C (CA349/2022) v R [2023] NZCA 440

C (CA349/2022) v R [2023] NZCA 440 [12 September 2023]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES) OCCUPATION(S) ORIDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA349/2022[2023] NZCA 440BETWEEN C (CA349/2022)AppellantAND THE KINGRespondentHearing: 19 June 2023Court: Goddard, Brewer and Osborne JJCounsel: W T Nabney and R E Nabney for AppellantZ A Fuhr for RespondentJudgment: 12 September 2023 at 11.00 amJUDGMENT OF THE COURTThe appeal against convictions is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] In September 2021, following trial by jury, Mr C was convicted on threecharges of offending against his then wife:1(a) sexual violation by rape, in the period 1 January 1991 to 31 December1991;1 This was a retrial. Mr C's first trial was in May 2021 and resulted in a hung jury.(b) sexual violation by unlawful sexual connection (anal rape), in theperiod 1 January 1997 to 31 December 1997; and(c) sexual violation by unlawful sexual connection (anal rape), in theperiod 1 January 1999 to 31 December 1999.[2] Mr C appeals his convictions. The complainant is entitled to automaticsuppression of her name and identifying particulars under s 203 of the CriminalProcedure Act 2011. To ensure that suppression of the complainant's name iseffective, we have anonymised Mr C's name and removed or redacted any unnecessarydetails.[3] We must allow Mr C's appeal if we are satisfied that, for any reason, amiscarriage of justice has occurred. The term is defined:2 miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[4] The grounds of appeal addressed before us are:(a) that Mr C was prevented from questioning the complainant aboutstatements she had made in an affidavit in the Family Court in respectof the way Mr C treated his mother and sister; and(b) that the Crown was permitted to lead evidence about the complainantbeing the victim of a gang rape, which included anal rape some 20 yearsearlier in India.2 Criminal Procedure Act 2011, s 232(4).Background[5] We reproduce the account of the facts given by Judge G C Hollister-Jones atthe sentencing:3[3] The facts that underlie the charges are these. In respect of charge 1,you married the victim in 1991, were living in a manager's flat at the YouthHostel Association in Wellington. On the occasion that charge 1 occurred, thevictim was taking a shower. You joined her in the shower and started soapingher. You went on to ask for sex in the shower. The victim declined to havesex there because of her fear of confined spaces, which was something youknew about. After the victim said no, you became insistent and the victimsaid your whole demeanour changed and you went ahead to have sex with herin the shower without her consent. Following that incident, the marriagecontinued.[4] In respect of charge 2, after the first incident, two children arrived andyour family moved to Rotorua, which occurred in 1994. The victim'sevidence was that she told you before marriage that anal sex was notsomething she wished to participate in. Sometime around 1997, after anargument with the victim, you had make-up sex together. That was consensualvaginal intercourse. The victim said that after vaginal intercourse wascompleted, you turned her over on to her stomach, got on top of her, then heldher down by putting pressure on her shoulders and had anal sex with herwithout her consent. Whilst this was occurring, the victim was sobbing andsaying "no".[5] Charge 3 – By 1999 your marriage was in difficulty. After a heatedargument in the kitchen, the victim went to your bedroom and started makingthe bed. You followed her into the bedroom, pushed her down on the bed andquickly had anal sex with her. The victim said she was quietly saying no, butyou took no notice. The two of you separated around 2000.The appealCross-examination of complainant[6] After Mr C and the complainant separated in 2000, and prior to the chargesbeing brought against Mr C, the two were involved in litigation in the Family Court.The complainant obtained a protection order and there was litigation over the care andcustody of their children. In the course of the litigation the complainant swore anaffidavit on 29 October 2001. During the trial, counsel for Mr C sought to cross-examine the complainant on a paragraph contained in the affidavit:As an example, I do not like the way [Mr C] has treated his mother and sisterin the past. [Mr C] speaks very scornfully to his mother and sister and has had3 R v C [neutral citation redacted].them in tears many times in front of me in my view he appears to thinkthem petty and he lacks respect for them.[7] Defence counsel submitted to the Judge that questioning the complainant aboutthat paragraph would be substantially helpful concerning her veracity because thedefence contention is that what she said in her affidavit was a lie. The Judge was toldthat Mr C's sister would be called to refute the paragraph.[8] We interpolate a brief outline of the law governing the admissibility of veracityevidence:(a) Veracity means the disposition of a person to refrain from lying.4(b) Evidence about a person's veracity can only be offered if it issubstantially helpful in assessing that person's veracity.5[9] The Judge ruled that the complainant could not be cross-examined on theparagraph in the affidavit. He said:6[7] Section 37(5) of the Evidence Act 2006 defines veracity as meaningthe disposition of a person to refrain from lying. [The complainant's]statement in an affidavit about her observation of the defendant's treatment ofhis mother and sister and if that can be shown to be incorrect or a lie, does notamount to a disposition to lie. More importantly, questioning on this topicdoes not have the heightened probative force required by the substantiallyhelpful test.[8] I am not satisfied that questioning on this topic, which ultimately willbe one of the perspective of the complainant and of the defendant's sister, willbe substantially helpful for the jury when they come to determine the threesexual allegations.[10] Mr Nabney submits that the Judge erred because:(a) The evidence would not have needlessly prolonged the trial nor wouldit have resulted in the jury having to unreasonably consider theevidence as to the complainant's veracity. It was evidence that could4 Evidence Act 2006, s 37(5).5 Evidence Act, s 37(1).6 R v C [neutral citation redacted].have been taken into account by the jury as part of the overallassessment of the complainant's veracity.(b) If the jury accepted the evidence of Mr C's sister, that he had neverdisplayed any such behaviour towards his mother and sister or reducedthem to tears, then that was material which the jury would have beenentitled to use to assess the complainant's veracity. An inference wasavailable that the complainant was endeavouring to cast Mr C in as bada light as possible in terms of his treatment of women close to him.[11] Mr Nabney, in his submissions, also criticises the Judge preventing trialcounsel questioning the complainant further about the protection order. He submitsthat trial counsel was unable to explore the basis of the protection order and highlightthat the complainant had not mentioned any of the three incidents giving rise to thecharges in any affidavit filed in the Family Court.Discussion[12] Mr C gave evidence at both trials. His defence was that the three incidentssimply did not occur and that all his sexual engagement with the complainant was"absolutely consensual".[13] We note that it was the Judge who stopped the line of cross-examination of thecomplainant in order to consider the admissibility of the topic, but this occurred afterthe topic had been raised. The relevant questions and answers are set out in theCrown's submissions:Q. And in fact you then go on to talk about his treatment of womengenerally, correct, that is an entire topic heading that you start talkingabout, his treatment of women, correct?A. Yes.Q. And I think you talked about how you didn't like how he was mean tohis mother and his sister and made them cry in front of you, correct?A. Yes.Q. And by his mother you meant his mother [J]?A. Yes.Q. And by his sister you mean his sister [G]?A. Yes.Q. Those didn't happen either, did they [complainant]? He never madethem cry in front of you, either of them?A. Yes, he did but I understand that he will say that it didn't happen.Q. It is not just him that will say that, is it [complainant], and you knowthat?A. I understand his family will support him.[14] In Best v R, the Supreme Court held that the assessment of substantialhelpfulness of a previous allegedly false complaint should include consideration of:7 any remoteness in time, similarity (or lack thereof) between allegations,the number of allegedly false prior complaints and whether the priorcomplaint was fraudulent or malicious. how much evidence would need to be canvassed to decide on whether thecomplaint is false and the likely outcome of the assessment of that evidence.The more evidence that would need to be called on the unrelated priorallegation and thus the extent of any "trial within a trial" and the moreuncertain the outcome of the deliberations on that evidence, the less likely theevidence is to be substantially helpful in terms of s 37.[15] In regard to the "substantially helpful" assessment, we note:(a) The statement in the affidavit could not be proved objectively to beuntrue. It would be the complainant's word against that of the sister's.(b) If the jury accepted the statement was a lie then the probative value ofthat fact is very limited.(c) There is a very tenuous nexus between an allegation of unpleasanttreatment of other female family members and allegations of multiplerapes over a period of years.(d) The allegation in the affidavit was made in the context of a custodybattle which was resolved almost 20 years before the complainant madeher allegations to the police.7 Best v R [2016] NZSC 122, [2017] 1 NZLR 186 at [73] and [74].[16] In our view, the Judge was not in error. If the cross-examination had continuedand the sister had been allowed to address the point such that the jury accepted thatthe passage in the affidavit was a lie, that does not establish a disposition to lie.Further, it would not have the heightened probative force required to be substantiallyhelpful. This Court has previously held that the test of whether evidence is"substantially helpful" in assessing a person's veracity is not "lightly met".8[17] Even if we are wrong, the exclusion of further cross-examination on this pointand the restriction on the sister's evidence cannot give rise to a miscarriage of justice.The passage of cross-examination we have quoted put the matter before the jury.Defence counsel was able to emphasise, and did so, that in none of the affidavits swornby the complainant in the course of the Family Court proceeding did she mention thethree instances of sexual violation. The probative value on the issue of thecomplainant's veracity if the jury had accepted the statement in the affidavit was a lieis at best minimal.[18] This ground of appeal does not succeed.Evidence of a gang rape in India[19] The Crown applied successfully, pursuant to s 44 of the Evidence Act 2006, tolead from the complainant evidence that some 20 years earlier she had been anallyraped by a group of men in India. It occurred in a small shed in which she was heldcaptive.[20] The Crown submitted that the evidence was relevant to the issue of consentand/or Mr C's belief on reasonable grounds that the complainant did consent.[21] Mr Nabney submits that the admitted evidence was simply not relevant to anissue in the trial. That is because the defence was a complete denial that any of thealleged instances of offending had occurred. There was no issue of consent or areasonable belief in consent.8 Keremete v R [2022] NZCA 362 at [20], citing Horton v R [2021] NZCA 82 and the cases citedtherein.[22] Mr Nabney submits also that admitting the evidence impermissibly enabled thecomplainant to unfairly bolster her credibility. That is to say, in denying that sheconsented to, on one occasion, intercourse in the shower and, on the other twooccasions, anal intercourse, she was able to point to her fear of enclosed spaces andrepugnance towards anal intercourse arising from her rape experience.[23] The result of the Judge allowing this evidence to be given, Mr Nabney submits,is that Mr C was unfairly prejudiced and there was a miscarriage of justice.Discussion[24] The decision to admit the evidence in relation to the charges of anal rape wasmade before the first trial by Judge MacKenzie.9 The Judge summarised herreasoning:10(a) While the trial issue is a denial of the alleged sexual offending, theproper approach is for the jury to consider all elements of the offences,even if consent or reasonable belief in consent are not put in issue bythe defence.(b) It is acknowledged that the material time for a jury to consider consentor reasonable belief in consent is at the time, but evidence of [thecomplainant's] evidence that she would not consent and why that isso, is directly relevant to the question of consent in the specificcircumstances of this case. This arises from the incident in India andthis was known to Mr [C], as already explained in this ruling. It is nota general attitude, but on the evidence, arises from a specific event.This is nuanced and fact specific.(c) As was said in Christian v R,11 when considering a reasonable beliefin consent, an evaluation of all aspects of the evidence of Mr [C's]belief and its reasonableness will be required. What Mr [C] knewabout the Indian rape is highly relevant, therefore.(d) Evidence that [the complainant] would not consent to anal intercoursewas not objected to, but rather the reason that informed her view, dueto the risks of unfair sympathy and prejudice, along with a concernthat [the complainant's] credibility may be unfairly bolstered. Thedefence concerns can be addressed by a tailored direction, as noted at[29].9 R v C [neutral citation redacted].10 At [30].11 Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [33].[25] Judge MacKenzie's ruling only related to the second and third charges againstMr C (the two charges of anal rape). Judge Snell, during the first trial, extended theruling to cover the first charge of rape, without opposition from Mr C's counsel.12 Thatwas because the rape in India took place in a confined space and the complainant'sevidence was that she objected to having sex in the shower because it was also aconfined space and it reminded her of the rape.[26] Section 44 provided, relevantly:1344 Evidence of sexual experience of complainants in sexual cases(1) In a sexual case, no evidence can be given and no question can be putto a witness relating directly or indirectly to the sexual experience ofthe complainant with any person other than the defendant, except withthe permission of the Judge.(3) In an application for permission under subsection (1), the Judge mustnot grant permission unless satisfied that the evidence or question isof such direct relevance to facts in issue in the proceeding, or the issueof the appropriate sentence, that it would be contrary to the interestsof justice to exclude it.[27] We note that the purpose of s 44 is to protect complainants from unnecessaryquestioning about their previous sexual experience.14 In this case, the evidence inquestion was part of the complainant's narrative. It was directly relevant to herassertions that she did not agree to anal intercourse or to having sex in the shower.[28] The issue is whether those assertions are of such direct relevance to facts inissue in the proceeding that it would be contrary to the interests of justice to excludethem.[29] There is no dispute that the gang rape in India occurred. Mr C himself gaveevidence that the complainant had told him about the incident towards the beginning12 R v C [neutral citation redacted].13 The section was replaced, as from 20 December 2021, by s 8 Sexual Violence Legislation Act2021.14 Matthew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA44.3], "s 44 seeks tofoster a rational trial process by ousting erroneous and stereotypical reasoning; and protectingcomplainants from needlessly intrusive questioning or evidence about highly personal or sensitivematters" (emphasis in original).of their relationship. He attributed the gang rape as causative of problems whichdeveloped in their relationship.[30] Mr C's defence that none of the incidents occurred cannot determine how theCrown may prove its case. The Crown had the onus of proving the essential elementsof each charge beyond reasonable doubt. Regardless of Mr C's denial, the Crown hadto prove that each incident did occur, that in each case the complainant did not consentand Mr C did not believe on reasonable grounds that there was consent. After all,Mr C's evidence was that all of his sexual activity with the complainant wasconsensual.[31] In discharging that onus, the Crown was entitled to have the complainant givethe whole of her narrative. Not just what happened but why consent was not givenand why Mr C could not have believed on reasonable grounds that she did consent.[32] If in doing so, in referring to the gang rape, the complainant's credibility wasbolstered, as Mr Nabney complains it was, then that is not unfair. To the contrary, thecomplainant was entitled to tell the jury what she alleged happened and to put that inthe context of the traumatic earlier experience in her life.[33] There are other aspects of the evidence to which the complainant's evidence ofthe gang rape is relevant:(a) In his interview with the police, Mr C said that anal sex had occurredoccasionally, then said it might have occurred, but in giving evidenceat the trial he denied ever having anal sex with the complainant.(b) Mr C, in his first trial, said that sex in the shower at the Youth Hostelmay have occurred. In the second trial he was adamant that it had not.[34] We conclude that the Judge did not err in admitting the evidence of the gangrape in India. The evidence was of direct relevance to the issues of consent andreasonable belief in consent. It was the complainant's evidence and it would becontrary to the interests of justice to exclude it both because of its direct relevance andbecause s 44 is designed to shield a complainant from unnecessary questioning aboutprior sexual experience, not prevent a complainant from giving evidence of relevantexperience.[35] This ground of appeal does not succeed.Result[36] The appeal against convictions is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent