HENRY v R [2017] NZCA 92

HENRY v R [2017] NZCA 92 [29 March 2017]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESS ANDCONNECTED PERSON GH PURSUANT TO S 202 OF THE CRIMINALPROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA300/2016[2017] NZCA 92BETWEEN DION CRAIG HENRYAppellantAND THE QUEENRespondentHearing: 17 February 2017Court: Wild, Simon France and Duffy JJCounsel: S D Cassidy for AppellantA J Ewing for RespondentJudgment: 29 March 2017 at 10.30 amJUDGMENT OF THE COURTA The appeal, which is against both conviction and sentence, is dismissed.B Order prohibiting publication of name, address, occupation or identifying particulars of witness and connected person GH pursuant to s 202 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)Introduction[1] Following a jury trial in the New Plymouth District Court, Mr Dion Henry was convicted on five charges of sexual offending. He was later sentenced by Judge Barkle to nine years and six months' imprisonment with a minimum period ofimprisonment (MPI) of four years and nine months.1 He now appeals against his conviction and sentence.Facts[2] Mr Henry was convicted of two charges of sexual violation by unlawful sexual connection,2 two charges of indecent assault on a girl under 12,3 and one charge of inducing a girl under 12 to do an indecent act upon him.4[3] The offending arose out of one incident involving one complainant, which occurred between 1 April 2005 and 6 May 2005 at Mr Henry's home where thecomplainant was staying. At the time, the complainant was aged 11 and Mr Henry was aged 33.[4] Mr Henry touched the complainant's genitalia with his fingers and put hisfinger inside her genitalia. A little later, in a different part of the house he kissed the complainant, showed her his erect penis and made her touch and rub it. At some stage during what followed, he touched her breast with his hand. He also grabbed her head and put her mouth on his penis, ejaculating in her mouth.[5] Mr Henry continues to deny the offending. He maintains he found himself inthe middle of a "sordid web of sexual abuse". He claims he discovered the complainant's older brother in the act of sexually abusing her. When he subsequently discussed this incident with the complainant she disclosed that she had1 R v Henry [2016] NZDC 11184 at [27] and [37].2 Crimes Act 1961, s 128(1)(b).3 Crimes Act 1961, s 133(1)(a) (repealed on 20 May 2005).4 Crimes Act 1961, s 133(1)(c) (repealed on 20 May 2005).been sexually abused by her brother and other men, and that her mother had arranged for other men to have sexual contact with her. When the complainant's motherarrived, Mr Henry confronted her and said he would involve the police. Thecomplainant's mother then blackmailed him, threatening him with a false complaintof sexual offending against the complainant. The trial, and the complainant's falseallegations, are said to be the culmination of that process.Events at trial[6] At trial it was common ground that the complainant had been sexually abused by other older men prior to this offending:(a) AB pleaded guilty to five charges of indecency with a girl under 12, four charges of sexual conduct with a person under 16, and two charges of sexual violation by unlawful sexual connection.(b) CD pleaded guilty to one charge of doing an indecent act on a girl aged between 12 and 16.(c) EF pleaded guilty to two charges of sexual violation by unlawful sexual connection, one charge of indecency with a girl under 12 and one charge of attempted rape.(d) GH (the complainant's brother) has been charged with two counts ofsexual violation by rape. He has admitted his offending to the police, but in early 2016 these charges were still proceeding through the Hamilton District Court.[7] Evidence of the sexual offending perpetrated by three of these men and the alleged offending by the fourth man was adduced at trial by Mr Henry.5 Mr Henry wanted to introduce this evidence in order to:5 The Crown did not oppose Mr Henry's application to adduce the evidence under s 44 of theEvidence Act 2006.(a) partially corroborate his evidence (in particular, that he haddiscovered the complainant's brother sexually abusing her); and(b) to explain the complainant's sexual knowledge, given what she said ina police interview and that she is able to give a convincing descriptionof Mr Henry's offending.6[8] The way in which this evidence was used at trial is now one of the issues on appeal.Appeal against conviction[9] Mr Henry contends there has been a miscarriage of justice because:(a) Judge Barkle failed to direct the jury on how to use the evidence that other men had admitted sexual offending against the complainant.(b) The Judge failed to provide a more robust direction on the demeanour of the witnesses.(c) The prosecutor used intemperate language and evidentially unfounded assertions consonant with a lack of professional detachment in closing to the jury.(d) The Judge failed to comment on the abovementioned prosecutorial misconduct.Direction on how to use evidence of previous sexual offending against the complainant[10] Evidence of others having sexually abused the complainant was introduced at the request of the defence. The Crown and the defence then used the evidence in different ways.6 Although the charges were not prosecuted for some years, the complainant gave her interview when she was 12 years old.[11] Mr Henry contends the Crown initially told the jury the evidence was notrelevant, but then used the evidence to support the complainant's credibility.Specifically, the Crown noted that the circumstances of the previous offending were quite different, so the specificity of the (different) allegations made against Mr Henry suggested the complainant was telling the truth. The defence, on the other hand,used the evidence to explain both the complainant's sexual knowledge and herdemeanour when giving evidence in court.[12] Mr Henry also contends the Crown's use of the evidence at trial engages s 37 (veracity rules) and arguably also s 40 (propensity rule) of the Evidence Act 2006. However, no consideration was given to whether the evidence could be utilised for a s 37 purpose, given the statutory threshold for admission of veracity evidence. Nor was any consideration given to how the jury might use the evidence as proof of thecomplainant's propensity to tell the truth about sexual offending, and thecorresponding need to caution the jury against that type of reasoning.[13] Mr Henry argues that there should have been a tailored jury direction warning against jumping to the conclusion that just because the complainant might have told the truth about other men, she may not necessarily have told the truth about the offending alleged against Mr Henry.[14] A miscarriage of justice may occur where the defence has introduced or consented to the introduction of evidence that the Crown subsequently uses illegitimately, in the absence of jury directions.7 However, that did not occur here. Mr Henry mischaracterises the way the Crown dealt with the evidence of earlier sexual abuse of the complainant by others. The Crown referred to the context and detail of those events simply to demonstrate the evidence was not the same as the present allegations, and therefore it should not be seen as the source of theseallegations. This was consistent with the Crown's proposition that the evidence of earlier sexual abuse was irrelevant and something the jury should ignore. We see this as a legitimate approach for the Crown to have taken.7 Tarapata v R [2016] NZCA 500 at [46]–[48].[15] Further, Mr Henry's argument assumes that the jury would engage in illegitimate reasoning by using the s 44 evidence to bolster the complainant'sreliability and credibility. However, the Judge was not required to direct against that use of the evidence when the Crown had not invited the jury to use the evidence for that purpose.[16] Accordingly, the first ground of appeal fails.Directions to the jury on demeanour of witnesses[17] In closing, the Crown invited the jury to take the demeanour of the witnesses into account in assessing their evidence:Even my friend when he opened to you the other day he said to you something about both [GH] and [the complainant] being articulate giving their evidence, clearly and articulately which was a credit to both of them. They were his words in opening and I adopt them now because they were a credit to both of them. They were articulate, they were clear and they told you the absolute truth to the best of their ability in that witness box. They were more than that though. They were sincere. They were open, they were frank, they were forthright and they tried to hide nothing. They were not inconsistent in their evidence. They did not change things as their evidence went along and [GH] in particular, told you aspects of his life that he never had to say, they actually are not relevant at all, the issues that you have to decide in this case. So I suggest from the way in which they gave their evidence what they said about things and everything else you heard them say had the ring of truth in it, and you will find both of them reliable and credible witnesses, and as soon as you do that, all of his story definitely goes out the window.[18] The defence sought a demeanour direction from the trial judge.[19] Mr Henry now contends a specific warning, tailored to the particulars of thecase, was required. This was because it was a "she said/he said" type of case, inwhich both sides accused the other of lies. He relies on E (CA799/2010) v R, in which this Court said that a specific and tailored jury direction on demeanour may benecessary in a "she said/he said" case, where demeanour assumes greaterimportance. 88 E (CA 799/2010) v R [2013] NZCA 678 at [48]–[51].[20] Mr Henry argues that the Judge should have "warned the jury that demeanour is often a poor indicator of whether someone is telling the truth, particularly in a casesuch as the present where the complainant's emotional responses may be attributed to other proven offending".9 Mr Henry also asserts that assessment of witness demeanour is no longer accepted as a good way to assess the truth or falsity of evidence, and in this case the jury were asked in strong terms to rely on demeanour.[21] The Judge gave the following direction:[27] There is no particular formula I can give you about the assessment ofa witness's evidence because we all assess things we are told every day – we look, we think and our minds work. We weigh things up and we make a decision. You can be influenced not only by what was said but how it wassaid; what was the witness's manner when he or she testified. Don't jump toconclusions based entirely on how a witness has given evidence, reacted or not reacted to the questions asked. The demeanour of a witness is one matter, or factor, to consider in a broad assessment.[28] Look at what other evidence there is to assess the accuracy andreliability of a particular witness's evidence. Also test the witness's evidenceagainst the yardstick of human nature, or common sense. Does a witness have a good reason for saying what they said? Does it make sense? Is it consistent with the rest of the evidence that you accept? Do other witnesses or other independent facts support or confirm what the witness is saying? Those are all factors you should consider. Credibility and reliability, the assessment of the evidence of a witness, is a broad and wide-ranging exercise not dependent on any one thing.[22] We consider Judge Barkle's directions at [27] and [28] to be sufficient for this trial. If he had given something more tailored, more directed at the complainant, then there would have been a risk that he was conveying his own view to the jury ofwhat they should make of the complainant's evidence. The directions refer broadlyto demeanour and are consistent with what the Supreme Court has said inTaniwha v R.10 Further, there was nothing in the trial that would trigger the need to go beyond basic directions on assessing witness reliability and credibility. Whilst there were tears from the complainant, that is common in this sort of case and did not call for any specific direction. The Judge gave the usual direction to the jury to put any sympathy or prejudice they might feel to the side, and that was sufficient.9 Mr Henry relies on Taniwha v R [2016] NZSC 121, [2017] 1 NZLR 116. He acknowledges thatTaniwha was decided after his trial, but submits that it was still required of the Judge to have given such a direction to the jury.10 Taniwha v R, above n 9, at [57].[23] Accordingly, the second ground of appeal fails.Prosecutorial misconduct and Judge's failure to comment[24] Mr Henry gave evidence at trial. In the Crown's closing, on a number of occasions in relation to distinct aspects of Mr Henry's evidence, the Crown said he had lied to the jury. On three of those occasions the Crown described Mr Henry'sevidence as a "pack of lies" and on one such occasion the Crown added thatMr Henry was an unreliable witness who had given inconsistent evidence. TheCrown also said Mr Henry was "making things up" in relation to aspects of hisevidence. Then when it came to the complainant and her relatives who gave evidence for the prosecution, the Crown in closing described their evidence as"sincere", "frank", and "forthright". They "tried to hide nothing" and "everything else you heard them say had the ring of truth in it". The Crown also stated, "you willfind both of them [prosecution witnesses] reliable and credible witnesses, and assoon as you do that, all of his [Mr Henry's] story definitely goes out the window".[25] At the end of the closing, the Crown referred to the Judge's question trailwhich posed a series of questions, which if they resulted in a yes answer led to a verdict of guilty, and said: you are going to answer every single question for every single charge Isuggest, yes, yes and yes and when you do that, you will see that on the last question on every charge as soon as you do that you are going to say, guilty, guilty, guilty, guilty and guilty. [The complainant] told you the truth members of the jury and it is now your duty to bring in those verdicts of guilty.[26] Defence counsel's response to the Crown's closing is informative. He spent some time at the outset attempting to counter the Crown's closing, demonstrating hisconcern. Some of the points he makes reflect our concerns:The last words that my learned friend the Crown prosecutor said to you was that you had a duty to find this man guilty. That is quite wrong. That is not your duty. You have an obligation and a duty in this trial, no question about that. But, your duty as jurors, as judges of fact in this case, your obligation as jurors and as fact-finders in this case is this: you have an obligation, you have a duty to consider the evidence and look at the evidence carefully, objectively, fairly. You have an obligation to decide this case on that evidence, having looked at it objectively, fairly, in a just way. Your duty is not to find him guilty. Your duty is to look at the evidence and decidewhether or not the Crown have proven their case beyond a reasonable doubt. That is your duty; that is your obligation. Not just to find him guilty. The way my learned friend the Crown prosecutor was talking in her speech to you, anyone would think she was there and that she knew exactly what happened. You can believe her. She told you the absolute truth, talking about [the complainant] But how does she know? She wasn't there. I wasn't there. You weren't there. His Honour wasn't there. So how does theCrown prosecutor know? How can she tell you what to do? How can she tell you to find him guilty? She can ask you to. She can ask you to consider the evidence. But, if anybody had walked into this Court and heard mylearned friend's closing address, they would have thought that she was all- knowing.[27] Mr Henry argues that the Crown used emotive language multiple times during its closing address to the jury, including statements of opinion rather than submissions based on evidence heard by the jury, and appeals to sympathy. Thestatements included references to Mr Henry telling a "pack of lies" and assertions that the complainant had told the truth. They also included references to the"system" letting the complainant down, as the police took no action earlier on her complaints. Judge Barkle did not comment on those aspects of the Crown's address other than with the normal summary of the respective cases.[28] Mr Henry argues that the Crown should not "strain for a conviction or adopttactics that involve an appeal to prejudice or amount to an intemperate or emotionalattack on the accused".11 An emotive and personalised Crown closing and an emotive discussion of lies told by the defendant can found a miscarriage of justice.12[29] Mr Henry contends, therefore, that the Judge should have directed the jury:(a) That if they gained the impression that the prosecutor held personalview about the veracity of the complainant's evidence, they were toput that to one side.(b) That if the jury felt the system had let the complainant down (as the Crown suggested), they were to put that to one side.11 In support of this submission, he cites Randall v R [2002] UKPC 19, [2002] 1 WLR 2237; Te Riini v R [2014] NZCA 548; and R v Stewart [2009] NZSC 53, [2009] 3 NZLR 425.12 R v Mussa [2008] NZCA 290 at [37]–[39].(c) That because both sides accused the other of lying, that was a matter for them to determine, not counsel.(d) On how they may use evidence of lies if, on considering the evidence, they find one proven.[30] We have concerns about aspects of the closing address. The prosecutor's rolein closing is to draw the Crown case together in a firm but fair manner. There is nota place for appeal to the jury's emotions, for exaggeration or for personal opinion.13That the defence did not complain at the time and seek a remedial direction from the Judge is no answer to our concerns.[31] We acknowledge appropriate directions to the jury to disregard theprosecutor's emotive expressions of opinion on the evidence and earlier failings of the criminal justice system could have been made.[32] However, specific directions on lies were not required. First, the jury were well aware the case turned on whose evidence was believed. This was correctly addressed by the directions on credibility and reliability. Secondly, whilst Mr Henry submits the Judge should have given directions on lies and how the jury might use them if found proven, it is not clear about whom he wanted the directions to begiven; the complainant, himself, or both of them. At trial, Mr Henry's then counselexpressly did not seek a lies direction in relation to Mr Henry and Judge Barkle did not think it necessary to give that direction.14 This is understandable as a defendant'sdenial of the offending and explanation to the contrary is not the proper subject of a specific lies direction.15 There was no suggestion here that Mr Henry lied in any other way. It is unorthodox to give a specific lies direction in relation to acomplainant's evidence.16 The Judge was right, therefore, not specifically to direct the jury on how they might use evidence of lies if, on considering the evidence, they found one proven.13 See R v Roulston [1976] 2 NZLR 644 (CA).14 Section 124 of the Evidence Act 2006 sets out when a lies direction is required for a defendant.15 See R v Bensitel CA133/06, 5 October 2006 at [34]–[37]. In this regard we reject Mr Henry'sargument at [29(d)] herein.16 See R v Bensitel, above n 15, at [39]; and R v Ngatai [2016] NZCA 352 at [19].[33] As for when prosecutorial conduct can cause a trial to miscarry the relevant test is as stated in R v Hodges:17[The] ultimate question which we have to consider is whether the content of the address, coupled with the lack of any direction from the Judge on theissues arising, raises a real risk of miscarriage of justice. We emphasiseagain that in the end it is the cumulative effect of the address as a whole and its likely impact on the jury that must be assessed.[34] There are occasions here where the prosecutor overstepped the mark.However, on balance, the inappropriate elements of the Crown's closing would nothave made it likely that the jury would determine the case other than on the evidenceand in accordance with the Judge's directions. Accordingly, we do not consider theoutcome was a miscarriage of justice.[35] This ground of appeal fails.Appeal against sentence[36] The Judge placed the offending within band two of R v AM (CA27/2009),18having identified five aggravating factors:19(a) planning and premeditation;(b) the vulnerability of the victim;(c) the harm caused;(d) breach of trust; and(e) the scale of the offending.[37] Mr Henry complains about the inclusion of two of the above aggravating factors. First, he argues the Judge was wrong to identify the offending as pre-meditated. The better view is that it was opportunistic, with no evidence of planning or grooming. Secondly, he argues the Judge was wrong to take the scale of the offending as an aggravating factor. Whilst he accepts there was more than one17 R v Hodges CA435/02, 19 August 2003 at [7].18 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.19 R v Henry, above n 1, at [15].offence, they all occurred on the one occasion and over a relatively short period of time. This leads Mr Henry to submit the offending falls toward the lower end of band two in R v AM (CA27/2009), and should have attracted a starting point ofbetween seven and eight years' imprisonment. No issue is taken with the uplifts and discounts applied. Finally, Mr Henry submits that the offending was "not so grave, relative to others, to require a [MPI]". In this regard, Mr Henry submits that an extended supervision order [ESO] was made, and this went a significant way to reducing the risks associated with re-offending.[38] We do not agree. We accept the Crown's submission: the starting point waswell within range, given the vulnerability of the victim, the breach of trust, the two penetrative acts to which the victim was subjected, and the fact the oral sex culminated in ejaculation.[39] Regarding the 50 per cent MPI, this is common in cases of sexual offending against children,20 and was needed here given Mr Henry's failure to acknowledge hisoffending, the fact he has previous convictions for sexual offending and the corresponding need for public protection.[40] We reject Mr Henry's argument that an ESO was sufficient. First, there is no live ESO. The sentencing notes say nothing about an ESO. Secondly, the pre-sentence report refers to an ESO made in 2008, but that would have expired at the latest by December 2013, which was approximately three years before JudgeBarkle's sentencing. Indeed, as the Crown submits, the 2008 ESO did not materiallyreduce the risk that Mr Henry presented at the time of sentence, which only confirms the needs for an MPI.[41] Accordingly, we do not find the sentence manifestly excessive, and so the appeal against sentence must also fail.20 W (CA702/2010) v R [2011] NZCA 529 at [120], where this Court noted the imposition of a 50per cent minimum period of imprisonment was "almost standard for serious sexual offendingagainst a young child".Result[42] The appeal, both against conviction and against sentence, is dismissed.[43] To protect the identity of the complainant, we make an order prohibiting publication of name, address, occupation or identifying particulars of witness and connected person GH pursuant to s 202 of the Criminal Procedure Act 2011.Solicitors:Public Defence Service, Auckland for AppellantCrown Law Office, Wellington for Respondent