H (CA693/2015) V R [2016] NZCA 360

H (CA693/2015) V R [2016] NZCA 360 [28 July 2016]ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYINGPARTICULARS OF APPELLANT PURSUANT TO S 140 OF THECRIMINAL JUSTICE ACT 1985.NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA693/2015[2016] NZCA 360BETWEEN H (CA693/2015)AppellantAND THE QUEENRespondentHearing: 23 June 2016Court: Cooper, Lang and Peters JJCounsel: J W Watson for AppellantZ R Johnston for RespondentJudgment: 28 July 2016 at 10 amJUDGMENT OF THE COURTA An extension of time to file the notice of appeal is granted.B The appeal is dismissed.C Order prohibiting publication of name or identifying particulars of appellant pursuant to s 140 of the Criminal Justice Act 1985.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The appellant, H, was tried before Judge McDonald and a jury at the Whangarei District Court on an indictment containing four counts alleging indecent assault of the complainant, DM, a girl under 12 years of age at the time of the offending. Three of the counts in the indictment were representative charges. The offending occurred between 31 January and 13 May 2011.[2] He now seeks to appeal his conviction having filed an appeal approximately five days late. In the absence of any opposition from the Crown, we extend the time for filing the notice of appeal. Initially there was also an appeal against sentence. However, that appeal was formally abandoned at the hearing of the conviction appeal.[3] The conviction appeal alleges various errors by the Judge in the course of the trial, including his:(a) ruling that DM's aunt, AP, could be present as a support person whenshe gave her evidence;(b) conduct during the trial including interruptions and questions askedduring the evidence, and his treatment of DM's mother, KP, called asa defence witness; and(c) directions given in summing-up about H's failure to appear on thedate originally scheduled for a pre-trial conference in August 2012, and concerning submissions made by Mr Watson, H's counsel, in hisclosing address about the questioning of DM at an evidential interview.The offending[4] The offending against DM occurred at a time when H was in a relationship with KP. KP and H had a child together and although they did not live together, H would visit KP and their child regularly at a time when DM was aged between eight and nine years.[5] The Crown's case was based on an evidential interview given by DM. In herinterview, given when she was aged nine, she described herself as having been "in an adult situation" with her mother's boyfriend, adding that her mother did not know about it. She said she did not like the way "he had been touching my private parts".She referred to him rubbing her private parts and asking her a "very silly question" the day after: "Do you like me feeling you?"[6] DM said H would arrive at the house either in the evening or early morning while her mother was asleep. The first time he touched her she was asleep in the lounge. She said that he approached her and rubbed her genitals under her pyjamas,before standing up and walking quietly to her mother's bedroom. She claimed that the conduct occurred "quite often", noting however that H did not come to the housevery often. However, she said "Whenever he comes to our house he does it".The conduct included rubbing DM's genitalia, touching her bottom or buttock areaand touching her nipples, both inside and outside her clothing.[7] There were custody issues between KP and DM's father. As a result of areferral by the Family Court, a psychologist, JC, spoke with the complainant on 18 May 2011. DM disclosed to her that H had been touching her "private parts". DM's evidential interview took place the following day, and since that day she moved to live with AP.[8] H was spoken to by police on 15 July 2011 and denied the offending. He was committed for trial, but failed to appear for a pre-trial conference on 22 August 2012. A warrant to arrest was issued which was not able to be executed until 15 March 2015. The trial eventually took place in the Whangarei District Court between 21 and 24 September 2015. Majority verdicts of guilty were returned on all four counts.1[9] We turn now to the issues raised by the appeal.1 R v [H] [2015] NZDC 21339.Support person[10] Under s 79(1) of the Evidence Act 2006, a complainant giving evidence in a criminal proceeding is entitled to have one person near him or her to give support. Subsection (3) provides that despite subs (1), the Judge may direct that support maynot be provided to a complainant by any person, or by a particular person. Under subs (4), a complainant who is to have a support person must disclose to allparties "as soon as practicable" the name of the support person.[11] In this case, after DM's video interview was played on the first day of thetrial, the Crown advised the Court and the defence that DM wished to have her aunt AP present as her support person when she was giving oral evidence. Mr Watson objected to AP acting as the support person. He submitted that based on information from KP and from H, other family members had been coaching DM. One of the alleged coaches was AP. On this basis, counsel submitted that it would be inappropriate for AP to be present with DM when she gave her evidence via CCTV. In rejecting the defence objection, the Judge said:2[8] In my view, a complainant is entitled as of right to have whatever support person she seeks to have with her. That right will only be overridden by direction of a trial Judge for very good, if not exceptional, reasons. Such reasons could well be if the support person is to give evidence later, such as evidence of a prior consistent statement made by the complainant. I do not consider that in [sic] the circumstances outlined to me by Mr Watson is sufficient reason to disqualify the aunt.[12] The Judge went on to record that DM's allegations were set out in herevidential interview and that for the objection to have any force there would need to be some evidence that prior to that date AP had been involved in coaching DM. The Judge understood that at that stage DM had been living with KP, although staying two or three times a week with her grandmother.3 There had been no mention of AP in the evidential interview and in the circumstances any coaching by AP could only relate to what DM had already said in her evidential interview. In those circumstances, any coaching would not be to make a false allegation, but to ensure she recalled what she had in fact already said.42 R v [H] [2015] NZDC 18868.3 At [9].4 At [10].[13] The Judge also observed that while H was entitled to a fair trial, it was not for an accused person to say who the complainant could or could not have as a support person.5 In addition, he drew attention to the fact that it was H's own actions thathad led him to being tried in September 2015 rather than in 2012. He suggested thatH now seemed "to want to take his fleeing as a factor" that should be taken intoaccount in relation to the alleged coaching.6[14] On appeal, Mr Watson submitted that the Judge had put the position muchhigher than he should have in asserting that DM was "entitled as of right" to have thesupport person of her choice. Further, it was wrong to state that the choice madewould only be overridden "for very good, if not exceptional reasons". Mr Watsonwas also critical of the Judge's reasoning that there would need to be evidence ofsome sort of coaching prior to the giving of the evidential interview.[15] He submitted that the Judge had not taken into account the fact that DM was residing with AP at the time of the trial. He said that although he had used the word"coaching" in his objection to the Judge, he had not done so in the "limited sense"attributed by the trial Judge. In effect, AP was a de facto parent. While the defence was not able to point to evidence of actual influence, that is not a prerequisite for an objection to a particular support person. Rather, it was the mere presence of AP, asDM's caregiver, which might have an inhibiting effect. That was a legitimate factorthat had not been taken into account when assessing where the interests of justice lay.[16] Mr Watson's submission reflects observations made by this Court in R v E (CA 308/06).7 That case predated the Evidence Act and concerned the predecessor of s 79, s 375A(2)(h) of the Crimes Act 1961. The Court observed that the statute provided that the choice of support person was for the complainant.8 However:9 a complainant's choice must be seen as being subject to the interests ofjustice which may, in some circumstances, require a limit to be put on thischoice. The complainant's freedom to choose should, however, be limited as5 At [11].6 At [12].7 R v E (CA 308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [42].8 At [42].9 At [42].little as possible (see R v V (1988) 3 CRNZ 423 at p 424). Nevertheless, weaccept Mr Calver's submission that there may be cases where it would be preferable for parents not to act as support persons in the CCTV room. For example, this may be the case where there might be allegations of coaching and where the parents are to give or have given evidence in the case or where they have had a significant involvement in the events, such as being the recipient of a complaint. The existence (or otherwise) of another suitable support person or persons would be a significant factor in assessing where the interests of justice might lie in such a case.[17] In the following paragraph, the Court recognised that it would be difficult in most cases to raise an evidential foundation for a concern that there might be actual influence. For that reason, it would be inappropriate to make that a prerequisite for objection to a particular support person, although it may well be a prerequisite for showing a miscarriage of justice.10 The Court also noted that mere presence couldbe "inhibiting" and that would be a legitimate factor to be taken into account inassessing where the interests of justice lie.[18] We do not think there is substance in the point in this case. As Ms Johnston submitted for the Crown, AP was not a witness at the trial and she did not have a significant involvement in events. There was no evidence of coaching before or at the trial and it appears that although Mr Watson was instructed to take the objection, the defence case at trial was not in fact put on the basis that she had been coached by anyone. There would have been little room for any coaching to occur having regardto the fact that DM's evidential interview was made the day after she made adisclosure to the psychologist, this at a time when she did not live with AP.[19] We accept that in referring to "exceptional" reasons for not acceding to acomplainant's request that a particular person be present with him or her whengiving evidence the Judge overstated the position. But approaching the matter on the required basis of asking where the interests of justice lay,11 we consider in all the circumstances there was no reason why DM's request should not have beenaccepted. We reject this ground of appeal.10 At [43].11 At [43].Conduct of the trial Judge[20] The appellant advances a number of criticisms about the conduct of the Judge during the trial.The issues[21] Mr Watson relies on the combination of the number of interruptions duringthe evidence, together with other aspects of the Judge's conduct which he claimswould have created the impression that the Judge accepted evidence given by the Crown and did not accept defence evidence.[22] Mr Watson calculated that there had been 31 interruptions during DM'scross-examination. On five occasions when the Judge interrupted, the jury had been invited to retire. On seven occasions the Judge intervened to inquire whether DM understood the questions. On a number of those, DM said she did not understand the question, on two she did not answer and on one she said she did understand the question. The remaining interruptions were for various other reasons.[23] Mr Watson accepted that it was not enough to point to the number of interventions; it is the nature of the interventions that determines whether they are excessive and may have prejudiced the defence case. Critically, he submitted thatwhat matters "is the quality of the interventions as they relate to the attitude of thejudge as might be observed by the jury and the effect that the interventions have" on the development of the defence case, including any attack "upon vital prosecutionwitnesses by cross-examination administered by his advocate".12 Mr Watson submitted that in this case, although the interruptions had not put him off course,they would have created an impression which unfairly undermined H's case when combined with other aspects of the Judge's conduct.[24] Mr Watson addressed three other aspects of the Judge's conduct in particular.First, he identified a small number of questions that the Judge asked of prosecution witnesses. He accepted they were innocuous of themselves, but claimed the12 R v Matthews (1984) 78 Cr App R 23 (CA) at 32 as cited in E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA) at 152.impression created would have been that the Judge was impressed by the witnesses, reinforcing their credibility in the eyes of the jury.[25] Second, he referred to two separate exchanges the Judge had with the sole defence witness, KP. Both interventions occurred during her cross-examination. The context of the first was questions the prosecutor had been asking about occasions when H would visit KP at home. She said that there were only two occasions when he had done so when DM was present. She said that on occasion H had visited her when her children were not there. The following exchanges then took place:Q. But [DM] was living with you?A. No she wasn't.Q. [DM] and you, as at April 2011, had a close mother/daughter relationship?A. And we still have a close mother/daughter relationship.THE COURT:Q. Just answer the question you're being asked, back then did you havea close relationship?A. Yes.CROSS-EXAMINATION CONTINUES: MR ANNANDALEQ. [DM] doesn't live with you at the moment does she?A. No she doesn't.[26] Mr Watson submitted that the Judge's question was not a case of clarifyingthe evidence so that he or the jury could understand it. It was not a question asking that the witness focus on relevant matters, nor calling the witness to order, or ensuring that she understood counsel's question.[27] Next, Mr Watson referred to the following exchange:Q. Are you saying that [DM] stayed with you twice during that time period?A. Yes, never lived with me when I moved back to 958.Q. You're wrong about that aren't you?A. No I'm not wrong about that. She lived with my grandparents but stayed with me twice that [H] was present.Q. Are you –THE COURT:Q. No, no, what Mr Annandale's asking you is, forget about [H] allright.A. Yes.Q. Just forget about him. Did he, did she live with you in your house between the time you moved in, around the 15th of April, until she made the disclosure on the 18th of May?A. No she didn't.Q. So it's just chance that the two occasions she stayed with you,overnight [H] turned up –[28] Mr Watson submitted that this intervention was such as to cause a reasonable observer to think the Judge was not impartial, and the last question was such as tocause a reasonable observer to think that the Judge did not accept KP's evidence.Alternatively, the question could be seen as an adverse comment made for the purposes of undermining the evidence. It indicated that the Judge had become an advocate for the Crown and showed that the Judge thought the defence evidence on a controversial point ought not to be believed. Mr Watson noted that a central issue for the defence case was that DM had not been living with KP at the time of the offending and had only stayed with her on two occasions when H had visited her house.[29] The third issue advanced in this part of the appeal was a contention that theJudge's demeanour at the conclusion of KP's evidence was such as would haveconveyed the impression to the jury that the Judge did not believe her evidence and indeed that he was angry that KP had given evidence for the defence rather than believing her daughter.[30] This submission was advanced on the basis of two affidavits, one from KPand the other from IM, H's mother. In her affidavit, KP said:9. Although I was anxious before I gave my evidence, when I gave my evidence it was not as bad as I thought it would be.10. When I was being cross-examined by the prosecution lawyer there were two occasions when the Judge asked me questions. The Judge was very abrupt with me.11. After the prosecution lawyer finished asking questions of me, theappellant's lawyer did not ask me any questions in re-examination. I then sat in the witness box.12. While it seemed a long time, I am sure time could be counted in seconds. There was silence in the court room except for the sound of paper shuffling and being hit against a table. When I looked in the direction of the Judge he was hitting the bottom edges of the papers he was holding on his desk.13. I looked at the prosecutor wondering what I had to do. I looked atthe appellant's lawyer wondering what I had to do. I looked at the Judge wondering what I had to do.14. I looked at the Judge's face. It was an angry face. The Judge'smouth was a thin line across his face. The judge was looking straight ahead.15. I was embarrassed. After what seemed a long time the Judge turned his head to me and said that I could leave. I then got up and out of my seat in the witness box and I walked out of the court room.[31] IM did not give evidence at the trial, but was present for all of the evidence apart from that given by DM. She gave evidence that she heard the evidence of witnesses called for the Crown and heard the Judge thank each witness for their attendance after their evidence was concluded. She was also present when KP gave her evidence. She said that:9. When [KP] finished giving her evidence, that is after she finishedgiving her evidence-in-chief and she was cross-examined by the prosecuting lawyer, no questions were asked of her in re-examination by my son's lawyer.10. It was what then happened that most concerned me. The trial Judge did not look directly at [KP]. He sat in his chair shuffling his papers. After what seemed to me a long time, he then turned his head in the direction of [KP] and told her that she could leave.11. I observed the face of the trial Judge when he was shuffling his papers. The trial Judge did not smile. His mouth was a thin line across his face. He looked at his papers, and he looked ahead. I know a look of anger on a face, and that was a look of anger.12. After [KP] had given her evidence, and had been told by the Judge that she could leave, the court adjourned for lunch. That was a little after 12pm.13. Although [KP] is the mother of a child which she had as a result of her association with [H], the first day I had ever met with [KP] and the child was on the day of the trial when [KP] attended to give evidence. The jury returned its verdict at about 7.45pm on 24 September. I have not seen and I have not spoken to [KP] in any way since the end of the trial.[32] Mr Watson relied on E H Cochrane Ltd v Ministry of Transport where it was said:13Any show of bias during the hearing may spill over into that verdict. Relevant to jury trials is the consideration that although the jury are an independent body with their own decision-making function, the Judge may powerfully influence them by appearing to discredit witnesses, preventcounsel from putting the accused's case fully, and leaving the jury with animpression that the Judge as an experienced lawyer is inviting them, if not directing them, to share his views.Evaluation[33] We have considered the transcript of the evidence to ascertain as best we canthe nature and quality of the Judge's interventions, in particular during Mr Watson'scross-examination of DM. We bear in mind that DM was 13 years old when giving evidence. In our view, most of the questions asked were for the purpose of clarifying issues that were being put to her and helping her understand the questions being asked. For example, an issue arose as to the timing of when her mother KP had beenliving at a particular address, and the questioning employed the word "Easter". Onequestion asked by the Judge was whether she knew what month Easter was in in 2011. She said she could not remember, and also that she did not know when Easter ordinarily occurred. On another occasion, Mr Watson asked a question occupying some six lines in the transcript; the Judge intervened to ask DM whether she understood the question. On another occasion, the Judge asked a number of questions, interrupting Mr Watson, as to the timing of when DM had moved from one address to another. On another occasion, the Judge interrupted to inquire whether the witness was all right. On another occasion, the Judge interrupted sayingto DM that she looked "a little confused" and when she responded that she was, he13 E H Cochrane Ltd, above n 12, at 156.told her that it was all right to answer questions by stating that she did not remember or did not know the answer.[34] There were other interruptions of a similar kind. We do not think that theJudge's interruptions during cross-examination of DM or other Crown witnesses were excessive in number or objectionable in nature.[35] Nor do we accept Mr Watson's submission that the questions asked by theJudge of prosecution witnesses would have created the impression that the Judge accepted their evidence or viewed it in a favourable light. The questions were very few in number, and of a clarifying kind.[36] We turn next to the exchanges with the witness KP, set out above. We are not persuaded that there was anything wrong with the first intervention. While it appears slightly peremptory, the witness had not given a direct answer to the question asked by counsel whether as at April 2011 she and DM had a close mother/daughter relationship. In his written submissions, Mr Watson had transcribed this passage asif the last question ("[DM] doesn't live with you at the moment does she?") had alsobeen asked by the Judge. However, the transcript shows that by that point the prosecutor had resumed questioning. We do not think there is anything in this point.[37] The second intervention to which Mr Watson refers apparently began as areminder that the prosecutor's line of questioning was simply about the time whenDM had lived with KP. We accept that the last question asked by the Judge pointingto the "chance" presence of H on the two occasions during the relevant period thatDM had been living with her was potentially of more concern, on the grounds that the question was unnecessary and may have been taken by the jury as an indication that the Judge did not believe KP on this point. However, in the event, the witnessdid not answer the question because of Mr Watson's strenuous objection to it, and theJudge did not pursue it. We are not persuaded that the asking of the question would have had an inappropriate influence on the jury.[38] We turn next to the allegations based on the conduct of the Judge at the endof KP's evidence. Mr Watson noted that the affidavits by KP and IM had been filedin accordance with the approach approved in this Court's judgment in R v Fotu.14[39] In some respects, however, limitations referred to in that decision were not complied with. Delivering the judgment of the Court, Cooke P said:15As has recently been held in this Court in R v Loumoli evidence as toactions or demeanour in Court relevant to issues of the fair conduct of the trial may be tendered, but there is a responsibility on counsel to ensure that it is restricted to properly admissible material and does not seek to put forward the subjective views of a deponent. It is always preferable, however, to deal with such matters by agreed memorandum.Some of the contents of the affidavits of the appellant trespass into the out-of-bounds territory of personal opinion rather than testimony to facts. To that extent we have disregarded them.[40] In Loumoli, referred to in the passage just quoted, this Court was critical of affidavits that had been filed by junior counsel appearing for one of the appellants.16The affidavit described facial expressions made by the Judge, and gave an interpretation of what they would have conveyed to the jury. It was suggested thatthe Judge's demeanour had in one case indicated to the jury that the evidence of thewitness should not be believed. Eichelbaum CJ, writing for the Court, observed:17We do not wish to give any encouragement to the provision of evidence of this kind. Wisely, here the Crown did not offer any affidavit in response but one certainly would not wish to promote the filing of counter-affidavits followed, perhaps, by the spectacle of cross-examination of the respective deponents. Such a process might serve to undermine confidence in the justice system and in the particular Judge. But in principle we have to accept that in proper form, evidence as to actions or demeanour in Court relevant to issues of the fair conduct of the trial may be tendered. This is not to say however that the subjective views of a deponent as to the nature or effect ofthe Judge's conduct are any more relevant in this situation than would be the case generally. For future guidance we wish to say that if this kind of evidence, involvingserious allegations against a Judge, has to be tendered there is a14 R v Fotu [1995] 3 NZLR 129 (CA).15 At 134 (citation omitted).16 R v Loumoli [1995] 2 NZLR 656 (CA) at 659.17 At 660.responsibility on senior counsel to see that it is restricted to properly admissible material.[41] We note that in both Fotu and Loumoli, the affidavit evidence placed before the Court was from solicitors, and in Fotu there was also an affidavit of independent counsel who had been asked by senior counsel for the accused to be present in theHigh Court during the Judge's summing-up. In the present case, the affidavits reliedon are by H's mother and his partner at the time of the relevant offending. Evidencefrom persons who are or were in a close relationship with an appellant would need to be especially compelling before they were accepted as a basis for concluding impropriety on the part of the Judge. In this instance, we are not satisfied that threshold has been met. Nor are we satisfied that the constraints discussed in Fotuand Loumoli have been observed: KP's evidence referring to the Judge's "angry face" and IM's evidence to the same effect have the appearance of the "subjective views of a deponent", which this Court said should be avoided in Fotu.18 While Mr Watson made observations from the bar about his reaction to the Judge's conduct,the issue raised is too important to be approached in that way.[42] To the extent we can, we have endeavoured to test statements made by IM suggesting that the Judge was not impartial in the way he treated the Crown and defence witnesses at the conclusion of their evidence by listening to the recording of the proceedings. Having done so, we do not think there was a distinction of any significance. Each witness was thanked, including KP. The pause which KP referred to between the end of her evidence and the Judge thanking her was a period of 12 seconds. That may have seemed like a long time to the witness, but it was accompanied, as she noted, by the Judge shuffling his papers. The witnesses also described him as having hit the papers against the table; we draw the inference that he was placing his papers in order before turning to the witness and saying, as he isrecorded as having done, "Thank you for coming along and giving your evidence."We heard nothing harsh or critical in the form he employed in thanking her. Nor were we able to hear the papers being hit on the desk as claimed by KP.18 Fotu, above n 14, at 134.[43] In the end, we are unable to conclude that the Judge's conduct at this point in the trial was such as could have given rise to a miscarriage of justice.Directions in the summing-up[44] Two issues are raised concerning the summing-up.[45] The first is the instruction given by the Judge in relation to the delay in the trial due to H's failure to appear at the callover before the trial scheduled in 2012.The Judge said:[57] On 23 March 2012, a trial date was set for his case; 27 August 2012. He was required to attend this Court on 22 August 2012 at what is called a pre-trial conference. But he did not turn up so a warrant was issued for his arrest. The case was, in effect, taken out of the cases going through the Courts and put to one side until he could be found. And you all have heard he was not found until 15 March 2015.[58] As Mr Watson quite properly said in his final address to you, the delay in getting it before you is the accused. He is the cause of that. Whatyou cannot do, and I emphasise this because it is important, is to say, "Well, he didn't turn up on 28 August 2012. So for that reason alone he must beguilty. Why else would he disappear?" That would be quite wrong. Do nothold that against anyone in weighing up the evidence that there has been this delay.[46] Mr Watson was critical of this direction because the Judge only referred tothe inference of guilt that could be drawn from H's flight, without mentioning that hemay have fled for reasons other than guilt such as fear of being unjustly accused. Hesubmitted the Judge should have explained that H's failure to appear could only be relied on as evidence of guilt if the jury was satisfied that it pointed unequivocally to guilt of the offences charged, and not some other offence or discreditable conduct.19[47] However, as Ms Johnston pointed out, DM's memory had been challenged in cross-examination, when differences between what she said in her evidential interview and the evidence given at the trial were put to her. In this context, the Crown sought to lead evidence to explain the reason for the delay in the matter coming to trial. The Judge ruled the evidence admissible essentially because without it, the jury would be left questioning why the matter had taken so long to be tried,19 R v Federici CA394/04, 16 June 2005 at [58] and [62].and it would be unfair if the jury were left to conclude that the Crown was at fault for the delay.20 That ruling has not been challenged on appeal.[48] However, Ms Johnston noted that the Crown did not seek to assert that H'sfailure to appear was evidence of guilt. We accept her submission that given the limited basis upon which the Crown relied on H's failure to appear, the Judge'sdirections did what was necessary to warn the jury against drawing an inference adverse to H.[49] The second aspect of the summing-up which is challenged is the direction given by the Judge in relation to a defence submission that DM's cross-examination in court was the first time her evidence had been tested.[50] The prosecutor in closing had emphasised that DM's evidential interview hadbeen given nearer the time of the events of which she complained than her evidence in court. Coming to trial four years later, she had endeavoured to give truthfulevidence but at points her evidence had become "confused". The prosecutor attributed this to the nature of the questions asked of her, which meant that "[s]he gotto the point where she didn't know which way was up, which way was down."The jury was invited to contrast Mr Watson's questions with those that had beenasked in the evidential interview; the latter were simple, age appropriate and such that DM knew exactly what she was being asked. The essential point was that she had remained steadfast in relation to the allegations that she made against H.[51] Mr Watson confronted the Crown's approach in his closing saying that theCrown had made a number of fundamental mistakes. At the outset he drew attentionto what he described as a "relaxed non-confrontational environment" that had prevailed at the interview when DM's disclosures were made. The first of thefundamental mistakes was to regard the evidential interview as "sacrosanct".The second was to "criticise defence counsel" for cross-examining DM, "because that's not what occurred there" (this being, we infer, a reference to how theevidential interview was conducted). While it was unfortunate that the trial was taking place over four years after the events referred to (which he accepted was H's20 R v [H] [2015] NZDC 18923.fault), Mr Watson pointed out to the jury that when he taxed DM in cross-examination she was "all over the place". Later, he said that he had noticed the jury "observe her dancing metaphorically, all over the show". He suggested thejury would have realised why he was asking the questions he did and why he waspersisting, despite objection, and that was because "it wasn't done then" (we inferthat this was a reference to the different process that had been followed for the purpose of the evidential interview). He later described DM as having adopted a"possum stance", comparing her reaction in cross-examination to a possum caught inthe headlights. He concluded: "Ladies and gentlemen, I do not like bringing awitness to tears, don't think I got any pleasure out of that. I showed that what we'd heard was nonsense."[52] In his summing-up, the Judge said:[35] Mr Watson said to you that you cannot really believe what is in her evidential interview because she was not challenged. That was his job andhe did, in effect, say, "Yeah, well look, if the interviewer had done her job it wouldn't have gone anywhere." Well I can tell you, ladies and gentlemen, asa matter of law – no disrespect to Mr Watson – that is an incorrect statement of the law.[36] Evidential interviews conducted in the way that they were with [DM] and with hundreds of other young people in our country day in and day out have to follow a set number of rules and these rules are rigid. If you interview somebody and you have not followed the rules, then the interview cannot be played.[37] One of the rules, and you might have watched this, is the big clock on the back with a sweeping second-hand; it has got to be there. If you interview a young person and there was not a clock on the wall then you could not play the interview.[38] Another rule is you cannot cross-examine the young person. You have got to ask open-ended questions, "What happened next?" You cancome back and restate what they have said earlier but you cannot cross-examine.[39] So there is no challenge to the evidential interview in the way it was done and in my view, quite properly so because there are no grounds to challenge. It was done within the scope of the rules. So Mr Watson was justa little energetic, I think, in his final submissions to you saying, "Well, if you had done what I did then no jury would have even have seen this." That isincorrect.[53] The precise meaning of what Mr Watson may have meant in making hisobservations about the Crown's fundamental mistakes is not clear. However,it appears that the Judge may have inferred that Mr Watson was suggesting that if the person conducting the evidential interview had done her job properly, then the allegations would not have gone further. Mr Watson submits that all he was doingwas contrasting DM's response to questions in the evidential interview with theprocess followed in court, the latter being the first occasion when DM had been cross-examined on her allegations. He complained that at [39] of the summing-up the Judge imputed to him a statement that he had not made.[54] Mr Watson also criticised the Judge's reference to the "rules" governingevidential interviews, submitting that the relevant provision in the Evidence Regulations 2007 does not state that in interviewing a young person cross-examination is not permitted. While that is so, reg 49(e) in the case of children under the age of six years does contemplate a jury direction based on the distinction between open questions and leading questions that may put words into their mouths. We accept of course that DM was nine when giving her evidential interview. But it is by now well understood that good practice in the questioning of young complainants for the purpose of evidential interviews involves open questions and avoidance of leading questions to elicit responses.[55] In the end, the real criticism of this part of the summing-up seems to be that the Judge appeared to be critical of defence counsel by suggesting that counsel had criticised the manner in which the evidential interview had been conducted whereas what counsel really intended was simply to emphasise that the questioning at the trial was the first time DM had been challenged on her account. Great care is needed before critical comments are made about defence counsel, and we accept as Mr Watson submitted that the Judge must be conscious of the likely negative impact of such comments on the jury. That said, we are not persuaded that this particular criticism, which was couched in polite terms and apparently directed to stating that the evidential interview had been properly conducted, might have had an adverseimpact on the jury's deliberations.Result[56] We are satisfied that none of the issues raised by Mr Watson, either individually or collectively, meant that H suffered a miscarriage of justice. Consequently, while we extend the time for appealing, the appeal is dismissed.[57] In order to protect the identity of the complainant, an order is made prohibiting publication of the name or identifying particulars of the appellant pursuant to s 140 of the Criminal Justice Act 1985.Solicitors:Crown Law Office, Wellington for Respondent