TURFREY v R [2019] NZCA 241

TURFREY v R [2019] NZCA 241 [21 June 2019]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 WITNESS [ORNAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA623/2017[2019] NZCA 241BETWEEN JOHN DOUGLAS SEDDON TURFREYAppellantAND THE QUEENRespondentHearing: 27 May 2019Court: Collins, Peters and Mander JJCounsel: P N Ross for AppellantK S Grau and K Peirse-O'Byrne for RespondentJudgment: 21 June 2019 at 12.30 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] The appellant, Mr Turfrey, was convicted of serious sexual offending,including multiple charges of sexual exploitation of a person with a significantimpairment, rape, and unlawful sexual connection against three complainantsfollowing a jury trial.1 He appeals his convictions on the grounds the verdicts wereunreasonable and that directions relating to demeanour and the complainants' possiblemotive to lie were not provided by the trial Judge.Background[2] Mr Turfrey and his wife were caregivers for persons with intellectualdisabilities and children who had been placed in state care. In 2005, CG, who hassignificant intellectual impairments, was placed, at the age of 17 years, withthe Turfreys. She would remain with them for some nine years. Over that period,Mr Turfrey engaged in sexual intercourse and oral sex with her on multiple occasions.Mr Turfrey was convicted of two representative charges of sexually exploiting CG,being a person with a significant impairment, two representative charges ofcommitting an indecent act on her and a further charge of sexual exploitation.[3] KW was a child aged seven years when she was placed with the Turfreys.Sexual offending against her started when she was about nine. It began withMr Turfrey rubbing her vagina with his fingers and escalated in seriousness tothe point where he attempted to have sexual intercourse with her on a number ofoccasions while his wife was working. By the age of 10, the conduct had progressedto full sexual intercourse and oral sex. When aged 12, KW disclosed the offendingand she was removed from the Turfreys' care. In relation to KW, Mr Turfrey wasconvicted of two charges of committing an indecent act on a child under the age of 12,one charge of unlawful sexual connection, and five charges of sexual violation by rape,including four representative charges.1 R v Turfrey [2017] NZDC 22269.[4] AT is a non-verbal intellectually impaired young woman who wouldperiodically stay with the Turfreys for respite care. AT did not give evidence. Proofof the charges of attempted rape and indecent assault against AT, of which Mr Turfreywas convicted, came from KW, who witnessed those acts.[5] There was a fourth complainant, AM, who had moved in with the Turfreys atthe age of 16 years. She was interviewed by the police but died before the trial.The Crown relied upon her evidential interview, which had been the subject ofa successful hearsay application. However, Mr Turfrey was acquitted of the solecharge of indecent assault relating to this deceased complainant.Unreasonable verdict[6] Mr Turfrey's complaint that the guilty verdicts were unreasonable essentiallyrests on the proposition that the complainants' evidence was not reasonably capable ofbeing accepted as credible. Mr Ross for the appellant submitted that each ofthe charges rested entirely on the complainants' evidence and that, when regard is hadto the iterative nature of CG and KW's disclosures and the inconsistencies in theirevidence, they were not capable of being believed. Counsel also placed emphasis onthe implausibility of the offending having occurred unnoticed in a busy household,and the absence of forensic evidence, or other corroborative or supporting material.Approach to this ground of appeal[7] The threshold for finding a verdict unreasonable is only reached if the appellatecourt is satisfied that the jury could not reasonably have been satisfied on the evidencethat the defendant was guilty.2 In carrying out its review function, an appellate courtmust recognise that the weight to be given to individual pieces of evidence isessentially for the jury and that reasonable minds may disagree on matters of fact.3It is not the role of this Court to substitute its view of the evidence for a view that wasreasonably open to the jury.42 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].3 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [87].4 Tamati v R [2010] NZCA 49 at [48], citing R v Owen, above n 2, at [13].Discussion[8] In support of this ground of appeal, Mr Turfrey placed weight on the mannerand timing of the complainants' disclosures and the risk of possible collusion.[9] CG was first interviewed by police on 7 October 2014, at which time she didnot disclose any offending. AM was interviewed a week later, during whichshe disclosed sexual abuse. She gave an account of unwanted touching beginningwhen she was about 17. She described how she would go onto the deck outside herbedroom at the Turfreys' house to drink alcohol and Mr Turfrey would join her thereand get her to sit on his knee and try to kiss her. AM referred to a specific incidentwhen Mr Turfrey had taken her in his vehicle to a location under a bridge. He hadinstructed her to put some lingerie on and asked her to have sex with him, touchingher breasts and kissing her with his tongue, after which she protested and he reluctantlystopped.[10] In March 2015, CG was interviewed again. On this occasion she disclosed thatMr Turfrey had touched her breasts and "down below". CG stated that her clotheswould be taken off, they would kiss, he would touch her, and he would get "all crazy"touching his penis. She described how Mr Turfrey would place his penis inside hervagina which made her vagina feel "a bit uncomfortable" and afterwards it was "a bitbroken". She described how Mr Turfrey would "rock" when he was on top of her, andit made her feel "a little bit scared". She described it happening "lots of times" whenMrs Turfrey went to work. She thought she would be in trouble for what hadhappened.[11] During a further interview in October 2015, CG disclosed further details.She referred to Mr Turfrey looking at porn on the computer and instructing her to lookat it, after which he would tell her to come to his room, where he would take her clothesoff and they would get into bed. She described Mr Turfrey touching her breasts andvagina and instructing her to touch his penis. Mr Turfrey would also tell her to suckhis penis. CG described how, after putting his penis inside her vagina, he would finishwhen "stuff" from his penis squirted into her vagina. She described it as being "justdisgusting". It was also in this interview that CG disclosed an occasion when, beforebeing taken to another residence for respite care, he stopped on the way and instructedher to suck his penis. She described the way it ended by using the words "horrible...disgusting... yucky... it feels like it's ah, slimy".[12] KW's complaint also evolved through a number of interviews.On 17 September 2014, she spoke to police but did not disclose any offending.However, in subsequent interviews on 25 September 2014 and 3 March 2015, shedisclosed sexual offending by Mr Turfrey. Shortly before a trial set to commence on1 May 2017, KW made further allegations which were the subject of two furtherinterviews. KW ultimately gave viva voce evidence at Mr Turfrey's trial.[13] KW said the offending first occurred when she was about eight or nine yearsold. She recalled getting ready for bed and Mr Turfrey talking to her about havingpulled the fingers at another child. She thought she was in trouble. Mr Turfreydirected her to come to him. He started touching her vagina, firstly on the top of herclothing and then underneath. She described being confused and not knowing whathe was doing. This type of offending continued regularly.[14] KW also related how Mr Turfrey would lie on top of her and try to place hispenis into her vagina, but that it was "really sore". He would also make her performoral sex. She recalled that when she was around 10 there was another attempt at sexualintercourse and his penis "went in fully". She described how her vagina was sore andstarted bleeding. After that time, rape became the most common form of abuse.It would occur at various locations at the house. KW's evidence was that Mr Turfreytold her that "every nine year old did it", and she thought it was normal until, agedbetween 10 and 12 years, she learnt from school that it was wrong. She recalledraising with Mr Turfrey, "What if you get caught?", and him saying, "we'll just bothjust deny it". Finally, KW disclosed the offending to a person at school. As a result,she was removed from the household.[15] KW gave evidence about witnessing Mr Turfrey sexually abusing both CG andAT. While going to the bathroom one night she observed Mr Turfrey being on top ofCG in her bed, both with their pants down. On another occasion she witnessedMr Turfrey asking CG to give him a "blow job" and CG complying. Because CG wasan adult, KW just thought Mr Turfrey was cheating on his wife.[16] In relation to AT, it was KW's evidence that she sometimes looked after ATwhen she was at the house for respite care and Mrs Turfrey was unavailable. Thatincluded assisting AT with going to the bathroom and getting changed. She recalledan incident when changing AT into her pyjamas and Mr Turfrey coming in andinsisting he would dress her. KW left the room. After hearing AT making noises, shewent back to the room and found Mr Turfrey moving back and forth on top of AT withhis pants halfway down. On another occasion, KW undressed AT and briefly left theroom. When she returned she found Mr Turfrey touching AT's breasts and vagina.Decision[17] We do not accept that the manner or sequence of the complainants' disclosuresgives rise to concerns about the complainants' reliability or truthfulness.[18] The evolution of KW's account over several interviews was explored incross-examination before the jury. It was an issue highlighted in the defence closingand canvassed in the Judge's summing up. We accept the Crown's submission thatthis type of issue, which is not uncommon in these types of cases, was a matter forthe jury to assess having regard to all the evidence, including the nature and contentof KW's evidence, parts of which we have set out to provide some flavour of its natureand detail.[19] Similarly, the allegation that the deceased complainant, AM, had spoken to KWand CG about what had happened to her, and the proposition they had copied or beenprompted to make up similar allegations were matters put before the jury for itsconsideration. KW denied having spoken to AM or CG about KW's allegations. KWmaintained she did not have contact with CG after leaving the Turfreys, or with AM.[20] Expert evidence was adduced regarding CG's intellectual functioning.Because of her significant intellectual impairment, the jury was informed that her brainprocessed information very slowly and she had a short attention span. CG wasdescribed as having a very limited vocabulary with no capacity to engage in abstractthinking. She would be unable to place events into a timeframe and had a very poorability to reason and problem solve. Questions that were put to her needed to besimple, and she would not understand questions which contained more than oneproposition.[21] Mr Ross cited CG's answers under cross-examination, in which she appearedto accept AM had told her what to say in making her allegations against Mr Turfreyas an important indicator of her unreliability and lack of credibility. Undercross-examination she was asked:Q. The first time you ever told anybody about any of that was in yourfirst police interview that was recorded that we watched yesterdaywasn't it?A. Yes.Q. And that came after what [AM] had told you as to what she had toldthe police hadn't it?A. Yes.Q. And so you told the police those things because [AM] told you that ifyou said something about [Mr Turfrey] touching you, you wouldn'thave to live with them anymore, didn't she?A. Yes.Q. And by that stage you wanted to leave [the Turfreys' house] becauseyou found it boring, didn't you?A. Yes.[22] Under re-examination different answers were elicited:Q. I want to talk to you about [AM].A. Okay.Q. Did you see [AM] after she left [Mr Turfrey's] house?A. Urn I think I did.Q. Where did you see here?A. When, um, at her – at, um, [the Turfreys'].Q. Okay, so is that when she visited?A. Yes.Q. After she stopped visiting [the Turfreys], did you ever see her again?A. No.Q. Did you ever talk to her again?A. No.Q. Do you know what she told police?A. No.[23] We accept it was open to the jury to conclude that CG's answers incross-examination were a result of her not understanding the questions that were beingposed. Moreover, the jury was well-placed to assess CG's evidence and the allegationof collusion or suggestibility which was squarely put for their assessment. We do notconsider CG's evidence on this topic rendered her an unbelievable witness,particularly when regard is had to the nature and detail of her testimony and herintellectual deficits.[24] Mr Ross also referred us to other instances of inconsistencies inthe complainants' evidence. However, we are not persuaded that those matters are ofsuch significance that they render the jury's verdicts unreasonable.[25] Judge Mackintosh in her summing up clearly articulated to the jurythe centrality of the complainants' credibility and reliability and that the Crown's caserested on the jury accepting their evidence as truthful and reliable. The Judgedescribed it as a very important issue upon which the Crown's case "stands or falls".The jury were expressly directed to look at the evidence and weigh up anyinconsistencies in making their assessment.[26] Specific examples of inconsistencies were highlighted by the trial Judge,including CG's evidence regarding the possible influence of AM. The Judgecanvassed in some detail the various aspects of the evidence upon which the defencerelied to demonstrate that the complainants were unreliable and not credible. Theseincluded the way in which CG's complaint had been disclosed across a number ofinterviews and her initial denial of anything inappropriate having happened.No complaint is made regarding the way in which Judge Mackintosh drew the jury'sattention to the inconsistencies in the complainants' evidence, or that her directionswere anything other than appropriate and thorough in that respect.[27] Various aspects of the evidence were relied upon by Mr Turfrey. Contradictoryevidence from CG regarding the viewing of pornography, the implausibility ofthe offending having occurred in the midst of a very busy household, and possiblemotives on the part of CG and KW to lie in order to leave the Turfreys' householdwere raised. These and other matters which were canvassed before the jury andrepeated to us on the appeal were thoroughly reviewed at the trial. They were mattersfor the jury to assess in the context of all the evidence. We find that none of them,either singularly or cumulatively, render the verdicts unreasonable.[28] Before leaving this topic two further points are required to be made. The firstis Mr Turfrey's argument that the complainants' evidence stood in isolation and wasunsupported by any other type of evidence. That submission overlooks the cumulativeeffect of the propensity evidence which was described by this Court on a pre-trialappeal against the joinder of the charges as highly probative.5 The distinctiveness ofthe circumstances of the offending against four complainants over an overlappingperiod of time provided considerable mutual support for each complainant's account.[29] Secondly, it is apparent the jury closely scrutinised the evidence. Emphasiswas placed, both at the trial and this appeal, on AM's background, which revealed herto be a troubled young woman with a record of dishonesty. Judge Mackintosh warnedthe jury about the approach required to be taken to the evidence of this deceasedwitness and that there was no opportunity to cross-examine her. The Judge directedthe jury to take care before relying on AM's evidence. It is likely the jury was unableto agree on the single charge Mr Turfrey faced in relation to this complainant, whichwas ultimately dismissed, because of those considerations. We accept this is anindication of the care with which the jury approached its task in individually assessingthe complainants' allegations and the strength of the evidence as it related to each.[30] For the reasons discussed, we do not consider the verdicts were unreasonable.5 T (CA212/2016) v R [2016] NZCA 266 at [5].The lack of a demeanour direction[31] Mr Ross submitted that reliance on demeanour is now a discredited way toapproach the assessment of a witness. He submitted that, because of the contendedweaknesses and inconsistencies in the complainants' evidence, the jury must haverelied on their demeanour in accepting their accounts, despite that being an unreliablegauge of their truthfulness. That submission was said to relate to a defence theory thatthe complainants, as highly vulnerable people, had come to believe what they hadalleged as being true, and that this belief had manifested itself in the way theypresented when giving their evidence.[32] We consider this is a speculative submission for which there is no foundation,and it is also contrary to Mr Turfrey's further challenge to the evidence of CG and KWon the grounds each had a motive to lie. The demeanour of the witnesses was nota focus at the trial. It was not relied upon by the Crown, nor was it identified by trialcounsel or the Judge as requiring specific attention or a particular warning. There wasnothing to suggest the jury placed any particular weight on such a factor or allowedthe demeanour of the witnesses to sway their assessment of the evidence.[33] In Taniwha v R, the Supreme Court confirmed that there is no invariablerequirement for a "demeanour warning" in cases where credibility of a witness is inissue.6 In considering whether it is necessary to provide such a direction, the focus ison whether there is a real risk that witness demeanour will feature illegitimately inthe jury's approach to the assessment of veracity or reliability. There is nothing inthe approach taken by the parties in this case or any focus on the way the witnessespresented or gave their evidence to suggest that risk arose.[34] We do not consider the absence of a judicial warning concerning the riskassociated with relying on a witness's demeanour gave rise to any error inthe circumstances of this case.6 Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [43].Motive to lie[35] Mr Ross acknowledged that the trial Judge cautioned the jury regardingthe hearsay evidence of AM and gave a more general warning regardinginconsistencies in the complainants' evidence, many of which she reviewed inthe course of her summing up. However, it is contended that a further direction shouldhave been provided regarding a possible motive of CG and KW to make up theirallegations. Mr Ross submitted that a warning should have been provided to the jury,pursuant to s 122(2)(c) of the Evidence Act 2006, that both complainants may havehad a motive to give false evidence because they wanted to leave the Turfreys'household.[36] We do not consider this submission has merit. Judge Mackintosh, in the courseof her summing up, referred to the contended underlying motivation of KW to makethings up because she wanted to be moved. Later, when canvassing the issue of thatcomplainant's reliability or credibility, reference was again made to the defencesubmission that this complainant was motivated to leave the household and that herallegations were a means by which to achieve that outcome.[37] No request was made by trial counsel for such a warning. Section 122 doesnot oblige a Judge to warn the jury of the need for caution. If the Judge is ofthe opinion that evidence despite being admissible may nevertheless be unreliable,he or she may warn the jury of the need for caution in deciding whether to acceptthe witness's evidence and the weight to be given to that evidence. That may includeconsidering whether to give such a warning where a witness may have a motive togive false evidence.[38] The issue of the credibility and reliability of the complainants' accounts wassquarely before the jury for its consideration. The suggested motive ofthe complainants was but one of a number of matters raised regarding their reliabilityand credibility. It is not surprising the trial Judge did not give an explicit warning.We accept the Crown's submission that specific reference to the motive attributed totwo of the complainants in the form of an unreliability warning would likely haveoveremphasised the issue which did not emerge across the whole of the evidence asbeing particularly pivotal. It may well have resulted in a misapprehension on the partof the jury as to its importance.[39] We further observe that if the attribution of such a motive in cases ofsexual offending of this kind is considered sufficient to meet the threshold for sucha warning they would likely be given in nearly all cases of this type. While, inevitably,each case must be assessed on its own particular circumstances, we do not considerthat was the intended effect of s 122(2)(c).[40] We consider that the jury would have been well aware of the central importanceof the credibility and reliability of the complainants in this case, of which the allegedmotives of two of the complainants were a small part. In B v R, this Court observed:7... often, as here, where it was such a feature of the trial, the need for particularcaution in respect of witness reliability will be so obvious to the jury thata warning cannot be said to provide them with material assistance. In suchcases, it will be enough for the Judge to reiterate to the jury, in his or her ownwords, that witness credibility and reliability is a central issue in the case andit will be for them to resolve that question. That is exactly what the Judge didhere.[41] We consider those remarks are apposite to the present case.Result[42] Being satisfied the verdicts were not unreasonable and that no error arises fromthe absence of a direction regarding demeanour or a motive to lie warning, the appealis dismissed.Solicitors:Cathedral Lane Law, Napier for AppellantCrown Law Office, Wellington for Respondent7 B (CA58/2016) v R [2016] NZCA 432 at [60].