HATI v R [2017] NZCA 124

HATI v R [2017] NZCA 124 [12 April 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA346/2016[2017] NZCA 124BETWEEN JULIAN PETER HATIAppellantAND THE QUEENRespondentHearing: 6 March 2017Court: Winkelmann, Woodhouse and Collins JJCounsel: G R Tomlinson for the AppellantK S Grau for the RespondentJudgment: 12 April 2017 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woodhouse J)[1] Following a trial in the District Court at Tauranga before Judge Harding and a jury, Julian Hati was found guilty of 10 sexual offences against three young women.[2] Mr Hati appeals against his conviction on the ground that three incidents, which occurred during the trial, rendered the trial unfair when taken in combination. Those incidents, in summary, are that:(a) the prosecutor, in front of the jury, advised the Judge that a complainant who was about to give evidence wanted a screen because she was fearful or afraid of Mr Hati;(b) a police officer gave evidence indicating that Mr Hati was known to police and this suggested to the jury that he had a criminal history; and(c) a complainant in re-examination made new allegations against Mr Hati of sexual offending against her and it was disclosed to the defence, for the first time, that she had declined to undertake a second evidential video interview in respect of those allegations.Background[3] The following background is conveniently taken from the summary in therespondent's submissions for this appeal.[4] The offending took place in a small North Island town between 1999 and 2006 against three young women — J, C and T — who each had family connections to Mr Hati.[5] Between 2001 and 2003 J was aged seven to nine years and spent time in the care of Mr Hati (whom she knew as China) and Mr Hati's partner. Mr Hati asked Jto perform oral sex on him and, when she refused, he performed oral sex on her. Healso touched J's genitalia while they played video games. When J turned nine, shelearned to avoid Mr Hati and the offending stopped. Mr Hati was found guilty of sexual violation of J by unlawful sexual connection and three offences of indecent assault.[6] In December 1999 Mr Hati and his wife moved to an address where C lived. C slept in the bed of Mr Hati and his wife. In bed Mr Hati touched C's genitalia andmade her touch his penis. When Mr Hati and his wife moved to their own home, C stayed with them and Mr Hati made C perform oral sex on him. When Mr Hativisited C's home he performed oral sex on her. Mr Hati was found guilty of sexual violation by unlawful sexual connection on two occasions, inducing C to do an indecent act on him, and indecently assaulting C on two occasions.[7] The third complainant was T. Mr Hati was found guilty of one representative charge of indecently assaulting T between December 1999 and mid-2003 by kissing her mouth.[8] Mr Hati gave evidence at trial. His wife was called as a Crown witness butshe largely gave evidence supportive of Mr Hati's defence. The defence at trial wasa denial of any inappropriate conduct and that all of the complainants lacked credibility. The challenge to credibility was founded on suggested inconsistencies in what the complainants said, different versions of what they said occurred and contentions of implausibility. It was put to the jury that, in contrast, Mr Hati had been consistent both in his police interview and in his evidence at trial, and the opportunity for offending was not there.Evaluation: the request for the screen[9] The request for the screen was made on behalf of the complainant T, the second complainant to give evidence. At a trial callover the Crown had advised the Court that a screen was not required for T. On this appeal Mr Tomlinson, who was also trial counsel for Mr Hati, said that when T came to the court door there was a"disturbance" in the presence of the jury and, after a short delay, the prosecutor wentto the door, spoke either to T or the officer-in-charge or both, and then, in the presence of the jury, advised the Judge that T wanted a screen. Mr Tomlinson, in hiswritten submissions, said that his recollection was that the prosecutor "inadvertentlyused words to the effect that this witness was fearful or afraid of the [d]efendant anddesired a screen". Mr Tomlinson acknowledged that he could not recall the exactwords and accepted that any words used to the effect that the witness was fearful orafraid of Mr Hati were "as inadvertent as they were unfortunate".[10] Mr Tomlinson submitted that the standard direction given to juries as to the purpose of a screen was negated by the words used by the prosecutor in the presence of the jury. He further submitted:By making the application in front of the jury and the implication of fear, and the need for a screen combined with the refusal to enter the Court until the screen was in place all combine to negate the standard directions and result in an illegitimate negative view of the Defendant and his character.This all painted a picture which the jury saw only too clearly that the witnesswas afraid, and that was the reason for the screen which she then got.[11] For the reasons that follow we are satisfied that what occurred did not result in unfairness to Mr Hati.[12] Mr Tomlinson's written submissions, recording his recollection of the effect of the words used by the prosecutor as to why a screen was sought, were made before a transcript of this part of the trial had been provided. A transcript was obtained for this appeal. It is as follows:MS SHERIDAN [CROWN PROSECUTOR]:Yes Sir the Crown calls Tracy Amai. Apologies Sir, Ms Amai is stuck in traffic. The Crown will instead call [the complainant T].UNIDENTIFIED MALE SPEAKER:(inaudible 10:21:43) screens.MS SHERIDAN:There's been no order for screens.UNIDENTIFIED MALE SPEAKER:She wants it.MS SHERIDAN:Sir there's been no order for screens for this witness, however, she'sindicating a reluctance to come into the courtroom and see the defendant. Is this a matter we should deal with in chambers?THE COURT:It is a matter that I need to discuss in the absence of you, Mr Foreman, ladies and gentleman if you would just retire briefly please we will need to have a discussion please.JURY RETIRE[13] We are satisfied that the words actually used by the prosecutor would not have suggested to the jury that T was fearful or afraid of the defendant. All that thejury heard was that T did not want to see Mr Hati. The jury already knew thesubstance of T's allegations against Mr Hati from the Crown's opening.The reluctance of a complainant in a case of this sort to see the defendant when thecomplainant is giving evidence is something which ideally would not have beenconveyed to the jury. But it did not convey to the jury anything about T's attitudewhich would have surprised the jury given the intimate nature of the complaint shewas making.[14] The discussion in chambers that followed resulted in an order that a screen be provided. When the trial resumed in the presence of the jury the Judge gave a direction about the use of the screen. This was the second direction, one having been provided before the evidence of the first complainant on the first day of the trial.The Judge's direction on this second occasion was as follows:Mr Foreman, ladies and gentlemen, you have just heard the beginnings of all of that. The witness indicated a preference to give evidence while screened. That application is consented to by the defence but I need to remind you, as I did yesterday, in a general way of what that means. You do not draw any inferences adverse to the defendant because I am going to permit the witness to be screened. The reason is that the nature of the evidence, the nature of the family relationship and the difficulty of giving evidence in those circumstances and the need to try and minimise the difficulty for witnesses giving evidence, but you do not draw any inference adverse to Mr Hati because that procedure is followed. The use of the screen is not anindication that the witness' account is correct or that the defendant issomebody who she needs to be protected from or anything of that nature. It is purely to make the giving of the evidence less stressful.[15] This direction, following the brief and reasonably innocuous incident in the presence of the jury, was sufficient to remove any real risk of unfairness to Mr Hati. This result is reinforced by the fact that the jury had received the earlier direction, there was a further reminder of that direction before the third complainant gave her evidence and, in his summing-up, the Judge again explained to the jury the purpose of the screen and that the use of the screen did not reflect adversely on Mr Hati.Evaluation: police officer's evidence that he knew Mr Hati[16] The evidence in question occurred at the beginning of the evidence-in-chief of Detective Constable Jason Hill. At the beginning of his evidence Detective Constable Hill said that he had been a police officer for 16 years. He said he spoke to the complainant J, accompanied by Constable Tracey Amai, when J first reported her allegations to police. J said she wanted to know how to proceed in addressing offending against her when she was a child. There was the followingexchange in Detective Constable Hill's evidence:Q. Did she name the person who had sexually offended against her?A. Yes, that's correct.Q. Who did she name?A. She named him as China, Julian Hati, the defendant in Court today.Q. Did she say "China" or did she say "Julian Hati" or both names?A. Initially she said China. I'd worked at [the small town] for a longtime too so, yeah, I knew who she was talking about when she described him and where he lived and what not.[17] Mr Tomlinson submitted on this appeal:The effect of this on the jury cannot be underestimated. The only possible inference of a Police Officer knowing someone by a nickname and where they live is that they are a person "known to Police" that is a Bad person.It is inconceivable in connection with this trial, and when you add in the fear of the witness, [T], that the jury would take or infer an innocent explanation[18] Mr Tomlinson submitted further that this was an "indirect illegitimate prejudicial character attack" on Mr Hati and that, even if it was inadvertent, it painted for the jury "an extremely and illegitimate negative picture of the Appellant'scharacter".[19] For the respondent, Ms Grau submitted that the jury would more likely consider that a long-serving police officer in such a small town — with well under 10,000 inhabitants — could reasonably be expected to know the majority of its residents. We agree. Mr Tomlinson, whose practice encompasses the town, acceptedthe general tenor of Ms Grau's submission but suggested that an understanding of theknowledge of a person living in a small town could not be attributed to a jury at a trial in Tauranga. We do not concur. The members of the jury did not have to come from the particular town, or from a town of similar size, to have the sort of knowledge Ms Grau referred to. We are satisfied that the collective knowledge of the jury would have provided it with an understanding that a long-serving police officer in a very small town would be likely to know the majority of the inhabitants.[20] We are not persuaded that the jury would have interpreted the evidence in the manner suggested by Mr Tomlinson. A reasonably safe indication of the impact of this evidence is that there was no objection from Mr Tomlinson at the time, or subsequently. Nor did the Judge intervene. As this Court observed in Edmonds v R:1This Court is likely to regard as significant the fact that an experienced trial judge did not see fit to intervene, or see any need to direct the jury about evidence later complained of on appeal.[21] The brief observation from Detective Constable Hill was not expanded on in any way and was never mentioned again in the trial.[22] There is nothing of consequence in this point.Evaluation: new allegations in re-examination of C and non-disclosure[23] C's evidential video interview was played as her evidence-in-chief. Towards the beginning of the interview, and in the usual way, a general description of theincidents was elicited. At the end of this part of the interview C said:But that's all I can remember, like vividly. There's these other times that I just can't quite remember so I don't wanna talk about those times.[24] There was detailed cross-examination of C about her allegation that Mr Hati made her perform oral sex on him, directed to the defence case that this incident (as with the other alleged incidents) had not occurred. This included questions as to how C ended up giving him oral sex when he did not say anything to her — C having said that Mr Hati pushed her head down.1 Edmonds v R [2015] NZCA 152 at [24] (footnote omitted).[25] This was the subject of re-examination, as follows:Q. You said that the defendant didn't tell you what to do but hepushed your head down?A. Yes.Q. Are you able to explain to us how you ended up with his penis in your mouth?A. Well that's what I was gestured to do.Q. Sorry?A. That's what I was gestured to do.Q. Gestured to do?A. Yeah, and like there's other incidents that happened but I didn't record them because I don't remember exactly so, you know, that wasn't the first time I had done it.Q. So were there previous incidents involving who?A. China.Q. China, and do you have clear memories of those incidents?A. Yeah, but if I was to be questioned by him about them now he wouldjust rip it up, that's why I didn't say anything about it.Q. Did you mention anything about those in your interview?A. I, I hadn't finished my interview. I was supposed to go back but it made my [sic] too uncomfortable so I didn't, I didn't want to do it.[26] The re-examination of C ended shortly after this exchange and the jury retired for the day. Mr Tomlinson then advised the Judge that he was concerned about the evidence — it had not been disclosed to the defence, he needed to considerit overnight and it was "bordering on mistrial". The Judge said his initial reactionwas that what happened was nowhere near a mistrial but agreed that Mr Tomlinsonshould have time to think about it overnight, and any application he wished to makecould be made in the morning.[27] The prosecutor had not been aware of attempts by police to arrange a secondinterview. That evening the prosecutor obtained "intelligence notings" from police,recording a discussion between a police officer and C about C undertaking anotherevidential video interview. A copy of the intelligence notings was sent to Mr Tomlinson. The prosecutor accepted at the time that this material should have been disclosed.[28] There was no application for Mr Hati when the trial resumed the followingmorning. During the morning evidence was being given by Detective ConstableHill. He was asked whether, following the evidential video interview of C, there hadbeen a discussion with her about a further interview. Mr Tomlinson objected to thequestion.[29] The objection was dealt with in chambers. The prosecutor explained herposition, as recorded above, and the fact that a copy of the intelligence notings hadbeen sent to Mr Tomlinson the night before. Mr Tomlinson said he objected to theevidence on three grounds. The first was that the evidence about a possible secondevidential video interview had only come out in re-examination of C andMr Tomlinson had had no opportunity to cross-examine C on this. The second wasthat the Crown was seeking to establish the veracity of what C said by gettingconfirmation from Detective Constable Hill of the discussion about a secondinterview. The third was that the intelligence notings had not earlier been disclosed.[30] The issues were discussed at some length. The Judge raised the possibility of recalling C but, quite properly, suggested to Mr Tomlinson that he needed to consider whether anything of benefit to Mr Hati would be gained by further cross-examination, with a risk of substantial prejudice through further detail from C in respect of alleged offences that were not before the jury. The Judge pointed out that, on the other hand, there was independent evidence available from Detective Constable Hill that there was an arrangement for a second interview which did not proceed, with this evidence already before the jury from C. After some further discussion and appropriate observations from the Judge, and on the basis that the evidence on this topic from Detective Constable Hill would be limited (as it in fact was), Mr Tomlinson withdrew his objection.[31] The Crown then led the proposed evidence from Detective Constable Hill. He confirmed that a second evidential video interview had been discussed with C but it had not taken place.[32] In the Crown's closing address there was no reference to C's evidence ofadditional offending.[33] In his closing for Mr Hati, Mr Tomlinson said the following:Then in re-examination, after I finish cross-examination suddenly, suddenly,"It's not the first time I've sucked his dick." What? We are here for a trial about that exact allegation. He was arrested 13 months ago. She was spoken to 13 months ago. All this is supposed to have happened over 10 years ago. She's interviewed by a professional interviewer and the first my learned friend and I hear about it is in Court after her DVD's been played,after her evidence-in-chief, after questions from my learned friend, after her cross-examination and then as an after thought. Really? How is, "I sucked his penis lots or before" an after thought. Really. How is that a throw away— how is a throw away allegation like that, when all the questions are done. Even fair, how is it even possible. Ah, because she tells us doesn't she, at 144, "Yeah, and like there's other incidents that happened but I didn't recordthem because I don't remember exactly so, you know, that wasn't the firsttime I'd done it. Yeah, but if I was to be questioned by him (that's me) aboutthem now he would just rip it up. That's why I didn't say anything about it."So even she's got concerns about her own reliability, her own recall, but Ihad no chance to rip it up did I because it was after I'd finished my questions and there's no detail and it's a throw away allegation in a trial coveringexactly that, at the very last minute. Doesn't mention it in her interviews because she claimed, "Too uncomfortable so I didn't, I didn't want to do it."She's already detailed it in one allegation in the interview or two or threeother allegations in the interview but too uncomfortable to give us the other details, "Because he would just rip it up." No you're right, but it's prettyhard to do when you don't know the details and it's slipped in at the very,very, very, very last minute, 13 years later and that makes her unreliable and not worthy of trust on something so serious.[34] The Judge, in his summing-up, referred to these submissions from Mr Tomlinson. The Judge said:[53] Mr Tomlinson mentioned to you that it was unfair that some evidence had been given by [C] in her answers in re-examination and that that meant that the evidence was unfair to the defence. That was not a proper comment. He simply got carried away there and there is no unfairness in that and I direct you to ignore those comments that he made. He also made at the same time the point that that was the first time this —that it had happened before had been raised and he said to you if that had been true it would have been raised earlier. That is a matter that you canconsider. But there was no unfairness in the way it has come out in evidence and no restriction on the defence.[35] We are satisfied that there was no unfairness to Mr Hati arising out of these matters.[36] An allegation by C that there had been offences other than those resulting in charges was not mentioned for the first time in her re-examination. As recorded above at [23], C had said the same thing in her evidential video interview.[37] In addition, the Judge had raised with Mr Tomlinson the possibility of recalling C. Mr Tomlinson, understandably, did not make an application. Further cross-examination of C about other incidents was much more likely to be damaging to Mr Hati than helpful.[38] The second point concerned a failure by police to disclose the intelligence notings prior to trial. The submission for Mr Hati was that this meant that the defence was not aware of a possible line of cross-examination directed to C'scredibility and reliability. The Crown accepted that the intelligence notings should have been disclosed but that the failure to do so, until very late in the trial, did not result in prejudice to Mr Hati. The reason is much the same as the reason why the first point does not indicate unfairness. There would have been a real risk in challenging C on her failure to reinforce the generalised allegation made in the first evidential video interview by attending for a second interview.[39] The final point concerns the Judge's advice to the jury about the submissionMr Tomlinson had made in closing. There was no unfairness to Mr Hati from this, as Mr Tomlinson responsibly acknowledged.Result[40] The matters that occurred during the trial, raised by Mr Hati, did not result in an unfair trial. In consequence, there was no miscarriage of justice requiring the convictions to be quashed. The appeal is dismissed.Solicitors:Gowing & Co Lawyers Ltd, Whakatane for AppellantCrown Law Office, Wellington for Respondent