H (CA225/2022) v R [2023] NZCA 83

H (CA225/2022) v R [2023] NZCA 83 [30 March 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT UNDER THE AGE OF18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA225/2022[2023] NZCA 83BETWEEN H (CA225/2022)AppellantAND THE KINGRespondentHearing: 22 February 2023Court: Gilbert, Ellis and Davison JJCounsel: W C Pyke for AppellantZ R Hamill for RespondentJudgment: 30 March 2023 at 9.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Davison J)[1] Mr H, the appellant,1 appeals his convictions on three charges of indecentassault on a young person under 16 years,2 three charges of sexual violation byunlawful sexual connection,3 and two charges of rape.4[2] The appellant also appealed against his sentence of 13 years' imprisonmentwith a minimum non-parole period of 50 per cent.5 However, at the commencementof the hearing of the appeal Mr Pyke, counsel for the appellant, advised that thesentence appeal is not pursued and is abandoned.[3] The complainant in respect of all charges was the appellant's stepdaughter whowas 12 years old at the time of the offending against her. The events upon which thecharges were based all took place in 2018.[4] The appellant was convicted on 6 May 2021 following a jury trial inthe Manukau District Court at which he was found guilty of the eight charges.The principal prosecution witness was the complainant. The appellant's defence wasfounded on his denial that any of the conduct alleged by the complainant had takenplace, and that she had retracted her complaints. The complainant's allegations againstthe appellant were not supported by her mother (Mrs H). The Crown case was thatMrs H had known about the offending against her daughter while it was occurring andsubsequently, after the complaint had been made to the Police, that she had putpressure on her daughter to retract her complaint. The Crown case also included thatMrs H had fabricated documents in which it appeared that the complainant hadretracted her complaint.[5] The appellant's sole ground of appeal is that Judge Earwaker ought to havegiven the jury a direction pursuant to s 122 of the Evidence Act 2006 as tothe reliability of the complainant's evidence regarding retraction of her complaint and1 The appellant's name has been anonymised throughout this judgment, despite it not beingsuppressed, because identifying the appellant by name would risk breaching the complainant'sprotections under ss 203 and 204 of the Criminal Procedure Act 2011 due to the nature ofthe offending and his relationship with the complainant. See H v R [2019] NZSC 69, [2019]1 NZLR 675 at [54]–[58].2 Crimes Act 1961, s 134(3).3 Sections 128(1)(b) and 128B.4 Sections 128(1)(a) and 128B.5 R v [H] [2022] NZDC 651.any motivations she may have had for making a false complaint against the appellant.He argues that the Judge's failure to give the jury a reliability warning has given riseto a miscarriage of justice, and that this Court should quash the convictions.[6] In response, the Crown submits that a reliability warning under s 122 ofthe Evidence Act was not required in this case where the key issue wasthe complainant's credibility regarding both the alleged offending against her, and herdenial of having retracted her complaints. The Crown submits that the giving ofa reliability warning in the circumstances of this case would not have assisted the juryand may in fact have confused them.The prosecution and defence casesThe prosecution case[7] The appellant had been in a relationship with the complainant's mother sincethe complainant was five years old. They were then living in South Africa.The appellant emigrated to New Zealand in 2017, and the remaining members ofthe family followed in 2018. When the complainant, her brother, and mother arrivedin Auckland they were collected from the airport by the appellant and taken to hisaddress where they were to live with him.[8] The eight charges on which appellant was found guilty are all based onthe complainant's evidence which need only be briefly summarised for the purposesof this appeal. The complainant gave evidence that on the night the family arrived inNew Zealand, the appellant insisted that they all sleep in the same bed withthe complainant beside him. The complainant said that night the appellant touchedher breasts and vagina under her clothing, and thereafter he touched her breasts onnumerous occasions. The complainant gave evidence that the appellant also digitallypenetrated her vagina on a number of occasions, and she described three specificoccasions. She said that around Easter 2018 the appellant took an opportunity whenhe was alone with her to sexually offend against her. She said that he touched herbreasts, inserted his fingers into her vagina and inserted his penis into her anus.On another occasion the complainant said that she was required to stay at home asa punishment for being naughty, while Mrs H and her brother went with family friendsto the movies. She said that while the other family members were away, the appellantraped her and ejaculated inside her. The complainant said that on another occasion,when she came home from school sick and went to bed, the appellant digitallypenetrated her.[9] In February 2018, about a month after their arrival in New Zealand, Mrs Htook the complainant to a medical centre and requested that she be put ona contraceptive injection because she was concerned about random sexual assault andpotential pregnancy. The request was declined because the reasons forthe contraceptive were not considered appropriate for a girl of the complainant's ageof 12. Nevertheless, Mrs H took her back to the medical centre in March 2018 andrepeated her request for her daughter to be given a contraceptive injection.[10] The complainant first disclosed the offending to a family friend (Ms DK), whohad become concerned about the complainant. On one occasion Ms DK's daughter,who was nine years old, was left at the appellant's address in the company ofthe appellant, the complainant, and her brother while Ms DK took Mrs H shopping forgroceries. When the two women returned from shopping some 45 minutes later,Ms DK observed the complainant exit the appellant's bedroom and go straight tothe bathroom. She saw that the complainant was crying and her hair was messy.Ms DK's daughter was also upset, and upon seeing her mother arrive, she insisted onleaving the house immediately.[11] On another occasion Ms DK took the complainant to visit the appellant inhospital where he was receiving treatment for appendicitis. Ms DK said thatthe appellant greeted the complainant saying: "Hello titties" and asked her how manynights she had stayed away from home at Ms DK's house, saying "[y]ou owe mebig time". That evening Ms DK said she asked the complainant about whatthe appellant had said to her at the hospital, and what he had meant by his remark,"[y]ou owe me big time". The complainant then explained that the reason whyMs DK's daughter had insisted on being taken home immediately on the occasionwhen she and the complainant's mother had returned from the grocery shopping tripwas because her daughter had walked in on the appellant having sex with her and thathe had shouted at Ms DK's daughter to leave. The complainant also told Ms DK thatthe appellant's abuse of her had begun when she was five or six years old and theywere living in South Africa. She said that the abuse had started as digital penetrationand had progressed to rape and anal penetration. She said that her mother knew aboutthe abuse but had not taken any steps to protect her. And she explained that whenthe appellant had said at the hospital that she "owed [him] big time", he was referringto her being required by the appellant to give him "blow jobs" and sex if she everstayed away from home overnight with friends.[12] Following these disclosures, the complainant did not return to the appellant'shouse, and she stayed with Ms DK. On 11 July 2018, shortly after having madethe disclosure, the complainant was taken by Ms DK to a medical centre. While theywere at the medical centre Mrs H arrived. She was in an agitated state and she verballyabused the complainant, referring to her as a "slut" and a "whore". Mrs H alsothreatened the complainant that she would have to go back to South Africa to live withher biological father. The complainant was taken home from the medical centre byanother mutual friend of the family (Ms UM), and during the drive home with Ms UM,the complainant told her about the appellant's abuse, and said that her mother knewabout what he had been doing with her. In her evidence Ms UM said that she hadasked the complainant whether she was telling the truth because of the seriousconsequences of the matters she was disclosing, and that the complainant respondedsaying what she had described "did happen". The complainant stayed at Ms DK'shome until 23 July 2018, when she was admitted to hospital for stomach pains.When she was discharged from hospital on 30 July 2018, she was placed under thecare of Oranga Tamariki.[13] The complainant underwent a first evidential interview with the Police on7 August 2018. The Police arrested and charged the appellant on 17 August 2018.The arrest was made by Sergeant Stephen Wright who was a member of the PoliceChild Protection Team at Counties Manukau. The appellant made his first appearancein the Manukau District Court on Saturday 18 August 2018 and was remanded on bailwithout entering pleas. On 19 August 2018, Mrs H departed New Zealand andreturned to South Africa, taking the complainant and her brother. She had previouslyarranged for Oranga Tamariki to deliver the complainant to the airport so that she couldboard a flight to South Africa.The defence evidence and alleged retractions[14] At the trial the defence called evidence from several witnesses about what theysaid had happened in South Africa after Mrs H, the complainant and her youngerbrother had returned there. Mrs H gave evidence that upon arrival in South Africa andwhile they were being driven to her mother's house by the appellant's brother and hiswife, the complainant said that she was sorry that she had lied and had messedeverything up. She said that a few days later the complainant had repeated this toMrs H and her grandmother, and said, "Mummy, I swear to God [the appellant] nevertouched me". Mrs H said that as a result of these comments it was agreed that theywould go to the local police station for the complainant to make a statementconfirming what she had said about having lied about the appellant's sexual abuse ofher. Mrs H said that she then arranged for the appellant's brother to take her and thecomplainant to the local police station where they spoke to the police captain on duty,and he had taken a statement from the complainant. She said that the police officerhad hand written the statement which the complainant then signed. Mrs H said thatthe process of making the statement involved the police officer first speaking to thecomplainant and asking her questions, and then handwriting the statement. She saidthat she had never met this police officer before, did not know anything about him,and did not know him personally.[15] The statement is dated 25 August 2018 and it was produced as a defenceexhibit. It is handwritten on a printed "South African Police Force" form headed:"Affidavit". It has the complainant's name and address, and her age (12 years) writtenin the relevant sections of the document. It reads:I am the [step] daughter of [the appellant]. On the 17th [of] August I pressedcharge[s] [of] assault and molestation at Counties Manakau [sic] Police inNew Zealand. I dont [sic] want to proceed any further with this case as it isnot financially possible to go abroad everytime [sic]. With this statement I amwithdrawing all charges against [the appellant], my stepfather. That is all Ican say.[16] The 25 August 2018 statement is signed by the complainant by writing her firstname above the words "Deponent Signature", and it is signed by the South Africanpolice officer, Petrus J van Rensburg, thereby certifying that he had takenthe statement and that the deponent "knows and understands the contents ofthe statement". Mrs H also signed the statement as a witness to the complainant'ssignature.[17] The following day Mrs H said she took the complainant back to the policestation to make a second written statement. Mrs H said that during the drive homeafter making the first statement, that the complainant had read over her statement andsaid, "Mummy this is not the whole statement". She said that as a result she arrangedto take the complainant back to the police station the following day when she madea second statement. The second statement is dated 26 August 2018. It is also headedwith the complainant's name, address and states her age as being 12 years. It reads:I am the step daughter of [the appellant]. On 17/07/2018 I laid charges ofmolestation and assault against my stepfather. This statement is to say that Ilied when opening that case because I was angry because my phone was takenaway from me and I was not allowed to visit. The incident I mentioned neverhappened. This is the truth and nothing but the truth. I know the differencebetween the truth and a lie. That is all I can declare.[18] The second statement also bears a signature of the complainant in the form ofthe complainant's first name which is handwritten in the space designated for the"Deponent Signature".[19] On 26 August 2018 Mrs H sent an email to Sergeant Wright of the New ZealandPolice attaching the statement dated 25 August 2018. The email had no accompanyingmessage. Later that day, Sergeant Wright received a second email from the Mrs Hattaching the statement dated 26 August 2018. The email included the followingmessage: "The affidavit sent now is of [the complainant] insisting to confess that shelied about the allegations".[20] On 11 November 2018 Mrs H left South Africa and returned with her son toNew Zealand. The complainant was left behind in South Africa with her grandmother.Mrs H said that when unpacking her luggage following her arrival back inNew Zealand, she found some letters hidden among her clothing which she said hadbeen written by the complainant. She said that until she came across them in herluggage, she did not know they were there.[21] One of these handwritten letters is in Afrikaans and dated 10 November 2018.It was produced as a defence exhibit at the trial. An English translation reads:Dear Mom, Dad, and BrotherI am really sorry about everything. I wish I could have fix[ed] this earlier.I hope you find it somewhere in your heart to forgive me. I feel all alone andheartbroken. I wish we had more time together. I love all of you very muchand I mean it. Mom and brother, I hope you had a nice flight and I prayed thatyou get to dad safely. Thank you for all your support that you always gaveme. And thank you dad for all your love, support, food, clothes and everycent. I feel so bad about everything. I miss you a lot.From: [the complainant]To: Mum, Dad and Brother.Date: 11/10/20186[22] Another letter Mrs H said she found in her luggage was also handwritten inAfrikaans. An English translation reads:Dearest DadI am really sorry about everything. I hope that dad can find it somewhere inyour heart to forgive me. I miss you dad. It's hard for me without all of you.I realise now that I've messed everything up. But no one will break our familyapart. Thank you for everything, the love, support, clothes, food and everylast cent and a wonderful brother and dad. Thank you dad for supporting meand not hating me. Dad, you are my hero and will always be. Dad, the lastthing I want to ask you now is to forgive me please. I am really sorry abouteverything. Thank you for every years support from my awesome dad.From: [the complainant]To: DadDate 11/10/2018.[23] Mrs H gave evidence that in December 2018, she also received a number ofWhatsApp messages from the complainant using her grandmother's phone.The defence produced screenshots of these messages as exhibits. These WhatsAppmessages were written in Afrikaans and the defence exhibits include anEnglish translation. The messages contain some of the same comments as made in6 The complainant's mother explained in her evidence that the "11/10/2018" format of the date onthe document was in the South African date format and referred to the 10th of November 2018.the handwritten letters, including statements that the complainant was sorry for having"messed up everything".[24] The defence also called two further witnesses to give evidence regardingthe complainant's alleged retraction of her allegations. One of the witnesses wasthe appellant's brother (Mr JF) who had collected the complainant with her motherand brother from the airport when they arrived from New Zealand in late August 2018.Mr JF said that upon arrival and while driving to the complainant's grandmother'shouse where they were going to stay, the complainant was crying and upset and saidthat she had made a mistake, she was sorry, and wanted to make everything right again.He said that the complainant said that she had been under a bad influence, and that shewanted to rectify the mistake at the police station. He said that as a result of whatthe complainant said that same day he took her and her mother to the police stationwhere the complainant "made up a[n] affidavit to say she was sorry". He explainedthat he had first taken the complainant and Mrs H to the police station from the airport,but that they had to go back to the house because the officer who was "supposed to beon duty couldn't do [the] paperwork, so they had to go back the next day". He saidthat the reason they had to return to the police station the following day was because,"the correct police officer that has to take down the statement, he was not available,and they had to go back the next day".[25] We note here that the Crown says that Mr JF's evidence was inconsistent withMrs H's evidence in several respects. Mrs H said that: the first visit to the policestation occurred some five days after their arrival in South Africa; the reason theyreturned a second time to the police station was because the complainant said that herfirst statement did not cover the whole story and she wanted to make anotherstatement; and that although Mrs H said in evidence that she wanted to speak towhoever the duty officer was, Mr JF's evidence about having to go back to seethe "correct" police officer supported the complainant's evidence that her motherknew the police officer who took her first statement.[26] The second witness called by the defence in support of the defence allegationthat the complainant had retracted her complaint was Mrs H's sister (Ms R). Ms Rsaid that on an occasion when she had taken the complainant with her while she wentto a hair salon, she had asked her about the legal proceeding in New Zealand andthe complainant told her "in a crying voice" that she had lied, and the appellant hadnot raped her. Ms R said that the complainant told her that she had lied in order to besent back to South Africa because her mother's rules were too strict, she was notallowed to have a boyfriend and she wanted to stay with her biological father wherethere were no rules.[27] The Crown says that Ms R's evidence as to what she said the complainant toldher was inconsistent with Mrs H's evidence in which she said that no one in the familywanted to be associated with the complainant's biological father because of hisviolence towards her and the complainant.The complainant denies the retractions[28] In her evidence the complainant denied that she had ever retractedthe allegations she had made against the appellant. She said that upon arrival back inSouth Africa, and following pressure from Mrs H and the appellant, she agreed towithdraw her allegations, and to that end had signed the first statement prepared atthe police station on 25 August 2018. She said that when they were at AucklandAirport waiting to depart for South Africa, the appellant had spoken to her bytelephone and asked her to withdraw the charges when they arrived in South Africa,and her mother also asked her to do so. The complainant said that her mother hadrequested that Mr JF drive them to the police station, and that her mother had toldthe police officer what to write on the statement and had then told her to sign it.The complainant said that the police officer who took her statement on 25 August2018, was someone that her mother had known since she was young.[29] The complainant said that prior to the first day of the trial she had never seenthe second police statement (dated 26 August 2018) and that she did not sign it.She said that she did not go back to the police station in South Africa on a secondoccasion to make a second signed statement. She said that she first saw the 26 August2018 statement on the first day of the appellant's trial, when it was shown to her asone of several documents to be produced as exhibits. She said that althoughthe appellant had broken her phone on one occasion, that occurrence was unconnectedto her complaint against him. The complainant said that prior to the trial she had neverseen the letters that her mother said she had found in her luggage upon arrival inNew Zealand, and she denied sending the WhatsApp messages produced bythe defence. She also denied speaking to Ms R about wanting to retract her complaint,or that she had said that she had made the allegations in order to be sent back toSouth Africa to live with her biological father.[30] The complainant said that she had not stayed in South Africa by choice whenher mother and brother had returned to New Zealand in November 2018. She said thatshe had been told by Mrs H that she had to stay because she was not allowed to goback to New Zealand. She said that she had stayed in South Africa with hergrandmother who had died the following year in August 2019, and that she then wentto live with an uncle and aunt for several months, before being sent to live in anorphanage, which had been arranged by her mother.[31] Sergeant Wright gave evidence that following his receipt of the complainant'stwo statements which Mrs H emailed to him on 26 August 2018, through police liaisonchannels, he requested the South African Police to visit the complainant and obtain astatement from her explaining why she had made the statements. In her evidence thecomplainant said that in 2019, while she was living at the orphanage, she was spokento by a South African police officer and asked whether she wished to continue withher complaint against the appellant. She said that she did wish to proceed with hercomplaint and made a written statement to confirm her position. The statement wasproduced as an exhibit. It reads:[The complainant] state in Eng[lish].I am a 13 year old with birth date 2006/01/10 and residing at [name ofchildren's home in South Africa] and in grade 7.I would like to go on with the case that was opened in New Zealand.The reason that I didn't want to go on with the case in the past was that mymother told me to withdraw the case.[A]s a child when I was sexually abuse[d] by my father my mother knew aboutthe sexual abuse and she did nothing about it[.]I would be able to take part in the upcoming court appearances and would liketo travel to New Zealand for court if [no] video link from South Africa wouldbe possible.Everything that I said in this statement is the truth.[Signature of the complainant]I certify that the statement was taken by me at [place of residence inSouth Africa].[signed]KPJ GeldenhuysThe defence case at trial[32] The defence case at trial was based on the appellant's total denial of anyimpropriety and of all of the complainant's allegations. The defence claimed thatthe complainant had fabricated her allegations against the appellant and supported thatwith an allegation that the complainant had subsequently retracted all of herallegations. The defence contended that Ms DK had lied about what she said she hadseen and heard in her dealings with the appellant, the complainant, and Mrs H.[33] The appellant gave evidence in his own defence. He denied engaging in anysexual impropriety with the complainant, which he said had "never happened".He maintained that because of the long hours he spent at work there was never anytime when the alleged offending could have been committed. The appellant alsodenied saying to the complainant, "Hello titties", and "You owe me big time", whenshe visited in hospital when receiving treatment for appendicitis.[34] Mrs H was also called to give evidence for the defence. She said thatthe complainant's description of the sleeping arrangements on the first night followingher arrival did not happen. She also denied that any of the events described bythe complainant could have happened. She said that the evidence Ms DK gave ofseeing the complainant distressed and dishevelled when coming out of the appellant'sbedroom on an occasion when she and Mrs H returned from grocery shopping neverhappened. She said that her friend Ms DK never left her daughter at their house onthe occasions when she went shopping with her. Mrs H also denied that she knew thatthe appellant was sexually abusing the complainant and said that she had noknowledge of sexual abuse of the complainant having occurred in South Africa whenshe was around five years old. She also denied having taken any steps to cover for theappellant in order to conceal his abuse of the complainant. Mrs H said that the reasonsshe took the complainant to the medical centre to request that she be given acontraceptive was because of menstrual problems the complainant was having and wasnot because she knew that the appellant was sexually violating her, as that did nothappen. Mrs H said that there was an occasion when the appellant was in hospital,that her friend Ms DK took the complainant to the hospital to visit him, and althoughshe accepted that she was not present on that occasion, she said that so far as she wasaware the appellant had never used language when speaking to the complainant bysaying "Hello titties".[35] Mrs H said that she first learned about the complainant's allegations, thatthe appellant had been abusing her, when she spoke to a nurse at the medical centreafter the complainant had made disclosures to Ms DK which was shortly beforethe police contacted her and asked her to get the appellant to arrange to see a detectiveat the Manukau Police station. She said that when the appellant was charged andappeared in court, the complainant who had been staying with Ms DK was then inthe care of Oranga Tamariki. She said that she was advised by Oranga Tamariki thatshe and her two children had to get out of New Zealand within 28 days or they wouldbe deported. She said that was the reason she had made arrangements to leaveNew Zealand on 19 August 2018 and travel back to South Africa with the two children.She said that she had arranged with Oranga Tamariki for the complainant to be broughtto the airport shortly prior to their departure. She denied that the appellant had spokenby telephone to the complainant shortly before her departure and suggested to her thatshe should withdraw her allegations. Mrs H said there was no such telephoneconversation.[36] Mrs H said that upon arrival in South Africa they were picked up at the airportby Mr JF and his wife. She said when they got out of the airport and went to the car,the complainant was crying. She said that during the drive to the grandmother's housethe complainant said that she had lied and that she had messed everything up. Mrs Hsaid that a few days later when speaking with the complainant and her mother,the complainant said, "Mummy I swear to God [the appellant] never touch me". Shesaid that statement led to a conversation about the allegations made against theappellant and the complainant saying she wanted to withdraw the charges. She saidshe arranged for Mr JF to drive them to the police station and upon arrival she hadasked to see the police captain who was on duty that day. She said that havingexplained the situation to the police officer, he started asking the complainantquestions and wrote down what she said. She denied that it was her who told thepolice officer what to write down. She said that she did not know the police officerpersonally and had never met him before. She said that after they arrived back homeat her mother's house, the complainant said that the police officer had not put in herwhole statement, and she insisted on going back in order to make a second statement.She said that as a result they returned to the police station the next day and thecomplainant made a second statement. She said that the complainant's claim that sheonly saw the second statement for the first time at the commencement of theappellant's trial is simply not true, because it was the complainant who had insisted onhaving the second statement made. She denied having fabricated the second statementin an attempt to make a better retraction by the complainant, and to help her husbandwho was back in New Zealand facing serious charges. She said that she used herphone to email copies of the two statements to Sergeant Wright, and she retained theoriginal statements herself.[37] Mrs H denied putting any pressure on the complainant to retract her complaintand said that because of the criminal proceedings in New Zealand she was notpermitted to discuss the case with the complainant. She said that when she was toldthat because she was a witness in the case she should not have left New Zealand, shedecided to return. She said that she was not sure if she was allowed to bringthe complainant back to New Zealand because prior to returning to South Africa shehad been in the care of Oranga Tamariki. So she arranged for the complainant to stayin South Africa with her grandmother. She said that upon her arrival in New Zealandshe found several letters in her luggage "hidden between [her] clothes". She said thatshe emailed copies of the letters to defence counsel, but was not sure where she hadplaced the originals. She agreed that the documents produced as the defence exhibitsare "a representation" of the letters she discovered in her luggage. She said theWhatsApp messages produced as defence exhibits were screenshots she had made ofcommunications received from the complainant using her grandmother's phone tosend the messages to her. She denied that she had "manufactured" the WhatsAppmessages produced as defence exhibits. She said that because the screenshotsthemselves did not have the date of the messages on them, she had gone back into herphone to "indicate the date on [which] this conversation took place."[38] The Crown put to Mrs H in cross-examination that the wording ofthe complainant's 25 August 2018 statement, in which she states: "I don't want toproceed any further with this case as it not financially possible to go abroad everytime", is not the language of a 12-year-old. The Crown also challenged Mrs H'sevidence regarding the making of the complainant's second statement(dated 26 August 2018) and the implausibility of the complainant being seen bythe same police officer on the occasion of the second visit to the police station and herclaim not to have known the police officer personally. The Crown also asked Mrs Hwhy the complainant's signatures on the two statements were different. Mrs H agreedthat the signatures were dissimilar but said that she had not signed the complainant'sname on the second statement. And she agreed that she had sent photographed copiesof the statements to the New Zealand Police and had not asked the South AfricanPolice to do so. It was also suggested to her by the Crown that as she was in contactwith the Police in New Zealand, it would have been a simple matter for her to haveadvised them that the complainant wished to talk to them about the case, and she couldhave facilitated that. The Crown also asked Mrs H for an explanation of why thehandwriting, said to be the complainant's, on the documents she said she found in herluggage was entirely different one from the other. Further, why the complainant'ssignature on each was different to her signature on the first police statement whichthe complainant confirmed was hers. Discrepancies relating to the WhatsAppscreenshots were also raised by the Crown in their cross-examination of Mrs H,including the absence of a number appearing in the screenshots verifying the numberof the phone they were sent from.[39] The Crown also put to Mrs H that she had not been told by Oranga Tamarikithat she and her children would be deported from New Zealand if they failed to leavethe country promptly in August 2018. The family's visas were valid untilNovember 2019 and Oranga Tamariki were not responsible for immigration matters.While Mrs H maintained that her explanation for departing New Zealand inAugust 2018 was correct, she accepted that she had not been contacted by ImmigrationNew Zealand about the matter. She was also challenged as to the accuracy of her claimthat she ought not to have left New Zealand because she was a witness in the case,when she had not made a witness statement.The Judge's direction to the jury[40] In his summing up to the jury the Judge said:[63] Because credibility and reliability have been such a focus in trial andalso in counsel's addresses, I want to talk a little bit more about that before Iconsider the evidence and counsel's submissions. As I have already said toyou, it is entirely for you to assess whether you find a witness credible, that iswhether you believe what they have told you by assessing the inherentlikelihood that they are correct and how they have responded to questions fromcounsel. It is also helpful to ask whether you find the witness reliable inthe sense that what the witness says is consistent with other evidence that youhave heard in the case. Obviously assessing evidence for its credibility andreliability are slightly different things. Credibility relates to truthfulness,reliability relates to accuracy. You can accept all of what a witness says, partof what a witness says, or none of it at all, but you are all used to assessingcredibility and reliability subconsciously in your daily lives. You filtereverything out that is told to you as I say as you go about your normal lives.All I do is urge you to apply those ways of measuring the evidence in the samestructured and careful way.Law[41] The appellant appeals his convictions pursuant to s 229 ofthe Criminal Procedure Act 2011. This Court must allow the appeal only if satisfiedthat the jury's verdict was unreasonable, or a miscarriage of justice occurred thatcreated a real risk that: the outcome of the trial was affected; has resulted in an unfairtrial; or a trial that was a nullity.7[42] Section 122 of the Evidence Act provides:122 Judicial directions about evidence which may be unreliable(1) If, in a criminal proceeding tried with a jury, the Judge is 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.7 Criminal Procedure Act, s 232.(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:(a) hearsay evidence:(b) evidence of a statement by the defendant, if that evidence isthe only evidence implicating the defendant:(c) evidence given by a witness who may have a motive to givefalse evidence that is prejudicial to a defendant:(d) evidence of a statement by the defendant to another personmade while both the defendant and the other person weredetained in prison, a Police station, or another place ofdetention:(e) evidence about the conduct of the defendant if that conduct isalleged to have occurred more than 10 years previously.(3) In a criminal proceeding tried with a jury, a party may request theJudge to give a warning under subsection (1) but the Judge need notcomply with that request—(a) if the Judge is of the opinion that to do so might unnecessarilyemphasise evidence; or(b) if the Judge is of the opinion that there is any other goodreason not to comply with the request.(4) It is not necessary for a Judge to use a particular form of words ingiving the warning.(5) If there is no jury, the Judge must bear in mind the need for cautionbefore convicting a defendant in reliance on evidence of a kind thatmay be unreliable.(6) This section does not affect any other power of the Judge to warn orinform the jury.[43] In B (CA58/2016) v R this Court considered the circumstances in which a trialjudge ought to give the jury a reliability warning under s 122.8 The Court explained:[58] In the Privy Council's advice in Benedetto v R, Lord Hope emphasisedthat when reliability questions arise in relation to evidence at trial, the judgemust examine the material for him or herself in order to assess that question:Counsel may well have suggested to the jury that the evidence isunreliable, but it is the responsibility of the judge to add his ownauthority to these submissions by explaining to the jury that they mustbe cautious before accepting and acting upon that evidence.8 B (CA58/2016) v R [2016] NZCA 432 (footnotes omitted).[59] The judicial imprimatur can be important in the dynamic of a jurytrial. But it is not the case in New Zealand that every reliability issue arisingat trial necessitates a judicial warning. Section 122 provides that the decisionto give such a warning is discretionary. The essential question must bewhether the jury is likely to be materially assisted in its consideration ofthe evidence by a reminder from the judge that caution will be required in thisrespect. This point was well made by Richardson J in R v Harawira:In the end the fundamental question must be whether the summing upmet the justice of the particular case. Difficulties will tend to arisewhere the potential unreliability of the witness is not obvious for thejury to see. It must be recognised, however, that Judges are notnecessarily gifted with special insight into mental illnesses and humanbehaviour not shared by jurors. Clearly where a warning is proper itneed not be conveyed in the language of "danger", "warning" and"caution". What is essential in such a case is to bring home to the jurythe need for care in relying on that evidence.[60] In some trials, witness reliability will be a collateral issue or one ofmany issues. In others, the context giving rise to a reliability question may beoutside the knowledge or general understanding of ordinary people.A reliability warning is likely to assist the jury in such cases. Judge Fraser'swarning in this case about the effect of delayed complaint on the defence caseis explicable in these terms. But often, as here, where it was such a feature ofthe trial, the need for particular caution in respect of witness reliability will beso obvious to the jury that a warning cannot be said to provide them withmaterial assistance. In such cases, it will be enough for the Judge to reiterateto the jury, in his or her own words, that witness credibility and reliability is acentral issue in the case and it will be for them to resolve that question. That isexactly what the Judge did here.[61] Ironically, the issue for Judges to consider in cases such as the presentone is that the judicial imprimatur can sometimes artificially tip the scalesagainst the witness. That is, a reliability warning may, because the issue is soobvious, be taken by the jury as a subtle signal that the judge thinks the witnessis lying. Such a signal will of course not be of material assistance to the jury.Quite the contrary. It will be for the trial judge, immersed as he or she is inthe dynamics of the trial, to make the appropriate call.Discussion[44] As our summary of the prosecution and defence cases makes very clear, the keyissue in the trial was centred on the complainant's credibility and whether, based onher evidence, the jury were satisfied beyond reasonable doubt that she was telling thetruth and had given an accurate account of what she said the appellant had done insexually assaulting and violating her by raping her on the occasions relevant tothe charges. This was a quintessential jury issue which the trial Judge appropriatelyrespected.9[45] The jury's assessment of the complainant's credibility also requiredconsideration of: her denial of having retracted her complaint by signing the secondstatement dated 26 August 2018; her denial of being the author of the letters whichMrs H claimed to have found concealed in her luggage; and her denial of having saidto several people that she had lied in making her complaint and allegations againstthe appellant. Only if the jury were satisfied beyond reasonable doubt that thecomplainant was a credible, honest and reliable witness in respect of those matterscould it have found the charges proved. Moreover, in order to be satisfied thatthe complainant's evidence was credible and reliable, the jury would necessarily haveto reject: the appellant's evidence in which he denied engaging in any sexualimpropriety with the complainant at any time; Mrs H's evidence regarding the secondstatement made by the complainant at her local police station in South Africa;the authenticity of the second statement, hand written letters, and WhatsAppmessages, as being genuinely written by the complainant; and the evidence of the otherdefence witnesses who said the complainant had told them she had lied in making herallegations against the appellant.[46] We note also that the complainant's evidence derives support fromthe evidence of the prosecution witnesses Ms DK and Ms UM.[47] This is not a case where any aspect of the complainant's evidence required theJudge to give the jury a reliability warning regarding the possible or potentialunreliability of her evidence detailing the offending against her or as regardsthe alleged retraction of her complaint. There is nothing in the evidence to suggestthat the complainant had a motive to give false evidence prejudicial to the appellant.And neither are any of the other circumstances referred to in s 122(2) of theEvidence Act present which would require the trial Judge to consider giving the jurya warning about evidence which may be unreliable. Moreover, there is no aspect ofthe evidence that would require the Judge to explain the reasons for some potential9 Taylor v R [2010] NZCA 69 at [64]; and Witika v R [2011] NZCA 137 at [14]–[15].unreliability of the complainant's evidence that would not necessarily be obvious tothe jury to see for themselves.[48] In our view it is clear that the Judge correctly described the trial as beingfocused on the credibility and reliability of the complainant and witnesses. In hisdirection which we have set out above at [40], he referred to the distinction betweenwitness credibility and reliability and explained: "Credibility relates to truthfulness,reliability relates to accuracy." And he directed the jury to assess the credibility andreliability in a "structured and careful way". We consider that the Judge's directionswere appropriate in the circumstances of this case where the jury was required todetermine whether they would accept the complainant's account of the offendingagainst her as satisfying the standard of proof beyond reasonable doubt of the appellanthaving committed the offending alleged in respect of each charge. In our view, hadthe Judge given the jury a reliability warning, and directed the jury to the effect thatalthough the evidence they had heard was admissible it may nevertheless be unreliableand there was a need for caution on their part when deciding whether to acceptthe complainant's evidence and when deciding what weight to give it, such a directionwould be likely to confuse them and be of no assistance.[49] In the circumstances of this case, a direction pursuant to s 122 ofthe Evidence Act may have conveyed to the jury that the Judge himself had concernsabout the accuracy of the complainant's evidence regarding what she allegedthe appellant had done. Sending such a signal to the jury would of course not bethe Judge's intention, but in a case such as the present where credibility and reliabilityof the complainant's evidence was the central issue, a direction that may have hadthe unintended effect of indicating to the jury what the Judge's own view ofthe complainant's evidence was, could distract them from their task of assessingthe evidence themselves. The direction would not be of any material assistance.[50] We do not accept the appellant's submission that because of the centralimportance of the retraction evidence, a reliability warning was required directingthe jury that they needed to be sure that the retraction evidence was false, andthe complainant's evidence regarding the offending against her was true, before theycould find the appellant guilty of the charges. As we have said, the credibility andreliability of the complainant's evidence as to the appellant's offending against her andthe credibility and reliability of her evidence in which she denied retracting hercomplaints were the central issues to be determined by the jury. We are satisfied thatthe Judge's direction appropriately instructed the jury as to how they should approachthe issues of credibility and reliability of evidence, and to proceed to do so in astructured and careful way.[51] We find that the trial Judge did not err by not giving the jury a warning pursuantto s 122 of the Evidence Act as to the need for caution when deciding to acceptthe evidence of the complainant, and we are not satisfied that a miscarriage of justiceoccurred that created a real risk that the trial was affected or resulted in an unfair trial.Result[52] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent