LANGMAN v POLICE [2022] NZHC 3209

LANGMAN v POLICE [2022] NZHC 3209 [2 December 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-220[2022] NZHC 3209BETWEEN AARON LANGMANAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2022Appearances: S Pyke for AppellantR E Budd for RespondentJudgment: 2 December 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 2 December 2022 at 3:00 pmRegistrar/Deputy RegistrarSolicitors:Meredith Connell, AucklandIntroduction[1] Aaron Langman (the appellant) was charged with assault on a person in afamily relationship.1 The complainant, N, is his former partner. At the conclusion ofa Judge-alone trial in the Auckland District Court on 10 June 2022, Judge J D Largefound the appellant guilty, and convicted him of the charge.2[2] The appellant now appeals against his conviction. His grounds of appeal allegethat:(a) The Judge failed to take proper account of the complainant's tendencyto lie about a matter relevant to a fact in issue in the proceeding, or anattack on her veracity.(b) The Judge erred in his finding that text messages and a screenshot sentto the appellant in April and May 2021 were of no relevance to theevents occurring on 14 October 2020.(c) The verdicts regarding the "kitchen" and "bedroom" assaults areinconsistent.The alleged offending[3] The alleged offending was summarised by the Judge in his decision deliveredon 10 June 2022. He said:[10] [N], in her evidence, said that the defendant had been drinking atwork, had come home and was continuing to drink. Her evidence was that hehad a bottle of red wine, a box of beers, and then was commencing on spirits.Her evidence was that she had gone to bed, and at about 11 o'clock orthereabouts she went to the kitchen to ask him if he was coming to bed, or ifnot to at least turn the music down. She said that at that point she was pushedto the floor by Mr Langman, and consequently bruised her knee. There was aphotograph shown in evidence to the complainant, and she confirmed it washer right knee that had been bruised and that photograph was taken at thattime.[11] She then said she went to the bedroom and got into bed. The bed is amattress on the floor, as opposed to a bed with a bed base as I understand her1 Crimes Act 1961, s 194A.2 New Zealand Police v Langman [2022] NZDC 10946.evidence. She said that she was in bed and the defendant came in. He wasstanding to the side of her and then put all his weight on her, effectively fallingonto her while she was in bed, initially on her feet, and then as she movedthere were, on her evidence, actions by the defendant which caused him to sortof elbow her to her face and restrict her breathing. She then said she had tobite him twice when he was restricting her breathing and he was pushing heronto the floor.[12] The defendant denies that, saying it did not happen. He acknowledgedhaving some six beers or so. He said that the complainant had been hasslinghim. The sergeant had put that she was "nagging" him, and as a consequenceof that nagging, in the sergeant's words, Mr Langman, being drunk, was angryand behaved in the way that the complainant said he behaved. He said no, hedid not.[15] Clearly, there is a conflict in the evidence here between that of thecomplainant and that of the defendant. Their accounts of the same events arepretty much at odds in every respect.[19] Because of the difference in the two respective positions and therespective stories, I have to assess the credibility and reliability of the evidenceof both the defendant and the complainant.[21] In considering this case and the fact scenario, the police haveproceeded on the basis of effectively two parts to the incident, namely theincident in the kitchen and then the incident in the bedroom.[22] The evidence of [N] in the kitchen was that she was pushed byMr Langman and fell heavily to the floor and bruised her right knee. As I havesaid, the right knee is seen to be bruised in the photograph. That evidence from[N] was not challenged as to how in any other way that bruise could haveoccurred.[23] The inference I draw from the evidence I have is that there was abruise caused by Mr Langman in the kitchen, and as a consequence if that wasthe only issue for determination that would be the answer to the chargebecause I would be sure about that, but given the second part of the policecase, the allegation of the assault in the bedroom, I am obliged to look at thatevidence as well.[24] [N] in her evidence said that the defendant's actions were deliberate.She did not say "deliberate", but that is the inference she wants me to drawfrom her evidence, that: "He flopped himself onto the floor, onto my feet".Those were her words when she gave her evidence. In answer to the sergeant:"What happened next?", she said: "He sort of elbowed me".[25] Mr Langman said that did not happen.[26] I find it difficult to be sure that what [N] said happened in the bedroomdid indeed happen, and my uncertainty is because if she had had to bite MrLangman twice, as she has told the police, there would clearly have been somemark on his arm given it was not a one bite action, it was two.[27] I find it not credible that there was such an action which left no markwhatsoever, and I am satisfied from what Constable Robinson said, that therewas no mark on Mr Langman's arm at the time he was speaking with the policethat night.[28] If the test was on the balance of probabilities the answer may bedifferent, but in respect of the bedroom incident I am not sure and therefore Iam not satisfied beyond reasonable doubt that that part of the incident occurredin the way I was told.[29] But. in respect of the kitchen incident, I am sure and do accept [N's]evidence. One of the reasons I reject Mr Langman's evidence in relation tothat was his denial was also accompanied by embellishment to his evidence,in that there were issues not put to [N] about the ripped clothes that MrLangman told me about this morning.[30] Had there been no other evidence from [N] and it was just a "he said"and "she said" situation, then again on the balance of probabilities I would belikely to dismiss the charge, but here there was the independent or actualobjective evidence available in the photograph of the bruise on the knee whichis consistent with the evidence given by [N].[31] I am sure that the assault in the kitchen did occur, and I find the chargeproved as to the kitchen incident alone.Approach on appeal against conviction[4] The appellant appeals his conviction pursuant to s 229(1) of the CriminalProcedure Act 2011 (the Act). Section 232(2)(b) provides that in the case of a Judge-alone trial, the court must allow the appeal if it is satisfied that the Judge erred in hisor her assessment of the evidence to such an extent that a miscarriage of justice hasoccurred, or in any case a miscarriage of justice has occurred for any reason.[5] Miscarriage of justice means any error, irregularity, or occurrence affecting thetrial that has created a real risk that the outcome of the trial was affected or has resultedin an unfair trial, or a trial which is a nullity.3 What amounts to a miscarriage of justiceis something more than an inconsequential or immaterial mistake or irregularity. Theappeal court must determine whether there has been a "true miscarriage", beingsomething which has gone wrong and which was capable of affecting the result of the3 Criminal Procedure Act 2011, s 232(4).trial.4 The appeal court should disregard those irregularities which plainly could not,either singly or collectively, have affected the result of the trial and which thereforecannot properly be described as being miscarriages.5[6] The appeal is to proceed by way of a rehearing, and the appeal court is requiredto form its own view on the facts in accordance with the approach described in Austin,Nichols & Co Inc v Stichting Lodestar.6 The Court of Appeal in Sena v Policeexplained the proper approach:7[38] If an appellate court comes to a different view on the evidence, thetrial judge necessarily will have erred and the appeal must be allowed. But,to the extent that [counsel for the appellant] was suggesting that the role of anappellate court is to consider the issues de novo as if there had been no hearingat first instance, then we do not agree. Since it is an appeal, it is for theappellant to show that an error has been made. Further, in assessing whetherthere has been an error, an appellate court must take into account anyadvantages a trial judge may have had. Because of this, where the challengeis to credibility findings based on contested oral evidence, an appellate courtwill exercise "'customary' caution". There are two main, overlapping, reasonsfor this.[39] The first is that a slow-paced trial, at which the evidence emergesgradually, provides a good opportunity for evaluating the strengths andweaknesses of a case. In assessing the plausibility of what is said by thewitnesses, the judge has the advantage of being also able to form a view as towhat sort of people they are. This is an appreciable consideration despite thenow well-recognised difficulties with demeanour-based credibilityassessments.[40] The second consideration, in effect the other side of the coin to thefirst, is that appellate judges dealing with a case on the basis of a written recordof what happened at trial and the submissions of counsel are unlikely to be aswell-placed as a trial judge to determine contested questions of fact based oncontested oral evidence. [7] Where the court finds that something amounting to a miscarriage has occurred,it may only dismiss the appeal if, after considering all the admissible evidence, itconsiders that notwithstanding that there has been a miscarriage, a guilty verdict wasinevitable in the sense of being the only reasonably possible verdict on that evidence.84 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [31].5 At [30].6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.7 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 (footnotes omitted).8 R v Matenga, above n 4, at [31].[8] If the appellate court allows the appeal it must set aside the conviction, andmust also direct a judgment of acquittal be entered or direct that a new trial be held,or make any other order it considers justice requires.9SubmissionsThe appellant[9] Ms Green for the appellant says that the Judge erred by failing to determine thedisputed facts regarding several text messages the appellant alleged the complainanthad sent him some five or six months after the alleged assault in which she demandedthat he pay her a sum of $10,000. Ms Green submits that the text messages whichwere sent to the appellant by the complainant reveal her ulterior motive for making afalse complaint to the Police — that of obtaining a sum of money from the appellant.[10] It is convenient to set out what the Judge said about the text messages issue:[9] I heard a great deal of evidence relating to subsequent actions, andtexts sent in April and a screenshot in May 2021. I do not see though I have tomake any determination on the substance or ingredients of those texts becausethat is not going to assist me in my determination of what, if anything,happened on 14 October 2020. I am not obliged to make findings on allmatters, just on issues that assist me to determine the critical question here.[11] In the course of her cross-examination of the complainant, Ms Green showedher a single page of paper containing a text message dated 28 April 2021 in whichdemand was made for the payment of "ten k" into a nominated bank account by thefollowing day. The text messages included:You'll be arrested today for contacting me and saying I claim to be a victim. Iactually am. Your [sic] a piece of Fucking shit for what you have done.I needed help I wouldn't ask for [sic] from the man who bashed us unless Ireally really needed it and all I get is abuse and stalked by Fucking ugly pizzaface waldens [sic] for 6 months[12] The text message also contained threats that the appellant would be sent to jailand assaulted in prison by gang members and the statement: "How hard would havebe to come c your baby." Under cross-examination the complainant said that she9 Criminal Procedure Act, s 233.didn't believe that she had sent the text message to the appellant. The cross-examination of the complainant proceeded as follows:Counsel: Well did you send that text to demand $10,000 fromMr Langman?Complainant: No, I don't believe that, I don't actually believe that I did, Idon't recall that.Counsel: Okay, you do understand the difference between "I don'trecall" and "I don't believe I did"?Complainant: I don't recall, I just don't recall and I'd just had a baby fromafter.Counsel: Are you saying you could have sent this because you wereunwell, and you just don't remember?Complainant: I don't think so.Counsel: You have been unwell at times during the relationship?Complainant: Only due to [the appellant's] ongoing abuse.[13] Ms Green submits that the evidence regarding the complainant sending the textmessages to the appellant was relevant to the complainant's veracity. She says thatthe complainant's veracity was also challenged in cross-examination when it wassuggested that the complainant was effectively making an allegation of rape, whichthe complainant immediately retracted.[14] Ms Green submits that the evidence regarding the allegation of rape made bythe complainant and also the out of court statements made in the text messages sentby the complainant to the appellant reflect on the complainant's veracity and herdisposition to lie. Counsel submits that the evidence qualifies as evidence of veracitypursuant to s 37(3)(a), (c), and (d) of the Evidence Act 2006. Ms Green says that thecomplainant's "spontaneous evidence of a rape complaint, shows that when under thelegal obligation (while giving evidence), she was careless (at least) with the obligationto keep to her oath to tell the truth". Ms Green submits that the complainant's evidenceon that issue was relevant to her veracity and could have been taken into account bythe Judge when considering the assault that the complainant alleged had taken placein the kitchen on 14 October 2020.[15] Ms Green submits that the text message extorting money and threatening thatthe appellant would be assaulted in jail by gang members, is veracity evidence.Counsel submits that the text messages show that the complainant is motivated not totell the truth and that she is motivated by other considerations such as getting helpfrom the appellant, asking the appellant to go and see their baby, and paying hermoney. Ms Green says that it can be inferred that if the complainant could get themoney she would either attempt to withdraw her complaint or give false evidenceabout the alleged assault.[16] Ms Green says the evidence shows that the complainant has a disposition tolie. Ms Green accepts that although the complainant was not shown to have lied bymaking a false complaint regarding being forced to have sex with the appellant, shewas shown to have "a biased disposition" towards the appellant. Counsel furthersubmits that the complainant's evidence on these matters also goes to the issue of herreliability as a witness, and she submits that the Judge ought to have taken the evidenceinto account under s 122 of the Evidence Act.[17] Ms Green further submits that the decision of the Judge in finding the allegedassault in the kitchen proven and not finding the alleged assault in the bedroom proven,amounts to inconsistent verdicts. She submits that there is an inconsistency becauseproof of both assaults is based on the complainant's account of what occurred, and shesays there is no independent evidence to verify either of the assaults.[18] Ms Green says that the Judge found the assault in the kitchen proven by reasonof the photographs of the bruise on the complainant's knee. She notes that althoughthe Judge described the photos as being "independent" evidence of a bruise, it is notindependent evidence. Ms Green says that the only evidence of the complainantsuffering a bruise to her knee was that given by the complainant herself. She says noexpert evidence was presented by the prosecution regarding the bruise to establish thatby its appearance its age could be determined. She says that there being no medicalor other independent expert evidence the only evidence of the complainant havingsuffered the bruise as a result of the assault was that of the complainant herself anddepended entirely upon her being accepted as being a reliable witness.[19] Ms Green submits that the Judge erred by mistreating the photographs andevidence of the complainant as independent proof of the assault in the kitchen.[20] As regards the appellant's evidence at trial, Ms Green submits that it was clear,compelling, consistent, and cogent. She submits that by comparison, thecomplainant's evidence can be characterised as being argumentative, unreliable andlacking veracity. She submits that the appellant's evidence ought to have created doubtas to the complainant's account of both assaults.The respondent[21] Ms Budd for the respondent submits that the text messages produced to theDistrict Court and referred to in the evidence are not relevant to the facts in issue. Shesubmits the Judge was correct to disregard the evidence regarding the text messagesand they were not relevant to either the events of 14 October 2020, or to thecomplainant's credibility and reliability. She submits that the evidence does not havethe quality of being substantially helpful to the Court, and should not have beenadmitted.[22] Ms Budd accordingly submits that the Judge disregarding that evidence doesnot amount to a miscarriage of justice.[23] As regards the issue of whether or not the complainant had alleged that she hadbeen raped by the appellant, Ms Budd notes that the complainant made it clear in herevidence that she was not suggesting that at all, and the Judge was entitled to disregardthat part of her evidence as not being relevant to the issue of the complainant'scredibility and the issues he had to decide regarding whether the charge was provenbeyond reasonable doubt.[24] Ms Budd submits that while the Court should exercise the "customary caution"when considering the Judge's decision to prefer the complainant's evidence to that ofthe appellant as to what had occurred on 14 October 2020, the Judge explained hisreasons for finding the charge of assault relating to the incident in the kitchen proven.She says that the Judge was justified in finding that the evidence regarding the bruiseon the complainant's right knee provided support for her evidence regarding whathappened in the kitchen when she was assaulted by the appellant. Ms Budd also notesthat the complainant was not directly challenged in cross-examination regarding herevidence of suffering a bruise from the assault. Ms Budd says that the existence ofthe bruise and it having been caused by the assault was not an element of the offenceas charged, and therefore the prosecution did not have to prove it was caused by theappellant's actions on 14 October 2020. She says that therefore it was not necessaryfor the prosecution to call evidence from an expert or medical evidence regarding thebruise in order for it to be appropriate for the Judge to accept the complainant'sevidence to have suffered the bruise as a result of the assault.[25] In response to the appellant's submission that the Judge's different findingsregarding the kitchen and bedroom assaults amount to an inconstancy of verdicts andmiscarriage of justice, Ms Budd submits that the Judge was entitled to consider theseparate aspects of the assault differently and reach different conclusions on them. Shesubmits that while the Judge's assessment of the reliability and credibility of thecomplainant's account of the assault that she said took place in the kitchen was alsorelevant to his assessment of her account of what she said occurred in the bedroom, itwas nevertheless open to him to reach the different conclusions that he did, and heexplained his reasons for doing so.[26] Ms Budd submits that the Judge's findings and verdict do not constitute amiscarriage of justice, and he was entitled to find that the prosecution had dischargedthe burden of proving the charge to the requisite standard of proof beyond reasonabledoubt. She accordingly submits that the appeal should be dismissed.Discussion[27] In her evidence at the trial the complainant said that she and the appellant hadbeen in a relationship from around the start of November 2019. And in October 2020she was 13 weeks pregnant. She said that the appellant had come home that eveningafter he had been drinking at work. After he arrived home he kept drinking. She saidthat she went to bed, and later at about 11.00 pm got up and went to ask the appellantwhether he was coming to bed or if not to turn off the music he was playing. She saidthat the appellant reacted by abusing her about their finances. She said that she thenwent to the kitchen to get her medication and the appellant was also in the kitchenpouring himself another drink. She said that it appeared that the appellant had thoughtthat she was going to hug him, and that he had violently pushed her away and onto thehard floor. She said that the appellant had been standing beside her and he had pushedher over with all his weight. She said that when she was pushed to the floor it wasreally painful. She said that she had landed on her right side and really hurt her kneein the process. She said her knee "just smashed onto the floor". She said that shepicked herself up and went back to bed and lay down across it. She said that theappellant was by that stage extremely intoxicated and that he came into the bedroom,"flopped himself down on to the floor, onto my feet and put his full weight down onme". She said there was then: a bit of a skerfuffle where he's turned around, he elbowed me in the neck,he then used an open hand on my face, he tried to restrict my breathing. And then I have bitten him in an attempt to get away and then I've gotten awayfrom him and I have called the police.[28] The complainant was referred to the photographs taken by the Police andproduced as Exhibit 1 showing her right leg with two distinct bruises in the area of herknee. She said that they were "the instant bruises that [she] received from [theappellant] pushing [her] onto the kitchen floor".[29] It is quite clear from the photographs produced as Exhibit 1 that the bruisesshown in them are consistent in terms of their location with the complainant's evidenceas to how and when they were caused. They are both quite large and distinct bruiseswith red/purple colour in the centre.[30] When Police Constables Robinson and George arrived at the address sometimeafter midnight, Constable Robinson said in evidence that the appellant was in thelounge area and he was "quite highly intoxicated", and appeared to be "almost vacant".Constable Robinson said that the appellant said to him something along the lines of:"She was just having a go at me, she was yelling at me and then bit my arm".Constable Robinson said that he had then asked to see and was shown the appellant'sarm, but he couldn't see any visible marks from what he was suggesting.[31] The complainant's evidence regarding what happened in the kitchen when theappellant forced her onto the kitchen floor and she landed on her right side hurting herknee, is consistent with the location and appearance of the bruises on her right knee asdepicted in the photographs, Exhibit 1. The photographs are independent evidencewhich corroborate the account given by the complainant of what happened in thekitchen and how she came to suffer the injuries which produced the bruises.[32] The appellant gave evidence and was cross-examined by the Police prosecutor.In his evidence in chief the appellant said that after he arrived home on 14 October2020 he "might have had a few beers" and had cooked himself some dinner. He saidthat the complainant was asking him where he had been all day and an argumentdeveloped between them and continued to escalate. He said that the complainanteventually went to bed, and about an hour afterwards he went to bed and tried to liedown on the bed but the complainant started kicking him in the back and trying topush him out of the bed. He said that he had attempted to leave the bedroom and goand sleep somewhere else, but the complainant had followed him around the houseand was screaming at him, and at one stage they were both in the kitchen together.[33] Although the appellant said that he did not push the complainant to the groundin the kitchen, he did not describe anything happening that could account for thebruises she suffered on her knee.[34] Under cross-examination the appellant denied assaulting the complainant ineither the kitchen or the bedroom, and denied that he was angry at her. He acceptedthat the text message he said he had received from the complainant was sent to himshortly after the birth of the complainant's baby and some six months after the eventsof 14 October 2020.[35] I reject Ms Green's submission that there is no independent evidence of theassault in the kitchen and that the only evidence of what happened relies on theaccuracy of the complainant's evidence. The complainant's account of what happenedwhen she was forced or pushed onto the kitchen floor by the appellant is supported bythe existence of the bruises in the area of her right knee, and by the Police photographsof her right leg on which the bruises are clearly visible. The complainant's account isfurther supported by the evidence of Constable Robinson regarding the "quite highlyintoxicated" state the appellant was in when he saw him shortly after midnight on14 October 2021. And I note that Constable Robinson said that the appellant told himthat the complainant had bit his arm, which is consistent with what the complainantsaid she did when the appellant had flopped on top of her on the mattress on the floorafter she had returned to the bedroom.[36] It is apparent from the written transcript of the complainant's evidence that shegave a clear and measured description of what she said had happened. Under cross-examination she was responsive and demonstrated that she was being careful to beaccurate. As an example, when asked under cross-examination about her pregnancyand when she became pregnant she said:Counsel: Now what month do you make it that you became pregnant?Complainant: I got pregnant on the night of [the appellant's] 40th birthday,where he forced me to have sex with him because it was hisbirthday.Counsel: So you're making an allegation of rape now are you?Complainant: I'm not saying that, I'm just saying that I wasn't comfortablewith the situation.Counsel: Well you do know what forcing someone to have sex with isan allegation of?Complainant: Okay, I understand, well I'm not saying that. I went throughwith it, so Counsel: Well no, are you making an allegation that he raped you onhis birthday or not?The Court: She just said she's not.[37] Although I have not had the advantage of seeing and hearing the complainantand appellant giving their evidence, I am satisfied that the complainant's account ofwhat occurred is credible and reliable and there is sufficient evidence on which toconclude that the complainant's account of the incident in the kitchen is proved beyondreasonable doubt.[38] While the complainant's account of the incident in the kitchen is corroboratedby the evidence of the bruise she suffered when she was pushed onto the floor by theappellant, her account of the incident in the bedroom when she says the appellant"flopped" on top of her is unsupported by directly corroborating evidence such as isthe case with the bruise. However, her evidence of having bitten the appellant in anattempt to get away from him when she said he used an open hand on her face and wastrying to restrict her breathing, derives support from Constable Robinson's evidencethat the appellant told him that the complainant had bitten him on the arm. While theJudge said that he was satisfied by Constable Robinson's evidence that there was noobservable mark on the appellant's arm when he spoke to him shortly after midnight,the absence of any marks does not necessarily mean that the biting did not happen.The complainant's account derives support from the appellant himself tellingConstable Robinson that the complainant had bitten him, and the absence of any bitemarks on the appellant does not mean that the biting could not have occurred asdescribed by the complainant.[39] However, while I consider that the evidence of the complainant in relation toboth the kitchen incident and the bedroom incident is credible and plausible, havingnot seen the complainant and the appellant give evidence I consider it appropriate todefer to the Judge's assessment of the reliability of the complainant's account of whathappened in the bedroom. Accordingly, while I am satisfied that the charge is provedbeyond reasonable doubt in relation to the incident in the kitchen when the appellantforcibly pushed the complainant onto the kitchen floor, I consider that the highstandard of proof beyond reasonable doubt has not been reached in relation to theincident in the bedroom.[40] There is of course one charge of assault of a person in a family relationshipunder s 194A. The finding that the charge is proven in relation to the first phase of theassault that occurred in the kitchen and not as regards the second phase which isalleged to have occurred in the bedroom, does not amount to an inconsistency ofverdicts. There is just the one charge, and one verdict.[41] I also agree with the Judge that the evidence regarding the text messagereceived by the appellant some six months or so after the events of 14 October 2020is of no relevance to the court's determination of the charge of assault relating to thatdate. Despite the complainant's denial of having sent the text messages, it appearsthat the text messages were sent to the appellant fairly soon after the birth of thecomplainant's baby. The text messages appear to relate to an attempt to get theappellant to go and see the baby and to provide financial support for the complainant.While the text message contains a threat of possible violence to the appellant in theevent that he was sent to jail, there is nothing in the text message that would informthe court's determination of what actually happened during the events of 14 October2020.[42] And I reject the submission made by Ms Green that the text message is veracityevidence that ought to have been admitted by the Judge pursuant to s 37 of theEvidence Act. The text evidence does not fall within the scope of any of the provisionsof s 37(3), and does not demonstrate any of the matters set out there. It is clearly notevidence that would be substantially helpful in assessing the complainant's veracity asregards her account of what occurred on 14 October 2020.[43] It is also quite clear that the complainant's answers in cross-examination to thequestions put to her about her pregnancy, did not involve her making a false allegationof rape against the appellant and then promptly withdrawing it. To the contrary, it isquite clear that the complainant was saying that she was not comfortable with whathappened. Again this evidence does not fall within the scope of any of the provisionsof s 37(3), and does not demonstrate any of the matters set out there. It is clearly notevidence that would be substantially helpful in assessing the complainant's veracity asregards her account of what occurred on 14 October 2020.[44] There is nothing in this issue which could possibly amount to a miscarriage ofjustice.Conclusion[45] I accordingly find that the Judge did not err in any respect in reaching hisdecision and finding the charge proved. There is no miscarriage of justice.Result[46] The appeal is dismissed._____________Paul Davison J