A (CA195/2016) V R [2016] NZCA 635

A (CA195/2016) V R [2016] NZCA 635 [22 December 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA195/2016[2016] NZCA 635BETWEEN A (CA195/2016)AppellantAND THE QUEENRespondentHearing: 19 October 2016Court: Cooper, Brewer and Peters JJCounsel: M M Wilkinson-Smith for AppellantK S Grau for RespondentJudgment: 22 December 2016 at 10 amJUDGMENT OF THE COURTA The application to amend the grounds of appeal is granted.B The application to adduce further evidence is granted.C The application for an extension of time to appeal is granted.D The appeal is allowed and the convictions are set aside.E A retrial is ordered.F Any question of bail pending the retrial is to be determined in theDistrict Court.G Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available databases until final disposition of retrial.Publication in law report or law digest permitted.H Order prohibiting publication of name, address, occupation oridentifying particulars of appellant pursuant to s 200 of the CriminalProcedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, A, seeks to appeal his conviction on three charges of historicsexual offending following a jury trial in February 2016 before Judge Cocurullo in theHamilton District Court.[2] A was convicted of:(a) indecent assault of F, a girl over the age of 12 but under the age of 16,between 18 May 1973 and 18 May 1974;(b) indecent assault of L, a woman over the age of 16, between 8 August1979 and 14 March 1981, being a representative charge; and(c) the rape of L between 8 August 1979 and 14 March 1981.[3] A submits that a miscarriage of justice has occurred in that:(a) irrelevant and prejudicial evidence of domestic violence by A towardshis wife, C, was admitted at trial; and(b) despite her denials, complainant F was the likely author of a birthdaycard written to A.[4] A sought leave to add this second ground shortly before we heard the appeal,and seeks leave to adduce fresh evidence in support. We grant leave on both of theseapplications as there is no substantial objection.[5] For reasons it is unnecessary to mention, A's notice of appeal was filed severalweeks late. Nothing turns on the delay and an extension of time is not opposed by theCrown. We grant the extension accordingly.Background[6] F and L are younger sisters of C. The offending was alleged to have occurredwhen F was 14 and L was at least 17. F and L were in their 50s by the time of the trialand A and C in their 60s.Complainant F[7] F's evidence-in-chief was that, aged 14, she had stayed overnight at A and C'shome, having been asked to babysit their newborn first child. F's evidence was thatshe had gone to sleep in the spare bedroom, but was asked to and did relocate to A andC's bed because guests who were at the house might stay the night. In the morning Fwoke to find that she was next to A and that A had his hands down her underpants andwas touching her vagina. A started to touch C at the same time. F told A to stoptouching her, A asked F to go to another room with him, F refused and A got out of thebed and left the room. F's evidence was that she then jumped out of bed to get dressedand as she did so C also got up and "ran round the back of the bed and just pulled herhand back and slapped [her] face and called [her] a slut".Complainant L[8] L, who was three or so years younger than F, gave evidence that she stayedwith A and C for several months in late 1979 or thereabouts, sharing a bedroom withtheir second daughter. Her evidence was that A came into the bedroom at night onseveral occasions, usually naked, pulled down her underpants, penetrated her vaginadigitally and masturbated at the same time. On the last night she stayed at the house,A came into the bedroom, acted as previously described and then had sexualintercourse with her. L gave evidence that A usually smelt of beer.[9] L's evidence was that she told C the day after that incident that A had beencoming into her bedroom and touching her vagina and masturbating, and that she hadintended to tell C of the rape. However, before she could do so, C "slapped [her] rightacross the face real hard and ... called [her] a slut".[10] The essence of defence counsel's cross-examination of both complainants wasthat:(a) A had not committed the acts they described;(b) C would deny that L had ever spoken to her as alleged and would denythat she had slapped either F or L or called them sluts;(c) F and her husband (and children in due course) and L had enjoyed anongoing relationship with A and C and their children, and this wasinconsistent with the events F and L had described; and(d) other matters, including their parents' separation and subsequentdivorce, were the cause of such differences as had developed betweenC, on the one hand, and F and L (to a lesser extent), on the other.A's evidence[11] In his evidence-in-chief A denied touching F. He was willing to accept that Fmay have stayed at the house when she was 14, but said that he would never have leta 14-year-old babysit his newborn child. He denied F had slept with him and C intheir bed.[12] A denied the events alleged by L and denied walking around the house naked.A agreed that he usually drank several nights a week at a local club.C's evidence[13] In her evidence-in-chief, C recalled one night when F stayed at A and C'shouse. However, F slept in the spare bedroom and never slept in A and C's bed. Falso never babysat for A and C. C denied that she had slapped F and called her a slut.[14] As to L, C recalled that L had stayed for a period but could not say exactlywhen and that L slept in a bedroom with A and C's daughter, agreed that A usually haddrinks at a club several nights a week, and said that A did not walk around naked evenif he got up in the night. C denied the alleged conversation with L and denied slappingL and calling her a slut.Grounds of appealAdmission of irrelevant and prejudicial evidence of domestic violence by A towards C[15] As we have said, the principal objection of counsel for A on appeal,Ms Wilkinson-Smith, is that the evidence was irrelevant and prejudicial. The passageof evidence in dispute arises from A's cross-examination and is as follows:Q. Do you accept during that period [the 1970s] that alcohol was an issuefor you?A. No.Q. Did you use alcohol and do things you shouldn't do?A. No. How do you mean do things that I didn't do?Q. During that period would you use alcohol and do things you shouldn'tdo?A. No.Q. Did you make bad decisions when you were using alcohol during thatperiod?A. No.Q. Are you sure about that?A. Yes.Q. I want to ask you something about the dynamics of your relationshipwith [C] in those early years?A. Yes we had a good relationship.Q. You've said that you had a good relationship. You were very much incharge weren't you?A. No not really....Q. Yes, you were the man of the house, yes?A. Probably, yes....Q. And what you said went in that household didn't it?A. Yes.Q. So you accept what I say to you that you were the person in chargeparticularly in the early, in the early stages of this lengthyrelationship?A. Oh, yes, okay, yes.Q. And it's fair to say that that situation continued throughout the '70sand at least throughout the '80s didn't it?A. Yes....Q. ... She did what you said?A. Oh, probably, yes.Q. ... without wanting to sound critical you were a fairly hard manweren't you?A. I don't know.Q. You're a fairly, or you were during that period, a fairly toughindividual weren't you?A. I still don't know.Q. Strong minded?A. Could've been.Q. Dominant?A. No.Q. Do you know what dominant means?A. A stand over person....Q. ... if you wanted something done you got your way didn't you?A. No. I'd ask.Q. You'd ask and you'd expect that your request would be followed.A. No.Q. They were followed weren't they?A. Yes, 'cos I asked....Q. When the two of you had disagreements over things do you say thatdidn't happen?A. I don't recall any sort of disagreements or any bad disagreements.Q. So throughout that period the 1970s and the 1980s there was neverdisagreements between you and [C] as to how things should happenor how things should be done?A. Not to my knowledge.Q. Things were just done the way you wanted them to be done?A. Or how she wanted it....Q. Do you say [C] never disagreed with you about anything?A. She did. She has, yes.Q. You see I suggest to you the situation was that you were the person incharge and she was scared to disagree with you about things. Do youaccept that?A. Not in that category....Q. What do you mean by that?A. 'Cos I've never ever threatened her like that.[16] Near the end of her cross-examination Crown counsel sought leave to ask Awhether he accepted that "at the relevant time there were occasions of physicalviolence in the relationship between you and your wife [C]".1 The application wasmade on the basis of ss 7 and 8 of the Evidence Act 2006 so that the Crown could"elicit answers in respect of the familial dynamic which gives explanation and/orsupport to [F and L's] position".2 Defence counsel submitted that such questionswould constitute an impermissible attack on A's veracity.[17] The Judge determined that there was "probative value in the question beingasked" and Crown counsel proceeded as follows:Q. [A], before the break I was concentrating with you on that early partof your lengthy relationship with your wife [C], remember that?A. Yes. Yes.Q. And in particular I've been talking to you about the time that yourrelationship started through to the period of about 1982?A. Yes.Q. And focusing on that period again, do you accept that there wereoccasions during that period when you were physically violenttowards your wife?A. Yes.[18] Ms Wilkinson-Smith also objects to the following passage ofcross-examination of C, on the grounds that it too was irrelevant and prejudicial:Q. And you had reason to be scared of [A] as well didn't you?A. Um, yes.Q. So the reality is that in terms of the household he was very much theperson in charge at that stage in your relationship?A. Yes.Q. And you tried hard not to upset him?1 R v [A] [2016] NZDC 2499 at [1].2 At [13].A. Um, no just carried on normal.Q. Well you'd be scared to upset him wouldn't you?A. Um, not necessarily.Q. What would happen on occasions when you did upset him [C]?A. I didn't upset [A].Q. And you didn't upset him because you were scared not to? That's thetruth of it isn't it?A. No. I just, I just done my thing darling, just bringing up my children.Q. Do you accept that within the dynamics of that relationship he was theperson in charge of what went on in that household?A. Um, no we both were. I was in charge of bringing up the children.Q. ... in terms of the way you functioned as a couple he was in chargewasn't he?A. Um, it wasn't like that, no.Q. Well I've said to you already and you've accepted that you would bescared to upset him?[3]A. Um, on certain occasions, yes.Q. You didn't want to make him angry did you?A. Um, on certain occasions, yes.Q. What do you mean by certain occasions?A. Um, when he'd had a drink.Q. That's helpful thank you [C], when [A] had been drinking you wouldnot do anything to upset him?A. No I'd just do my normal thing yeah, yeah.Q. Because the reality is that if you did upset him in those circumstancesthere would be consequences for you?A. On the few occasion, yes.Q. And when we talk about consequences we're talking about him beingphysically violent to you aren't we?A. Yes.3 As can be seen above, C had not accepted this. (Footnote added.)...Q. And those certain occasions those instances of violence occurred overa number of years in the early years of your marriage didn't they?A. The ear — the early, early years, yes.Q. And I don't suggest that there's that same imbalance now [C] butgoing back to that —A. Mhm.Q. — situation.A. Yes.Q. You accept that that existed don't you?A. Yes, yes....Q. And [A] was regularly drunk?A. On those nights yes, on the, yeah.[19] Crown counsel then put to C F's account of the alleged offending against her,that is that F, A and C had shared a bed one night, that A had started to touch F andthen C also, and that A had left the room. C denied these matters. Thecross-examination continued as follows:Q. [F] says after [A] stormed out of the room you became angry with herand slapped her and you say that's not true?A. ... yes.Q. She says that you called her a name.A. Mmm.Q. ... you say that's not true?A. Yes.Q. Just thinking about it though —A. Mmm.Q. — the age and stage you were at and in your particular circumstancesyou couldn't have done much to help her could you?A. ... I wouldn't have [F] sleeping in our own bed. ... I think it'sdisgusting. I wouldn't have my sister in my same bed as me and myhusband.Q. You were having to put up with some things in the relationship alreadythat can be categorised as disgusting though ... weren't you?A. Um, yes.Q. So my question to you is this. In those circumstances at your age andstage of the relationship had that happened?A. No darling no.Q. But had that happened, you wouldn't have been able to do anythingto help her would you?A. ... I wouldn't have her sleeping in my same bed as my husband andme.Q. I suggest that given the situation that you were in you didn't doanything to help her and in fact you got angry with her. Do you wantto comment on that?A. ... That's when she's saying I slapped her face and called her a slut?Q. Yes.A. ... no.[20] What emerges from the above is that in the 1970s A was overbearing, drank(possibly heavily), scared his wife when he became angry and on occasion wasphysically violent towards her.[21] On appeal Crown counsel, Ms Grau, acknowledged that the evidence in disputewas not admissible as veracity or propensity evidence but submitted that the evidencewas relevant to "the family dynamics to explain the reaction of [C] to [A's] behaviourand why no action was taken by her". Ms Grau submitted that there was an evidentialfoundation for the Crown's cross-examination as to A's alcohol consumption and hismarital relationship because:The abuse of both girls took place in the context of alcohol consumption by[A] as well as the presence of his wife who was made aware of the abuse anddid nothing, both of which she denied.[22] This submission is not wholly accurate as regards the evidence. L's evidencewas that A smelt of beer at the time of the alleged offending against her. A himselfacknowledged that he drank after work several nights each week. F did not suggestthat A was affected by alcohol as regards the offending against her. Also, although Fgave evidence that C was present at the time of the offending against her, L did not.That said, C would have been present in the house at the time.[23] More importantly, however, the evidence was not relevant to issues at trial.This was a trial of allegations against A of sexual offending against F and L. F and Ldid not link A's conduct towards C with the offending that they alleged. Neither gaveevidence that they were scared of A or that he threatened them with violence or thatthey were intimidated because he was violent or overbearing towards C. L said that Cwas submissive, but no more than that. This is not a case in which the complainants'evidence against A needed explanatory amplification by reference to events happeningwithin the family. Evidence blackening A's character could not add anything of valueto F and L's account of the alleged offending against them.[24] This brings us to Ms Grau's submission that the evidence was relevant to C'sawareness of A's abuse and her failure to act. The submission that C was aware of theabuse arises from the evidence that each of F and L gave of exchanges with C at thetime of the offending or shortly afterwards. Those exchanges, if proved, would givesome support to F and L's allegation that the offending had occurred.[25] However, C categorically denied that the exchanges had occurred. Herevidence was that nothing of the sort had taken place. Evidence that A wasoverbearing towards C or had been violent towards her did not render F and L'saccount of their interactions with C more or less likely to be accurate. That evidencewould not tend to prove or disprove that those exchanges took place.[26] For these reasons, evidence that A was domineering and/or physically violenttowards C did not pass the relevance threshold in s 7 of the Evidence Act and wasinadmissible.4 The evidence was also prejudicial because it served to discredit A inthe eyes of the jury.4 Evidence Act 2006, s 7(2) and (3).[27] Given the above, there was an error "in or in relation to or affecting the trial".5Authorship of birthday card in dispute[28] In cross-examination F was asked about various birthday cards that she hadsent to A, initially on behalf of herself and her husband but in time adding the namesof their children.[29] F denied authoring one of the cards, which addressed A in a sexually suggestivemanner. Defence counsel had apparently not anticipated the denial and did not haveexpert evidence available to counter the denial.[30] A has since engaged a document examiner whose opinion is that the card was"probably" written by F, although a conclusive determination is not possible given thatthe examiner does not have the original document and the limited writing on the card.[31] Given the conclusion we reach on the first ground of appeal it is unnecessaryfor us to say more about the point.Miscarriage of justice[32] The final issue to consider is whether the error referred to in [27] above"created a real risk that the outcome of the trial was affected".6 A "real risk" equatesto "a reasonable possibility that a not guilty verdict would have been delivered ifnothing had gone wrong".7 If a real risk is identified the Court must allow the appeal.[33] Ms Grau submitted that this was not a case where there was "a particular riskof unfair prejudice associated with the evidence". That is because Crown counsel attrial did not refer to the evidence in her closing remarks to the jury. Defence counseldid address the evidence, saying to the jury that the evidence was irrelevant to theissues they were required to decide. Also, as Ms Grau submitted, the Judge gave theusual directions to the jury to the effect that they must not allow themselves to beinfluenced by prejudice or sympathy and that the jury must "guard against any5 Criminal Procedure Act 2011, s 232(4).6 Section 232(4)(a).7 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [29].tendency to think along the lines of well in any event he has a tendency to behavebadly so he must be guilty". The Judge said to the jury that would be "false logic andobviously unfair".[34] Ms Wilkinson-Smith submitted that there was a real risk that the outcome ofthe trial was affected by the evidence because it blackened A's character and wouldhave led the jury to consider A to be of a "generally bad disposition". She alsosubmitted that the evidence would have diminished C in the eyes of the jury.Ms Wilkinson-Smith submitted that the Judge's directions to the jury were notsufficient to counter these matters.[35] The admission of irrelevant and prejudicial evidence will not inevitably leadto an appeal being allowed. However, this case largely came down to thecomplainants' word against A's. The evidence in dispute was undoubtedly prejudicialto A and we consider it would have brought him into disrepute with the jury. This wasa case in which the jury was required to weigh the credibility of the principalwitnesses, being F, L, A and C. F and L's accounts, although compelling on their face,were not without difficulty. The nature of the birthday cards and the relationships,which appear to have existed beyond the point in time at which the offending was saidto have occurred, were somewhat inconsistent with the allegations against A. In theparticular circumstances of this case, the necessary "real risk that the outcome of thetrial was affected" exists because of the contest as to credibility to which we havereferred.Result[36] The application to amend the grounds of appeal is granted.[37] The application to adduce further evidence is granted.[38] The application for an extension of time to appeal is granted.[39] We allow the appeal and set aside the convictions on all charges. We order anew trial. Any question of bail pending the retrial is to be determined in theDistrict Court.[40] For fair trial reasons we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of the retrial. Publicationin a law report or law digest is permitted.[41] To protect the identities of the complainants we make an order prohibitingpublication of the name, address, occupation or identifying particulars of the appellantpursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent