CARSELDINE v R [2016] NZCA 573

CARSELDINE V R [2016] NZCA 573 [9 December 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 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.IN THE COURT OF APPEAL OF NEW ZEALANDCA88/2016[2016] NZCA 573BETWEEN JAMES STEWART CARSELDINEAppellantAND THE QUEENRespondentHearing: 10 November 2016Court: Asher, Dobson and Ellis JJCounsel: CWJ Stevenson for AppellantJEL Carruthers for RespondentJudgment: 9 December 2016 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Introduction[1] The appellant, James Carseldine, appeals against his conviction on one charge of sexual violation by unlawful sexual connection. He was acquitted ofanother representative unlawful sexual connection charge. He was sentenced tothree years' imprisonment.1[2] Mr Carseldine appeals against his conviction on two grounds. First it is submitted that the Judge erred in not directing the jury on the use it could make of the recent complaint evidence adduced at the trial. The second was that parts of Mr Carseldine's police DVD interview, where there was a discussion about him reading sex stories on the internet, should have been removed from the DVD and the transcript before it went to the jury. There is no appeal against sentence.Facts[3] Mr Carseldine was, at the relevant time, 67 years old, and living in a residential setting with his wife. They had become caregivers for Child, Youth and Family.[4] The complainant who was seven years old and her two older sisters had gone to live with the Carseldines. After a period the two older siblings went to another home, but the complainant stayed on. By November 2013 she was due to move to another address.[5] Mr Carseldine would spend a lot of time in the garage, reading, tinkering with various items and watching movies on his iPad. Sometimes the complainant would join him in the garage and she too would play on the iPad, which she regarded as a treat. The last day that the complainant was due to spend with Mr Carseldine and his wife was Monday 2 December 2013. She was to leave the home and go to stay with her aunt.[6] Before the complainant left, Mr Carseldine was out in the garage watching movies on his iPad. The complainant went into the garage and sat on his knee. She asked him if she could play on the iPad. The complainant said that Mr Carseldine told her she could if she would let him touch her vagina. She told him that he could not, but he pulled up her dress and placed his hand inside her tights and underwear.1 R v Carseldine [2016] NZDC 3399.He pushed his fingers into her vagina. This hurt her and she told him to stop and pushed him away.[7] At about this moment Mr Carseldine's wife came into the garage and saw thecomplainant pushing Mr Carseldine away. She growled at the complainant and took her into the house.[8] Later that afternoon the complainant was picked up by a social worker andtaken to her aunt's home. When the complainant got to her aunt's house she wentinto the bathroom with her older sister to have a shower. In the bathroom the complainant said her vagina was sore. She broke down and told her older sister and other members of the family who came in what she said had happened at theCarseldines'. She stated in particular that "Poppa Jim", the name she had used forMr Carseldine, had touched her vagina.[9] As a result of this the police were called and arrangements were made for the complainant to be taken to be seen by a doctor. She underwent a medical examination at Waikato hospital which involved genital swabbing. Male DNA was found in the swab from her outer labia. An ESR analysis showed that this was 70 times more likely to be DNA coming from Mr Carseldine or a paternal male relative than from another male selected at random from the general New Zealand population.[10] Mr Carseldine was spoken to by the police. There was a DVD interview, to which we will refer in more detail below. Mr Carseldine denied any wrongdoing and said that the allegations were lies.The first ground of appeal — the use of the recent complaint evidenceThe argument[11] Mr Stevenson, who had not appeared at the trial but who represented Mr Carseldine on appeal, addressed the recent complaint evidence, which were consistent statements of the complainant. He did not challenge the admissibility of those statements, accepting that the evidence could be seen as a response to achallenge to the complainant's veracity. It was his submission that there wasnevertheless an error, as the jury were not directed by the trial Judge that the recent complaint evidence was not additional evidence or corroborative of evidence given by the complainant at trial, but simply evidence that "might assist in determining a challenge of [the complainant's] veracity based on recent invention". He submittedfurther that the repetition of what the complainant had said, coupled with the absence of a direction that repetition did not make an allegation true, gave rise to an imbalance, with the consequence that the prior consistent statements became a disproportionate feature of the trial. In this regard Mr Stevenson placed particular reliance on this statement in the minority judgment of Elias CJ and Glazebrook J inGuy v R:2[54] The presumptive inadmissibility under the Evidence Act of a prior consistent statement is based on two policies.3 The first is to avoid prolonging trials with evidence that is repetitive. The second, more substantive, reason is to avoid the impression that repetition bolsters the credibility of evidence. It is the second reason that makes it necessary for a judge to warn the jury that the evidence goes to rebut the attack on the credibility of the witness and does not provide independent support for the substance of the evidence given where, exceptionally, evidence of a previous consistent statement is admitted to counter an attack on veracity based on recent invention.[12] He submitted that a warning was required, and that the Judge was in error in failing to give any direction on the prior consistent statements.Our assessment[13] The leading authority on the use of previous consistent statements isHart v R.4 It was noted that at common law the purpose of previous consistent statements had been to rebut claims of recent invention and not to prove the truth of the contents of the statement.5 The concept of a statement being used for some purposes and not for others was very hard to explain to a jury and it was questionable whether they would understand the distinction. It was observed that the2 Guy v R [2014] NZSC 165, [2015] 1 NZLR 315.3 These policies were considered in Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [9] per Elias CJ; and in R v Rongonui [2010] NZSC 92, [2011] 1 NZLR 23 at [46] per Blanchard, Tipping, McGrath and Wilson JJ.4 Hart v R, above n 3.5 At [54].general approach of the Evidence Act 2006 was against limited admissibility of that type.6 Now evidence is either admissible for all purposes or not admissible at all,save for certain exceptions such as a defendant's statement.7 However, the limitation of the definition of hearsay to a statement made by a person other than a witness that is adduced to prove the truth of its contents,8 has meant that a key principle underpinning the restriction on the use of prior consistent statements has gone.9Therefore, it was said in Hart v R, it is clear that previous consistent statements are admissible for all purposes including the truth of their contents.10[14] This position has been recently recognised by this Court in Penman v R.11Previous consistent statements that are referred to in evidence do not go only to the credibility of the maker of the statement. Once admitted the consistent statement is evidence of the truth of its contents.12[15] Returning to Guy v R, any change to the general principles set out in Hart v Rand the Supreme Court case that followed it, Singh v R,13 could have been expected to be expressly acknowledged in the minority judgment. It was not. O'Regan J inhis separate decision associated himself with [54] of the judgment of Elias CJ and Glazebrook J, but in relation only to the conclusion that the availability of the transcripts was capable of affecting the verdict.14 He made no reference to any need for directions, and nor did the other two Judges. Guy v R was not a standard prior consistent statements case. In Guy v R a 17-page transcript of the complainant'spolice interview, which did not differ in substance from her testimony, was left in the jury room by mistake. There was no opportunity for the defence to deal with it in evidence or submissions, but the jury had it. This was the focus of the appeal.[16] Directions on prior consistent statements have the purpose of explaining to the jury first why the statements have been adduced and second, of reminding the6 At [54].7 See Evidence Act 2006, s 27(1).8 Section 4(1), definition of "hearsay statement".9 Hart v R, above n 3, at [55].10 At [55]–[58].11 Penman v R [2015] NZCA 364.12 At [22].13 Singh v R [2010] NZSC 161, [2011] 2 NZLR 322.14 Guy v R, above n 2, at [88].jury that of itself repetition does not make an assertion true, and an untruthful person may repeat the same lie. A Judge should consider whether such directions are needed. Generally they will assist a jury.15 Nevertheless, consistent with Hart v Rand Penman v R, our view is that when prior consistent statements are admitted there is no absolute requirement for a direction to the jury as to how they are to be used. Whether either or both types of direction should be given will depend on the circumstances. Frequently, for instance where the making of the statement is not connected to the immediate incident, it will be helpful for a judge to explain to the jury the purpose of calling the recent complaint evidence. Nevertheless sometimes the purpose will be so obvious that a direction is not necessary. Equally it will generally be prudent for a judge to direct a jury that repetition by a witness of her or his statement does not make it more likely that recollection is true. However, again there is no rule that a repetition direction is required, and it may not be, for instance when the prior consistent statement is part of the narrative of events immediately following the alleged violation. This case is an example.[17] In the circumstances of this case the evidence was properly put to the jury fortwo purposes. First, it was part of the narrative. The complainant's evidence oftelling her family what happened that afternoon explained how it came about that she was taken to hospital and subjected to a medical examination. It would have been entirely artificial to have not included the statement she made in the bathroom, leaving the jury to speculate on why she went for a medical examination.[18] Second, the evidence of the statements the complainant made that day were an answer to Mr Carseldine's attack on her credibility. It was the defence case thatthe complainant was a prolific liar. The fact that she had in spontaneous circumstances revealed her soreness, and spoken of the violation, within hours of the incident was, on an objective assessment, important corroboration.[19] The function of the evidence in these two ways would have been obvious to the jury. We do not consider that there was any danger of the jury placing illegitimate emphasis on such evidence. An explanation by the Judge of the two15 See also the discussion in the contemporaneous decision of this Court in Moorhouse v R [2016] NZCA 572 and its comments on Wilson v R [2015] NZCA 531, which we respectfully endorse.purposes, particularly as to the truth of its contents, being before the jury, might have led to undue emphasis on the statement to the detriment of the defence. An explanation that the evidence was before the jury because it was part of the narrative, would have been to state the obvious.[20] A direction that repetition did not make a statement more likely to be true could have been given, but the statement in the bathroom and what followed was hardly repetition. It was her first statement, and a reaction to the violation. While repetition of itself does not make a statement more likely to be true, the fact that the same allegation was made by a child complainant within hours of the alleged sexual violation, and in these particular circumstances, could legitimately have led the jury to believe that it was more likely to have happened, and no warning was required.[21] Thus we do not consider that the Judge erred in not giving any direction on the prior consistent statements. We are not saying that it would have been wrong to have given a direction, but in the circumstances we have outlined it was not necessary. This ground of appeal does not succeed.The second ground of appeal — should the sex stories references in the interview have been excised?The argument[22] Mr Carseldine was interviewed by the police on 23 September 2014 approximately nine months after the events in question. The complainant had said that she used to play on Mr Carseldine's iPad. She would often go into the garagewhere he would be using his iPad. In the interview when asked what he used his iPad for, Mr Carseldine volunteered that amongst other uses he would use a "sex site". He made it clear in his initial statements that he never looked at any material with sexual content near the complainant.[23] During the interview the officer played parts of the complainant's videointerview and sought Mr Carseldine's comment. After an extract where she talked about him touching her vagina there was the following exchange:SP (Sniffle) okay so you're saying it never happened.JC I am saying that never happened.SP She's saying that it did happen?JC She is saying it happened.SP Um I mean why, explain why?JC I got no idea ha no idea (sniffle) no idea, ha all my wife and I could think of was that it might be her making some sort of accusation hacooked up by [the complainant's sister], that that was that was all wecould think of what this could be about.SP Mgh.JC Simply because we came to the Police about [the complainant's sisters] for ha stealing stuff and what have you, that's all we can think about so ha I don't know mgh don't know buddy, mgh.SP You're in the garage, you're on your I-Pad, you've been reading sex stories, okay it's got you going a bit okay you're feeling blood ah oiyeah as it with you read these stories.JC Mgh.SP Ah it's got you going a bit and when I say going and you're feelingbloody ah.JC Mgh.SP Horny maybe ha um (tut) [the complainant's] come out, she's askedfor your I-Pad.JC Mgh.SP Okay, you're in the state of mind.JC Mgh.SP She's asked for it.JC Mgh.SP And ah and then you've bloody presented her with this.JC Mgh.SP With the option of well if you let me touch you, I will let you play on my I-Pad?JC (Shakes no).SP No?JC Ha, no mgh, mgh.SP Cause I can't really see why a 7 year old would make up such a detailed, she's very ah I mean if you're saying she's lying.JC Mgh.SP And you say I ah and I said to you cause you reckon if she she's um aliar, okay?JC Ah she is, she is a compulsive liar, mgh.[24] There had been agreement prior to the trial between counsel that references in the interview to the content of the sex stories would be excised. The fact that Mr Carseldine was reading sex stories on his iPad would still be before the jury. Trial counsel for Mr Carseldine, by his written submissions that were filed in this Court and a memorandum that he filed later, effectively put it to the Court that he had made an error in not objecting to those portions of the statement.[25] Mr Stevenson was briefed on Mr Carseldine's behalf once trial counseldecided it was necessary to raise the reference in the interview to the sexual material. Mr Stevenson submitted to us that this failure by trial counsel to obtain the exercising of the material was an error, and also an error by the prosecutor and the Judge.Our assessment[26] We agree with Mr Stevenson that it would have been preferable for this material to have been deleted from the record of the interview given to the jury. Given that the Crown was not suggesting at the trial that in fact Mr Carseldine was watching pornography or reading sexual material immediately prior to the incident occurring or that he had been aroused when the complainant entered the garage, and given indeed that what he had been doing prior to the incident was not part of the Crown case, the references to the sex stories were irrelevant. Irrelevant material of a prejudicial nature, even when it is only vaguely prejudicial, is best left out of any statement.[27] However we are not persuaded that this was an error of any moment in the circumstances. In the interview Mr Carseldine denied watching sexual material prior to the incident and when he was near the complainant, and he denied the suggestion of the interviewing police officer that he had been sexually aroused by the material prior to the complainant entering the garage. It can be seen then that the officer is asking a number of leading questions quite forcefully of Mr Carseldine and many ofthe responses are "mgh". We have watched and listened to the video interview. Itcannot be said that the noises he made following the leading questions indicated assent. Rather they indicated very clearly a lack of agreement. Mr Carseldine's firmand consistent position throughout the interview was that he never touched the complainant, and that she was a troubled little girl who lied.[28] Thus there was no admission of any relevance by Mr Carseldine that the jury could seize on. All they had was the vaguely prejudicial fact that he did read sexual material on his iPad on occasions. There was no suggestion that any sex stories that he read related to children or indeed were explicitly pornographic and it was clear that Mr Carseldine accessed the internet for a considerable range of purposes, and to pursue a wide range of interests. Given the widespread use of sexual content on the internet, the fact that on occasions he used his iPad to read stories that had sexual content was unlikely to give rise to revulsion in the jury.[29] Of particular importance is the fact that Mr Carseldine's use of the iPad towatch sex stories was not a factor picked up in any part of the trial. The references were a small portion of a one hour and a half hour interview. The trial itself lasted three days. The sex stories were not referred to by the Crown or defence in their openings or closings or by the Judge. Mr Carseldine did not refer to them in his evidence, and he was not cross-examined about them. There were no jury questions about it.[30] Finally, the Judge gave the jury the usual directions about not letting their decision be affected by prejudice or sympathy. It can be assumed that the jury followed these directions.[31] While it would be best that this material had not been before the jury, we think it was unlikely that it would have influenced the jury in any material way. Weaccept the Crown's submission that it assumed no apparent significance at the trial.[32] We accept there was a breach of the Chief Justice's practice note on policequestioning by the interviewing officer.16 The officer asked numerous leading questions. He went too far in trying to persuade Mr Carseldine to accept the16 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297 at (3).complainant's statement. He should not have done so. However Mr Carseldine did not agree with the leading questions and his position was not weakened by them.[33] If a significant error had been shown, we would in any event have concluded that it did not lead to a miscarriage of justice. The Crown case was unusually strong. In addition to the direct evidence of the complainant about the violation, there were two significant corroborative factors. There was the conduct of the complainant on the evening following the alleged violation, when she complained of soreness in the vaginal area, and told of being assaulted. Her condition was such that it gave rise to concern amongst the older persons that she was with, so they took her for a medical examination. The soreness in her vaginal area was in itself a corroborative factor.[34] There was also the DNA evidence. Although it was not conclusive, it would have been a very considerable coincidence, given the complaint of soreness and contact in the garage, for DNA that was 70 times more likely to be the DNA of Mr Carseldine (or a paternal male relative), to be in the vaginal area of the complainant 16 hours after the incident, if he had not committed the allegedviolation. The DNA evidence aligned with the complainant's account.Cross-examination left open the possibility of the DNA material being in place through an innocent contact, such as the use of a towel with Mr Carseldine's DNAon it. But it was, nevertheless, significant corroborative evidence. Combined with her soreness and immediate complaint, and her direct evidence, this was a strong case.[35] We do not regard the second point on appeal to have been made out.Result[36] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent