BAYLIS v R [2023] NZCA 457

BAYLIS v R [2023] NZCA 457 [19 September 2023]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT(S) UNDER THEAGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINALPROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA397/2022[2023] NZCA 457BETWEEN CLINTON BARRY BAYLISAppellantAND THE KINGRespondentHearing: 21 August 2023Court: Goddard, Whata and Downs JJCounsel: P I Pati for AppellantI S Auld for RespondentJudgment: 19 September 2023 at 11.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Downs J)Introduction[1] Clinton Baylis was found guilty by a jury of historical sexual offending againsttwo complainants, who were then children. He was sentenced to a term of five and ahalf years' imprisonment, cumulative on an existing term of imprisonment for sexualoffending against other children.1 Mr Baylis appeals his conviction.2[2] We must allow the appeal if the verdicts were unreasonable3 or Mr Baylis hassuffered a miscarriage of justice.4 A miscarriage of justice means any error,irregularity, or occurrence in or in relation to or affecting the trial that created a realrisk the outcome of the trial was affected.5Background[3] Mr Baylis faced 17 charges: 12 in relation to V and five in relation to T.V and T did not know each other, albeit their families shared one or more connections.[4] Mr Baylis was found guilty of eight of the charges in relation to V; two othercharges were dismissed at the conclusion of the prosecution case; and two were thesubject of not guilty verdicts. Mr Baylis was found guilty of all of the charges inrelation to T.[5] The offending against V occurred between 1 January 2007 and 31 August 2010,when V was aged between six and nine years. That against T occurred between13 August 2008 and 16 March 2009, when T was aged six and seven.[6] Mr Baylis was in a relationship with V's aunt, with whom V occasionallystayed. The offending began when V awoke to find Mr Baylis under the bedding.V said Mr Baylis lay on top of her and simulated intercourse.[7] The next incident occurred in a double bed, in which V's brother had fallenasleep. V said Mr Baylis ran his hand up her leg, moved her clothing aside, and thenpenetrated her genitalia with his finger.1 That other offending was adduced as propensity evidence at Mr Baylis' trial; so too Mr Baylis'objectionable publication offending in relation to children. We say no more about the propensityevidence as Mr Baylis makes no challenge to its admissibility on appeal.2 Mr Baylis initially also appealed against his sentence, but did not pursue that aspect of his appealbefore us.3 Criminal Procedure Act 2011, s 232(2)(a).4 Section 232(2)(c).5 Section 232(4)(a).[8] V's aunt then moved to Palmerston North. Again, V visited and sometimesstayed the night, but he was not in a relationship with V's aunt at this time. The thirdincident began with more simulated intercourse in the bed V was sleeping in at heraunt's home. V said Mr Baylis then removed her pants and underwear, licked hergenitalia with his tongue, and penetrated her with a finger. Mr Baylis then encouragedV to touch his penis.[9] V described the fourth incident as occurring when she was sitting on Mr Baylis'knee using a computer at her aunt's home in Palmerston North. She said Mr Baylisput his hand on the inside of her right leg and then penetrated her genitalia with afinger. V said Mr Baylis desisted when someone entered the room.[10] T's mother knew Mr Baylis. On one occasion, T and her brother stayedovernight at Mr Baylis' home. Both children had baths there.[11] T said Mr Baylis came into the bathroom and had her sit on his lap. Hesimulated intercourse while she was on his lap. T then got into the bath, but Mr Baylisremained in the room. T said Mr Baylis put his hand under the water and penetratedher genitalia with his finger. T got out of the bath and wrapped herself in a towel. Tsaid Mr Baylis penetrated her again, albeit with the towel manipulated by him. Shesaid Mr Baylis then rubbed her body with his penis and simulated intercourse.[12] T slept in the same bed as Mr Baylis that night; her brother slept elsewhere.T said she wore pyjamas to bed but awoke to find herself naked. The Crown invitedthe jury to conclude Mr Baylis had removed T's pyjamas and, after doing so, engagedin sexual conduct with T. The jury found Mr Baylis guilty of this charge; so too thecharges in relation to the incidents described above.[13] As observed, Mr Baylis was found not guilty of two charges in relation to V.This introduces the first ground of appeal.Inconsistent, hence unreasonable verdicts?[14] V said she, her brother, and a friend stayed with Mr Baylis overnight in a tentin the small town where her aunt lived at the time of the incidents described at [6]-[7]above. V said while they were in the tent, Mr Baylis lay on top of her, simulatedintercourse, and then violated her with his fingers. The jury found Mr Baylis not guiltyof both charges in relation to this incident. We call these the tent charges, and relatedly,the tent verdicts.[15] Mr Baylis' defence was that the complainants fabricated the allegations.On behalf of Mr Baylis, Mr Pati contends the tent verdicts are inconsistent with all ofthe guilty verdicts. Mr Pati's core submission is that the tent verdicts mean the juryaccepted the allegations were fabricated.6 That being so, the guilty verdicts areinconsistent with the acquittals, and irrational also.[16] We make four points.[17] First, an unreasonable verdict includes a verdict that is inconsistent withanother verdict.7 Verdicts are inconsistent when an acquittal on one charge necessarilymeans a guilty verdict on another charge is unsafe, in the sense no reasonable jurycould have arrived at different verdicts.8[18] Second, the mere fact Mr Baylis defended the charges by alleging fabricationdoes not mean the jury accepted that contention in relation to the tent charges. By wayof illustration, having examined all of the evidence, the jury might have concluded itwas highly likely V was accurately remembering the relevant events and telling thetruth in relation to the tent charges, but that would not have been sufficient to amountto proof beyond reasonable doubt, and the jury would, therefore, have been obliged tofind Mr Baylis not guilty of those charges. Expressed another way, the jury couldreturn not guilty verdicts on the tent charges without those verdicts constituting areferendum on V's reliability or credibility.6 Mr Pati's written submissions framed this ground of appeal rather differently. It was said the jury"treated Mr Baylis guilty" unless there was evidence suggestive of, or consistent with, innocence.The argument is speculative and without merit.7 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [66].8 See R v Irving CA234/87, 4 March 1988.[19] Third, this Court has repeatedly held a jury may accept a complainant's accountin relation to some charges, but not others:9Time after time in appeals to this Court it is argued, as counsel argued here,that because the jury must have "disbelieved" a witness to acquit on one count,it was inconsistent to rely on her to convict on another count. The argumentis utterly fallacious; there may be all sorts of valid reasons why the jury maybe convinced by a witness on one count but not on another. To put this anotherway, there is no reason why credibility must be static. As was said in R v G[1998] Crim LR 483, "A person's credibility is not a seamless robe, any morethan is their reliability". It is not necessarily illogical for a jury to beconvinced as to the credibility of some aspects of one person's story, but notas to others, a fortiori where it is convinced, but not beyond a reasonabledoubt.[20] Fourth, the different verdicts are explicable. The tent charges were the onlycharges in which Mr Baylis' opportunity to commit the offences was not supported bythe evidence of other witnesses. As will be recalled, V said her friend was in the tent,as was her brother. V's friend did not testify. V's brother did, but he said he could notrecall staying overnight in a tent in the small town where their aunt was initially living,as against overnight in a tent in Palmerston North. Mr Pati acknowledged in hiswritten submissions that the tent verdicts could be distinguished from the other chargeson just this basis:... the jury had relied on an approach where if there is a witness outside of thecomplainant who could confirm being present with them at the relevant timeof offending, then the charge would be proven.[21] This ground of appeal fails for these reasons.A miscarriage of justice by amending charge 15?[22] As will be recalled, T said Mr Baylis penetrated her with his finger while shewas in the bath, then again with the towel when she got out of the bath. These werecharges 14 and 15. At the conclusion of the Crown's evidence, the prosecutor appliedto amend charge 15 to conform with the evidence. T had earlier said Mr Baylispenetrated her with his fingers when she got out of the bath, whereas her ultimateevidence was that he penetrated her with the towel when she got out of the bath.Judge B R Northwood allowed the amendment. Mr Pati contends the Judge should9 B (SC12/2013) v R, above n 7, at [80], quoting R v Shipton [2007] 2 NZLR 218 (CA) at [77].not have done so and Mr Baylis has suffered a miscarriage in relation to charge 15.Mr Pati's contention is that the charge should have remained as it was, as the Crownwas "stuck with", or ought to have been "stuck with", the original evidence of thecomplainant.[23] Section 133(1) of the Criminal Procedure Act 2011 permits the amendment ofa charge before the delivery of the verdict or decision of the Court. Section 136(1) ofthe Criminal Procedure Act permits the substitution of one offence for another if "thereappears to be a variance between the proof of the charge"10 and "the amendment willmake the charge fit with the proof".11 A charge must be amended under s 136(1) unlessthe defendant has been misled or prejudiced in his defence by the amendment.12[24] It is not necessary to determine whether amendment in this case lay unders 133(1) or s 136(1) for two reasons. First, there is no principle the Crown isnecessarily "stuck with" a complainant's original account, a principle inconsistentwith both s 133(1) and s 136(1). Second, Mr Baylis was not prejudiced by theamendment. As we have observed, Mr Baylis' case was that the allegations werefabrications. Amendment of the charge did not undermine that contention. Indeed, asMr Auld observes for the respondent, the amendment allowed Mr Pati to highlight thechange in the complainant's account during his closing address on behalf of Mr Baylis.In his closing address Mr Pati said: This charge about him drying her off outside of the bath, when she gaveher statement in 2019 she had every opportunity to be clear in her mind aboutexactly what happened. No pressure on her. What does she say: "Touchinghappened with the fingers." Remember, the officer actually had to clarify thatwas it the towel without the towel, the towel without the towel? Please watchit there, it's all there. In my submission, it's dangerous to trust that. Such a key detail.ACC compensation[25] Mr Pati put to the complainants they made the allegations to obtaincompensation from ACC for sexual abuse. Both denied that. V said while she had10 Criminal Procedure Act, s 136(1)(a).11 Section 136(1)(b).12 Section 136(2).received help from a psychologist, she had not asked for that to continue, and she did"not need any money or want any money out of this". T said she was unaware of "pay-outs from ACC to victims of sexual abuse". T's mother, who was also a witness, saidwhile she was aware of the possibility of such compensation, her daughter had notapplied for any.13[26] Mr Pati spoke about this topic in his closing address. He invited the jury toreject the complainants' denials they sought compensation and stressed the relevanceof the topic to their credibility. The Judge said this to the jury during his summing up:[111] I need to return to the topic of Accident Compensation Corporationsensitive claims. It is critical, as I have said earlier on, to consider only mattersthat help you decide whether the defendant is guilty or not guilty and mattersthat help you decide this come from the evidence.[112] While the defence in its closing address emphasised what was calledsomething dodgy and returned to the issue of ACC sensitive claims, I mustrepeat that there must be evidence of such claims or motivation to do so beforeyou can take that factor into account.[113] As it happens, none of the witnesses agreed with the suggestedpropositions. The simple asking of questions without agreement from thewitness does not create evidence that you can use. Please do not be overlydistracted by this issue because to go beyond the evidence or a lack of it invitesspeculation or guesswork about what happened. One thing we do not do incriminal cases is speculate or guess. You must decide this matter solely on theevidence you do have and this goes back to my observations earlier about thestatus of counsels' questions.[27] Mr Pati argues these directions were unfair because the credibility of thecomplainants was squarely in issue, and the directions improperly underminedMr Baylis' case.[28] We disagree. As the Judge explained to the jury, a proposition put to a witnessdoes not comprise evidence unless the witness accepts the proposition.The complainants did not accept they sought compensation or complained in the hopeof receiving it. The directions were, therefore, orthodox. Moreover, the directions did13 At the end of V's evidence, the jury posed two questions, the first of which was: how much mighta complainant be eligible to receive under [a] sensitive claim from ACC; is it a lump sum payment?The Judge told the jury that evidence yet to be adduced may address their questions, but that wasup to the parties. The Judge added that evidence had to be relevant to be admissible.not improperly undermine Mr Baylis' case as the Judge expressed no view of thecomplainants' credibility, and the directions were framed in neutral terms.[29] Mr Pati also told us he sought to adduce ACC documentation outlining theprocess for sensitive claims and the availability of compensation of this nature.Mr Pati said the Judge declined to admit this material.[30] We have not been able to find a record of this ruling, and the other materialavailable to us — rulings and minutes made during the trial — implies the Judge wasa careful historian. The Crown could not identify anything in the record, nor couldMr Pati. To compound matters, Mr Pati did not provide us with the material he saidthe Judge excluded. Consequently, there is little we can say about this submissionbeyond the obvious: any such material would lack relevance and probative value asboth complainants denied receiving ACC compensation.14[31] Mr Pati also argued, albeit in passing, that the Judge prohibited him fromsaying anything about ACC compensation in his closing address. We cannot acceptthis argument. Again, we have not been able to find any record of such a ruling, andplainly, Mr Pati did ventilate this topic in his closing address.[32] This brings us to the final ground of appeal.Unfair or improper directions in relation to delay?[33] V and T did not tell anyone about the offending for several years. The Judgesaid this to the jury about delay in his summing up:[114] I turn now to the delayed nature of the complaint by [V] and [T]. Now,you have heard evidence that they delayed complaining about Mr Baylis'alleged conduct saying nothing at the time and not saying anything for severalyears. They both gave evidence of their reasons for doing that and werequestioned extensively about the availability of others who could have beenasked for help.[115] Now, some might think it is to be expected that a child would complainto a trusted person about sexual abuse and would do so at the first opportunity.In fact, it is not uncommon for victims of sexual abuse to delay reporting theabuse for a considerable period even though they may have had opportunities14 Evidence Act 2006, ss 7 and 8.to disclose their views to members of their families or to others that they trust.Now, it is for you to decide whether and to what extent the delay in makingthe complaint should affect your assessment of the evidence of [V] and [T].[116] There is no classic or typical response to situations alleged here. A latecomplaint does not signify a false complaint anymore than an immediatecomplaint necessarily demonstrates a true complaint. So this direction isintended to clear away any misconceptions about how the victims of sexualassault might respond, particularly in the case of a child or children.[117] Following on from that, there is a particular need for caution whenassessing evidence in this case because there has been a delay of over 10 yearsin bringing these charges to trial. There is a risk that given the passage of timethe evidence may be unreliable for several reasons. Memory may have fadedover the years or been unconsciously altered to the point where recollectionof events is not reliable. Similarly, Mr Baylis' ability to recall events mayhave diminished over that period. The accuracy and level of detail of awitness's memory may depend on several factors, including the time that haspassed since the event, the personal significance of the event. [A more]traumatic or dramatic event in a young person's life may stick in that person'smemory more than something that is in passing or trifling. The emotionalcontent of the event may be relevant, as might the occurrence of other relatedevents. The issues as to why, when or by whom the witness is being asked torecall past events may also assist you as might be the kind of cues that promptretrieving of past memories.[118] For all these reasons it is necessary for you to consider caution both indeciding whether you accept the complainants' evidence and deciding whatweight to give to it.[34] Mr Pati argued these directions went "beyond the scope for which a judge canreasonably sum up a case" as no counter-intuitive evidence was adduced. We disagreebecause this Court has held a judge may give directions about misconceptions insexual cases in the absence of counter-intuitive evidence,15 and the Supreme Court hasdescribed such directions as "a worthwhile alternative to expert evidence".16Furthermore, the Judge's directions about the delayed complaints were in accordancewith s 127 of the Evidence Act 2006, and unremarkable. Finally, the directions aboutthe events being more than 10 years old were in accordance with s 122(2)(e) of theEvidence Act, unremarkable, and given for Mr Baylis' benefit.[35] As with the earlier grounds of appeal, this ground also fails.15 R v Keats [2022] NZCA 149; and Cameron v R [2023] NZCA 157.16 DH (SC 9/2014) v R [2015] NZSC 35, [2015] 1 NZLR 625 at [111].[36] It follows Mr Baylis has not identified any error or irregularity in or in relationto the trial, still less a miscarriage of justice. And, as we observed earlier, the guiltyverdicts are not inconsistent with the acquittals on the tent charges.Result[37] The appeal is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent