 364.
The Court in Penman identified that the Crown’s reference to a motive to lie in that case had created a risk the jury might assume the accused was required to prove a motive to lie. The trial Judge’s direction to the jury had adequately remedied that risk.[3] It was in the following terms:
[47] [The prosecutor] also said that, which I will give you a warning about, why more or less would [the complainant] put herself through this Court process and the medical examination, more or less saying if it were not true why would she do that? But, once again, it is not for you to speculate or expect an accused person to give an answer as to that. As far as that is concerned, I would urge you to put that submission to one side. That is not a matter, in my view, that you can probably take on board that kind of submission.
[3]At [31]–[33].
Ms Levy contends that a similarly-worded direction was required from Judge Barry. The jury should not have been permitted to consider the Crown submission that the complainants had no motive to lie. She submits at the very least the Judge needed to give a clearer direction that lack of evidence of motive does not equate to lack of a motive to lie.[4]
The law
[4]Relying on R v E (CA206/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [127], affirming it is improper to suggest that the fact the defence did not show a motive suggests the complainant’s evidence should be believed.
It is a common practice for a prosecutor to refer to the “absence of any credible reason [for the complainant to fabricate his/her account] as a closing argument in favour of the complainant’s credibility”.[5] Where the Crown does rely on the absence of an apparent motive to lie, the Judge must ensure the jury is nonetheless not distracted from the central issue, being whether the Crown has proved the elements of each charge beyond reasonable doubt.[6]
[5]R v Tennant [1998] 2 NZLR 257 (CA) at 265.
[6]At 265.
The law applicable to a motive to lie direction is not in dispute. This Court in R v M (CA199/00) gave the following guidance:[7]
[11] It is common for a prosecutor to ask an accused in a case of this nature if he knows of any reason why the complainant would say he has sexually abused her if that were not true. It is a natural question and one which jury members are probably already asking themselves. If the inquiry is made briefly and in a low-key way and the point is not made a special feature in the Crown’s closing address, no direction to the jury on the issue will usually be necessary. The Judge will of course give the standard directions on onus of proof and the proper approach to the evidence of an accused, as he did in this case.
[7]R v M (CA199/00) (2000) 18 CRNZ 368 (CA).
In R v M (CA199/00), the prosecutor had asked the appellant a lengthy series of questions in cross-examination after the appellant clearly explained he did not know of any reason why the complainant would lie about the complaint.[8] This Court held:
[18] Given the dead-batting of the questions by the appellant, the excesses of the prosecution would not perhaps have given rise to concern if the Judge had countered them with a strong direction to the jury pointing out that the burden of proof to the requisite standard lay upon the Crown, that it was not incumbent on the accused to provide an explanation and that it was possible that someone could be falsely accused without knowing why that was occurring. The Judge did not do this.
[8]At [12].
This Court in R v Tennant had earlier explained the importance of the point:[9]
We accept that the proposition “Why would the complainant lie?” should not be presented in a way which would deflect or distract the jury from the central issue, whether the Crown had proved the charge and each element of the charge beyond reasonable doubt. Nor should any suggestion be allowed that there was an onus on the accused to advance a credible answer. Generally, the trial Judge would be required to intervene firmly if these principles were infringed. And without wishing to burden Judges with yet another topic which must be covered in summing up, in any case where the prosecution had sought to bolster the complainant’s credibility by reference to the absence of a motive to lie, the charge to the jury needs to be clear that regardless of the absence of evidence of motive, the onus of proof remains on the Crown throughout.
We also accept the distinction between questions relating to facts on the one hand and opinion on the other, and that absence of evidence of motive should not be equated to absence of motive. There is a danger of descending into mere semantics, but in trials the situation where a slight rephrasing is sufficient to overcome a proper objection is common place. The question “Why should she lie?” must be interpreted and confined to the eliciting of facts known to the accused, not speculation as to possible motives. Likewise any submissions by the prosecutor have to be couched in a way that observes the distinction.
[9]R v Tennant, above n 5, at 265.
There is no “hard and fast rule” that a Judge must always direct a jury on this topic. R v Tennant is not to be read as suggesting an “invariable requirement”.[10] Such directions are not required every time the absence of a motive to lie is mentioned.[11] Context is important. The critical issue is always whether there is a risk the jury may view the burden of proof as being shifted from the Crown to the defendant. Where it is clear from the addresses and the summing-up as a whole that the burden of proof rests with the Crown, no such direction may be required.[12]
Analysis
[10]P (CA672/2013) v R [2015] NZCA 96 at [35], citing R v Hayman CA478/05, 23 June 2006 at [32].
[11]See for example, R v Adams CA70/05, 5 September 2005 at [74].
[12]P (CA672/2013) v R, above n 10, at [35].
We agree with Mr Marshall for the Crown that there was no error in the “motive to lie” direction given by Judge Barry. First, we do not consider Judge Barry was required to direct the jury to disregard entirely the Crown reliance on the absence of an apparent motive to lie. As the above summary of the law demonstrates, it is a line of reasoning that it is legitimate for a prosecutor to use.
Second, the adequacy of Judge Barry’s summing-up on the point must be assessed against the circumstances of the trial and specific submissions to which it responded. Here the prosecutor referred to it only twice in closing.[13] On each occasion he made it clear he was not suggesting Mr Tuhaka was required to demonstrate such a motive. On each occasion the prosecutor emphasised the burden of proof was on the Crown to prove the case. This was in turn forcefully emphasised by trial counsel for Mr Tuhaka. The question of whether the complainants would lie was one of a number of factors going to their credibility.
[13]Above at [5]–[6].
The case of Penmanv R does not assist Mr Tuhaka.[14] However, that decision demonstrated that in the particular circumstances involving a lengthy and repetitive suggestion that the complainant had no motive to lie in that case, a strong direction was warranted. We agree with Mr Marshall that Penman does not signal a general departure from the orthodox approach to motive to lie directions.
[14]Penman v R, above n 2, at [12].
We are satisfied Judge Barry’s direction was more than sufficient to dispel any risk associated with the motive to lie submissions from the prosecutor. The Judge emphasised that whether the complainants would have a motive to lie was just one factor to be weighed. He also directed it did not of itself mean that either complainant was to be believed. The Judge properly stressed that the issue did not place the burden on Mr Tuhaka of proving the complainants would lie. This was an orthodox motive to lie direction and was appropriate in the circumstances. No error has been established.
Propensity direction
Challenge on appeal
The evidence in relation to Z and X was similar. The Judge gave a propensity direction to the jury, as to how they ought to approach the evidence:
[52] I want to talk to you about what is sometimes called propensity evidence. Here the Crown say that the similarities between the evidence of [Z] and [X] make it more likely that the accused committed these offences, in that the evidence of both shows the emergence of a trademark or pattern of behaviour of opportunistically sexually abusing young girls … . The Crown submit that pattern makes it unlikely that they would have made this up.
[53] This is a legitimate submission, provided that you first accept that there are similarities or patterns in the behaviour that they allege and provided you accept those similarities are present, then you can give such weight to them that you think is appropriate as to whether they mutually support each other. But if you disagree and if you think there’s no trademark or pattern established, then it’s important that you simply consider their evidence separately, not in conjunction with each other.
[54] Here we know that they had talked to each other about what they say happened to each other prior to talking to their mother and the police. So you must be sure that any similarities have not arisen because the two got together and made it up as the defence submits they did. If you think there is a reasonable possibility they have got together and made it up or that they are simply individually not telling the truth, then there would be no evidential value, in the perceived similarities because they wouldn’t be real.
Ms Levy submits this propensity direction does not satisfy the requirements set out by the Supreme Court in Mahomed v R.[15] Specifically, she contends the direction fails to warn the jury against reasoning with the propensity evidence in a way that causes a risk of unfair prejudice. The jury ought to have been directed that, merely because the accused has or may have offended on other occasions, that alone does not establish guilt. She contends the evidence was used in this illegitimate manner, being invoked to establish guilt, and accordingly there is a real risk of miscarriage of justice.
Analysis
[15]Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [91]–[95].
The central thrust of the challenge to the propensity direction is that the Judge omitted to direct the jury that if it accepted one complainant’s evidence, it should not jump to the conclusion that the other complainant’s account is also true. However, as Mr Marshall emphasises, the passage relied upon by Ms Levy in Mahomed was in the minority judgment and was not adopted by the majority, which instead concluded:[16]
[17] We would prefer to say no more than we have on the general question of jury directions in propensity cases addressed by William Young J in his reasons. It is preferable to deal with particular problems and issues as and when they arise.
[16]Mahomed v R, above n 15.
The key question on appeal in respect of propensity directions is solely whether there was a misdirection capable of affecting the result at trial, so as to constitute a miscarriage of justice, rather than whether the direction fell short of the ideal.[17] As submitted by Mr Marshall, even the minority in Mahomed did not mandate particular forms of directions for propensity evidence. Courts have been hesitant to set down strict requirements.[18] Rather, the minority described loose categories in which propensity evidence may feature. The present case can be said to fall within the third of those categories:[19]
… where a number of witnesses give disputed evidence of broadly similar offending (usually of a sexual nature) by the defendant. The evidence of each witness supports that of the others because of the unlikelihood that independent witnesses would make up similar stories. If the evidence of one of the witnesses is much stronger than that of the others (perhaps because of independent corroboration), scenario three is similar to scenario one. But more commonly, as with scenario two, a conclusion that the defendant has the relevant propensity will simply be a corollary of, and not a stepping stone to, a conclusion that the charges have been proved.
[17]S (CA289/2013) v R [2013] NZCA 598 at [27].
[18]Mahomed v R, above n 15, at [79]–[80], [82] and [105], citing R v Campbell [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [23]: “a failure to give a direction that is no more than assistance in applying common sense to the evidence should not automatically be treated as a ground of appeal, let alone as a reason to allow an appeal”.
[19]At [85](c).
The risk in these cases is that the jury will draw a conclusion that the defendant is a person of “bad character” and that because of that conclusion the defendant is guilty, rather than using the propensity as a stepping stone to their conclusion on guilt.[20] Whether a direction is required in any individual case depends on whether the Crown is relying on propensity reasoning and, in doing so, invoking ideas about coincidence or probability; or rather whether the evidence involves aspersions on the character of the appellant in respects not directly associated with the offending.[21]
[20]At [89].
[21]At [89].
Neither of these lines of reasoning mentioned by the minority in Mahomed featured significantly in this case. There was one reference to propensity by the prosecutor during his closing. This was in the context of rebutting any defence suggestion of collusion by the complainants:
Now obviously in all of this, members of the jury, you’ll bear in mind the fact, as I touched on at that start, that there are two individuals who have made complaints of similar sexual abuse. The alleged abuse by each is not identical as you might have expected had their stories been the result of collusion as a group. However, they do have certain similarities which I would suggest show trademarks to the way in which the accused … went about his sexual offending. Again I would suggest that is what you would expect, similarly stories which are similar in theme but not so similar as to indicate the girls have got together to formulate a story in order to get [Mr Tuhaka] into trouble.
Given the limited nature of the prosecutor’s submission, we do not consider any more comprehensive or detailed propensity direction was required. The Judge gave the usual direction that each charge was to be considered separately. Moreover, the Judge directly addressed the eventuality of the jury finding any of the evidence false and explained the limited value any propensity analysis would have if that were to be the case.[22] We are satisfied Judge Barry’s direction responded to the evidence as it arose and was developed appropriately in the light of the trial context. We see no basis upon which the absence of a direction as submitted by Ms Levy created a risk of a miscarriage of justice. We dismiss this ground of appeal.
Demeanour direction
The trial context
[22]See Leef v R [2011] NZCA 567 at [21] in which this Court held the propensity direction of the trial Judge on materially similar terms as Judge Barry’s to be adequate and dismissed the appeal.
Ms Levy contends the Crown relied heavily on demeanour as demonstrated in the following portion of the closing address:
Finally, and importantly members of the jury, you’ve had the opportunity of assessing Z as a witness. You saw how difficult it was for her to tell her story, as she cried through parts of her interview and her evidence in Court. You saw her say that when she told Andrea Woods, the interviewer, the police interviewer, that she was relieved that she had told someone else because her mum became too upset when they spoke about it. She clearly felt unburdened by being able to tell her story to that interviewer. Now I would suggest again that that had the unmistakeable air of reality to it. Her demeanour was entirely consistent with a young girl who was frightened, perhaps embarrassed, reluctantly telling of the abuse that had been inflicted upon her. Yes, to put it another way, either she was an extremely good actress or she was telling the truth.
The prosecutor addressed X’s evidence as follows:
… the factors I mentioned in relation to [Z] could equally be said about [X]. You saw her demeanour, very emotional when she was being asked questions in Court, and her demeanour you might think was consistent with a young girl telling the truth. Similarly, you have heard of the demeanour of both girls when their mum and grandma were talking to them, both upset, consistent with something that had really happened.
In summarising the Crown case the Judge said:
[16] … But in essence the Crown case relies on your acceptance of [Z]’s evidence.
[17] The pointers to her reliability and believability include, say the Crown, her description of the physical detail of an act of sexual intercourse has the ring of truth, particularly for a child. Her evidence generally, her presentation as a reluctant, often distressed witness, who accepted her affection for the accused and his generosity is another pointer.
…
[39] … And further, the Crown submit that [X]’s reluctance to talk about it whether her mother at first was understandable and not an indicator of lying and the Crown submit that her presentation as hesitant and distressed is indicative of her telling the truth.
Immediately after each of these summaries of the Crown position, the Judge fully set out the defence case. This was, in summary, for each complainant, that their testimony was unbelievable, that the complaint was false and that each of the complainants was lying.
Challenge on appeal
Ms Levy submits the Judge should have given a warning in this case to the jury as to the risk of relying on demeanour evidence to assess credibility, citing the decision of this Court in R v E (CA799/2012).[23] Because the prosecutor placed significant reliance on demeanour a direction was warranted, both in respect of the jury’s approach to assessing credibility generally, but also on the demeanour of the complainants.
Analysis
[23]R v E (CA799/2012) [2013] NZCA 678.
Reliance by parties in a criminal trial on a witness’s demeanour is not inherently problematic. It is routine and usually linked to issues of credibility and reliability. This Court has rejected the idea the demeanour is a notoriously unreliable means of assessing credibility.[24] Rather, the risk lies in considering demeanour evidence in isolation from other evidence and relevant factors.[25]
[24]At [32]. See also Rua v R [2014] NZCA 599 at [49].
[25]At [34].
Jury directions as to demeanour are not invariably required, even where demeanour is given prominence by counsel.[26] Restraint is important to ensure the directions do not deprive juries of the accepted benefits of seeing and hearing the witnesses. There may also be a risk of juries interpreting a Judge’s direction as an invitation to disbelieve a witness and thereby impact the ability of the trial Judge to tailor the direction to the appropriate circumstances in each case.
[26]At [41].
Directions should be carefully linked to the circumstances of the case.[27] This will in each case depend on the points made by counsel, the relative importance of demeanour in the particular case and the existence or otherwise of other factors. Where a demeanour direction is considered appropriate, this Court has suggested the following should generally be conveyed to the jury:[28]
(a)The assessment of credibility and reliability of a witness should be broadly based, taking into account the evidence as a whole.
(b)Demeanour may properly be taken into account but is best not considered in isolation. It should be considered as one factor in the broader assessment.
[27]At [58].
[28]At [43].
In the present case the prosecutor referred to demeanour in closing. Whether this necessitated a direction to the jury must be assessed in light of the other factors as to credibility and reliability emphasised by the prosecutor. In respect of both Z and X, the prosecutor emphasised the following:
(a)The description of the physical acts and sensations by each complainant had the ring of truth and “remarkable detail” for something made up.
(b)The allegations were limited in scope, consistent with reality and contrary to the notion they fabricated the allegations to “get” Mr Tuhaka.
(c)The complainants did not claim to have witnessed each other being abused, which, if they had fabricated the story, would seem to have been logical corroboration. This is consistent with them telling the truth.
(d)Both complainants had been prepared to say good things about the defendant and their evidence had a “fair” quality to it.
(e)Their demeanour in each case was entirely consistent with a young girl who was frightened, and perhaps embarrassed, and reluctantly telling of the abuse inflicted upon her.
As Mr Marshall submits, these submissions as to the witnesses’ credibility may be contrasted with the robust attack upon their reliability by trial counsel for Mr Tuhaka (that their evidence was “utter nonsense, “absurd” and essentially entirely fabricated). Although the Judge did not give a demeanour direction, the Judge directed on the competing submissions as to credibility and reliability. He summarised clearly all the factors bearing on credibility in the round and did not focus on demeanour in isolation.
Taking these factors together, we consider the complainants’ demeanour was not given undue attention. It was couched as one of the many varying factors going to credibility. Nor is there any indication trial counsel asked for a specific direction on the issue.[29] The Judge in summing up did not focus on demeanour. We are satisfied demeanour was taken together with the other aspects of credibility and was viewed as a whole in light of both counsels’ full submissions.
[29]See, for example, Stanley v R [2013] NZSC 2 at [3]; and E v R (CA799/2012), above n 23, at [38] and [76].
We see no error in the treatment of demeanour submissions. This ground of appeal also fails.
Question trail
We have rejected each of the previous separate grounds of appeal advanced by Mr Tuhaka. However, Ms Levy submits even if these criticisms are rejected, the question trail was deficient in that it failed to set out the requisite guidance on the topics of motive to lie, propensity and demeanour, traversed above. Ms Levy submits the question trail ideally ought to have contained these specific directions. She relies on authorities confirming that a jury will often focus on written guidance during deliberations and that oral warnings as to the matters engaged are insufficient when written material does not mirror the oral warnings.[30] Ms Levy emphasises that, where the warnings and directions have been heard only once, but the submissions and cases for the Crown and defence have been set out by counsel and summarised by the Judge, the failure to include the warnings in question trails could result in juries forgetting or disregarding them and so undermining the oral warnings from the Judge.[31]
[30]Relying on R v Ahsin [2014] NZSC 153, [2015] 1 NZLR 493 at [86].
[31]Relying on R v Poitras (2002) 57 OR (3d) 538 (ONCA) at [38].
In response Mr Marshall refers to this Court’s decision in Singh v R[32] where the “principal purpose” of question trails was described as supplementing the judge’s oral summing-up, by distilling in written form the issue or issues for determination in a series of logical steps, relating the essential factual allegations of a charge directly to its legal elements.[33] Mr Singh in that case had argued the trail deflected the jury away from the defence case, because it omitted to recite key directions as to drawing inferences and lies. In rejecting that submission, this Court held:[34]
[12] … we observe that the question trail and the summing-up must be considered together. The Judge directed the jury orally on both inferences and lies. Mr Fairbrother did not suggest that the Judge’s oral directions erred nor did he explain how their omission from the question trail deflected the jury away from Mr Singh’s defence. It was quintessentially a matter for the Judge’s discretion as to whether he included any reference to either subject and we agree with Ms Bicknell that his decision to exclude them cannot be criticised.
[32]Singh v R [2014] NZCA 306.
[33]At [1].
[34]The Court considered and rejected a similar argument in relation to a separate appeal: at [34]‑[35].
We consider the principles in Singh v R are therefore a complete answer to this ground of appeal. There is clearly no basis on which it would be appropriate for this Court to depart from this previous decision.[35] No other criticism of the question trail is made by Mr Tuhaka.
[35]As per R v Chilton [2006] 2 NZLR 341 (CA) at [83].
We emphasise the question trail in this case was orthodox in so far as it set out the core factual issue in the case for the jury’s determination. It was a one issue case and the central issue was: “Has the Crown proved beyond reasonable doubt Mr Tuhaka deliberately penetrated Z’s genitalia with his penis. The defence is it didn’t happen”. The question trail also stated what was “not at issue”:
Mr Tuhaka does not suggest Z would have consented to such an act nor that he would have believed she was consenting to such an act.
Therefore, in respect of Count 1 the jury was asked:
1.1Are you sure Mr Tuhaka deliberately penetrated Z’s genitalia with his penis while on the top bunk in the children’s bedroom while she was top and tailing with her sister?
If NO find Mr Tuhaka NOT GUILTY on Count 1.
If YES find Mr Tuhaka GUILTY on Count 1.
The question trail then continued by providing a bullet point summary of the Crown case, followed by a similar summary for the defence case.
Insofar as the question trail identified the core issue, what was not at issue, and the factual question, it was compliant with the usual requirements for question trails. However, because the question trail included summaries of the respective cases, some further observations about question trails are appropriate.
In summing up to a jury, the trial Judge has two key tasks: to instruct the jury on the law relevant to the charge(s) before them, and to give the jury the necessary evidential directions needed to deal with the particular case. The Judge’s role is to marshal the evidence in a coherent manner, effectively summarising the respective cases for the prosecution and defence. As this Court said in Singh v R:[36]
Juries are best served by judicial guidance on the applicable law and how to decide disputed facts of true relevance. Any factual summaries should be concise and tailored to the issue or issues arising for the jury’s determination. Extensive recitals of the closing addresses or competing cases, whether orally in summing-up or in a written question trail, do not assist a jury.
[36]Singh v R, above n 32.
Best practice therefore involves providing the jury with a written question trail to supplement the oral directions. A question trail serves as an adjunct to the oral summing-up, providing the jury with a guide on the legal elements of the charge(s) and framework or agenda for the factual decision-making process.
Thus the central function of the question trail must be to set out in question form, related to the facts of the case, whether the Crown has proved the constituent legal elements of each count faced by the defendant. This is most useful when accompanied by an oral review in the summing-up of the evidence relating to each specific question and any relevant directions as to the assessment of that evidence, alongside the summaries of competing contentions of the Crown and defence.[37] Each element of each count should be the subject of a separate question, therefore requiring a specific finding by the jury. Typically the question trail will indicate where a relevant element is not in dispute. The question trail therefore reduces the elements of the offence to a specific factual question to be answered by the jury, in light of the evidence as it emerged at trial.[38]
[37]In some cases the complexity of the issues and evidence will require the Judge to analyse the evidence and cases alongside the question trail in the oral summing-up to ensure the issues are fully before them: see for example D v R [2014] NZCA 458 at [37]–[38].
[38]It goes without saying the elements of the law reduced in this manner must be accurate: see Ahsin v R, above n 30, at [86]; and Stepanicic v R [2015] NZCA 35 at [8]–[9].
While the contents of question trails are under the control of the trial judge, in consultation with counsel, (and while no criticism was made of the practice here) we strongly caution against including a summary of the respective Crown and defence cases in question trails. We do not consider that to be the purpose of a question trail. Moreover, presenting case summaries in the question trail has a tendency to give undue prominence to one part of the summing up, namely, summarising the Crown and defence submissions, which the jury will only just have heard. We consider the inclusion of case summaries in the question trail has the potential to give rise to various difficulties resulting in unmeritorious appellate challenges.
For example, let us assume the Judge did not go far enough in describing one or other of the respective cases. If the defence case is arguably not fully captured in the question trail (perhaps inadvertently or mistakenly), despite a complete and accurate oral summing up, there is a real risk that the content of the question trail could provide a basis for unfounded allegations of a risk of miscarriages of justice. A similar problem could arise if the question trail summary contained more information than was in the oral summing-up. Another example could arise assuming a no motive to lie direction were to be included. This would be wholly unsatisfactory unless the Judge also included what the prosecutor, defence counsel and the Judge had all said about how that issue should be approached. A further example is the issue raised on this appeal, namely that the summaries of the respective cases included reference to aspects of the evidence relied on by each side without the oral directions the Judge had given about those particular aspects. We consider best practice involves sticking with the oral directions when summarising the respective cases, coupled with the question trail setting out the factual questions on each element.
Notwithstanding the above, we find no miscarriage of justice because the oral submissions of both counsel and the Judge’s summing-up (discussed earlier in the judgment) were careful and clear. In particular Mr Tuhaka has shown no error from the fact that the question trail omitted to include summaries of directions dealing with motive to lie, propensity and demeanour. Even if such directions had been warranted in the oral summing-up (contrary to our earlier conclusions), their inclusion in a question trail would not have been consistent with best practice.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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