PAUL v R [2019] NZCA 390

PAUL v R [2019] NZCA 390 [27 August 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA14/2018[2019] NZCA 390BETWEEN GLEN EDWARD TITO PAULAppellantAND THE QUEENRespondentHearing: 11 April 2019Court: Clifford, Katz and Thomas JJCounsel: E J Forster for AppellantK S Grau and A D H Colley for RespondentJudgment: 27 August 2019 at 4.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Introduction[1] Mr Paul was convicted following a jury trial of two representative charges ofsexual conduct with a child under 12,1 and one representative charge of sexual1 Crimes Act 1961, s 132(3); maximum penalty of 10 years' imprisonment.violation by way of unlawful sexual connection.2 He was sentenced to nine years andsix months' imprisonment, placed on the Child Sex Offender Register and given a firststrike warning.3[2] Mr Paul appeals his convictions4 on the basis the verdict on charge three(sexual conduct with a child under 12) was unreasonable and, overall, a miscarriageof justice occurred due to the following issues:(a) the admission of inadmissible evidence of Mr Paul's history of violenceand gang associations;(b) the admission of counter-intuitive evidence to the effect that a delay inreporting may follow the fear of violence, which resulted in unfairnessto the defence;(c) the Judge's interference in the cross-examination of the complainantabout her continuing affection for Mr Paul; and(d) unfair repetition of the complainant's evidence-in-chief by the Crownand the leading questions asked of her.Background[3] Two periods of time gave rise to the three representative charges againstMr Paul.[4] The first charge of sexual violation by unlawful sexual connection andthe charge of sexual conduct with a child under 12 arose from events occurringbetween 8 September 2008 to 7 September 2010, when the complainant was four anda half to six and a half years old. Mr Paul lived with the complainant's parents and,when they went out in the evening, he would babysit the complainant.2 Section 128(1)(b); maximum penalty of 20 years' imprisonment.3 R v Paul [2017] NZDC 29217.4 Although the notice of appeal included an appeal against sentence, that was not pursued beforeus, no grounds for such an appeal were articulated by Mr Paul in his notice of appeal and wedismiss that aspect of the appeal accordingly.[5] The complainant's evidence was that, when her parents left the house, shewould become upset. Mr Paul would invite her to his bedroom and into his bed wherehe would try and calm her down. He would ask if she wanted to "do something fun",take his penis out of his pants and tell her to play with it. He would tell the complainantto "lick [his penis] like a lollipop". The complainant would comply. She was nevertold how to touch him, "just told to do it". The complainant said these incidentswould occur three to four times a month, sometimes on a weekly basis, when herparents went out. She estimated they occurred a total of 16 times in a twelve-monthperiod.[6] The charge of sexual violation referred to the complainant licking Mr Paul'spenis. The first charge of sexual conduct with a child under 12 referred tothe complainant touching Mr Paul's penis with her hands.[7] The complainant described knowing something was wrong but not knowingexactly what. She said she felt "disgusting" about what occurred but, because of herage, did not at the time understand what was happening. She realised the behaviourwas wrong when she attended life education classes.[8] When interviewed by police in 2016, Mr Paul admitted babysitting but deniedthe allegations. He said he used to wrestle with the children and may have accidentallytouched the complainant, but not in a sexual way.[9] The second charge of sexual conduct with a child under 12 related to eventsoccurring between 1 January 2015 and 31 December 2015 when the complainant wasbetween 10 and 11 years old. By this time, she had attended life education classes.She described watching television with Mr Paul at a relative's home when Mr Paulput his arm around her shoulder and his hand on her breast over her clothing. Sherecalled pushing his hand away and telling him to go away. Mr Paul retorted that hewas just trying to cuddle her. The complainant said Mr Paul would do this every timeshe saw him at her relative's house.[10] The evidence was heard over two days, from 13 to 14 November 2017.The jury returned their verdicts on 15 November 2017. The Crown witnesses werethe complainant, her mother and the officer in charge. Mr Paul elected to giveevidence.[11] The essential issue at the trial was whether the complainant was telling thetruth or had made up the allegations. The delay between when the alleged incidentsoccurred and when the complainant complained about them was in issue.Evidence of violence and gang associations[12] The complainant's evidence-in-chief was primarily by way of playing herpre-recorded video interview. It included a short segment when the complainantdescribed Mr Paul as violent and referred to his associations with gangs. The relevantportions are as follows:Q. Mmhmm. So, tell me about him when that was happening.A. [Mr Paul] would cause fights with my Dad, and like, fight himin front of me and my 3 siblings, and just like destroy my Mum andmy Dad's relationship, so they would split up.Q. Mmhmm.A. 'Cos he didn't like my Dad, and he was like, int into alcohol andstuff, so he would always have alcohol in his bedroom and he wouldalways get drunk and come out and like start fights with my Dad. MyDad would only fight back 'cos he was trying to protect us.Q. Mmhmm.A. And so one time it got really bad when [Mr Paul] got a knife. He gotkicked out and my Dad got kicked out Q. Mmhmm.A. And we were too scared to move 'cos every fight [Mr Paul] wouldhave a knife and we were scared that he would throw it. So my Mummoved and like got us outside and called the Police Q. Mmhmm.A. But when I got back [Mr Paul] was gone.Q. Mmhmm.A. And my Dad was gone too but [Mr Paul's] stuff was still there and myDad's stuff was gone, so he probably went with a mate, 'cos after thatI think Mum dumped him because he would always fight back andjust cause fights and, so it wasn't a very good ahm, household.Q. Mmhmm. What else can you tell me about [Mr Paul]?A. Ahm he [would] always get caught up with ahm, gangs, and stuff, so,and he always caucaused fights with random people. If he like seessomebody that he doesn't think he likes, or if they do something thathe doesn't like, he'll cause a fight with them, and he, he still does itwhen he lives down in Hamilton as well. That's why he comes uphere to get away from the gangs and stuff. But Mum knows why hedoes it now and so she doesn't let him come any more.[13] The Crown cross-examined Mr Paul about the fighting and argumentsdescribed by the complainant:Q. And when things got difficult with [the complainant's father] [the complainant's mother] sided with you, didn't she and let you stayin the house and he had to leave?A. No.Q. Well come on Mr Paul, we've heard there's difficulties in therelationship. There's arguments and fighting. Correct?A. Yes.Q. In the relationship — and there's a particular fight involving you and[the complainant's father] — an altercation?A. That's right, that's right.Q. And after that he leaves and you get to stay?A. No. I left. [L]eft and went to a friend's place.Q. And then you came back?A. Not that same day but I did come back.[14] In Mr Paul's video interview with the police which was played to the jury, hesaid that he had moved back to live with the complainant's family "because [he] wasin an abusive relationship".[15] Mr Forster, for Mr Paul, submitted this evidence was inadmissible, beingirrelevant and unfairly prejudicial bad character evidence.5 Mr Forster acknowledgedthat the defence used the evidence of a conflict between Mr Paul and the complainant'sfather to advance the narrative that the complainant resented Mr Paul, blaming himfor her father leaving the family home, and therefore having a motive to lie. Mr Forster5 Evidence Act 2006, ss 7 and 8.submitted this could have been achieved without the extensive reference to violenceor gang associations.[16] In our view, the complainant's evidence of the violence that occurred betweenher father and Mr Paul, in her presence and that of her siblings, was admissible.It constituted an important part of the family dynamics at the time of the offending.It was used by the defence as the basis for the proposition that the complainant had amotive to lie to harm Mr Paul.[17] We accept that the evidence proffered by the complainant in response to thequestion "[w]hat else can you tell me about [Mr Paul]?" was unfortunate. Mr Paul'smore general proclivity for violence, and his gang associations, were not directlyrelevant to the Crown case: that evidence was prejudicial. Having said that, the tworeferences to associations with "gangs and stuff" were fleeting, and could not bedescribed as "extensive". Moreover, they were not referred to in cross-examination,which focused on the relevant violence between Mr Paul and the complainant's father.In those circumstances we consider it would have been counter-productive if the Judgehad specifically referred to those matters. The single, brief reference to an abusiverelationship was, in our assessment, of little significance in the context of the evidenceas a whole.[18] The Judge did give the standard direction as to prejudice and sympathy, albeitnot tailored to the circumstances of this case, and in particular Mr Paul's violentbehaviour as it should preferably have been. That, however, is a relatively minor issue,and we take it no further.Counter-intuitive evidence[19] The subject of counter-intuitive evidence was addressed in a statement ofagreed facts presented to the jury.6 Given its importance to this appeal, we set out therelevant aspects of it in full:6 Evidence Act, s 9.Counter intuitive evidence3. The following admissions constitute educative evidence about thebehaviour of sexually abused children. This evidence does not proveor disprove that [the complainant] was sexually abused bythe defendant.Reporting patterns in child sexual assault4. There is no typical reporting pattern for sexually abused children;reporting may be immediate or delayed, direct or indirect, purposefulor accidental. Reporting of abuse by a child or adolescent may alsobe a gradual or incremental process.Delayed reporting of child sexual assault5. The research literature and professional experience indicate thatreporting of childhood sexual offending is most commonly delayed.However, the timing of a complaint does not assist in determiningwhether the complaint is true or untrue because false complaints maybe immediate or delayed and true complaints may be immediate ordelayed.Reasons for delayed or non-reporting of child sexual assault6. There are a large number of reasons why a child will fail to reportsexual offending, or will delay reporting their sexual victimisation.These will vary from child to child and in the differing circumstancesin which they may find themselves.Relationships7. Reasons for delayed reporting include the relationship betweenthe child and the offender, because children are less likely to reportchild sexual abuse by those with whom they are familiar or have aclose relationship, or upon whom they are dependent. Children arealso less likely to report sexual assault to adults or caregivers who theyperceive to have a close relationship with the offender.The availability of protective adults8. People might wonder why a child would not tell an available adult orparent about sexual offending perpetrated on them. If a child oradolescent is to report sexual offending that is occurring they willrequire a supportive, competent adult who has the ability to stopfurther instances of abuse and who will protect them from anyretribution by the alleged offender. They will also require an adultwho is prepared to believe them and take their disclosure seriously.The child's perception as to whether a parent or caregiver will protectthem to stop the abuse will be dependent on the child's history withthat adult, specifically whether they have been protective in the past.That perception may also be dependent on the actual past competencyof the adult to protect the child.The impact of the child's age and stage of development9. Children may be naïve and unaware of sexual matters and, therefore,may not initially realise what has actually occurred in circumstanceswhere they are sexually abused. They may not know that the sexuallyabusive behaviour is wrong and, consequently, they may be unlikelyto disclose sexual abuse to other available adults. Younger childrenare less likely to report sexual abuse than older children. They maynot have the language to describe the acts they have experienced or,if they do describe what has happened, adults may not understandthe relevance of aspects of what the children may say because ofvague terms used by children, which may not match adult languageabout child sexual abuse.The impact of fear and threats10. Some children may delay complaint of sexual abuse because of threatsand fear of an offender. Others may report sexual abuse even whenunder threat and conditions of having been physically assaulted.The issue in relation to the impact of fear, actual physical violence andthreats on disclosure of child sexual abuse is complex.11. Professional experience has established that for some children fear,even extreme fear, of an offender will be effective in maintaining theirsilence. For others, the more extreme the fear they endure, the morefearful they may be and, therefore, the more likely they may be todisclose to an available or protective adult in the hope that the abusewill be stopped.Shame and embarrassment and fear of not being believed12. Research shows that when asked what had prevented disclosures ofchildhood sexual abuse, participants gave the following reasons:expected to be blamed or disbelieved, embarrassment, not wanting toupset anyone, not bothered by abuse, wished to protect the abuser, fearof abuser, wanting to obey adults, feeling responsible for the abuse,shame and stigma, fear of being blamed and/or negatively judged,hesitance to break the promise to keep the secret, fear of not beingbelieved and fear due to threats made by the offender.Continued contact between victims and offenders13. Children are most likely to be sexually abused by those well knownto them, such as family members, friends and authority figures, andtherefore it is possible that the offender will have been, or havebecome, close to the child. The portrayal of a child or adolescentnecessarily hating the offender ignores the common dynamics of childsexual abuse, which often involves continued contact with, and evenaffection for, offenders, despite their abusive behaviour and the factthat much abuse may be normalised, both by the offender and the childalike. Many children may have no choice but to maintain contact withan offender who is a family member or is someone close to the familyof the child.14. In addition, there may be some very positive aspects to therelationship for the child or adolescent aside from the sexualoffending. Some sexually abused children may come to hate theirabusers, while others may continue to maintain a relationship withthem, even expressing love and affection, despite the sexual offendingthat has been committed.[20] The alleged offending occurred in 2008 to 2010 and again in 2015.The complainant reported it in October 2016. In her pre-recorded interview,the complainant explained the delay as follows:Q. Tell me about what you remember happening when you were 6?A. And then he did the same exact thing, and I still didn't know what wasgoing on.Q. Mmhmm.A. Or anything like that, and I didn't know what he was making me do,and I didn't have the guts to say, to tell anybody 'cos I didn't knowwhat was going on and I didn't know what they would say. I was,suppose I was like scared Q. Mmhmm.A. ... about what people would say.Q. Mmhmm.A. And so I kept it in. Then, I just kept on thinking that it's, now that Iknow, because I've been doing Life Ed and it's like helped me a lot,with knowing what I know right Q. Oh, OK. Mmhmm. OK. And, you've talked about ahm, telling yourcounsellor, tell me some more about that.A. Oh well I wanted to tell Mum but I was scared of what she'd say, andhow she'd react, so first I told the counsellor 'cos I, I didn't wantakeep a secret any more, and 'cos I thought Mum should know.[21] After the interview was played at the trial, the following exchange betweenthe Crown prosecutor and the complainant took place:Q. Now during the time that this was happening did you think to tellanyone about what [Mr Paul] was doing?A. No because he told me that it was our secret and not to tell anybody.Q. After you found out it was wrong did you think to tell anybody then?A. No.Q. And can you tell us why you didn't tell anybody after that?A. 'Cos I thought Mum would be mad at me.Q. And why did you think Mum would be mad at you?A. Because, I don't know.[22] In Mr Forster's submission, the inclusion in the counter-intuitive evidence ofa fear of violence as being a potential reason a complainant would delay reportingabuse was unfair to the defence as it invited the jury to go beyond the complainant'sexplanation of the delay. This was compounded, Mr Forster said, by the inclusion ofevidence about Mr Paul's violence and gang associations.[23] Counter-intuitive evidence is, by its nature, general. Its aim is to dispel mythsabout how children behave when they have been sexually abused. It is not evidencedirected at the facts of the case. The Supreme Court made this clear when it said:7[30] The Court of Appeal has held in a number of cases thatcounter-intuitive evidence may be admissible under the Evidence Act. Wesummarise the relevant factors that emerge from two of those cases,M (CA23/2009) v R and OY v Complaints Hearing Committee. Those pointsare:(a) In many cases involving allegations of sexual abuse,the jury's verdict will depend critically on their assessment ofthe complainant's credibility. In such cases, there is a risk thatunjustified behaviour assumptions may influence the jury'sassessment, and expert evidence as to those assumptions maybe admissible. The evidence should be directed at correctingerroneous beliefs the jury might otherwise hold about thelikely conduct of a victim of sexual abuse. The objective is toallow the jury to consider the complainant's credibility on aneutral basis.(b) The evidence should not be linked to the circumstances ofthe complainant in the case in which the evidence is beinggiven. This is an important limitation, designed to ensure thatthe evidence is not used in a diagnostic or predictive way.The witness should make it clear that the witness is notcommenting on the facts of the particular case.7 DH v R [2015] NZSC 35, [2015] 1 NZLR 625 (footnotes omitted).(c) The evidence must be relevant to a live issue in the case. Having said that, it must be acknowledged that whenthe expert's brief of evidence is being prepared before a trial,it may not be apparent which matters involvingcounter-intuitive reasoning will arise in the trial.(d) The witness should make it clear that the evidence draws ongeneric research in cases of sexual abuse and says nothingabout the case in which evidence is being given. The witnessshould also make it clear to the fact finder that the purpose ofthe evidence is limited to neutralising misconceptions whichmay be held by the fact finder.(e) Where counter-intuitive evidence is admitted in a jury trial,the judge must instruct the jury of the purpose of the evidenceand that it says nothing about the credibility of the particularcomplainant. The judge must caution the jury againstimproper use of the evidence, such as reasoning that the factthat the complainant behaved in one of the ways described bythe expert witness (for example, delayed in complaining) isitself indicative of the complainant's credibility or that sexualabuse occurred.[24] The counter-intuitive evidence complied with this guidance. Introducing suchevidence by an agreed statement is an accepted method.8 The reference to a fear ofviolence as a potential reason a complainant would delay reporting abuse was properlyincluded as part of the educative evidence as to why some children may delaycomplaining of sexual abuse. The counter-intuitive evidence was admissible.[25] We note that the Judge did not, however, caution the jury in the terms approvedby the Supreme Court as set out at [30(e)] of the quote at [23] above.9 Having saidthat, the s 9 admission containing the counter-intuitive evidence began by stating thatthe evidence did not prove or disprove that the complainant was sexually abused bythe defendant. The Judge referred the jury to the statement in the s 9 admission thatthere may be good reasons for a delayed complaint and repeated the Crown's commentin closing that it did not prove the particular case. He went further than arguablyrequired, by giving the expert direction in relation to the counter-intuitive evidenceand by cautioning the jury about the complainant's evidence of events when she wasaged between four and six, particularly given it was uncorroborated. The Judge alsotold the jury that they needed to consider all of the circumstances, including8 M (CA23/2009) v R [2011] NZCA 191 at [33]; approved in DH v R, above n 7, at [110].9 DH v R, above n 7, at [30(e)].the reasons given by the complainant. In those circumstances, we do not consider hisnot using the approved wording was a material omission.[26] We make one further observation on this question, which to an extentanticipates the next point in this appeal. Given it was an agreed fact that "the timingof a complaint does not assist in determining whether the complaint is true or untruebecause false complaints may be immediate or delayed and true complaints may beimmediate or delayed", it might be argued the complainant should not have been askedabout delayed reporting at all. We think that would take the significance of thecounter-intuitive evidence having been admitted pursuant to a s 9 statement too far.The defence challenge on delay was that one of the reasons the complainant gave fornot disclosing the offending earlier, that she did not really understand that what washappening was wrong, no longer applied at the time of the later offending.The defence point was that by then the complainant had attended life educationclasses, but yet she did not complain for a further year. In our view this was anappropriate challenge, because the complainant's explanation for the delay wasrelevant to the assessment of her credibility.Cross-examination of the complainant[27] During the cross-examination of the complainant the following exchangeoccurred:Q. And did you think that what you say happened between you and[Mr Paul] was wrong, when you were young?A. No. I didn't, I didn't know what it was.Q. Yes, but by age 11?A. Oh, yeah, I knew it was wrong.Q. Okay. The reason I asked you that is because when you used to see[Mr Paul] at your [relative's home] and this includes 2015, didn't youused to go to him and give him a good morning cuddle?A. I gave everybody a good morning cuddle.Q. And a goodnight cuddle?A. I gave everybody a good night cuddle.Q. Yeah, but that included [Mr Paul], didn't it?A. Yeah.Q. And you used to go to him to give him those cuddles, right[?]A. I used to go to everybody to give them a hug.Q. And you used to give him a hug, just when you said "hello" to[Mr Paul] at any family thing, like [at your relative's] place in 2015?A. Is it his birthday when I was staying there?Q. How about we talk about both? How old were you when you werestaying there?A. 11.Q. Okay and how—THE COURT ADDRESSES MR BATESJURY RETIRE[28] The Judge recorded what took place in a Minute:10[1] During Mr Bates' cross-examination I have asked the jury to retire andthe complainant to be electronically cut from the courtroom and I havediscussed with Mr Bates the present line of questioning which appears to bedesigned to form the basis for a submission that if these things had reallyhappened the behaviour acknowledged by the complainant would not havebeen as it is acknowledged.[2] I have raised with Mr Bates the contents of the s 9 admissions, inparticular paragraphs 13 and 14 and as a result Mr Bates considers that the lineof questioning ought not to continue against my concern that it wasendeavouring to lay a foundation for matters acknowledged not to be the case.[3] No ruling is required.[29] In Mr Forster's submission, defence counsel was prevented from questioningthe complainant about her affectionate behaviour. He said the Judge inappropriatelyintervened and prevented defence counsel from pursuing a legitimate line of inquiry.Mr Forster referred to the fact that counter-intuitive evidence is general in nature butdoes not speak to whether the complainant in a particular case is telling the truth.In his submission, that does not mean defence counsel should be prevented fromquestioning a complainant about his or her behaviour towards a defendant.10 R v Paul DC Tauranga CRI-2016-070-4877, 13 November 2017 (Minute No 2).[30] A judge has the power to disallow questions which are improper, unfair orneedlessly repetitive.11 This power is a wide one, designed to ensure that no witnessis unfairly disadvantaged by the way they are questioned.12 It must be balanced againstthe right of a defendant to a fair trial, including the right to challenge prosecutionwitnesses and put the defence version of events to them.13[31] Ms Grau, for the Crown, submitted that the Judge's intervention was on thebasis the line of questioning was either improper or fruitless due to thecounter-intuitive evidence before the Court. She accepted that, with the benefit ofhindsight, it would have been better had the Judge not intervened, as the jury shouldhave been able to consider the implications of the complainant's continuedaffectionate behaviour to Mr Paul in light of the counter-intuitive evidence. Sheacknowledged it was not for the Judge to preclude such evidence.[32] We agree. As discussed, the counter-intuitive evidence was before the jury inorder to neutralise the myths surrounding how victims of sexual offending behave.Its purpose was to restore the position to a level playing field so that the juryapproached the complainant's evidence with an open mind, untainted bymisconceptions. It said nothing about the particular complainant's credibility.[33] The counter-intuitive evidence about ongoing affectionate behaviour was tothe effect that some victims may hate the offender, whereas some may maintain arelationship, even expressing love and affection. This did not mean in our view thatthe defence could not ask the complainant about her affectionate behaviour towardsMr Paul.[34] Defence counsel was to that extent precluded from fully exploring an issuewhich was potentially relevant to the complainant's credibility. The complainant had,however, already been asked questions about showing affection to Mr Paul, in thecontext of doing so when others were present, and explained she hugged everybodypresent. We accept that further questioning could have included whether11 Evidence Act, s 85.12 Metu v R [2016] NZCA 124 at [20].13 At [23].the complainant showed Mr Paul affection outside of a family context with otherspresent and, more generally, tested the extent to which she displayed affection towardshim. But, in our assessment, any further questioning would have been relativelylimited. There was only so far defence counsel could have taken this issue, particularlyin the context of the agreed counter-intuitive evidence.[35] We have considered the cumulative effect of this ground of appeal togetherwith the previous ground, given that both involve the counter-intuitive evidence.The complainant was cross-examined about delay and her continued affection towardsMr Paul, both issues being potentially relevant to the jury's assessment of hercredibility. While the Judge did not give the required direction regardingcounter-intuitive evidence, when the evidence14 is viewed in totality, together with therelatively comprehensive summing up and relevant submissions of counsel, in ourview there was no real risk of a miscarriage of justice having occurred.Repetition of the complainant's evidence-in-chief and leading questions[36] After the complainant's pre-recorded interview was played, the Crown askeda series of follow-up questions. Most were open questions about details ofthe offending. Such questions included the following:Q. [Complainant], I just have some questions for you. The first one is, iseverything you said in that DVD interview the truth?A. Yes.Q. Now you talked in that interview about some things that happenedduring times when [Mr Paul] was babysitting you when your parentswent out?A. Yeah.Q. Now I want to just ask you a few questions about those things thatwould happen when your parents were out and [Mr Paul] was lookingafter you. Now in the interview you talked about the last time thatthings happened when you were about six, do you remember that?A. Yeah.Q. I want to ask you first about all the other times before the last time,okay. Do you understand what I'm talking about there?14 Including the counter-intuitive evidence itself.A. Kind of.Q. So the other times that it happened you talked about how [Mr Paul]would ask you to lick his penis like a lollipop.A. Yeah.Q. And you said in your video that there came a time where there wassome life education at school and you realised that what he was doingwas wrong, is that right?A. Yes.Q. After you found out it was wrong did you think to tell anybody then?A. No.Q. — where [Mr Paul] touched your breasts. How did he come to touchyour breasts? Can you just describe to us what happened.A. I don't remember much anymore because I don't like to think about itand I don't choose to think about it.Q. Were you inside or outside?A. Inside.Q. And what did [Mr Paul] do?A. I can't remember.Q. Now you said you were sitting on a bed and gave him a cuddle in yourinterview, is that right?A. Yeah.Q. And did you then push his hand away?A. I can't remember.[37] In Mr Forster's submission, the Crown used leading questions and repetitionof evidence to bolster the complainant's credibility.[38] Asking initial questions to clarify whether what was said in the pre-recordedinterview was the truth is appropriate. As this Court has said:15[66] Where a videotape of a child's interview is played, that becomesthe child's evidence-in-chief. It is certainly acceptable to ask the child if heor she confirms what was said in the interview, if he or she has anything toadd or change and to ask supplementary questions on topics not covered in theinterview. It is not the occasion for a wholesale repetition of what was said inthe interview and certainly not, as was done here, elicited by leadingquestions.[39] We agree with Ms Grau that any other questions of a more leading nature werelimited to questions directing the complainant's attention to a particular issue. This isdistinguishable from cases involving the asking of leading questions wherethe complainant is asked about the truth of specific allegations,16 although, as Ms Grauconceded, there was at least one leading question.[40] In our assessment, the questioning went further than it should have. It repeatedaspects of the complainant's pre-recorded interview. The questions were close toleading and repetitive. However, while undesirable, these issues, on their own orcombined with those addressed above, are insufficient to persuade us to allow theappeal. We are not satisfied any of the irregularities are sufficient in total to create areal risk that the outcome of the trial was affected or has resulted in an unfair trial.17Unreasonable verdict on charge three[41] Mr Paul contends that the jury's verdict on charge three, that he indecentlytouched the complainant in 2015 when she was 10–11 years old, was unreasonable.While Mr Forster accepted there was an evidential foundation for the charge inthe complainant's pre-recorded interview, when asked at the trial she said she had norecollection of it beyond it being inside on a bed. This culminated in the followingexchange in cross-examination:Q. See I'm suggesting to you — I'm saying to you that in fact there wasnever a time when [Mr Paul] touched your breast. Isn't that the truth,it didn't happen?15 R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145.16 Like in R v E (CA308/06), above n 15.17 Criminal Procedure Act 2011, s 232(4).A. I don't know.[42] Following the Crown case, the defence applied to have Mr Paul discharged oncharge three.18 The Judge refused, saying there was sufficient evidence before the juryfor them to decide that charge.19[43] In Mr Forster's submission, the verdict must be unreasonable. The allegationwas not corroborated, it was entirely dependent on the complainant's evidence and shewas unclear about being able to recall it. The defence was unable to cross-examineher on this allegation in breach of the right to do so.[44] Ms Grau submitted that there was clear evidence beyond the answers given inperson which supported the third charge. The complainant's pre-recorded interviewwas sufficiently detailed. Mr Paul confirmed he had been at her home in 2015 forfamily gatherings, when the alleged incidents occurred.[45] A verdict will be unreasonable if, having regard to all the evidence, the jurycould not reasonably have been satisfied beyond reasonable doubt that the defendantwas guilty.20 As a jury has the advantage of seeing and hearing from witnesses directlyin the course of the trial, there is little scope for this Court to challenge a jury's verdictthat is based largely upon credibility findings.21[46] The case of R v H (CA103/2009) involved a similar situation.22 In that casethe complainant was four years old at the time of the abuse and six when she gaveevidence at trial. After her pre-recorded interview was played, she was unable to recallevents in cross-examination, re-examination or in questions from the Court.This Court held that the guilty verdicts were not unreasonable, as the jury was entitledto consider the pre-recorded interview despite the memory problems. Memory issueswent to the weight of her evidence.2318 Section 147.19 R v Paul [2017] NZDC 25661.20 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].21 R v Patel [2009] NZCA 102 at [27] as affirmed by P (CA84/2017) v R [2017] NZCA 319 at [49]and A (CA41/2017) v R [2018] NZCA 136 at [14].22 R v H (CA103/2009) [2009] NZCA 313.23 At [30].[47] In the present case, the caution the Judge gave the jury as to the complainant'sage and context of the allegations was favourable to the defence. Furthermore, thefact the complainant could not recall the events at issue made fertile ground fordefence closing submissions.[48] The argument that the defendant was unable to receive a fair trial because hiscounsel could not cross-examine the complainant was also addressed in R v H(CA103/2009). We agree with the comments in that case that a complainant who isunable to recall the circumstances of an allegation considerably assists the defence.24Any further attempt to explore the issues would entail considerable risk in that thecomplainant might recall the events spoken of in the pre-recorded interview. In thecircumstances, Mr Paul was not precluded from receiving a fair trial.Result[49] For the reasons given, the appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent24 At [45].