H (CA90/2023) v R [2023] NZCA 367

H (CA90/2023) v R [2023] NZCA 367NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA90/2023[2023] NZCA 367BETWEEN H (CA90/2023)AppellantAND THE KINGRespondentHearing: 22 June 2023Court: Brown, Peters and Mander JJCounsel: W C Pyke for AppellantA J Ewing for RespondentJudgment: 15 August 2023 at 10.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] The appellant was convicted by a jury of three charges of committing anindecent act on a young person,1 and one of attempted sexual connection with a young1 Crimes Act 1961, s 134(3).person.2 He appeals those convictions on the basis the verdicts were unreasonable andthe prosecutor used counterintuitive evidence in an impermissible way.3BackgroundThe complainant's allegations[2] In June 2018, the then 13-year-old complainant attended a family gathering atthe appellant's parents' house. He was 22 years old at the time. In the evening,the complainant and other family members went to sleep in the lounge on couches anda double mattress.[3] The complainant's evidence was that in the early hours of the morning shewoke to the appellant touching her genital area over her clothes. She was lying on acouch and the appellant was on a double mattress on the floor next to the couch.When she rolled over and looked at him he pretended to be asleep. She rolled backover and went back to sleep.[4] The next time she woke, she found herself on the mattress with a blanketover her. The appellant was spooning her from behind. She tried to push him awaybut he would not move. Everyone else in the room was sleeping. The appellanttouched her vagina. He grabbed her hand and placed it on his penis. She said theappellant whispered in her ear asking if she liked it and suggested they go to anotherroom. She described herself as too frozen to call out. He then attempted to put hispenis in her anus which caused her pain and she pushed him away.[5] The complainant described the appellant's parents walking into the lounge andhim pushing her away so they did not see anything. Everyone then had prayerstogether in the lounge before the appellant's parents, who were travelling to Hamiltonearly that morning, left the house.2 Section 134(2).3 A third ground, based on the jury receiving an unedited transcript of the complainant's evidentialvideo interview, was abandoned.The defence evidence[6] The appellant did not give evidence but he called evidence from his motherand father, and from an aunt who was present at the house that night. The appellant'sgrandmother also gave evidence for the defence.[7] The mother's evidence was that everyone in the lounge had gone to bedsometime after midnight. However, she stayed up most of the night talking to hersister, the aunt, who finally went to sleep on a second couch in the lounge. The fatherwent to sleep in the parents' bedroom.[8] The mother said she sat throughout the night on the mattress with her backagainst the couch where the complainant lay, with the complainant's legs behind her,although the aunt described her as sitting on the couch near the complainant's feet.At some point, the mother asked the aunt the time. She had her phone with her andreplied it was 3.40 am. The mother and father were catching a bus at 5.30 am, and themother had set her alarm for 4.30 am. At some point after the aunt had fallen asleepmid-conversation, the mother decided to go to sleep in her bedroom. When she didso, the father asked her the time. She looked at her cell phone and told him itwas 4.00 am.[9] The mother's evidence was that when she went to bed the father got up and heleft the bedroom to get ready for their trip. As part of that process, he gave evidenceof carrying bags from the kitchen, hallway and bedroom through the lounge, out asliding door to where a car was parked. He said he made some five or six trips over a20-minute period. In cross-examination he agreed his focus had not been on what washappening in the lounge. After packing the car, the father described talking to hisyoungest son, who was on the double mattress, for around five minutes before turningon the lights in the lounge and going back to his bedroom to change his clothes.He then woke everyone up for prayers.[10] The mother said that at around 4.30 am she got up, changed her clothes andwent to the bathroom before going into the lounge. She described her husband outsidepacking the car, the lights being on, and everyone slowly waking up. Her evidencewas that everyone was where they had been before except the complainant, who wasnow sitting up on the mattress but on the side furthest from the appellant.In cross-examination, the mother accepted she had been out of the lounge for at least20 minutes.[11] The aunt, who had fallen asleep while talking to her sister, woke when thefather turned on the lights and got everyone up for prayers. Her evidence was shenoticed the complainant was now on the mattress and not the couch.[12] The complainant disputed a number of aspects of the defence witnesses'evidence that were put to her in cross-examination. She said the mother had slept inher own bedroom with the father. She did not accept the mother had been positionedon the couch with her and did not recall the mother leaving the lounge to go to herbedroom. The complainant first noticed the aunt on the other couch at the timeeveryone got up for prayers. The defence evidence was that the complainant had"crashed out" early in the night and was not therefore necessarily in a position tocomment about these matters.[13] In relation to the father moving in and out of the lounge, the complainant'sevidence was that after she had woken on the mattress, she had not been aware ofanyone coming into the lounge before the prayers. She could not offer an accurateestimate of the duration of the offending. In her evidential video interview shedescribed part of the offending as going on "[f]or ages". However, at trial she said shewas not sure how long the touching had lasted.The locations of the occupants in the lounge[14] Another aspect of the narrative of events upon which the appellant relied attrial was the complainant's positioning at the time of the alleged sexual assaults, bothon the couch and then on the mattress. While there was a consensus (apart fromthe father's evidence) the complainant was on the mattress at the time everyonewoke up, it was suggested the complainant and the appellant had been separated byother people on the mattress so the appellant could not have touched the complainantas she described.[15] The complainant's evidence was that she ended up on the side of the mattressfurthest from a window. However, the mother's evidence was that before she went tobed, the appellant was on the other side of the mattress, closest to the window.She described two children also being present on the mattress; one in the middlebetween the appellant and another child who was positioned where the complainantsaid she ended up.[16] At the time the prayers were occurring, both the mother and the aunt agreedthe complainant had by that time moved from the couch to the mattress, althoughneither had seen this happen. However, while both suggested the complainant was notlying next to the appellant, they did not agree about where she was positioned inrelation to the other two children. The mother placed the complainant on the outsideof the mattress, while the aunt said she was between the two children. For her part,the complainant did not remember one of the children having been on the mattress,although accepted it was possible. She maintained she had woken up next to theappellant and not between the two children.[17] The father offered a further version of where the complainant was situated.He said that after packing the car, he spoke to one of the children on the mattress onwhich the appellant and another child were lying. He said the complainant was stillasleep on the couch at this point, but that does not accord with either the complainant'sevidence or that of the mother or aunt's accounts of her now being on the mattress.[18] The defence witnesses also described the three persons lying on the mattressas having their heads towards the end furthest from the couch on which thecomplainant was lying, both earlier in the night and when everyone woke in themorning. This positioning would have made it more difficult for the appellant to touchthe complainant's body while she was still on the couch, and was relied upon for thepurpose of making that submission. However, the complainant described the appellantlying with his head towards the couch and his feet furthest away. It was herrecollection that, by the time the prayers were being held, the appellant had changedhis position on the mattress. She said "he went down the opposite way of where wewere lying and quickly jumped that way".The appeal[19] The prime ground of appeal was that the jury's verdicts were unreasonablewhen assessed against the evidence of the defence witnesses — only one of whom,the father, was challenged as lying to protect his son. It was argued (as it had been attrial) that there was only an extremely narrow window of opportunity for the offendingto have occurred. This was described as being only a "matter of minutes" betweenthe mother going to her bedroom and the father getting up and repeatedly walking inand out of the lounge. It was argued no witness observed the appellant next to thecomplainant at any stage, or saw him remove the complainant from the couch to themattress. All described the complainant as behaving normally when she awoke.[20] On behalf of the appellant, Mr Pyke repeated many of the submissions madeby trial counsel to the jury, including that the complainant's allegations required aperiod of time for them to have occurred, whereas there was only a short window ofopportunity. It was stressed that the father had been walking back and forth throughthe lounge, and the complainant and appellant were always in close proximity to otherpersons. In those circumstances, it was submitted the offending was extremelyunlikely and no jury could have reasonably accepted the complainant's evidence.Legal framework[21] A jury's verdict will be unreasonable if, having regard to all the evidence, itcould not reasonably have been satisfied beyond reasonable doubt of the defendant'sguilt.4 An appellate court must bear in mind that it is not the arbiter of guilt and thatreasonable minds may disagree on questions of fact. The weight a jury gives toindividual pieces of evidence is for it to determine, and regard must be had to theadvantages a jury will often have over an appeal court, including, in particular, theopportunity to assess witnesses' honesty and reliability.54 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [5].5 At [13(a)–(d)].Analysis[22] We do not consider there is a proper basis upon which to conclude the jury'sverdicts were unreasonable. As was acknowledged by the defence at trial, even on thenarratives provided by the defence witnesses, it was possible for the offending to haveoccurred in the way described by the complainant. The sheer fact the mother andthe aunt confirmed the complainant was on the mattress after they respectivelyreturned to the lounge and woke up, having not witnessed how she got there,demonstrates how their evidence could not exclude the complainant's account ofhaving been sexually assaulted in the lounge.[23] Based on the observations of these witnesses, the defence case could onlyextend to a submission that the complainant's evidence was implausible or unlikely,but the opportunity remained for the offending to have occurred. Emphasis was placedon the various observations of the positioning of the appellant and the complainant,the presence of other persons on the mattress, and how the complainant had come, atleast on the mother's evidence, to be between two children when the mother returnedto the lounge at the time prayers were held.[24] All these matters, as with other points made on behalf of the appellant at trial,were matters for the jury's assessment. Leaving aside the small period of time, on thedefence witnesses' own accounts, after the mother exited the lounge and beforethe father's entry, when none of them were in a position to observe anything in thelounge, there also remained intervals when the father was absent while loading the caror moving back and forth. There is no reason to consider he would have been payingparticular attention at that time or have been aware of touching taking place under ablanket. It is notable the complainant described herself as "frozen" at the time of thesexual assault. When assessing this evidence, the Crown could ask the jury to considerthe truthfulness of the complainant's account regarding what happened to her in thelounge, and legitimately question whether family members would realistically be ableto recollect with accuracy the position of other people in the lounge and theirmovements when they had no specific reason at the time to remember such details.[25] There was some criticism of the prosecutor failing to directly contestfamily members' evidence. However, we do not consider counsel's approach wasillegitimate, nor that it was incumbent on the Crown in the circumstances, given thenature of the mother and aunt's evidence, to attempt to directly impeach each witness.The father was directly challenged as having lied to protect his son, and we do notconsider much was to be gained from directly disputing the mother or aunt's evidencewhen on both their accounts — the aunt finally falling asleep, and the mother goingto bed — there were periods when they could not comment on what may have beenoccurring in the lounge.[26] The complainant's evidence was that, apart from the first touching, when shewas on the couch, the latter offending occurred on the mattress (where she was laterseen by both the aunt and the mother). As noted by Ms Ewing, on behalf of the Crown,the complainant's only temporal anchor for the latter sexual interference is that itstopped when the father woke the family for prayers and the lights were switched on.While the defence witnesses gave evidence of having observed where the complainantwas positioned on the mattress at that time relative to other persons, it was notconsistent. Notably, the father's evidence of the complainant still being on the couchconflicted with everyone else's account of her now being on the mattress.[27] It was entirely a matter for the jury to assess the immediacy of the mother andaunt's observations of what happened when the lights were switched on and of thecomplainant's evidence of how the appellant quickly moved away at this time. We aresatisfied that in the face of the complainant's evidence about what she experienced andthe opportunity for the offending she described to have occurred, it remained forthe jury to assess whether the defence evidence left them unsure about thecomplainant's account of having been sexually assaulted.[28] A subsidiary strand to the appellant's argument regarding the reasonablenessof the verdicts related to the appellant's grandmother's evidence of an alleged previousinconsistent statement made by the complainant. The grandmother alleged thecomplainant had told her at a subsequent family meeting that "she didn't know if itwas [the appellant] or if it was [another male relative who was on the mattress]" butshe thought it was the appellant because of his later actions towards her.The complainant denied having made this statement.[29] While the grandmother was later called to give this evidence, it was not put tothe complainant in cross-examination that she was in fact mistaken as to who hadsexually assaulted her, nor was it directly suggested to the jury in closing that thecomplainant had misidentified the offender. That approach was understandable as itwould have detracted from the main plank of the defence case, that the complainant'sevidence of having been sexually assaulted at all was, in the circumstances,implausible given the evidence of the other defence witnesses.[30] We do not consider this aspect of the evidence adds to the appellant's argumentthat the jury's verdicts were unreasonable. Clearly, it was for the jury to determinewhether, in the face of the complainant's denial, she had made such a statement and,if she had, whether, in light of all the evidence the complainant had given about thematter, it materially weakened her account of the appellant having sexually assaultedher that night.[31] Mr Pyke was also critical of the grandmother's evidence not being challengedin cross-examination by prosecuting counsel. However, we consider the questioningof this witness, which elicited the detail of the complainant having repeated herallegations of the appellant's offending at two family meetings in the presence ofrelatives, and explored the circumstances in which the complainant's alleged statementwas made, adequately put this evidence in contest. We note the complainant had, inany event, already done that when cross-examined about the issue.Decision[32] As we think is apparent from our discussion of the evidence, we consider theissues that arose in this case were quintessential matters for the jury's consideration.They included assessments of the credibility of the complainant and the father, and thereliability of the mother and the aunt whose evidence, in any event, could not excludethe complainant's account of what she said had happened to her. It was legitimatelyopen to the jury to determine what evidence it accepted and to assess the varyingweight it was prepared to place on different parts of the evidence, including that whichmay have conflicted with other evidence or could otherwise be reconciled with anotherwitness's recollection. Having reached that view, we consider the guilty verdicts wereavailable to a reasonable jury.Alleged misuse of counterintuitive evidence[33] While not pursued as a self-standing point capable of supporting a finding ofmiscarriage of justice in isolation, it was argued the prosecutor impermissibly usedcounterintuitive evidence in his closing address to support the Crown's case.In support of that submission, Mr Pyke cited the Supreme Court's direction, in DH v R,that such evidence:6 should not be linked to the circumstances of the complainant in the case inwhich the evidence is being given. This is an important limitation, designedto ensure that the evidence is not used in a diagnostic or predictive way.The witness should make it clear that the witness is not commenting on thefacts of the particular case.[34] The evidence of Dr Ahmad was read to the jury. It relevantly included thefollowing passages:The evidence I give does not prove or disprove that sexual offending hasoccurred in this case. My evidence is to provide information about thebehaviour of children and adolescents who have been sexually abused andissues related to sexual abuse.PROXIMITYIn my clinical experience, the home environment is a common place for sexualabuse to occur, the offender's home or the victim's home is by far the mostcommon place for sexual contact to occur. However, sexual abuse can happenin virtually any environment such as churches, playgrounds, pre-schoolcentres, and cars.It may be difficult for the layperson to understand how sexual abuse occurswithout it being detected by others around them. One study has shown thattwo thirds of incidents occurred when another person was in close proximity,usually elsewhere in the home. In my clinical experience, it is not uncommonfor sexual abuse to occur with others close in another room and sometimes itcan occur in the same room or even in the same bed. The reasons for the lackof detection are varied. One explanation is the child's reactions during asexual assault. In my clinical experience, children and young people oftendiscuss being paralysed or "freeze" and say nothing when the sexual assault6 DH v R [2015] NZSC 35, [2015] 1 NZLR 625 at [30(b)].occurs. Other common reactions are saying "No" or telling the offender theydid not want to have sexual contact. Forceful strategies such as fighting backand yelling for help were the least often used self-protection strategies.SUMMARYThe evidence I have given does not prove or disprove that sexual offendinghas occurred in this case. My evidence has been intended to provideinformation about the behaviour of children and adolescents who have beensexually abused and issues related to sexual abuse.[35] The Crown prosecutor made two references to Dr Ahmad's evidence in hisclosing address:Now, the next thing, and I mentioned it as a distraction earlier, but that thereare other people around, and it's not suggested it's an impossibility butsuggested that that's implausible. Well, can I just make two comments inrelation to that? First of all, you heard at the very beginning of this case, albeitfrom me, but Dr Ahmad's evidence that, sadly, for a number of reasons, thesethings do happen in close proximity to other people, even in the same bed, sothat does not make it an impossibility that this thing does occur in this way.We don't have eyes in the back of our head, we don't have 360-degree views,we don't have the ability to record things in that way. We do have the abilityto record and recall and retell things that happened to us, but if we're notfocused on them, if we're not aware of them, how can we really comment onthem? So, that other people aren't conscious of what occurs is understandable,both from Dr Ahmad's evidence and from what we're talking about here, thenature of the room and things of that sort.[36] Counterintuitive evidence is permitted in order to disabuse juries ofmisconceptions that may illegitimately detract from a complainant's credibility.However, such evidence should not be used diagnostically or predictively, as wouldbe the case if it was suggested a complainant's narrative was consistent with howvictims of sexual abuse are known to behave.7[37] It is sometimes said that counterintuitive evidence can be used as a shield butnot as a sword. We do not consider the Crown's use of this evidence breached thatprohibition. Dr Ahmad's evidence was deployed by the prosecutor to counter anysuggestion the close proximity of other people in the lounge meant sexual offendingcould not occur, or that the presence of other people close by meant they would have7 DH v R, above n 6, at [30]; and Heke v R [2021] NZCA 34 at [33].to have been aware of such offending. We consider it was legitimate for the Crown toremind the jury of Dr Ahmad's evidence to combat any residual belief that sexualoffending could not take place in such close proximity to others without beingdetected. It was not used in a way to bolster the complainant's evidence by suggestingher narrative was indicative of a person who had been sexually assaulted.[38] In any event, any possible concerns regarding the use to which Dr Ahmad'sevidence was put in the course of argument are allayed by Judge Orchard's directionsregarding how that evidence was to be used. The Judge directed that it was veryimportant the jury understood that Dr Ahmad was not saying anything about the factsof this case, and that her evidence was directed at addressing misconceptions jurorsmay have. When addressing Dr Ahmad's evidence, the Judge stressed how sexualoffending can take place in close proximity to others, but this was not intended to bea specific comment one way or the other regarding whether the complainant should bebelieved. Rather, it had been provided in order to allow the jury to consider herevidence free of any misconceptions that "you might or might not have".Conclusion[39] We do not consider the jury's verdicts were unreasonable or otherwiseunavailable to it on the evidence. The jury was entitled to convict the appellant on thebasis of the complainant's account of having been sexually assaulted by him.While the defence evidence potentially narrowed the window of opportunity for suchoffending to have taken place, it did not mean the jury's acceptance of thecomplainant's account as truthful was unreasonable, or have the effect of obliging areasonable jury to acquit the appellant. The way the Crown used the counterintuitiveevidence in its closing address was unobjectionable.Result[40] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent