C (CA634/2016) v R [2017] NZCA 275

C (CA634/2016) v R [2017] NZCA 275 [29 June 2017]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.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 ZEALANDCA634/2016[2017] NZCA 275BETWEEN C (CA634/2016)AppellantAND THE QUEENRespondentHearing: 8 May 2017Court: Cooper, Mallon and Wylie JJCounsel: N M Dutch for AppellantI R Murray and R K Thomson for RespondentJudgment: 29 June 2017 at 2.30 pmJUDGMENT OF THE COURTA The appeal is dismissed.B Order prohibiting publication of name, address, occupation or identifying particulars of appellant pursuant to s 200 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] The appellant faced 15 charges of sexual offending against two teenage girls (M and G) who lived in his house at the relevant time. Following a jury trial in the District Court at Tauranga before Judge Ingram, the appellant was found guilty of the five charges relating to G and not guilty of the 10 charges relating to M. He wasconvicted and sentenced to seven years' imprisonment.[2] The appellant appeals against his conviction. He contends he ought to have been permitted to cross-examine the two complainants and the third Crown witness (the mother of G) about a possible sexual relationship between the two complainants. Permission to do so had been declined in a pre-trial ruling made by Judge Harding.1The alleged offending[3] G and her mother began living with the appellant in July 2010. M and her brother moved into the household in June 2011.G[4] The charges relating to G covered the period between January 2013 and April 2015 when she was aged between 11 and 13 years old. G said the appellant sexually touched her often, about once a week, during this period. This involved putting his finger in her vagina and licking her vagina. He would take off her shortsand underwear. She "froze up" and "zoned out". If she did not agree to do what hesaid he would take her phone from her. It would happen when her mother was out of the room or not in the house.[5] On one occasion he asked her if she wanted him to put his penis in her. Shesaid "no" and he said she was a "good girl". On another occasion he asked her if she wanted to touch his penis. She said "no" and he said "ok then". When asked to1 R v [C] [2016] NZDC 21139.elaborate on this incident in her evidential interview, G said that when the appellantasked her the question she responded by saying "I'm all right", after which he leftthe room. One time the sexual touching happened in a tent they had set up outside the house to dry out. The last time it happened was in her room on a Sunday during the Christmas holidays. It lasted about 10 to 20 minutes and was the worst time because it was the longest.[6] G said the appellant stopped sexually touching her after she learnt about child abuse at school. She told him he was abusing her and he needed to stop. He said"okay". This occurred not long after school started when she was in year eight. Shetold a friend at school about the offending. Her friend said she needed to tell someone if it happened again. G told her mother about this offending after the police visited the house to speak to M. About a week before this, she had told M the appellant used to touch her. She said M told her he was doing that to her now. G told M she should tell him to stop. M said she could not because she froze up every time it happened.M[7] The charges relating to M covered the period between July 2013 and November 2015 when she was aged between 13 and 15 years old. M said the appellant sexually assaulted her when G and her mother were not at the house. Theappellant would not care if M's brother was around. It happened too many times toremember, she thought about once every second week. This usually involved the appellant putting his finger in her vagina and every now and then he also licked her vagina. This would usually occur on her bed in her bedroom. It also happened inthe conservatory and the lounge. She "froze up" or "zoned out" when it happened.[8] On one occasion the appellant told her to clean her room. When she said no he took her phone from her and told her she was not getting it back until her room was clean. He followed her into her room. He lay her on her bed and pulled off her jeans and underwear. He put gel on his fingers and put them in her vagina. He also licked her vagina. This went on for about half an hour. During this incident she got up to get herself a drink and to go to the toilet. She put her pants back on to do so.When she went back to her room to get her phone, he took her pants off again and carried on. She was talking to her friends on Facebook on her phone while this was happening.[9] The appellant would sometimes squeeze her breasts when he said goodnight. On one occasion he guided her hand over his penis on the outside of his pants when he had new headphones for her in his pocket. On another occasion he inserted a dildo in her vagina. He stopped because she said it hurt. She went to the toilet and when she returned he licked her vagina.[10] The last time he offended against M was the same day the police came to talk to her. Earlier in the day she had been wagging school with a friend. The appellant caught them and told M to get in the car. When they got home the appellant and Mwent and sat on the couch. M's brother was also there. The appellant put his fingers in her vagina under her underwear. There was a blanket over them. This went on for about two hours. Occasionally he would stop so she could get a drink, go to the toilet or do one of her jobs. Later that evening the police arrived. They had beenalerted by the school because M's friend had told a teacher that M had gotten into thecar with a strange man. The arrival of the police led to M disclosing the abuse.[11] M was aware the appellant had also been abusing G. G had asked M if the appellant was abusing her. G said the appellant had been abusing her and then he gave her money for it or a drink of V or coke. When G had money, M would ask her if it was because G was letting the appellant abuse her and G would say yes it was.The pre-trial decision[12] The defence was that none of the offending occurred and both complainants had colluded to make up the abuse. The defence theory was that the complainants had done so because M missed her mother and wanted to be able to see her and G also wanted more time with her mother. The two complainants were close and made up the abuse to support each other. The defence wished to cross-examine the complainants about sexual activity between them, with the intention of submitting that what they attributed to the appellant had actually occurred between the two of them.[13] This was founded on two things. First, a report filed by a lawyer for the child in the Family Court, which said G had conveyed to her friends at school that M had been sleeping with her and doing "sexual things", although that was denied by M.Secondly, there were notes in a notebook, which, for the purposes of the pre-trial application, the Crown accepted recorded comments by one complainant to the other.One note said: "Should we do da thing for a little while since my mum and dad areon der computer." Another note said:We could do a bit now and u lick me pussy if u want?No thanx. It may be clean but I don't really like the taste of pussy. But wecan do what we were doing befor.K but can you use uyr finger not a pen, a pen hurts.K then but only a short time.[14] Judge Harding declined to grant the defence permission to cross-examine thecomplainants and G's mother about this. He accepted the documents provided anevidential basis for the defence to suggest M and G had a sexual relationship. However, he considered this did not make it more likely they lacked veracity in their allegations against the appellant. The Judge considered the defence could put the prospect of collusion to M and G, based on the evidence they were like sisters and had spoken to each other about the abuse, without cross-examining them about theirsexual activity. In the Judge's view it was not surprising that the activities in thenotebook were similar to the allegations made against the appellant as they were not unusual sexual activities.The appeal[15] Permission is required to question a witness in a sexual case, directly or indirectly, about their sexual experience with any person other than the defendant.2A Judge may grant permission only if he or she is satisfied "the evidence or question is of such direct relevance to facts in issue in the proceeding that it would be contrary to the interests of justice to exclude it".32 Evidence Act 2006, s 44(1).3 Section 44(3).[16] The appellant submits the evidence about a sexual relationship between the two complainants meets this heightened relevance test. Three reasons are put forward.[17] First the appellant says the evidence is relevant to whether M and G had a motive to lie about the offending.4 He says it is relevant to how close M and G were. He submits that the closer the relationship between the two, the more likely it wasthey would both lie in order to support each other's wishes regarding their respectivemothers. He submits the Judge was therefore wrong to refuse permission to cross-examine on this topic on the basis there was already evidence that G and M were close.[18] As matters transpired the evidence was somewhat equivocal about how close the relationship between G and M was. M accepted they had a pretty good relationship, wrote in diaries together, walked to and from school together, went intoeach other's rooms at night and talked, and had heaps of conversations about Mwanting to go back and live with her mother. M also accepted that G had talked to her about feeling a bit left out and a bit unloved since the baby came along.5[19] G on the other hand said she did not initially have the best relationship with M and her brother. When it was put to her that it got a bit better in 2015 she said"not really". She accepted they sometimes wrote diary notes to each other, but said they did not go into each other's rooms at night and talk except once or twice. Shesaid they sometimes walked to school together but just talked about what happenedat school. She accepted that M talked to her "all the time" about wanting to spendmore time with her mother. M did not say how she could do that. G denied she had talked to M about feeling a bit left out since the baby had come along (she said"[n]ever [s]he was my sister") nor about wanting to go back to living with just hermother.4 This is one of the three ways such evidence may be relevant as discussed in K (CA188/11) v R[2011] NZCA 146.5 The cross-examination on this topic involved a series of propositions put to M to all of which Mresponded "yes".[20] Defence counsel's closing submission did not emphasise their closeness.Rather she focused on the opportunity G and M had to collude and their respective motives for doing so (that is, to each have more time with their mothers). She submitted the collusion had led to G and M making remarkably similar allegations(for example, they both said they "zoned out" and "froze"). She also madesubmissions about the implausibility of the allegations.[21] We consider that evidence of a sexual relationship between G and M does not meet the heightened relevance test on this basis. Sexual activity between them, if it occurred, does not necessarily correlate with closeness. As it was put in Tautu v R,"[i]ntensity or strength of feeling is not synonymous with sexual activity".6Moreover, as was the position in Tautu v R, there is no obvious logic in thesubmission that G's motive to fabricate her complaint would be greater if her relationship with M was shown to be a sexual one.7[22] The second reason advanced by the appellant is that a sexual relationship between the complainants explains the similarity in the allegations M and G made. He submits the notebook entries provide a basis for suggesting that the complainants'allegations were based on the sexual activity between them.[23] We consider this also does not meet the heightened relevance test. The onlysimilarity between the complainants' allegations and the diary entries is the suggestion of engaging in digital penetration and oral sex. Those activities are not in and of themselves unusual. The diary entries suggest that previously a pen had been used in their activities. Neither M nor G made this allegation against the appellant. There is no other detail in the diary notes to support the suggestion that the allegations are based on their own activities. The defence were able to make the submission that the similarities in their allegations supported the possibility the two complainants had colluded. The diary notes would not have added anything relevant to this submission.6 Tautu v R [2017] NZCA 219 at [21].7 At [21].[24] The third reason advanced by the appellant is that a sexual relationship between the complainants is relevant to explaining why the complainants knew about the activities they attributed to the appellant, other than because the appellant did these things. In our view this also does not meet the heightened relevance test. The jury had before them an admission of facts as follows:The fact that a child has sexual knowledge does not necessarily mean theyhave been sexually abused. A child's behaviour and knowledge are affectedby a number of factors. This has been particularly the case in the period since the 1990s, which has seen [the] advent of the internet together with a greater openness in society generally in talking about sexual matters. As a result, children can derive sexual knowledge from a number of different sources, irrespective of whether they have been sexually abused or not.[25] The appellant submits this was an admission about children generally. The report filed by a lawyer for the child in the Family Court and the diary notes were, however, specific evidence of the sexual knowledge of the complainants. It is therefore submitted it had heightened relevance.[26] We do not agree with this submission. The admission meant that thecomplainants' sexual knowledge was irrelevant to the issues before them. The jurycould assess the allegations with the understanding that the allegations were not more likely to be true because the complainants were able to describe the sexual activity they say occurred. The evidence about possible sexual activity between the complainants was therefore not directly relevant to any issue at trial.[27] It follows that we consider the District Court Judge was correct to declinepermission for the defence to question the complainants and G's mother about apossible sexual relationship between the complainants.Result[28] The appeal is dismissed.[29] An order is made prohibiting publication of the name, address, occupation or identifying particulars of the appellant pursuant to s 200 of the Criminal Procedure Act 2011 on the basis that it would be likely to lead to the identification of the complainants.Solicitors:Crown Law Office, Wellington for Respondent