C (CA491/2018) v R [2019] NZCA 434

C (CA491/2018) v R [2019] NZCA 434 [16 September 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 140 CRIMINAL JUSTICE ACT 1985.NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFWITNESS UNDER 17 YEARS OF AGE PROHIBITED BY S 139A OF THECRIMINAL JUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA491/2018[2019] NZCA 434BETWEEN C (CA491/2018)AppellantAND THE QUEENRespondentHearing: 7 August 2019Court: Stevens, Mallon and Moore JJCounsel: B J Hesketh and D J Sheely for AppellantJ E L Carruthers for RespondentJudgment: 16 September 2019 at 10 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The applications for leave to adduce further evidence are granted.C The appeal is dismissed.D Order prohibiting publication of name, address, occupation or identifyingparticulars of appellant pursuant to s 140 Criminal Justice Act 1985.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] Following a retrial before a Judge and jury, the appellant C was convicted onone charge of assaulting a child under the age of 14 years.1 He was sentenced inMay 2013 to six months' supervision.2 C seeks to appeal his conviction on the groundthat the complainant, T, has now recanted his evidence.[2] The notice of appeal was filed on 25 July 2018 and is thus approximately fiveyears out of time. C explained the delay by reference to several factors including thatit was only in 2014 when T first indicated that he had given false evidence to the Court.Due to the advice C received at the time and in subsequent years, it was not until 2017that steps were taken to obtain relevant statements to advance an appeal. In thosecircumstances it is appropriate that the extension of time to appeal be granted, whichwe do.[3] C also seeks to adduce further evidence on appeal through six affidavitsincluding one from T, as well as from the lawyer who interviewed T, a Child andAdolescent Mental Health Social Worker and a Registered Clinical Psychologist.The Crown filed three affidavits in reply, namely, from both T's maternal grandparentsand C's former wife.3 Given that this case concerns a purported recantation ofevidence by T, we grant leave to file these affidavits.Facts[4] At the time of the incident in question, C was sharing day-to-day care of histhree children. T is C's son. When T was aged seven, it was alleged that on oneoccasion in October 2011, when T was in the lounge of C's home, C held him up andshook him, which left two clearly visible bruises on T's shoulders.1 Crimes Act 1961, s 194(a).2 R v [C] DC Tauranga CRI-2011-070-6505, 28 May 2013.3 The grandparents who provided affidavits for the Crown are the parents of C's former wife.[5] C was charged with assaulting T and was convicted of the charge followinga judge-alone trial before Judge Treston.4 On appeal to the High Court, Heath Jallowed the appeal on the basis of trial counsel error.5[6] A retrial by jury then took place before Judge Wolff. C's case was that theassault never happened. Rather, the bruises on T were the result of him falling overon a slippery slope in the bush when C and his children were out opossum trapping.This narrative must have been rejected by the jury and C was again convicted onthe charge.AppealAppellant's submissions[7] The basis of the appeal is that T has now recanted his earlier evidence that thebruises were the result of an assault. C says that, in April 2014, he was grantedsupervised contact with T and another son A, and that during the first supervised visit,T made a spontaneous recantation. In 2017, T and his brother A made statements toan independent lawyer, Mr Rickard-Simms, indicating that T gave false evidence attrial and had recanted his story in a "spontaneous and unsolicited manner" to severalfamily members. A miscarriage of justice has therefore occurred and C has beenwrongly convicted.[8] C initially relied on an unsworn statement made by T to Mr Rickard-Simmsdescribing how the bruises arose from an incident when T fell over in the bush andlanded on some vine stumps and were not caused by an assault. The statement claimsthat T's mother and grandmother told T what to say, and that T's mother threatened totake away his gaming console if he did not say that C had given him the bruises. T laterswore an affidavit essentially repeating what he said in the unsworn statement.[9] For C, Mr Hesketh relies on the contents of the affidavit in which T's evidencemay be summarised:4 Police v C DC Tauranga CRI-2011-070-6505, 16 March 2012.5 CAC v Police [2012] NZHC 3023.(a) On a weekend when T was aged seven, he went possum trapping withhis brothers and C. C was in front cutting vines to clear a path. It waswet and slippery and they had all been tripping over. They reached aslope, and there were two vine stumps that had been cut that wereprotruding from the ground. T got his feet tangled up and tripped over.He fell forward and tried unsuccessfully to put his hands out to stophimself from falling. T fell onto the vine stumps that C had cut causinghim to scream and cry.(b) T's mother later noticed the bruises near his shoulders. She askedwhether C did that to him. T did not say anything at the time. T wasafraid of his mother and his grandmother, and "would get into trouble"if he did not say things that they wanted. His mother told him to say tothe police that C had picked him up and shook him, which caused thebruising. He was scared that she (and his grandmother) would be angryif he did not say this, and so he told the police what his mother wantedhim to say.(c) Prior to his DVD interview, T's grandfather told him to say what hismother had told him to say, and that "he would buy [him] a pieafterwards".(d) T did not know why he was going to Court when he was givingevidence, and he thought that if he did not say what his mother had toldhim to say, she might "get in trouble".(e) C "never picked [him] up and shook [him]". The bruises were causedfrom him falling on the vine stumps. He did not realise at the time howimportant it was to tell the truth at the trial.Respondent's submissions[10] For the Crown, Mr Carruthers submitted that C's account of what happened(which is now T's version of events) was thoroughly discredited at the second trial.In particular, the photographs of the stumps which T fell onto which C produced attrial were not adequately explained. For example, the photographs were taken 19 daysafter the incident (and it was not explained how C identified the exact stumps afterthat period of time), C did not see T fall over (and everyone else was also falling over),and the trek into the bush lasted three hours with nothing of significance occurring.[11] Mr Carruthers also referred to the context of the recantation. It was madefollowing a change in T's living arrangements. T was living with his mother prior toJanuary 2017, and with C since that time. T also now appears to have considerableanimosity towards his mother which can be contrasted with the situation at the time ofthe trials. T's recantation further coincided with Family Court proceedings involvinghis parents (and there is evidence that C has tried to use T's statement in thoseproceedings). The recantation evidence conflicts with both his evidence at trial andwith what he told people shortly after the offending including his mother and apsychologist.[12] Mr Carruthers submitted that T's initial allegation of assault by shaking, whichremained firm under cross-examination, had the hallmark of truth, in contrast to C'sclearly untenable defence. He submitted T has simply changed his narrative after hisrelationship with his mother had deteriorated and he commenced living with C.[13] Mr Carruthers also relied on the affidavit evidence provided by T's mother andgrandparents which is as follows:(a) T's grandfather stated that he never told T or A what to say to the policewhen statements were being taken from them. T was never told whatto say at court by his mother or his grandparents (and was neverthreatened with violence if he did not say what he was told). He alsonever offered bribes (such as pies) to T or A for them to say certainthings in their interviews.(b) T's grandmother stated that T has lied in his affidavit, and that neithershe nor T's mother said anything to T about what to say in either ofthe two trials when he gave evidence.(c) T's mother stated that C's allegation that she made T and A lie tothe police and the Court about the assault is untrue — neither T nor Asaid anything about it to her at the time and she only became aware ofthe allegation when C presented their affidavits in the Family Court in2017. She never bribed T on the day of the trial for him to providefalse evidence.Our analysisRecantation evidence[14] In Hamon v R, this Court reviewed the principles which apply to appealsinvolving recantation evidence:6(a) The mere fact that a complainant or witness recants does not make hisor her trial testimony unreliable or mean there must be retrial.(b) The critical enquiry is why the complainant has recanted — whetherit is because the earlier evidence was untrue or because other pressureshave come to bear upon the complainant. Courts must be alive tohuman frailties in this area. As was said in R v Flower:Witnesses may have second thoughts for a variety of differentreasons. Some become emotionally disturbed, others brood onthe effect of their evidence, whilst others are subject to moretangible pressures to induce them to depart from the truth. It isthe witness's state of mind at the trial which matters and thisought to be judged by reference to the circumstances prevailingat that time.(c) Where an appeal is brought on the grounds of post-trial recantation,the appeal court has to grapple with "potentially difficult factual issues itself to appraise the effect of evidence which had been or was tobe given". This will usually require the court to review the evidencegiven at trial, and the subsequent affidavits, and any oral evidencebefore them.(d) If the court is satisfied that the recantation is untrue, the appeal willbe dismissed. If there is a doubt, a retrial will be required. In theexceptional circumstance that the appellate court concludesthe complainant's recantation is true, an acquittal may be entered.(Footnotes omitted.)6 Hamon v R [2013] NZCA 540 at [62]. See also T (CA670/2016) v R [2018] NZCA 102 at [43];and Rameka v R [2019] NZCA 105 at [49].[15] This Court recently stated in A (CA26/2018) v R:7[1] It is not unknown for appeals against conviction to be brought on thebasis of a sworn affidavit from the complainant deposing that he or she gaveperjured evidence at trial. It may be that the new evidence is true (and theoriginal evidence false). But it may also be that the new evidence is false; theproduct of inducement or pressure. Appellate courts faced with this situationmust look carefully and critically at the reasons given by the complainant forrecanting. The relevant principles were set out by this Court in Hamon v R.The critical enquiry is why the complainant has recanted. The appellatecourt will consider the original evidence given at trial, the subsequent affidavitand any oral evidence given before the appellate court.(Footnotes omitted.)[16] At the hearing of the appeal, T gave evidence and was cross-examined. In lightof this evidence and the other affidavit evidence summarised above, this Court mustseek to ascertain the reason for T's recantation. In accordance with the approach inHamon, if this Court is satisfied that T's recantation is untrue, then the appeal must bedismissed. However, if there is doubt as to whether the recantation is true, then aretrial should be ordered. It is only in the "exceptional circumstance" that this Courtconsiders T's recantation to be true that an acquittal should be entered. This exerciserequires the Court to have regard to the evidence given at trial, the affidavit evidencethat is adduced by C and the respondent on appeal, and of course the further evidencegiven by T on appeal.T's evidence at the first trial[17] This case is unusual in the context of appeals based on recantation evidencebecause T gave evidence at two trials — one before Judge Treston and one beforeJudge Wolff.[18] In the first trial before Judge Treston, T gave evidence for the prosecution.Part of this evidence was a DVD recorded interview which T had with a social workeremployed by the Ministry of Social Development. In this interview, T stated that hegot the bruises from when C had held him up in the lounge and shaken him. His oralevidence-in-chief was consistent with this. T spoke of an occasion when he was at hisfather's place in the lounge. T and his brothers had been fighting. He gave evidence7 A (CA26/2018) v R [2018] NZCA 428.that C came towards him and "picked [him] up and shook [him]", perhaps a metre offthe ground for "[a] short time". He said that he felt scared when this was happening.T was referred to a photograph that had been taken of his bruises. He said that thesebruises were from the incident when C had picked him up and shaken him.[19] Under cross-examination by defence counsel T was asked whether him fallingover onto some vines could have caused his bruises. T denied this. Later in thecross-examination, T confirmed that C had picked him up and shaken him.Evidence at the second trial[20] At the second trial before Judge Wolff and a jury the majority of T'sevidence-in-chief consisted of the DVD interview. T confirmed in his oralevidence-in-chief that he was telling the truth in his interview.[21] Defence counsel again cross-examined T about getting injuries from fallingover in the bush. T said that he remembered once "going out with [C] and landing on[his] front". T acknowledged that he received bruises from when he fell over in thebush, but denied that the bruises in the photographs were from that occasion. T wasalso cross-examined on the occasion when his mother noticed the bruises. Counsel putto T that she asked whether C had done something to him and that she "insisted that[C] had done something to [him]". T confirmed that C had picked him up by theshoulders and that he did not fall over on some cut vines.[22] In re-examination, T confirmed that the bruises which he had talked about inhis DVD interview were caused by C shaking him.[23] Both the appellant and T's mother gave evidence at the second trial.T's mother stated that, when T was having a bath, she noticed bruises on both of hisshoulders. When she asked him how he got the bruises, T initially said to her that"he got them in the bush". But when T did not respond when asked how thathappened, she asked him again how he got the bruises, to which T replied that C "didit". Under cross-examination, T's mother denied that she put a story to T and insistedthat C had done something to him.[24] C said that on a Sunday afternoon in October 2011, when they were out on atrap line for opossums in the bush, T, who was "trailing behind at the back", got hisfoot caught in perhaps a vine, fell and started screaming. C denied grabbing T by theshoulders and shaking him. He also referred to a permanent back injury which he saidaffected his ability to lift things. Under cross-examination, C stated that he had notseen T fall over, but that he saw him face-down with his foot stuck. He explained that,19 days after the incident, he had gone back to the place where T had fallen over andhad identified the vines which caused the bruising and photographed them.T's evidence in this Court[25] T is now 15 years old. He impressed us as a thoughtful, sensible young manwho finds himself in a very difficult position. He is now living with his father andrelationships with his mother and maternal grandparents are strained. We canunderstand why T would want to support his father's appeal. In evidence he said hismother was "full of hate" and commented:Well I just felt really bad about getting him a criminal conviction which hedoesn't deserve, it never did anything and I want to fix it.[26] That said, we are required to assess whether the recantation is, or might be,true. We have no doubt that T is genuine in his belief of what he said in his affidavitand before us. For obvious reasons, he has convinced himself he is telling the truth.However, we have a wide range of additional matters (summarised above) to considerwhen assessing the veracity and reliability of the purported recantation.[27] As outlined above, T has now deposed that the bruises which were the subjectof the assault were caused, not by his father shaking him, but from an occasion whenhe fell over on to some vine stumps. T claimed that he was pressured by his motherand grandparents to give evidence that the bruises were the result of his father shakinghim. His mother told him to say that, and his grandfather had tried to bribe him to saywhat his mother wanted him to say. This evidence is contradicted by affidavitevidence from T's mother and grandparents.Discussion[28] Taking into account all the circumstances, we are satisfied that T's recantationis untrue. Several factors lead us to this conclusion. First the context of the recantationis important. T has been living with his father since early 2017. In his affidavit (dated13 June 2019) he deposed that he has not seen his mother since 2017. There is nodoubt his relationship with his mother has significantly deteriorated. T's motherdeposed that C had presented the statements now made by T and A in Family Courtproceedings. Having carefully considered T's evidence, and assessed it against all theother available material, we are satisfied the recantation arises from a change in heartin T's attitude towards his mother and father.[29] Second, we consider that T's change of heart may also have occurred in orderto influence Family Court proceedings in which his parents were involved. We notethat shortly after the statements to the lawyer/investigator were made, they werepresented in those proceedings by C. If that is how T's change of heart came about, itis regrettable that T should be used in this way to advance his father's position in theongoing Family Court litigation between his parents.[30] Third, we are satisfied that the evidence C gave at his jury trial (which is nowT's version of events) was untenable. This is particularly so given the unlikelihood ofbeing able to locate the specific place where T had fallen over in the context of athree-hour walk in the bush. C's evidence was clearly rejected by the jury.[31] Fourth, we consider the situation from T's perspective. There were two trialsand T's evidence remained broadly consistent in those trials. The evidence T gavewas broadly consistent with what T first told the social worker in a recorded DVDinterview. Moreover, we doubt that a mere seven-year-old would have had the wit orability to maintain his story over the course of two criminal trials, with all the pressurethat entailed, if it had in fact been a pack of lies as T now claims them to be.[32] Finally, it was apparent from the cross-examination of T at the hearing beforeus, that T recalls very little of what occurred all those years ago. Given the obviousand understandable limitations of his memory, it is not credible that the detail in hisaffidavit about what he now says occurred is a reliable recollection of events.[33] We regard the whole series of events as unfortunate and regrettable. It appearsthe charge was brought against C at T's mother's or grandparents' instigation.The assault was at the very lowest end and, in hindsight, might have been resolved ina manner more conducive to T's best interests in maintaining his relationship withboth parents. Instead he was required to give evidence at two trials against his father.He has then apparently been drawn into the Family Court proceedings in a manner thathas given rise to his recantation. Again, we question whether this was in his bestinterests.[34] In the end, we have been driven to the view that the recantation is not true.Having heard T's evidence, we find the recantation neither credible nor cogent. It isnot supported by the other available evidence or the context in which it occurred.Result[35] The application for an extension of time to appeal is granted.[36] The applications for leave to adduce further evidence are granted.[37] The appeal is dismissed.[38] In order to protect the identity of the complainant, we make an orderprohibiting publication of the name, address, occupation or identifying particulars ofthe appellant pursuant to s 140 of the Criminal Justice Act 1985.Solicitors:Adams Hesketh, Tauranga for AppellantCrown Law Office, Wellington for Respondent