H (CA387/2015) v R [2016] NZCA 324

H (CA387/2015) v R [2016] NZCA 324 [12 July 2016]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESSPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATIONIN LAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA387/2015[2016] NZCA 324BETWEEN H (CA387/2015)AppellantAND THE QUEENRespondentHearing: 20 June 2016Court: Cooper, Lang and Peters JJCounsel: A B Fairley for AppellantJEL Carruthers for RespondentJudgment: 12 July 2016 at 10 amJUDGMENT OF THE COURTA The appeal is allowed and the convictions are set aside.B A new trial is ordered.C Any question of bail pending the retrial is to be determined in the DistrictCourt.D Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or otherpublicly available databases until final disposition of retrial. Publication inlaw report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The appellant H was tried before Judge McDonald and a jury at the WhangareiDistrict Court on a charge list containing six charges of sexual offending against threedifferent complainants. He was convicted on all six charges and sentenced to threeyears and five months' imprisonment.1[2] The present appeal against conviction is brought on the grounds thatJudge McDonald intervened unduly throughout the trial and made inappropriateremarks during his summing-up, which he refused to correct when asked by defencecounsel to do so.Background[3] The Crown's case was that the appellant had sexually offended against threeyoung girls (O, B and K) between 1996 and 2011. Although the three complainantsknew the appellant and his family, they did not know each other and there was nosuggestion of collusion between them. The Crown's case was inevitably a strong onebecause of its ability to rely on the complainants' accounts as propensity evidence.[4] The first three charges, concerning the complainant O, were based on indecentacts said to have occurred when she was under the age of 12 years (the first twocharges) and under the age of 16 years (the third charge). This offending allegedly1 R v [H] [2015] NZDC 11437.occurred in Taranaki between 1996 and 1999 (the first two charges), and 2003 and2004 (the third charge).[5] The offending against B and K allegedly occurred in Whangarei between 2006and 2011. The offending alleged against B was said to have occurred in the appellant'sfamily home, while that against K took place on a quad bike being driven on a farm.In each case it was alleged that H had indecently assaulted the complainants when theywere under the age of 12 years.[6] One of the charges concerning O was a representative charge based on conductwhich it was said had recurred on a number of occasions between 12 November 1996and 11 November 1999. H was then living in Taranaki, working as a farm hand. TheCrown's case was that H had taken O for a ride on a quad bike and had done anindecent act on her as she sat in front of him. On these occasions, O said that shecould feel the appellant's erect penis rubbing against her.[7] The third incident involving O was alleged to have occurred when she was 15years of age and went to H's house for the purpose of meeting his children during theschool holidays. It was said that in the course of this incident H rubbed O's neck andshoulders, then led her into a bedroom where he kissed her and placed his hands underher clothing touching her breasts. O claimed that she could feel his erect penis rubbingher groin area. Further, he put his hand in her shorts rubbing the outside of her vaginaand then laid her on her side, lying down behind her and rubbing his erect penis againsther buttocks.[8] The two incidents in relation to complainant B allegedly occurred at H'sWhangarei property. B was there in 2006 visiting H's children. It was alleged thatshe had stayed the night and awoke to find the appellant touching her vagina from overher clothes as well as touching her under her clothing.[9] A second incident was based on allegations that in 2007, when B had beensleeping at H's property, she awoke to find him lying on top of the duvet. It was saidthat he pulled the duvet down, rubbed her back and kissed her shoulders under herclothing.[10] The final charge, concerning K, was based on another incident involving aquad bike. It was said that on a day between May 2009 and May 2011 H took K for aride on his quad bike, placed his hand under her clothing while seated behind her, andrubbed her stomach from the outside and her vagina under her underwear. K claimedthat he then stopped the quad bike, lifted her off and pulled down her pants. She pulledthem back up and climbed back onto the bike.[11] The defence case was that none of these events had occurred. Mr Fairley, whoappeared at the trial, acknowledged in this Court that the case was a difficult one fromthe defence point of view, given the fact that the Crown was able to rely on propensityevidence — the accounts given by each of the complainants being relevant to thecharges against the others.[12] While not in a position to deny that there had been an opportunity to offend,the defence sought to challenge aspects of the evidence of each complainant with aview to demonstrating why the allegations could not be true. In the case of theoffending against O, an attempt was made to show that the quad bike would notgenerally have been available for the offending to have occurred as alleged. In thecase of the offending involving B, the defence case was that the offending hadoccurred in a bedroom which was kept locked with a mattress positioned hard upagainst it such as would have prevented access by H on the occasions alleged. In thecase of the complainant K, the defence claimed that she had never stayed the night atH's property and was therefore not present at the time of the alleged incident.The appeal[13] H contends that interruptions by the trial Judge during the evidence of keywitnesses must have had the practical effect of creating an unfavourable impression inthe mind of the jury. Further, H submits that the Judge made errors in his summing-up and failed to correct them when requested to do so by counsel. The combinationof these two issues created a real risk that the outcome of the trial was affected withthe consequence that there has been a miscarriage of justice.Interruptions during the evidence[14] Mr Fairley provided a schedule listing some 66 occasions on which the Judgeintervened in the examination-in-chief or the cross-examination over the days duringwhich the evidence was given. In addition, reference was made to questions asked bythe Judge after re-examination by counsel.[15] Mr Fairley accepted that on many occasions the questions asked or theinterruptions were innocuous and were for the purpose of clarifying a particular pointor ensuring that the witness had understood the question. Nevertheless, Mr Fairleysubmitted that what he described as "subtle ongoing questioning" could give rise toprejudice by undermining a witness' credibility even if the questions, considered ontheir own, were not objectionable.[16] Having made that submission, however, Mr Fairley concentrated on theinstances where the questioning departed from the Judge's obligation to conduct thetrial in a neutral and impartial way.[17] The first example referred to by Mr Fairley was the questioning by the Judgeof the defence witness KH. KH is H's daughter, aged 17 at the time of the trial. Hsought to establish that the complainant K had not stayed overnight at the house. Inher evidence-in-chief KH gave evidence to that effect and in cross-examination theprosecutor put to her that K had in fact stayed overnight "a couple of times". KH'sresponse was that "she's never once stayed".[18] The prosecutor moved on to ask a question about B, but the Judge intervenedand there was the following exchange:Q. Six kids in your family –A. Yes.Q. – staying there?A. Yes.Q. Seventh child you say in effect?A. Yes.Q. And [Y]? 2A. Yes.Q. Your Mum and Dad, nine?A. Yes.Q. In a three bedroom house?A. Yes.Q. Right and your sister [D], has a room of her own, a reason she has toldus?A. Yes.Q. So where did the other nine people sleep?A. Well, my two brother, my brother [N] and [L] share a room and I andtwo, two other brothers [C] and [R] shared a room as well.Q. So where did – where did the other five people sleep plus the otherswho stayed over?A. Oh well that depended on whose friends they were, they would allsleep in the same room.Q. A lot of people coming and going all the time, pretty much?A. Yes.Q. Well how do you specifically say [K] never did?A. Because [K] would only ever come over when [Y] was there and [Y]would only ever be there when I was there.Q. Yes, but how do you remember this, that, that [K] was there for partof a night and then went home?A. Because [K] would, like cling herself to me and [Y], she would wantto always be round me and [Y].Q. How often do you say [K] comes to stay half the night at your house?A. She didn't too often. It was only ever when she'd come pick [Y] upand wouldn't then.Q. How often?2 Y was K's sister.A. Ah like, every couple of weeks. It just –Q. Every couple of weeks?A. Yeah.Q. Who are you talking about?A. I thought we were talking about [K].Q. [K], all right. So she's coming over every couple of weeks?A. (No audible answer)Q. To be fair, [K] told us she only stayed overnight a couple of times inthis entire period you were living up at [S] Road.A. She has never once stayed.Q. No, she only ever stayed, you know, was put to bed at your place acouple of times. You remember it.A. Did she?Q. 20 times a year.A. She hasn't.Q. It's all right.[19] Mr Fairley submitted that the questioning was in the nature ofcross-examination. It was not to clarify an ambiguous answer, because KH had beenquite clear K had not stayed overnight in her evidence-in-chief and incross-examination. He also submitted that the Judge's questions at the end of thepassage quoted above could have helped to undermine the witness' credibility byimplying that she could remember K staying overnight when that was contrary to herevidence.[20] Mr Fairley next referred to questions the Judge asked H's wife, who was calledas a defence witness. In her evidence-in-chief, Mrs H said that the complainant K'ssister Y, who was a friend of one of the H children, had been a frequent visitor at theH home. She said Y "nearly lived there". It was her evidence that she had told themother of K and Y, S, about the allegations which had by then been made by thecomplainant B. Mr Fairley led her evidence as follows:Q. In respect of before [Y] came over and stayed, did you have a talk toher mum?A. Yes.Q. What about?A. Well, we were going through the [B] thing um, and I was not lettingany kids in my house without parents being aware of what was goingon and I was very aware – we were very open about it.Q. Did you make [S] aware?A. Yes.[21] This evidence was the subject of cross-examination. There was this exchange:Q. Moving on to talk about [K] and her mum [S].A. Yeah.Q. You never told [S] about the [B] stuff at all?A. Yes I did.Q. You never made her aware of it?A. Yes I did.[22] At this point there was an interruption from the Judge apparently designed toclarify the question being asked. The prosecutor then continued:Q. That she never made [S] aware of the [B] situation?[23] At that stage the Judge took over the questioning and there were the followingexchanges:Q. And you were saying Mrs [H] you did?A. Yes I did.Q. Before [S]'s daughter, young daughter came and stayed with you andyour husband?A. Yes.Q. [Y] yeah.A. Not [K], [Y]. She's still young yes.Q. MmmA. But she was – and very small school every–Q. Yeah I'm asking you to clarify, you told [S] before [Y] came andstayed with you that your husband is the subject–A. Had an allegation against him, yes.Q. –of a complainant down in the Taranaki that he'd sexually abused ayoung girl?A. I don't think I put it quite like that.Q. Well how did you put it? That is the allegation?A. I put it that an allegation was made and I didn't know the full contentof it.Q. A sexual allegation?A. I wasn't – I was aware of a trespasser, I was aware of a flip-out aboutthings that my husband–Q. I'm just asking what you told [S] because the jury might take fromyour evidence today that you fully informed [S] that your husband hadbeen a subject of an allegation in Taranaki of sexual offending againsta young girl. That's my – what they might have taken from it butyou're now saying it was not as specific as that, you didn't say to [S]that?A. I – [S], um I – we did full disclosure about [K] of how the – about [B],about [B].Q. About [B]?A. Yes. We did full disclosure that was a sexual – 'cos it was, um, I didwith [O], I informed them also about the Taranaki one in the contextthat I understood it.Q. So you're telling [S] two allegations?A. Yes.Q. To be fair to you, when I asked [S] about that she was horrified sayingshe would have never allowed any of her daughters to go anywherenear your husband if she was aware that he'd been the subject of twosexual allegations involving young children?A. I can't answer for [S].Q. I'm just saying in fairness to you, that's what she said.A. I know what I did, to be fair, even if I hadn't had disclosed it shewould've known about it because the whole school know about it. Itwas the biggest topic at the primary school. It was – I was the shunnedmother and you couldn't have walked into that school and not knownabout it.Q. All right.A. It was a nice small primary school.[24] Mr Fairley was also critical of questions that the Judge asked Mrs H about thereason the family had moved from Taranaki to Northland during her evidence-in-chief.Mr Fairley had been asking Mrs H questions relevant to the allegations about thecomplainant O when the family lived in Taranaki. He then changed direction toaddress the subsequent allegations:Q. Coming up to Whangarei, your daughter [KH], what school did shego to?A. When we arrived, my daughter [KH] went to [the name of the school].[25] At this point, there were the following exchanges:THE COURT:Q. Why did you move up here?A. Why did we move up here?Q. Mmm.A. It was an amazing job opportunity.Q. Well your supports are in the Taranaki?A. Um –Q. So we were told, it could be completely wrong?A. Yeah, no you're not, all my family's in Taranaki.Q. And Mr [H]'s?A. Yes, um, but it was such an amazing job opportunity, you know.EXAMINATION CONTINUES: MR FAIRLEYQ. What do you mean by that?A. Well we would – we want to get back into share milking and learningmore of the corporate side of farming and the – it was –THE COURT:Q. Did it have anything to do with [O] making these allegations of sexualabuse against your husband?A. No.Q. You knew about them before you moved?A. I didn't know – I knew that there was something, but I wasn't privyto any conversations.Q. You did not ask him?A. Did I ask him?Q. Yes, what is, what is all this about you touching up [O]?A. Um, did I ask him?Q. Yes, as his wife?A. As his wife, I've asked him many questions.Q. No, no, back then did you ask him?A. Back then did I ask him?Q. Yes.A. Yes, I'm going to be honest I did.[26] Mr Fairley submitted that the subtext to the Judge's questions was that thefamily had run away from the sexual allegations being made against H in Taranaki.[27] Next, Mr Fairley referred to evidence called by H from W, the wife of thefarmer who had employed him in Taranaki. Part of the defence to the chargesconcerning O was that H would have had limited opportunity to use the quad bike forthe offending. W gave evidence that the bike was locked in the implement shed whennot in use and that there were rules about the use of the bike. She also said childrenwere not allowed on the bike and that it had to be left in the implement shed at nightwhich was kept locked for insurance purposes. She also emphasised that the bike wasfor farm use only.[28] Mr Fairley was about to embark on a new question when he was interruptedby the Judge. There was the following exchange between the Judge and the witness:Q. So you finish the milking what about 10 o'clock in the morning?A. Oh no.Q. What time do they finish milking?A. We finish about 8 o'clock.Q. 8 o'clock.A. Half past seven.Q. And what, then the farm workers normally go back and have breakfastor (inaudible 14:30:36)A. Yes, breakfast and then back to work–Q. Right, so they having used the bike to go and round the cows up, takethe bike back, lock it in the shed–A. No, no, not during the day, during the night it's always locked away.Q. Oh, I understood when it is not in use, it is locked away. That meansif it is not going, it would be ridden?A. So not locked away during the day, but it's always locked away atnight.Q. So logically speaking, he goes and gets the cows on the bike?A. Yes.Q. And before he starts milking, he goes and locks the bike away?A. No, 'cos he's used it, the day's begun, so he – they use the bike at theshed-Q. All right, so-A. –does his farm work, goes – walks home for breakfast, comes back,then he might have a chore to do with the bike, and he will take thebike again and use it, and when he goes home after milking at night,the bike's locked away in the shed.Q. What if he wanted to go home during the day for a quick cup of tea?A. And he can just walk 'cos it wasn't very far.Q. He could not just take the bike because he was – quick cup of tea andthen go back out on the farm? You never allowed him to take the bikeback to the house, his house, is that what you are telling us?A. I don't recall that, but no, normally, normally they'd go home forafternoon tea or lunch, they'd just – my husband and him would walktogether and one would come into one house and the other one wouldjust carry on.Q. Right.[29] Further, in cross-examination the prosecutor questioned W about thequad bike. After some introductory questions, there was the following question andanswer between the prosecutor and W:Q. So you would have no knowledge what he did with the quad bikewhile you were not there?A. No, but we had trust in our staff and we had trust in him that he wouldundertake the rules that we had.[30] The Judge interrupted, as follows:Q. Just answer the question Mrs [W]. You would not know what he wasdoing with the quad bike –A. No, I wouldn't know what he was doing.Q. – when you were not on the farm?[31] The cross-examination proceeded as follows:Q. So on a normal farm day (inaudible 14:34:54) it in the morning, itwould've been quite natural for him to maybe use it by himself to doa chore by himself at some point?A. It could be.Q. Now you've told us about this rule about no children, would it be fairto say it's possible there could've been children but you didn't seethem on the bike?MR FAIRLEY:Well that's us.3THE COURT ADDRESSES MR FAIRLEY (14:35:26)LEGAL DISCUSSION (14:35:30)QUESTIONS FROM THE COURT:Q. I mean ask Ms [W] whether that is the case whether you always saw[H] when he was out on your farm?43 Mr Fairley explained he was intending here to convey that the question reflected the defence caseof limited opportunity.4 It appears from the transcript that the Judge was telling the prosecutor to ask this question, but thewitness answered it as formed by the Judge, who then continued with the questioning.A. No.Q. No?A. I wouldn't have seen him every minute of the day or every hour of theday.Q. Well for the vast bulk of the time I would suggest, you personally?A. Beg your pardon me personally?Q. You personally?A. Well for several months of the year I worked on the farm too everyyear so I would've seen him then.Q. So for nine months you wouldn't have seen him?A. I was there a lot.Q. No one's trying to trick you Mrs [W], all [the prosecutor] is trying todo is to get from you how often you had [H] under surveillance onyour farm?A. I didn't have him under surveillance, I worked on the farm as part ofmy chores and I would've come across him, that often, that lots oftimes during that course of employment.Q. But do you know what one of the allegations is in this case?A. No.Q. Right. One or more occasions he has a young girl on your quad bike,he's taken her for a ride on the farm and he usually assaults her whileon the quad bike. Now in the three years do you think he might havehad an opportunity to do that and you wouldn't have seen?A. Possibly but there were rules stipulated.[32] Mr Fairley submitted that this line of questioning was both unnecessary andunhelpful. The prosecutor had already obtained the answer that the witness would nothave any idea what H did with the quad bike while she was not there, and indeed thatwas obvious. W accepted she did not know and the Judge's intervention wasunnecessary to clarify anything.[33] Mr Fairley submitted that the trial was essentially one based on two competingnarratives and involved credibility issues. In that context, any perceived lack ofimpartiality by the trial Judge could have had a significant impact on the proceeding.In the case of each of the passages set out above the Judge had effectively cross-examined the defence witnesses on key issues for the defence. He characterised thequestioning as an attempt to undermine the evidence that had been given.Errors in the summing-up[34] Mr Fairley noted that a central plank of the defence case insofar as the chargerelating to B was concerned was that she had slept in D's bedroom with the doorlocked and the mattress up against the door at the time of the alleged offending. Thedaughter, D, gave evidence that her door was locked. It was also her evidence that amattress was placed up against the locked door and that it would not be possible toopen the door when the mattress was in place. These sleeping arrangements appliedon the occasions that B stayed at the H home. D gave evidence that she was a lightsleeper and that while B was there she had never seen H come into the room at night.He also never came into the room when she was there by herself.[35] In cross-examination, there was the following exchange:Q. I want to ask you a few questions about this door still that we'retalking about. See I want to suggest to you [D] that when [B] stayedwith you the mattress was placed on the floor so this door could stillopen a bit?A. No.Q. And that light will come in through that door?A. No.Q. You said that you're a light sleeper?A. Yes.Q. But you do sleep?A. Yeah.Q. So you wouldn't know what happens in your house while you'reasleep?A. In my bedroom I do yes 'cos I lock my door before I go to sleep.[36] There was no re-examination of D, nor questioning by the Court. There wasalso evidence from Mrs H that D was particular about keeping her door shut at night,because of a particular privacy concern arising from her physical condition followinga serious accident.[37] Notwithstanding this evidence, the prosecutor raised in closing the possibilitythat the jury could be satisfied that the "door was sometimes open". Mr Fairleysubmitted this was not properly founded on evidence. His real complaint, however, isthat in his summing-up the Judge put a proposition to the jury that had not been put toany witness. In the course of summarising the prosecutor's closing address in relationto the offending involving B, the Judge recorded that H had the opportunity to do whatB claimed he did. He continued:[78] [The prosecutor] said nothing turned on the lock on the door or theplace of the mattress on the floor. The mattress I suppose could be a little bitback from the door. One would have thought it is a matter of commonsense,it might have been that one or the other wanted to leave during the night to goto the toilet or something, but it is a matter further [sic] and that the door wasnot always locked. [38] Mr Fairley submitted that the Judge's observations were unfair and not basedon the evidence. Essentially these were new propositions for which there was noavenue for rebuttal and the fact that it arose during the summing-up made the positionmore serious than if the proposition had been put by the prosecutor in her closing. TheJudge had effectively proffered a basis on which the jury could resolve the competingnarratives of H (supported in this instance by the evidence of D) and B.[39] Mr Fairley complained about this aspect of the Judge's summing-up after thejury retired. The Judge gave a ruling in which he recorded Mr Fairley's submissionthat the observation in the summing-up had no evidential basis before stating:I consider I was entitled to draw to the jury's attention that they were entitledto use their common sense and knowledge of the world, they were in effectentitled to draw inferences from the proven facts. In effect, that a mattresseven with a sleeping child on it, it would not be impossible to move.Being of that view, the Judge declined Mr Fairley's request that he recall the jury forfurther directions.5 On appeal, Mr Fairley submitted that the Judge's instructions to5 Other issues had been raised with the Judge by Mr Fairley after the summing-up, with the requestthat they be corrected; these were also rejected. However, Mr Fairley has not pursued thosematters on appeal.the jury would have had the unfortunate effect of prejudicing it against the defencecase in a way that was unable to be countered. The consequence, he submitted, wasthat H's right to put his case and challenge the evidence against him had beenfundamentally undermined.[40] Mr Fairley submitted that the effects of these observations of the Judge wereexacerbated by what the Judge said later when summarising the defence case. TheJudge noted Mr Fairley's submission that D had locked her door so that she could haveabsolute privacy in the bedroom. He continued:[85] He then moved on to [B] and he said to you that everybody knows,well this was one of those rare moments in the hundreds of trials he has donewhere everybody in the courtroom knows the truth has been told. Wellcounsel allowed a bit of freedom in what they say and Judges not, that is whatMr Fairley said to you. This was about the reason why [D] locked her doorso she could have absolute privacy in her bedroom.[6] He then took youthrough where the mattress was and he said how logical is it for a father tocome into the room, on the first and second occasions when [B] is stayingthere, to sexually abuse her in the way she described, one is saying his name,on the second another voice then called out to him with his daughter sleepingright by, how logical is that?[86] I suppose to counter that ladies and gentlemen how logical is it for agrown man to sexually abuse a young girl. Is that, within our experience, howdo people such as that act? The respondent's submissions[41] Addressing the interventions highlighted by Mr Fairley, Mr Carrutherssubmitted:(a) The Judge's questions of KH were legitimate as they explored issuesthat were important to the trial but which neither counsel had addressed.There had been evidence that the H household was a busy place withnumerous people coming and going. In the circumstances, without theJudge's questions the jury might have been left wondering how KHcould be so adamant that K never slept overnight. The fact that, whenthe Judge put K's evidence to her KH had explained why she was ableto be so sure and stuck by her answers, was beneficial to the defence6 D's physical condition had been badly affected by an accident, as noted earlier.because it provided a basis for what might otherwise have beenconsidered an unusual claim to make.(b) As to the questioning of Mrs H, Mr Carruthers characterised thequestions asked by the Judge regarding whether she had told K'smother S about the allegations as a "perfectly legitimate line ofquestioning". Mr Carruthers submitted that neither defence counsel northe prosecutor had extracted from Mrs H exactly what she claimed tohave told S. It was important the jury learned of the detail Mrs Hclaimed she had gone into. He argued that the questioning had notharmed the defence but rather had allowed her the opportunity toexplain exactly what she had said to S which, on her evidence,amounted to disclosure of two allegations of a sexual nature madeagainst H by two complainants. Mr Carruthers noted that Mrs H had"held her line" when the Judge asked her to comment on S's evidence.(c) As to W's evidence about the quad bike, Mr Carruthers submitted thatthe questions asked by the Judge were essentially designed to clarifywhether the bike was locked away in the shed after the completion ofevery task for which it was required, or whether it remained out on thefarm in periods between such tasks. The Judge had asked thosequestions because W had said categorically that the bike was alwayslocked in the shed when not in use. The true position was that it wastaken out of the shed in the morning and returned at night.Mr Carruthers submitted that these were legitimate questions designedto clarify the evidence that had been given on an important issue. If thequestions had not been asked, the jury might have been left with amistaken impression. The further questions by the Judge were designedto establish that for most of the time W had not had the opportunity toobserve the appellant. W had generally accepted that fact butemphasised that she spent a lot of time on the farm and expectedemployees to follow rules established for the use of the quad bike.Mr Carruthers conceded that these questions were not "particularlynecessary" given the answers the prosecutor had already elicited fromW. However, he submitted they only served to confirm points that hadjust been made, of themselves largely self-evident. It was obvious thatW would not have known what the appellant was doing every minuteof every working day.[42] As to the summing-up, Mr Carruthers submitted that the observations aboutthe lock on the door and the place of the mattress on the bedroom floor were properlycharacterised as demonstrations of the sort of common sense the Judge had directedthe jury to bring to their deliberations. He argued that the jury's collective commonsense and life experience would have extended to an appreciation that 10-year-oldchildren would sometimes get up in the night to use the bathroom. He argued that inany event, given the number of complainants and the similarities of their allegations,it would not have been difficult for the jury to put the evidence of the locked door toone side and conclude that the bedroom must have been accessible.The law[43] The law governing the extent to which judges may ask questions of witnessesin the course of a criminal trial is settled. In R v H (CA421/01), this Court said:7Intervention by a Judge in performing the legitimate and important role ofassisting a jury in a criminal trial can have the incidental effect of advancingthe case of the Crown or defence to some extent. That consequence ofclarification of evidence is often inevitable and is not in itself objectionable.What the Judge is, however, bound to do is to refrain from stepping outsidethe limits of the judicial role, especially by assuming that of the Crown ordefence in the trial. As well, while acting within the legitimate scope of thejudicial role, the Judge must not act in a manner which reasonably gives riseto an impression there is a lack of neutrality in the Judge's conduct of the trial.This reflects the underlying principle that a presiding Judge should not showbias [44] In M (CA508/2014) v R this Court emphasised the judge's role as a neutral andimpartial arbiter with principal responsibility for ensuring the defendant has a fairtrial.8 And in Tahere v R this Court said:97 R v H (CA421/01) (2002) 19 CRNZ 518 (CA) at [33] (citation omitted).8 M (CA508/2014) v R [2015] NZCA 183 at [25].9 Tahere v R [2013] NZCA 86 at [29] (footnotes omitted).The judicial power of control over a trial extends, by way of illustration, toclarifying evidence so the judge or jury understands it, to insisting thatevidence should focus on relevant matters and avoid repetition, to callingwitnesses to order, to stopping counsel once an issue has been sufficientlyexplored, to assisting witnesses by ensuring, for example, that they understandcounsel's questions, and to protecting vulnerable witnesses or those who faceharassment in cross-examination.[45] The Court in Tahere also made these important observations:10But a Judge may not intervene so as to cause a reasonable observer to thinkthe court partial as between the parties. Interventions may convey thatappearance where they indicate that the Judge has become an advocate, or thatthe evidence for a party on a controversial point ought to be believed, or not.Nor should interventions detract from the party's orderly presentation of itscase or prevent an accused from offering an account in his or her own way inthe witness box. A judge who intervenes frequently or at length must take careto avoid conveying the wrong impression, but the number of interventionsmatters less than their impact on the parties' cases and any impression theyconvey to the reasonable observer about the judge's attitude toward theparties.This caseInterventions by the Judge[46] The Crown had a strong case by virtue of the fact that there were threecomplainants and that, in each case, the evidence of one complainant was relevantpropensity evidence in respect of the charges against the other two. The defence wasthat the events did not occur, which Mr Fairley endeavoured to advance by callingevidence designed to establish there would have been little or no opportunity for H tooffend on the occasions alleged. Mr Fairley submitted that, taken together, the Judge'squestions were such as to convey to the jury that he thought important defencewitnesses and their evidence on issues that were central to the defence ought not to bebelieved.[47] The particular interventions which have been discussed above could not bejustified on the basis of clarifying the evidence that had been given. The questionsasked of KH were effectively in the nature of cross-examination and clearly had theobjective of challenging KH's evidence that K had never stayed the night at the Hhome. While Mr Carruthers was plainly right in his submission that they explored10 At [31] (footnotes omitted).issues that were important to the trial, the prosecutor had already challenged KH onthis aspect of her evidence. It is no answer to say that, under questioning by the Judge,KH had explained why she was certain and "stuck by" her answers. Contrary to MrCarruthers' submission, there would have been no benefit to the defence as a result ofthe Judge's questioning if, as we think might have been the case, the jury concludedfrom the Judge's questions that he did not believe the witness.[48] In relation to the evidence of Mrs H, the first set of questions about what Mrs Hhad told S regarding the allegations made against H was again in the nature ofcross-examination. We accept, as Mr Carruthers submitted, that to some extent thequestions asked by the Judge could be seen as clarifying precisely what it was Mrs Hclaimed she had told S. However, once again the Judge's intervention might haveappeared partisan to the jury involving, as it did, a substantial intervention during thecross-examination on an issue that the prosecutor had just begun to explore with thewitness. It included putting evidence given by S which was contrary to that of Mrs H.That was an approach that could not have been criticised had it been taken by theprosecutor. The fact that the Judge took this approach added to the risk that hisquestions would indicate he lacked neutrality.[49] Moreover, the questioning of Mrs H about whether the family had moved fromTaranaki because of the allegations concerning O was again in the nature of cross-examination. The questions about whether Mrs H had discussed with H "what is allthis about you touching up O?" was really a question for the prosecutor to ask, but thiswhole line of questioning was not part of the Crown's case. It was a substantialintervention during Mrs H's evidence-in-chief and the questioning may have createdthe impression the Judge did not accept Mrs H's evidence that the family's move northwas for purposes related to H's career in farming. We consider that Mr Fairley wasright to identify the possibility the jury would have seen the questioning as suggestingthe family had endeavoured to escape from the environment where these allegationswere being made, conduct perhaps suggestive of H's guilt. Although this was not theCrown's case, we accept Mr Fairley's submission that jurors may have thought thequestioning significant because it emanated from the Judge and was indicative of hisviews.[50] Some of the questions that the Judge asked of W were also in the nature ofcross-examination. The initial intervention occurred during her evidence-in-chief andmight be described as being designed to clarify the use of the quad bike on W's farm.In cross-examination W accepted she would not know what H did with the quad bikewhen she was not there, although she qualified her answer by reference to trusting Hto comply with the rules. This earned her a correction from the Judge, who thenquestioned her to get her to repeat the answer she had already given without thequalification she had previously made.[51] Shortly after that the Judge effectively took over the cross-examination. Therewas no need for him to do so. As Mr Carruthers properly accepted, the questions heasked were not necessary given concessions W had made to the prosecutor and, at theoutset of this further intervention, the Judge immediately secured a further answerfrom W that she did not always see H when he was out on the farm. The furtherquestions by the Judge secured a series of answers which must have had the effect ofweakening this aspect of the defence and appeared to have been designed to do so,including putting to the witness she could would not have seen H "for the vast bulk ofthe time". Once again, the interventions in our view would have created theimpression that the Judge was not neutral and were effectively inviting the jury to treatW's evidence as of little value. He might have been right about that, but these werepoints for the prosecutor to make and for the jury to consider without "any display ofpartisanship by [the Judge] which [may have influenced] the jury in matters properlywithin its province".11The summing-up[52] The further issue raised by the appeal concerning the summing-up must beapproached in the context of the interventions during the evidence: the summing-uptook place after questioning by the Judge tending to diminish the evidence on whichthe defence relied to say that H would have had limited opportunity to commit thealleged offending. The strength leant by the propensity evidence to the Crown's casewas such that it was important any issue raised by the defence tending to question theallegations of any of the individual complainants should be fairly put to the jury. The11 Beckham v R [2012] NZCA 290 at [68].evidence of the locked door with the mattress against it was important for the defencecase in relation to B.[53] D's evidence has been summarised above. She was clear that the door waslocked at night including when B came to stay because she wanted to protect herprivacy. When B was there B slept on a mattress placed against the door. D said thedoor could not be opened when the mattress was in place. In cross-examination sherejected the proposition that the door could be opened when the mattress was in place.She was not challenged on the issue of the locked door.[54] The prosecutor's observation to the jury in closing was that it was self-evidentthe door was sometimes open. Apart from anything else the occupants of the roomwould need to come and go from the room. The real question was whether the doorwas locked with the mattress in place at the time when it was alleged both D and Bwere sleeping in the room and H entered. It was for the jury to assess that on theevidence and in doing so they were not obliged to accept that D's evidence was correct.Equally, however, they needed to consider that evidence carefully including the reasonshe gave for locking the door.[55] The problem with the way the Judge dealt with this issue in his summing-up isthat he did not simply leave it for the jury to decide. Rather, in the course ofsummarising the Crown's case, he proffered an explanation for why the door couldhave been unlocked suggesting, as a matter of common sense, it might have been thatD or B may have wanted "to go to the toilet or something" and then simply said thatthe "door was not always locked". These were issues for the jury and we do notconsider it was appropriate for the Judge to effectively tell them how they should beresolved. There is force in Mr Fairley's submission that the Judge effectivelysuggested reasons for preferring B's account of what had occurred at a time when therewas nothing that could be done to counter what the Judge had said.[56] We are satisfied that what the Judge said later in the summing-up added to theprejudice of the defence case. The implication of the first part of [85] of the summing-up, quoted above, was that the jury should downplay the significance of D's reasonfor locking the door (effectively accusing counsel of exaggeration). The Judge thenproceeded "to counter" (as he himself put it) the defence submission that it was notlogical for H to enter the bedroom and sexually abuse B in D's presence, effectivelyon the basis that adults sexually abusing young people do not act logically.[57] We have concluded that in these respects the summing-up did not fairly andimpartially put the defence case in relation to the charge against B. It was the Judge'sduty to do so, in a manner that did not unfairly undermine the defence raised.12 Thestrength of the propensity evidence in relation to all three complainants meant thaterrors by the Judge in relation to the case concerning one of them might affect theothers.Conclusion[58] We have concluded that the combination of the Judge's interventions and theway in which the defence concerning complainant B was dealt with in the summing-upmeans that there is a risk the jury would have been influenced against the defence caseto an extent there has been an unfair trial. The particular concern arising from thesumming-up in relation to the offending against B might have affected the jury'sreasoning on all of the charges.[59] These conclusions mean there has been a miscarriage of justice.Result[60] We allow the appeal and set aside the convictions on all charges. We order anew trial. Any question of bail pending the retrial is to be determined in the DistrictCourt. For fair trial reasons, we make an order prohibiting publication of thejudgment and any part of the proceedings (including the result) in news media or onthe internet or other publicly available databases until final disposition of the retrial.Publication in a law report or law digest is permitted.Solicitors:Thomson Wilson, Whangarei for AppellantCrown Law Office, Wellington for Respondent12 McLaughlin v R [2015] NZCA 339 at [68].