C (CA216/2017) v R [2017] NZCA 601

C (CA216/2017) v R [2017] NZCA 601 [15 December 2017]NOTE: ORDER MADE IN THE DISTRICT COURT PROHIBITINGPUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYINGPARTICULARS OF APPELLANT PURSUANT TO S 200 OF THECRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA216/2017[2017] NZCA 601BETWEEN C (CA216/2017)AppellantAND THE QUEENRespondentHearing: 27 November 2017Court: Clifford, Dobson and Collins JJCounsel: F D Steedman for AppellantS K Barr and S L Graham for RespondentJudgment: 15 December 2017 at 12.15 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr C was convicted following a trial by jury in the District Court at PalmerstonNorth of committing an indecent act on a young person (x 3), indecent assault (x 1),committing an indecent act on a child (x 1), assault on a child (x 3) and assault (x 3).Mr C appeals his convictions, but not his sentence of four years and nine months'imprisonment.1[2] Mr C submits:(a) that the trial Judge misdirected the jury in relation to propensityevidence; and(b) that the trial Judge misdirected the jury in relation to the complainants'alleged motive to lie.The notice of appeal contained a third ground of appeal that alleged the jury's verdictsin relation to two convictions were unreasonable. That ground of appeal wasabandoned.Background[3] Mr C and his wife separated in 2007. In April 2008, Mr C was awarded solecare of his stepdaughter (V1) and the three children from his marriage (V2, V3 andV4). Mr C's wife took her own life very soon after the Family Court ordered all fourchildren live with Mr C.[4] Mr C struggled to cope with the death of his estranged wife and with bringingup four children. He resorted to alcohol and illicit drugs. The evidence of the childrenat trial portrayed a pattern of physical and sexual abuse between mid-2008 and April2014, by which time all four children had been placed in the care of a relative.[5] In 2012, Mr C had pleaded guilty to charges arising from events in 2010 and2011 involving V1. In 2010, when V1 was 14 years old, in a state of drunkenness, Mr1 R v [C] [2017] NZDC 6997.C strangled her in the belief she had stolen some biscuits. During 2011, when V1 was15 years old, Mr C again strangled and assaulted V1 when he was intoxicated.[6] In December 2013, V1, together with V2, V3 and V4, went to live with arelative. Shortly thereafter, in January 2014, V1, V2 and V3 complained to the policeabout Mr C's conduct.[7] Mr C was subsequently charged with four representative charges ofcommitting indecent acts against V1 between June 2008 to April 2014 when she wasbetween 12 and 17 years old. Those charges alleged Mr C got into V1's bed andtouched her on her genitalia. He was convicted of these charges following his trial.[8] Mr C faced a further five charges of assaulting V2. During his trial, Mr Cpleaded guilty to one representative charge of punching and slapping V2 between June2008 and June 2012 when V2 was between nine and 13 years old. Mr C was convictedof four other charges of assaulting V2, two of which were representative charges.These charges alleged incidents of punching and strangling V2.[9] Mr C was also charged with four charges of assaulting V3 on various occasionsbetween June 2008 and December 2013 when V3 was between eight and 13 years old.During his trial, Mr C pleaded guilty to one representative charge of kicking V3 andone charge of slapping her. The jury found Mr C guilty of the other two charges ofassaulting V3.[10] One charge was brought in relation to a complaint made in May 2016 by V4,Mr C's youngest child. Mr C was charged with committing an indecent act upon herwhen she was six to seven years of age. It was alleged that between September 2011and December 2013, Mr C got into bed with V4 and touched her on the outside of hervagina, over the top of her pyjamas. The jury found Mr C guilty of that charge as well.First ground of appeal[11] The first ground of appeal alleges Judge Edwards, the trial Judge, erred whendirecting the jury in relation to the propensity evidence relied upon by the Crown inrelation to the charges of assault against V2 and V3. The propensity evidencecomprised the 2012 convictions for assaulting V1, which we have summarised aboveat [5]. The evidence of those convictions was admitted by way of an agreed statementof facts.[12] Mr C gave evidence at his trial and was cross-examined about his assaults uponV1. His answers included a reference to the "chaos" in the home arising from thechildren's behaviour and that there was "more to it" than V1 having taken chocolatebiscuits. Mr C's evidence led to the prosecutor making the following comments inclosing submissions:So I asked him, "What kind of father does that, what kind of father strangleshis daughter over biscuits?" because that was in the summary of facts and hegave me this explanation about her not listening or doing what she's told andthen there's all these underlying issues that he had to deal with at the time andwe know from the evidence [Mr C] was intoxicated for most part of the week and I've also heard him giving excuses about how [V1] wasn't doing whatshe was told and it just defies belief that for someone who would strangle hisown daughter or someone who he considers his own, over biscuits doesn'tresort to physical violence in the home when it was chaotic all throughout thetime because we've got him, 2010 and 2011, giving an explanation that theywere all chaotic and couldn't cope with what was going on and there weretimes when he overstepped the mark and at that period of time he didn't reallyrealise what he was doing was physical violence.(Emphasis added.)[13] The prosecutor explained the Crown case in relation to the propensity evidencewhen he said that when Mr C was unable to cope with the children he resorted toalcohol and that he had "a tendency to resort to physical violence" against his childrenand to "overstep [the] mark".[14] Mr Steedman, who was Mr C's counsel in both the District Court and in thisCourt, dealt with the propensity evidence by emphasising that Mr C properly acceptedhis guilt when he had assaulted V1 in 2010 and 2011 and when he pleaded guiltyduring the trial to three charges of assaulting V2 and V3. Mr Steedman submitted tothe jury that Mr C's use of violence against V1 in 2010 and 2011 did not demonstratehis guilt in relation to the remaining assault charges against V2 and V3. In his oralsubmissions on the appeal, Mr Steedman acknowledged that he had been mindful thatthe Crown prosecutor had "over-egged" the propensity evidence by using the phrase"defies belief" but elected not to comment on it in his own closing address becauseother matters took priority in presenting a closing address that did not go on too long.[15] In her summing-up, Judge Edwards directed the jury in relation to thepropensity evidence by explaining:(a) the jury had to consider each charge separately and bring in a separateverdict in relation to each charge based upon the evidence relevant tothat charge;(b) propensity evidence is evidence "capable of showing that a person hasa tendency to think or act in a certain way"; and(c) Mr C's convictions for assaulting V1 in 2010 and 2011 were relied uponby the Crown to show a pattern of behaviour or a tendency when hewas under stress to resort to physical violence to control his children inwhat was described as a "chaotic" household.[16] When summarising the Crown's case in relation to the propensity evidence,Judge Edwards said that the prosecutor "also emphasised [Mr C's] convictions forstrangling [V1] and submitted to you that it defies belief that someone who strangleshis daughter over a few biscuits didn't overstep the mark and resort to violence onother occasions" (emphasis added). She summarised the defence case concerning thepropensity evidence by telling the jury that Mr C took responsibility for the things hehad done, and referred to another key aspect of the defence's case, namely that thechildren had colluded and lied in relation to the charges to stay with a relative.2[17] The Judge summarised her propensity direction in the following way:So, just to recap about this use of propensity evidence. If you are satisfied thatthe evidence shows a pattern or tendency on [Mr C's] part to behave in aparticular way, which was to resort to various forms of physical violence tocontrol his children, you're entitled to use the evidence as a whole whenconsidering the likelihood that [Mr C] committed these violent offences.However, before you can do that you must also be satisfied that thecomplainants did not get together and tailor false allegations.2 See below at [25]–[29].It is important though that pattern or tendency, if you find it exists, can proveany individual charge to the required standard of beyond reasonable doubt.Equally importantly, if you conclude that [Mr C] is guilty of one or more ofthe charges it's wholly illogical and wrong to reason that he must therefore beguilty of any of the other charges. That's a completely wrong andimpermissible line of reasoning and you must not think like that. The chargesmust be considered separately.[18] The first ground of appeal alleges that, by repeating the Crown's phrase "defiesbelief", Judge Edwards elevated the significance of the propensity evidence to such anextent that the jury would have given it undue weight. Mr Steedman argued that theway the Judge referred to the phrase used by the prosecutor impliedly endorsed it,when the Judge might reasonably have been expected to comment that the expressionoverstated the extent of legitimate reliance. From this proposition, Mr Steedmansubmits that Mr C's convictions for assault on V2 and V3 are unsafe.[19] After the jury had retired, Mr Steedman asked the Judge to recall the jury toaddress his concern about exaggerated emphasis given to the concept of "defiesbelief". The Judge declined to do so.[20] We see no basis for concluding that the Judge's reference to the Crown's phrase"defies belief" would have resulted in impermissible reasoning by the jury in relationto the weight it placed upon the propensity evidence when considering the assaultcharges against V2 and V3. There are three reasons for this conclusion.[21] First, it is clear from the Judge's summing up that she was repeating theCrown's submission when she used the phrase "defies belief" and not adopting thatphrase as her own.[22] Second, the prosecutor's phrase "defies belief", while perhaps unfortunate inthe context of an address on propensity evidence, was made in the context of Mr Chaving admitted assaulting V1 in "chaotic" circumstances, and that thosecircumstances continued to prevail in the household at the time he was alleged to haveassaulted V2 and V3. The Crown was inviting the jury to accept that Mr C had atendency to physically assault his children when he was stressed and affected byalcohol, and that he had assaulted V2 and V3 in circumstances that were similar tothose which existed when he assaulted V1.[23] Third, in all other respects Judge Edwards gave an orthodox direction to thejury on propensity evidence that contained all the features suggested by McGrath andWilliam Young JJ in Mahomed v R.3 In particular, she:(a) identified the propensity evidence and how it might be taken intoaccount by the jury;(b) explained the respective theories of the Crown and defence in relationto the use of propensity evidence in this case; and(c) warned the jury against the impermissible use of propensity evidence.[24] We can see no basis for allowing the first ground of appeal against Mr C'sconvictions for assaulting V2 and V3.Second ground of appeal[25] The second ground of appeal alleges Judge Edwards misdirected the jury aboutthe complainants' motives to lie.[26] There were four elements to the defence case that the complainants hadmotives to falsely accuse Mr C of offending against them.[27] First, the defence alleged all four complainants had fabricated their allegationsin order to enable them to leave Mr C's home and to continue living with their relative.[28] Second, having made statements to the police, all complainants werecommitted to continuing their false allegations.[29] Third, that in December 2015 V1 had made a false allegation of rape when shewas 19 years old to cover up her pregnancy to a young man with whom she was havinga consensual sexual relationship. In cross-examination, V1 said that she did not knowat the time she made her false complaint that it was a criminal offence for her to falselyaccuse someone of rape. She then explained that by the time she gave her evidence3 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [95].she did know that making a false complaint was a criminal offence. In his closingaddress, Mr Steedman submitted that if V1 did not know her false complaint of rapein December 2015 was a criminal offence then, similarly, she could not have knownin January 2014 when she made her complaints of sexual offending by Mr C that itwas a criminal offence to falsely accuse someone of committing sexual offences. Thiswent to V1's credibility — if V1 had lied in December 2015, then she may have liedin January 2014.[30] Fourth, that it was implausible V1 would have complained about the assaultson her in 2010 and 2011 without also complaining about Mr C's sexual offending ifthose allegations were true.[31] The second ground of appeal focuses upon the first three elements of thedefence case concerning the complainants' motives to lie.[32] Mr C gave evidence. He denied the allegations and maintained thecomplainants were ill-disposed towards him. Judge Edwards provided the jury with astandard tripartite direction and in doing so referred to the evidence Mr C gave "underoath".[33] In her summing-up, Judge Edwards referred to the complainants' motives tolie in the following way:The defence case is that they lied from the outset and made false allegationsin order to stay with their [relative] Mr Steedman submitted to you thatonce those interviews were recorded and transcribed that was "a script fromwhich there could be no safe deviation." It is entirely a matter for you toconsider that submission, members of the jury, but I suggest you consider itcarefully. You have to decide whether the three older complainants took anoath and in the case of [V4] because of her age, made a promise to tell thetruth and then lied to you, maintained those false allegations three years later.Bear in mind that at least in the case of [V1], who is now 20, and [V2] who isnow 18, the original suggested motive for them to lie can no longer apply, asboth are of an age where they can choose where and with whom they live.(Emphasis added.)[34] The arguments raised by Mr Steedman in support of the second ground ofappeal were that Judge Edwards:(a) unfairly drew attention to the fact that the complainants had given theirevidence on oath, or had promised to tell the truth;(b) erred when she suggested to the jury that V1 and V2 may not have hada motive to lie because they were of an age where they could choosewhere they live; and(c) should have directed the jury that V1 had a motive to lie because sheknew she would be committing a criminal offence if she admitted hercomplaints against Mr C were false.[35] There was nothing wrong with Judge Edwards' reference to the complainants'evidence having been given on oath or, in the case of V4, after she promised to tell thetruth, particularly as Judge Edwards had reminded the jury that Mr C gave his evidenceon oath.[36] The fact that the complainants gave their evidence on oath, or promised to tellthe truth, would have been patently obvious to the jury. They saw the oaths beingadministered and the questions being asked of V4 before she gave her evidence.Furthermore, it was appropriate for the Judge to draw a distinction between thestatements made by the complainants to the police and the evidence given in court onoath or after the witness promised to tell the truth in the same way that the Judge hadreminded the jury that Mr C had given his evidence on oath. It is difficult to see howthe Judge's direction was unfair to Mr C when the Judge dealt with the way thecomplainants gave their evidence consistently with the way she referred to Mr Chaving given his evidence on oath.[37] Nor are we concerned by the fact Judge Edwards pointed out that V1 and V2could now live wherever they wished and therefore no longer had the motive to lieattributed to them by Mr Steedman. This proposition was not raised by the Crown inits closing address. Nevertheless, it was not inappropriate for the Judge to remind thejury they could take into account the fact that V1 and V2 could choose where theylived as part of the Judge's role of ensuring that the jury took into account relevantconsiderations when assessing whether or not the complainants had a motive to lie.[38] We also accept the Crown's submission that there was no need forJudge Edwards to go any further than she did in relation to V1's evidence concerningher false rape complaint. The Judge reminded the jury of the defence submissionregarding the false rape claim in her summing-up. It was not directly put to V1 thatshe had maintained her position in relation to the allegations against Mr C out of fearof prosecution for making a false complaint. Further, Mr Steedman in his closingsubmissions did not suggest fear of prosecution as V1's primary motive for lying. Inthese circumstances, it was not necessary for the Judge to direct the jury in the waysuggested by Mr Steedman.Conclusion[39] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent