BANKS v R [2018] NZCA 120

BANKS v R [2018] NZCA 120 [24 April 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA373/2017[2018] NZCA 120BETWEEN DAMIEN ROBERT BANKSAppellantAND THE QUEENRespondentHearing: 5 March 2018Court: Asher, Brewer and Collins JJCounsel: J W Watson for AppellantZ R Johnston for RespondentJudgment: 24 April 2018 at 11.30 amJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] On 12 May 2017, Mr Banks was found guilty by a jury on charges of sexualoffending against a boy. The offending took place between 1993 and 2001. Mr Banksappeals his convictions on the basis that his trial was unfair and hence there has beena miscarriage of justice.Background[2] The complainant, now an adult, gave evidence that when he was a young boyhe lived with his family across the road from Mr Banks. He said that on manyoccasions he was offended against sexually by Mr Banks, mostly at Mr Banks' addressbut also at other addresses, including his own.[3] Mr Banks gave evidence at the trial and denied the allegations. He wasconvicted on all of the charges.1Approach on appeal[4] The jury had to decide whether it could rely upon the evidence ofthe complainant to such an extent that the charges were proved beyond reasonabledoubt. That is because there was no other direct evidence of the offending. Mr Banks'evidence was part of the total evidence for the jury to consider. If the jury hadconsidered there was at least a reasonable possibility that his denials were true, then itshould have returned verdicts of not guilty as appropriate.[5] Clearly, the jury rejected Mr Banks' evidence and found that it could rely uponthe evidence of the complainant. Mr Banks' case on appeal is that that reliance wasmisplaced because of the way the prosecution case was conducted and because ofdeficiencies in the summing-up of the trial Judge, Judge Harvey[6] Our task is to determine whether the grounds of appeal show any error,irregularity or occurrence that has created a real risk that the outcome of the trial wasaffected, or has resulted in an unfair trial, such that Mr Banks' convictions amount toa miscarriage of justice.21 There were two representative charges of sexual violation by unlawful sexual connection, threecharges of indecency and one charge of unlawful sexual connection.2 Criminal Procedure Act 2011, s 232(4).Grounds of appeal[7] Mr Watson filed very thorough submissions on behalf of Mr Banks, and in hisoral submissions to us grouped them essentially into four grounds of appeal. We willaddress these grounds.Dr Ahmad's evidence[8] The first witness called by the Crown was a clinical psychologist, Dr Ahmad.She was called as an expert to educate the jury about the typical reactions of childrento sexual abuse. This is often called 'counterintuitive evidence' because it is called tocounter what might otherwise be the intuitive reaction of jurors to evidence of acomplainant as to the way they responded to sexual abuse. It explains, for example,why a child may not immediately report sexual abuse.[9] Mr Watson, in his oral submissions, refined his written submissionssignificantly. He accepts there is nothing objectionable or inadmissible in Dr Ahmad'sevidence. We agree.3[10] Further, we note that Dr Ahmad set out her role clearly before giving hersubstantive evidence:A. My role today is to correct some of those misconceptions so I'mgiving some general educative information about children'sbehavioural responses to child sexual abuse and issues related to that.My role today is not to talk about this case specifically, it's mere [sic]a general educated role.Q. So just to be sure on that point, the evidence you give will not proveor disprove the, that sexual offending has occurred in this case?A. That's correct.Q. It is general and educative in purpose?3 In his written submissions, Mr Watson seemed to object to Dr Ahmad giving irrelevant evidenceabout acts of violence or threats of violence. However, Dr Ahmad said nothing about threats oracts of violence. Mr Watson also seemed to take exception to Dr Ahmad using the term"grooming" because the Supreme Court in DH (SC9/2014) v R [2015] NZSC 35, [2015] 1 NZLR625 at [63] deprecates the use of that word. However, Dr Ahmad only used it as a shorthandexpression. She was careful to first define what she meant by the term: "Grooming can be definedas follows; the use of the variety of manipulative and controlling techniques with a vulnerablesubject in a range of interpersonal and social settings to establish trust or normalise sexual harmfulbehaviour and with the overall aim of facilitating exploitation and/or prohibiting exposure".A. That's correct, yes.[11] Mr Watson's real objection in relation to Dr Ahmad's evidence is not that itwas given but how the Crown counsel dealt with it.[12] Mr Watson submits that the Supreme Court in DH (SC9/2014) v R commentedthat counterintuitive evidence should not be linked to the circumstances of thecomplainant in the case in which the evidence is being given. The Supreme Courtwent on to say:4This is an important limitation, designed to ensure that the evidence is notused in a diagnostic or predictive way. The witness should make it clear thatthe witness is not commenting on the facts of the particular case.[13] Mr Watson criticises Crown counsel's closing address for linking Dr Ahmad'sevidence to the evidence given by the complainant in a way which he submits turnedDr Ahmad's evidence into a diagnosis of abuse in the complainant's case, and therebybolstered the complainant's credibility. His submission is that this was not sufficientlycorrected by the trial Judge and led to a miscarriage of justice.[14] In her closing address, Crown counsel repeated a passage Dr Ahmad hadquoted to the jury from a book Dr Ahmad considered authoritative:The offender will exploit the child's natural naivety and trust by introducingincreasingly intimate physical contact such as play acting, tickling orwrestling and even hugging and kissing to gradually sexualise contact withthe child. The use of touch is particularly important as this determines whetheror not the child is receptive and begins their process of desensitisation.Gradually the abuser escalates boundary violations of the child's body in orderto desensitise the victim to further abuse.[15] Crown counsel then went on to say:Now, it is a matter for you ladies and gentlemen, but does that quote not fitperfectly with the defendant's behaviour as described by [the complainant]?Classic grooming behaviours.[16] This comment by Crown counsel was criticised by Mr Watson in his ownclosing address:4 DH (SC9/2014) v R, above n 3, at [30].The Crown in its closing has made much of the psychologist's evidence. Bevery, very cautious when you address a psychologist's evidence. She wassupposed to be here in an educator role. In reality, it's a thinly disguisedattempt by the Crown to bolster credibility.[17] The Judge in his summation said this about the evidence of Dr Ahmad:[67] The purpose of this evidence is to inform you as to the range ofbehaviour found among child complainants in this area, so as to counter anythought that you might have had along the lines that it is to be expected that achild complainant would promptly complain to a parent or caregiver aboutsexual abuse, or would complain about all instances of abuse at the firstopportunity.[68] It is not, and is not intended to be, a thinly disguised attempt to bolsterthe complainant's credibility, as submitted to you by Mr Watson. It isimportant for you to remember that Dr Ahmad told us that she has notinterviewed any of the parties to this trial. None of her evidence is about thefacts of this case. In particular, her evidence does not relate to the credibilityof the complainant in this case and you cannot, you may not, use it to bolsterhis evidence.[69] In particular, Dr Ahmad was not giving her opinion about whatthe complainant said in evidence or what your verdicts should be. Dr Ahmademphasised that she was speaking generally and not about the facts in thistrial. In assessing her evidence, you must have regard to her qualificationsand experience, but this is a trial by jury, not a trial by expert.[70] It is for you to decide how much weight or importance you give to heropinion or indeed whether you accept it at all in the context of all of theevidence that you have heard. It is for you to decide whether and to what extentthe lateness of complaint should affect your assessment of his evidence.[71] It is for you to decide whether you accept [the complainant's]evidence, and if so, whether what he has described fits with what Dr Ahmadhas described as grooming. It is for you to decide what weight you will placeon that evidence. Her evidence may inform your assessment, but it does notof itself add to the evidence against the defendant. The evidence was given toyou, it is purely educational.[18] The Supreme Court's dicta that counterintuitive evidence should not be linkedto the particular evidence in a case is for the very good reason that the expert givingthe counterintuitive evidence does not address the particular case. There could becases where Crown counsel establishing such a linkage and using it to bolster thecredibility of a complainant could commit an error giving rise to a real risk that theoutcome of the trial was affected. That is not the situation here.[19] We accept that Crown counsel linked Dr Ahmad's evidence to the evidencegiven by the complainant and did so in a context of inviting the jury to findthe complainant's evidence of sexual abuse more credible because his evidence ofearly contact with Mr Banks fitted the description of grooming given by Dr Ahmad.That was an error.[20] It is the impact of the error on the trial process which we have to consider.We are satisfied that it did not raise a real risk that the outcome of the trial was affected.Mr Banks' evidence was that the "grooming" behaviour described by the complainantnever happened. If the jury accepted the complainant's evidence that the behaviourdid occur, then it was entitled to consider the implications of that in the light ofDr Ahmad's evidence. Crown counsel wrongly went directly to the point.However, the Crown did not go so far as to ask the jury to convict Mr Banks on thebasis of Dr Ahmad's evidence if they accepted the complainant's version of events.[21] Further, in our view the Judge dealt with the point thoroughly andappropriately. In DH (SC9/2014) v R the Supreme Court commented that in casesinvolving counterintuitive evidence a judge must caution the jury against the improperuse of the evidence, "such as reasoning that the fact the complainant behaved in oneof the ways described is itself indicative of the complainant's credibility or thatsexual abuse occurred".5 Judge Harvey's directions to the jury were more thanadequate in this regard.[22] At one point Mr Watson told us that the Judge's direction quoted at [17] abovecould be read as reinforcing the Crown's use of the evidence and being critical ofMr Watson. However, we are quite clear that the Judge was reinforcing whatMr Watson himself said in his address to the jury and that this would be the naturalway it was received by the jury.[23] The appeal does not succeed on this ground.5 DH (SC9/2014) v R, above n 3, at [30].Failure to caution as to reliability of evidence due to delay[24] Judge Harvey was asked by Mr Watson to give a warning to the jury pursuantto s 122 of the Evidence Act 2006. This provides, relevantly:122 Judicial directions about evidence which may be unreliable(1) If, in a criminal proceeding tried with a jury, the Judge is of theopinion that any evidence given in that proceeding that is admissiblemay nevertheless be unreliable, the Judge may warn the jury of theneed 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) whenever thefollowing evidence is given:(e) evidence about the conduct of the defendant if that conduct isalleged to have occurred more than 10 years previously.[25] There is no question that Judge Harvey considered whether he should give thewarning. The Judge made a formal ruling on the point in which he gave his reasonsfor not giving a warning.6 In summary, the Judge's reasons were:7(a) the complainant's evidence had not been inconsistent in that he had notdeviated from his original statement or materially added to it;(b) Mr Banks had not lost the opportunity to call evidence or refute theallegations;(c) Mr Banks had a previous conviction for indecent assault; and(d) giving a warning might be seen by the jury as an invitation to reject thecomplainant's evidence.6 R v Banks DC Whangarei CRI-2016-088-838, 12 May 2017.7 At [10]–[14].[26] The issue for us is whether, objectively, a warning should have been given inthe circumstances of the case.[27] In CT (SC88/2013) v R the Supreme Court summed up the application ofs 122(2)(e) as follows:8[A] lengthy lapse of time between the conduct in issue and the evidence attrial may raise issues of reliability that bear on the fairness of the trial.Where the judge considers the evidence may be unreliable for that reason consideration of a warning is required and its absence may lead to unfairnessin the trial.[28] The evidence in question does not need to be "inherently" unreliable by reasonof the effect of the delay on memory in order to require consideration of a warning.9Other reasons may be taken into account.10[29] The Supreme Court commented further on the matter in L (SC28/2014) v R:11[Section] 122 is not merely concerned with the effect of time (and interveningevents) on memory [Section] 122 covers the effect of delay on the abilityor otherwise of a defendant to check and challenge the evidence of acomplainant.[30] The point of a direction under s 122 is to warn a jury to be careful of relyingon evidence where a judge has formed the opinion that the evidence may be unreliable.The section gives situations in which the judge must consider whether to give such awarning, and one of them is where the alleged conduct occurred more than 10 yearspreviously. However, Mr Watson does not point to any matter that might go toreliability in this case other than the natural effect that the passage of time might havehad on Mr Banks' ability to recall events and so, possibly, produce rebuttal evidence.In the absence of any indication that evidence might have been rendered unreliable bythe passage of time, it is difficult to see how a direction under s 122 by Judge Harveycould have been of any real assistance to the jury.[31] This ground of appeal does not succeed.8 CT (SC88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465 at [43].9 At [47].10 At [49].11 L (SC28/2014) v R [2015] NZSC 42, [2015] 1 NZLR 658 at [26].Propensity evidence[32] Propensity evidence was admitted by Judge Harvey in relation to a convictionentered against Mr Banks in 2014 for a charge of doing an indecent act with a boyaged under 12 years.12 At the time of the offending, the boy was aged nine years andMr Banks was aged 33 years. There is a distant family connection between Mr Banksand the boy's father.[33] Mr Watson submits there are very few similarities between the two cases andmany differences. Mr Watson prepared for us an appendix in which he listed what hesees as the similarities and the differences.[34] In our view, Judge Harvey was manifestly correct to permit the Crown to callthe propensity evidence.[35] Propensity evidence, in this case, means evidence that tends to show Mr Banks'propensity to act in a particular way.13 His propensity was said to be a propensity tooffend sexually against pre-pubescent boys.[36] Judge Harvey was required to balance the probative value of the evidenceagainst the risk that the evidence may have an unfairly prejudicial effect on thedefendant.14 Judge Harvey did that. We agree with his view that the probative valueof the evidence was high because sexual offending against pre-pubescent boys isinherently unusual.15[37] It is well established that similarities are the focus for the probative value ofpropensity evidence rather than differences between cases.16 In this case, whether ornot the victims were a neighbour as opposed to a distant relative, whether or not theage difference was numerically different, and whether or not the sexual acts differed,are, as Judge Harvey said, quite outweighed by the similarities of taking advantage of12 R v Banks [2017] NZDC 9737.13 Evidence Act 2006, s 40(1)(a).14 Section 43.15 Cox v R [2016] NZCA 60 at [12] citing Duffy v R [2013] NZCA 117 at [11]; and Smith v R [2010]NZCA 361 at [17].16 R v P (CA135/2013) [2013] NZCA 424 at [18].trust and propensity to sexually offend against pre-pubescent boys. The prejudicialeffect of admitting the evidence was high. But that is because its probative value washigh. The prejudice was not illegitimate.[38] We are also satisfied that the directions Judge Harvey gave to the jury on howto treat the propensity evidence were appropriate and entirely in accordance with theauthorities.17[39] This ground of appeal does not succeed.Imbalance in the Judge's summing-up[40] The final ground of appeal is what Mr Watson termed as the Judge'sunbalanced and unclear summing-up. This ground is focused on a comment thatthe complainant made twice in his evidence when he was vague about detailsurrounding instances of the offending he alleged. He said that the memories of theactual offending on the occasions he described were "burned into my brain".[41] Mr Watson submits that when Crown counsel made her closing address sheadopted that phrase to explain why the complainant remembers all of the offendingbut not dates or times or exact addresses. Mr Watson criticised the Judge for notcorrecting this.[42] In summarising this aspect of Crown counsel's address, the Judge said:[76] [B]ut, says Ms Jarman-Taylor, the crucial parts, the parts that havebeen burned into [the complainant's] brain, have not been forgotten and thatwill hardly come as a surprise to you.[43] In Mr Watson's submission:Those final words are not only a powerful endorsement of what the Crown hassaid and advocates for the Crown, it is also an endorsement ofthe complainant's evidence, his ability to remember and why.17 Following the approach endorsed by the minority of the Supreme Court in Mahomed v R [2011]NZSC 52, [2011] 3 NZLR 145 at [95].[44] We disagree with Mr Watson's characterisation of the Judge's reference in hissumming-up. The phrase "burned into my brain" as used by the complainant is ametaphor for the proposition that his memories of the sexual abuse he suffered are farmore vivid than his memories of the details of the contexts in which the abuseoccurred. We are satisfied the jury would have interpreted the phrase in this way.[45] The fact that Crown counsel used the metaphor to refer generally to thecomplainant's ability to remember the instances of abuse is unexceptional. The factthat the Judge repeated the Crown's submission when reminding the jury ofthe Crown's case is unexceptional. The fact that he added the rider "and that willhardly come as a surprise to you" is a comment on the obvious.[46] This ground of appeal does not succeed.Decision[47] We have, in addition to considering the individual grounds of appeal,considered the case as a whole. We find no material error in the way the case wasprosecuted or the way in which Judge Harvey discharged his function as trial Judge.This was a contest of credibility between complainant and defendant, and the juryfound it could rely upon the evidence of the complainant to the required standard ofproof.[48] We have not been persuaded that any of the grounds of appeal are made out,nor that there is otherwise any indication of a miscarriage of justice. The appealagainst conviction is dismissed.Appeal against sentence[49] We record that Mr Banks also filed an appeal against his sentence of 11 years'imprisonment. This was not pursued by Mr Watson who acknowledged, properly, thathe "could not seriously contend that the penalty imposed was inappropriate".Accordingly, the appeal against sentence is dismissed.Result[50] The appeal against conviction is dismissed.[51] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent