MACGILLIVRAY v R [2019] NZCA 522

MACGILLIVRAY v R [2019] NZCA 522 [30 October 2019]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA250/2019[2019] NZCA 522BETWEEN CAMERON JAMES MACGILLIVRAYAppellantAND THE QUEENRespondentHearing: 8 August 2019 (further submissions received 16 October 2019)Court: Kós P, Woolford and Dunningham JJCounsel: D J Allan for AppellantF R J Sinclair for RespondentJudgment: 30 October 2019 at 10.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The request for suppression under s 200 of the Criminal Procedure Act 2011is declined.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] Following a jury trial in the District Court at Hamilton between 18 and20 March 2019, the appellant was convicted of two charges of indecency betweenmales and one charge of sexual violation in respect of offences that occurredapproximately 40 and 27 years previously.1 On 13 May 2019, the appellant wassentenced to four months' home detention on the two charges of indecency betweenmales and nine months' home detention on the charge of sexual violation.2 He nowappeals against conviction.3Factual background[2] The first complainant was a relative, X. X alleged that he was offended againstby the appellant on two occasions sometime between 1976 and 1979, when he waseight to 10 years old. The appellant was then about 14 or 15 years old. Both offencesoccurred in the lounge of the appellant's house in Morrinsville.[3] On the first occasion, X alleged that the appellant grabbed his mouth andsqueezed his jaw open before forcing his penis into his mouth, telling him not to usehis teeth. The appellant then forced X to perform oral sex on him. X alleged thatthe appellant ejaculated in his mouth. X spat the semen out on to the floor. X saidthat he thinks the appellant's siblings were in the room when the incident happened.X also said that he told the appellant's grandmother what happened. She wiped upthe semen from the floor but did nothing.[4] On the second occasion, X alleged that while he was wearing a towel aroundhis waist, the appellant pulled him on to his lap on the floor and told him he wouldstick his thumb up his bottom. X remembers screaming out in pain. X alleged thatthe appellant put his hand over his mouth and was also holding him around his waistwith the other hand, so said it must have been the appellant's penis he was sticking uphis bottom. X alleged that the appellant's father then came into the room in responseto his screams and the offending ceased. X said the appellant's father spoke to himabout what happened, but he also did nothing. X also said that he believed that therewere other children in the room on that occasion too.[5] The second complainant was another relative of the appellant, Y. Y allegedthat she was offended against by the appellant on one occasion in 1992, when she was1 Crimes Act 1961, ss 128(1)(b) and 141.2 R v MacGillivray [2019] NZDC 9023.3 Criminal Procedure Act 2011, s 229.about 20 years old. The appellant was then 27 years old. The offence occurred inthe bathroom of the appellant's house in Walton.[6] The appellant's wife had been admitted to hospital for the birth of their secondchild. Y agreed to help the appellant on the farm and to look after their first childwhile his wife was in hospital. Y alleged that she was in the bath when the appellantentered and asked her if she wanted him to wash her hair. Y said no. She then allegedthat the appellant came over and started touching her vagina. Y said she did not knowwhat to do and just closed her eyes and froze. Y alleged that the appellant then insertedhis fingers into her vagina. After about a minute, the appellant stopped touching her,got up and left the bathroom.[7] When questioned by the police, the appellant denied the allegations relating toX, but in explanation for the allegations by Y, said he could have washed her hair.He said he did not touch her vagina, but if he had washed her vagina, he would nothave meant anything by it.Grounds of appeal[8] The appellant relies on four points to establish a miscarriage of justice:(a) The forensic disadvantage caused by the delay of at least 37 years from1979, at the latest, to the police complaint in 2016, made it impossiblefor him to have a fair trial in 2019 on Charges 1 and 2. The primaryprejudice related to the unavailability, through death, of two possiblewitnesses — the appellant's grandmother (Charge 1) and the appellant'sfather (Charge 2).(b) As an alternative to the first point, the Judge failed to give a directionunder s 122(2)(e) of the Evidence Act 2006 as to the forensicdisadvantage caused by the delay in making a complaint to the police.(c) The prosecutor cross-examined the appellant on the redacted portion ofa diary note written by the second complainant in 1992, which causedhis trial on Charge 3 to become unfair.(d) Finally, as a fourth point which should be considered cumulatively withthe third point, the Judge did not give a direction under s 122(2)(c) ofthe Evidence Act about the motive of a Crown witness, the appellant'sformer wife, to lie.Delay[9] Historical sexual abuse cases will almost always carry some risk of prejudice,because of the effect of delay on the defendant's ability to "check and challengethe evidence of a complainant."4 A trial judge should take steps to mitigate the risk ofdelay-related prejudice.5 Nevertheless, the decades-long delay between the allegedoffending and X complaining to the police is not unprecedented and does not by itselfmean the trial would be unfair. There is no issue with the reliability of memory causedby age-related decline in cognitive function. The appellant was 54 years old atthe time of trial and said that he did not have "memory fade" or anything like that.X was 49 years old at the time of trial and also did not consider that his memory wasaffected by the passage of time, depression or drug use.[10] Two possible witnesses had, however, died — the appellant's grandmother(Charge 1) and the appellant's father (Charge 2). It is not known what either wouldhave said at trial.6 X said that the grandmother was, however, not present whenthe first incident happened, and that the appellant's father only entered the room whenhe screamed during the second incident.[11] X did say that he thought Y and her brother, and possibly his brother, were inthe room when the first incident happened and believed that there were children inthe room during the second incident too.[12] When questioned at trial, Y said that she never witnessed any such behaviourand did not recall being in the room. She, therefore, did not support X's allegations.Her brother was not called by either the Crown or defence and it is not known whether4 CT (SC88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465 at [26] and [49].5 At [51].6 Although not led at trial, Y said that when she questioned the appellant's father when he was aliveabout X's allegations, he told her that X was lying.he was even asked if he had witnessed anything or what he would have said at trial.The Crown advised the Court that X's brother and mother were, however, spoken toby the police. They had no recollection of any incidents and were not called at trial.[13] In the circumstances where other nominated witnesses were either questionedat trial (Y), or available to be called at trial (Y's brother), it cannot be said that therehas been a miscarriage of justice because of the death of the grandmother, andthe appellant's father when it is not known what they would have said at trial.Neither was a direct eye witness to what happened.[14] The passage of time alone is not sufficient to say that the trial was unfair.The accusations were specific in relation to place and circumstances. There were alsoadequate explanations for the lengthy complainant delay.Direction on delay[15] Section 122(1) and (2) of the Evidence Act provides:122 Judicial directions about evidence which may be unreliable(1) If, in a criminal proceeding tried with a jury, the Judge is ofthe opinion that any evidence given in that proceeding that isadmissible may nevertheless be unreliable, the Judge may warnthe jury of the need for caution in deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.(2) In a criminal proceeding tried with a jury the Judge must considerwhether to give a warning under subsection (1) wheneverthe following evidence is given:(a) hearsay evidence:(b) evidence of a statement by the defendant, if that evidence isthe only evidence implicating the defendant:(c) evidence given by a witness who may have a motive to givefalse evidence that is prejudicial to a defendant:(d) evidence of a statement by the defendant to another personmade while both the defendant and the other person weredetained in prison, a Police station, or another place ofdetention:(e) evidence about the conduct of the defendant if that conduct isalleged to have occurred more than 10 years previously.[16] We agree with the Crown that the delay does suggest the issue of prejudiceinevitably arose and s 122(2)(e) was engaged.7 The Crown acknowledges that awarning under s 122(1) should have been given on the effect of delay on memory,including the appellant's memory and prejudice arising from the unavailability ofwitnesses.[17] The Judge did address the jury on delay and its effect on memory. He did soin his closing address in a passage that followed his instructions on the possiblereasons for complainant delay:[15] A further issue that arises in this case relates to memories. We aredealing with matters many years ago. In light of the fact that there has beena significant lapse of time since it is alleged these matters occurred, it may behelpful for me to give you some guidance about memories given that we arereferring back to events that it is said happened 40 years ago in relation tothe complainant [X] and 27 years ago in relation to the complainant [Y].Passage of time will affect the accuracy of memory and I am sure that is nosurprise to you. You might not expect every detail to be the same if a witnessgives accounts of the same event twice, or many months, or years apartbecause as we all know memories fade. Details can be lost and errors inthe sequence of events can occur. The accuracy and level of detail of awitness' memory may depend on a number of factors. They includethe following. First and most obviously the time that has passed since theevent. Secondly, the personal [significance] of the event. Third, the emotionalcontent of the event. Fourth, the occurrence of other related events.Fifth, why, when and by whom the person has been asked to recall and finallythe kinds of retrieving cues provided at the time of recall. By that I am sureyou are aware that means that sometimes people can relate matters to an issueof significance, a wedding, a death, an anniversary, those sorts of things thatcan be dated.[16] The nature and the quantity of inconsistencies between a witness'evidence and other reliable evidence will affect your assessment ofthe reliability of a witness' memory. If there is an acceptable explanation foran inconsistency your assessment of reliability may well be unaffected.The opposite conclusion might be drawn if there is no acceptable explanationfor a significant inconsistency. These sorts of things need to be consideredwhen you are assessing the reliability and accuracy of witnesses' recollectionof what was said and done.[18] This direction was given in neutral terms and is certainly wide enough to coverinconsistencies in the appellant's several accounts. We are, therefore, of the view that7 CT (SC88/2013) v R, above n 4; and L (SC28/2014) v R [2015] NZSC 42, [2015] 1 NZLR 658 at[25]–[32].the effect of delay on memory was broadly covered in this way. It is not necessary fora judge to use a particular form of words in giving such a warning.8[19] However, CT (SC88/2013) v R also referred to the desirability of a direction tocover prejudice arising from potential witnesses having died.9 The Supreme Courtreferred to adding "the imprimatur of the judge" to the need for caution or the jurywould be left with "competing contentions from counsel and without any realassistance in addressing them".10[20] In this case, the Judge did not specifically direct the jury on the respects inwhich there may have been prejudice to the appellant relating to the dead witnesses.[21] We are, however, of the view that it was made obvious to the jury thatthe defence case was prejudiced by the delay, including the fact that certain witnesseswere no longer available, and we have confidence that the jury had this issue clearlyin mind. The Judge had also directed the jury on the effect of delay upon memory.Although the failure to give a s 122 direction relating to the deceased witnesses wasan error, it did not cause a miscarriage in the particular circumstances of this case.[22] For example, the following exchange took place in the cross-examination ofX:Q. You refer to [the grandmother], apparently coming into the room afterthe oral sex incident, right?A. Yes....Q. Conveniently she's dead, isn't she, so she can't tell us anything aboutwhat might have happened?A. That's correct.Q. Similarly, you talk about [the appellant's father] having an argument,or you having a conversation with him, but he's dead too, isn't he?A. Well I can't help that, sorry.8 Evidence Act 2006, s 122(4).9 CT (SC88/2013) v R, above n 4, at [55].10 At [50]–[51].Q. Well if you — if this complaint was a valid one, you could have goneto the police a lot earlier while these people were alive, so, wecould've had some other information available to the Court, correct?A. Correct.Q. So you've waited until the only potential witnesses, being adults, aredead?[23] Similarly, in the closing address for the appellant, the issue of prejudice arisingfrom the death of two witnesses was referred to several times. For example:Now [X] says that he waited 40 years to come to the police. This happened40 years ago and he says he's been sitting on this for 40 years. He knows,when he does go to the police, that [the grandmother] and [the appellant'sfather], two people that he says knew something about this, he knows they'redead, so he can say what he likes about their involvement, can't he, becausethey're not around to challenge him.How can Cameron MacGillivray defend himself against a claim that's40 years old, when the only two apparent adult witnesses are dead and no otherwitnesses are presented apart, as I say, from [Y]?[24] Finally, the Judge did refer to the defence position on the prejudice arising fromthe delay without specifically cautioning the jury in terms of s 122(1). He said:[38] [Defence counsel] argued that there was little more thatthe defendant could do beyond that denial. He says that potential witnessesfrom these alleged events many years ago were either dead or not called bythe Crown. The exception was [X] giving evidence that [Y] was in the roomwhen he was abused but she did not have that same recollection.Cross-examination on diary note[25] The complainant, Y, had written notes and letters as a form of therapy in whichshe had referred to sexual abuse, not only by the appellant, but also by another relative.The other relative was not on trial and references to him were not in general redactedfrom the notes and letters produced at trial. Defence counsel considered thatreferences to sexual abuse by yet another relative, Z, were helpful to the defence.[26] A redaction was, however, made in one diary note, dated 17 February 1992,which in its unredacted form read:But most of all I hate life, and being at home because I hate [Z] formelestering me several times from when I was about 6 years old and older.Then I hate Cameron for doing the same one time about 3 years ago, thenjust at the beginning of this year — THE BLOODY BASTARDS![27] The highlighted words were removed from the document included inthe photographic exhibit bundle. This redaction was made not because of its referenceto sexual abuse by Z, but because of the reference to the appellant "doing the sameone time about 3 years ago". When Y was questioned by the police about the referenceto the appellant doing the same three years earlier, she was not able to recall any suchincident. Because she could not recall any incident three years previously,the reference to doing the same about three years ago was redacted on the basis that ithad no relevance to Charge 3 and was prejudicial.[28] When the appellant was being cross-examined by Crown counsel, he appearedto deny that the diary note related to sexual abuse:Q. Well, you think it's common for [relatives] to make diary entries about[relatives] that have sexually abused them?A. It doesn't say that, does it? What does it say?Q. You know, you know what the context of it was?A. What does it say, what does it say?Q. You know what the portion was that was blacked out?[29] The appellant was then referred to the diary note and asked whether there wasa reference to somebody else known to the appellant. The appellant acknowledgedthat he knew who it was and that he knew the substance of the redacted material.He then agreed that he knew that the diary note said he had sexually abused her.When asked why he had earlier been trying to say something else, the appellant repliedbecause he did not in fact sexually abuse her.[30] The redacted passage was mentioned in the context of a disagreement aboutthe meaning of the note. It was a central part of the Crown case that Y referred tosexual abuse in that note. Cross-examination of the appellant was relevant to thatissue. In context "Cameron for doing the same" plainly meant that doing the samething concealed by the redaction, which was sexual abuse. It was necessary for Crowncounsel to challenge the appellant by referring directly to his knowledge ofthe redacted passage and received an acknowledgment that the note did indeed referto sexual abuse. At no stage did Crown counsel refer to the appellant doing the sameabout three years earlier. Cross-examination of the appellant on the redacted portionof the diary note therefore did not cause his trial on Count 3 to become unfair.Direction on motive to lie[31] Section 122(2)(c) provides that the Judge must consider giving a warningwhenever evidence is given by a witness who may have a motive to give false evidencethat is prejudicial to a defendant. The appellant says his ex-wife did have a motive tolie and the Judge should have warned the jury to be cautious about accepting herevidence.[32] The appellant's ex-wife gave evidence that at some stage after returning fromhospital with her second child, she found Y's diary and read the note about her husbandsexually abusing her. She says she then confronted her husband, who told her that hehad only "finger fucked" her. She also spoke with Y and asked her to rip out the notefrom the diary, tear it up and then throw it into the fireplace. Y says she complied, butlater retrieved it and taped it together again. It was produced to the jury in that form.[33] The appellant's ex-wife says that for most of their married years she chose toblock out the admission and did nothing because she did not want her children to bepart of a broken family and not have a father. She did, however, say that she had usedthe admission as a weapon in arguments with her husband while they were stillmarried.[34] The appellant's ex-wife also made it clear that she was unhappy withthe outcome of her divorce settlement in that she had not received a house in which tolive as part of the settlement. In her statement to the police, she also said that whenshe was approached by the police to make a statement after Y had laid a complaint,she had initially, at least, suggested to the appellant that she would not makea statement if he contributed money towards the purchase by her of a motorhome.After discussions with her parents and a close friend, she says in her police statementthat she realised that this was wrong, and she went ahead and made a statement tothe police.[35] During the trial a charge against the appellant of perverting the course of justiceby offering money to his ex-wife to dissuade her from speaking to the police wasdismissed when the Judge became concerned that she might incriminate herself if shegave evidence along the lines of her statement to the police.11[36] The appellant submits that in those circumstances a warning was required thathis ex-wife had a motive to lie. A warning under s 122(1) is, however, discretionary.12A warning is less likely to be needed where the issues of a witness's motivation forgiving evidence and their potential unreliability were clearly raised in other ways.13In this case, we are of the view that a warning was not necessary. That is becausethe appellant's ex-wife's motivation for giving evidence and her potential unreliabilitywere clearly raised in other ways. The jury would have been in no doubt that hercredibility was in issue.[37] In his closing address to the jury, counsel for the appellant squarely raisedthe issue of her reliability. He said:[The ex-wife], I suggest to you, is a devious, manipulative witness who tried,at page 55 you will note, to take financial advantage of the defendant whenshe found that he was in this situation. She tried to manipulate the justicesystem to make the defendant's situation worse. I suggest to you she's tellinglies when she said that, "He admitted to me that he'd fingerfucked her." That'sher trying to get back at him, isn't it? She's very unhappy with the fact thatshe got very little out of the marriage settlement and she's being trying to makeup for it ever since, and here we go again.[38] A judicial warning should be avoided when the issue of reliability is obviousas such a warning may serve as a signal that the judge thinks a witness is lying.14Further, the fact that the appellant's ex-wife considered, at least initially, requestingthe appellant, in effect, to pay for her silence, does not imply as a matter of logic thather evidence about the allegation itself was less likely to be true. As noted by11 R v MacGillivray DC Hamilton CRI-2017-019-8199, 19 March 2019 at [9].12 Brunsell v R [2018] NZCA 156, (2018) 28 CRNZ 543 at [30].13 See, for example, Williams v R [2017] NZCA 176, (2017) 28 CRNZ 471 at [48]; and Archibald vR [2014] NZCA 443 at [22].14 B (CA58/2016) v R [2016] NZCA 432 at [61].the Crown, aside from the assertion that the appellant had admitted the "fingerfucking", he had accepted the outline of much of what she said. There was,accordingly, no obvious reason to regard the evidence she gave on Charge 3 as beingunreliable for reasons not already apparent to the jury. A direction was, therefore,unnecessary.Suppression and anonymisation[39] We sought further submissions on these matters after the hearing. The identityof the complainants is automatically suppressed under s 203 of the Criminal ProcedureAct 2011, and no application for discharge under s 203(3) has been made.Their identities have therefore been anonymised in this judgment. Because they arerelated to the appellant we sought clarification whether the complainants soughtsuppression of the appellant's name. The Crown having made enquiries, we areadvised that they do not, despite the potential for their identification by association.The appellant on the other hand does seek suppression, under s 200(2)(a) and (c).No evidence in support of that application has been filed. Suppression was not soughtby him upon conviction or sentencing. The request is misconceived and is declined.Result[40] The appeal against conviction is dismissed.[41] The request for suppression under s 200 of the Criminal Procedure Act 2011 isdeclined.Solicitors:Crown Law Office, Wellington for Respondent