K (CA559/2020) v R [2021] NZCA 270

K (CA559/2020) v R [2021] NZCA 270ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011. ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESS PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011. NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE COMPLAINANT AND ANY PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA559/2020 [2021] NZCA 270BETWEEN K (CA559/2020)AppellantAND THE QUEENRespondentHearing: 12 May 2021Court: Clifford, Simon France and Edwards JJCounsel: R A Harrison for Appellant S K Barr and F E S F Girgis for RespondentJudgment: 24 June 2021 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B Order prohibiting publication of name, address, occupation or identifying particulars of appellant pursuant to s 200 of the Criminal Procedure Act 2011.C Order prohibiting publication of name, address, occupation or identifying particulars of witness pursuant to s 202 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr K was found guilty of physically abusing and indecently assaulting his daughter for over a decade. His wife, Mrs K, gave evidence at trial in support of his defence that the alleged acts did not occur. Part of her evidence concerned events leading to the daughter permanently leaving the family home, and Mrs K leaving for a few weeks to support her. Witnesses called by the Crown gave evidence that, in addition to supporting her daughter, Mrs K left her husband at this time because of his controlling and abusive behaviour.[2] A ruling mid-trial prevented Mrs K from saying that her daughter needed support because she was pregnant and undergoing a termination.1 That evidence was excluded under s 44 of the Evidence Act 2006 (the Act). Mr K argues that it was an error to exclude the evidence and it occasioned a miscarriage of justice. He appeals his convictions on those grounds.The offending[3] Mr K lived with his wife, daughter and three other children at an isolated rural address in the South Island. The children were all home-schooled and expected to work on the family's property from an early age.1 R v [K] [2018] NZDC 15686 [District Court judgment].[4] At trial, the complainant gave evidence that the physical abuse started when she was approximately four years old and the sexual offending when she was nine years old. The offending continued until she left home at 16 years old. The sexual offending generally involved Mr K getting into the complainant's bed at night or vice versa. The behaviour was often carried out with other family members nearby as, for most of the offending period, all the children slept in the same room.[5] Mr K was charged with 28 offences comprising assault on a child, indecent assault, assault with a weapon, and male assaults female. He was found guilty of some of these charges and acquitted of others. The charges on which Mr K was found guilty were summarised by Judge Barkle at sentencing as follows: 2[2] Of the charges that you were found guilty and convictions entered, three were of assault on a child. Each of those were representative charges. The particular conduct involved was of grabbing the hair of [the complainant], the grabbing of her ears and banging of her head and slapping of her face. [The complainant] was aged between four and 14 when that conduct took place.[3] Next, there were three charges of assault with a weapon where the items used were a piece of wood, a rope and a hammer handle. A further charge of assault using a belt as a weapon of which you were convicted was a representative charge. There were seven convictions for male assault female charges where the conduct involved was the banging of [the complainant's] head into a boat, the throwing of a pine cone at her, pushing her down a bank, three occasions of slapping her and one of shoving her head into a diesel tank.[4] In respect of the indecent assault charges, two of those were when [the complainant] was aged under 12. One was a particular act of kissing. The second was a representative charge of inappropriate kissing. The second two indecency charges were when [the complainant] was aged between 12 and 16. Both were representative. One where the conduct was again inappropriate kissing and the second the touching over clothing and of the skin of [the complainant's] vaginal area.[5] The violence offending commenced when [the complainant] was four years of age and continued for a significant number of years where discipline and gratuitous violence was inflicted by you on your own daughter. It must be recognised that the jury verdicts reflect that you subjected [the complainant] to an upbringing of abject fear and unhappiness. [The complainant] described the indecent acts of kissing commencing when she was eight or nine and as being gross with the use by you of your tongue.[6] The touching of her vagina area occurred between 8 November 2012 when she was aged 12 through until her 16 th birthday. That involved touching both over clothing and of skin on skin on such number of occasions that2 R v [K] [2020] NZDC 20021.[the complainant] lost count. The jury largely rejected your evidence that the charged conduct did not take place and also they did not accept your wife and older son's supportive testimony.Events leading up to the complainant leaving home[6] The complainant first ran away in August 2016. She lived with her aunt for a number of weeks, but eventually returned to the family home. She was put on medication to deal with depression and a separate room was built for her at the house.[7] The offending came to light when the complainant left home for the second time, in March 2017. At trial, Mrs K recounted finding out that her daughter had left home at about 2 am. She described being upset and fearing her daughter might have harmed herself. Both she and Mr K undertook a search of the property. The police were called. It was discovered that the complainant was with her boyfriend. Mrs K then left the house and stayed with the complainant and the complainant's boyfriend for several weeks before returning home.[8] The jury were not told that, at the time the complainant left home, she was pregnant and had arranged for a termination. Mrs K was aware of this, but it had been kept secret from Mr K. It was common ground that Mr K did not approve of his daughter's relationship and would not have been happy about the pregnancy and termination.[9] The fact that Mrs K had left to support her daughter was not contested at trial. However, the prosecution called witnesses who gave evidence about statements made by Mrs K at this time which suggested she intended to leave her marriage due to Mr K's conduct. One witness said that Mrs K told her that her marriage to Mr K was over and he could "talk to the hand". Another witness said that Mrs K had told her that:(a) when the complainant went missing for the second time, Mrs K had sat at the end of the driveway praying to God that if her daughter was found safe, she would leave her husband; and(b) Mr K was controlling, and she was sick of the violence, abuse, and the way Mr K treated her.The same witness said that after Mrs K had returned to the family home, Mrs K told her that she had been manipulated into going back.[10] This evidence formed part of the prosecution case that Mr K ruled the family through intimidation and violence committed against all members of the family, including his wife and the complainant. There was evidence that Mrs K had been seen with black eyes and bruises. It was suggested that this was the reason why Mrs K was unable to stop the abuse of her daughter.[11] Mrs K denied that any of the abuse against her or the complainant had occurred. She denied making the statements detailed above. However, she admitted that she was upset and angry with Mr K for refusing to accept that his daughter had grown up and that she had a boyfriend. She said she was adamant that Mr K had to change his views and that was part of the reason she had stayed away.District Court decision[12] The application to admit the evidence regarding the pregnancy and termination was made at the conclusion of the Crown evidence. This was not the first time the issue had arisen. In an earlier trial, defence counsel had asked the complainant to confirm that she had discovered she was pregnant. An application under s 44 of the Act had not been made prior to the question being put, and the presiding Judge declined a subsequent application. The Judge then granted the prosecution application for a mistrial. 3[13] A different Judge, Judge Barkle, presided over the new trial. Defence counsel explained to the Judge that the application was only made at that (very late) stage because the Crown evidence regarding the bruises to Mrs K's face, and the evidence as to what she said when she was away from home, had extended further than expected. Defence counsel submitted that prohibiting Mrs K from explaining3 R v [K] [2020] NZDC 2910.why she needed to leave and stay with her daughter compromised Mr K's ability to put forward a complete defence.[14] The Judge considered there was already evidence which supported a narrative that Mrs K had reason to be concerned about her daughter and wished to support her. That narrative arose out of the earlier occasion when the complainant had left home and, after returning home, had been referred to counselling and placed on anti-depressants. The Judge also considered the evidence established that Mr K was "far from accepting" of his daughter's boyfriend, making it understandable Mrs K would want to support that relationship so her daughter and daughter's boyfriend remained part of the family.4[15] As to whether the evidence met the heightened relevance test in s 44, the Judge said:[24] While I accept that the issue of why Mrs [K] remained away over the three to four week period in 2017 is an important one in the case, in my view it is not of such primary issue or importance that not having to provide evidence of the pregnancy and subsequent abortion makes it necessary for Mrs [K] to give evidence about that matter.Was the evidence of such direct relevance that it would be contrary to the interests of justice to exclude it?[16] Under s 44(1) of the Act, no evidence may be given, and no question may be put to a witness, relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge. The Judge must not grant permission unless satisfied that the evidence is "of such direct relevance to facts in issue in the proceeding that it would be contrary to the interests of justice to exclude it". 5[17] There is no dispute that the evidence regarding the pregnancy and termination engaged s 44 of the Act. The question is whether the heightened relevance test set out in s 44(3) was met. Mr Harrison, for Mr K, says that the evidence met this test because:4 District Court judgment, above n 1, at [19].5 Evidence Act 2006, s 44(3).(a) it explained why Mrs K had left the family home for a period of time, which was relevant to her credibility because she had denied leaving her husband due to his abusive and controlling behaviour;(b) it demonstrated that Mrs K was not "downtrodden and submissive" and was prepared to stand up to her husband if required; and(c) it showed the complainant trusted her mother and, therefore, would have confided in her mother about the abuse if it had truly occurred.[18] Further, Mr Harrison argues that the exclusion of this evidence led to a risk of a miscarriage of justice. He says that the jury was obviously troubled by Mrs K's frustration at not being able to discuss the full events. In particular, he points to a jury communication received after the close of evidence and just before the closing addresses. In that communication, the jury said they were concerned about Mrs K's evidence regarding "another matter" that was "not the issue", and she was "not allowed to talk about it". It noted that the evidence was influencing the jurors' thoughts and they wondered whether a direction was required.[19] We address each of these points in turn, starting with an assessment of the relevance of the evidence. That assessment is to be made in light of the key issue at trial: whether the alleged acts of abuse occurred at all. Whether Mrs K was aware of the abuse (or had suffered it herself, as alleged by the Crown) was a fact in issue which related to that key dispute. The three grounds of relevance raised on behalf of Mr K must be seen in that context.[20] As to the first ground, we do not consider that admission of the pregnancy evidence was required to fully explain why Mrs K left home. There was adequate evidence about the reasons why Mrs K left and stayed with her daughter and daughter's boyfriend. The jury already knew that the primary reason was to support her daughter. That was not challenged by the Crown. In fact, it was expressly accepted by the prosecutor in the cross-examination of Mrs K. There was further evidence about the complainant's fragile mental health which gave reason for Mrs K to be withher daughter at this time. The jury also heard from Mrs K that she was staying away to allow her husband time to consider the complainant's relationship.[21] Evidence of statements allegedly made by her to the effect that she intended to leave her husband due to his controlling and abusive behaviour were properly put to Mrs K in cross-examination. She denied saying them. It was up to the jury to decide whether they accepted or rejected that evidence.[22] Understanding the precise reason why Mrs K had to support her daughter would add little, if anything, to the jury's assessment of the evidence. As it was not contested that the primary reason for Mrs K leaving was to support her daughter, we do not accept that admission of this evidence would have bolstered Mrs K's credibility. Admission of the evidence would not assist the jury to determine whether the statements attributed to Mrs K, and denied by her, were in fact made. This ground falls well short of showing such direct relevance that it would be contrary to the interests of justice to exclude the evidence.[23] The second ground, that the evidence was required to portray Mrs K as someone who was not downtrodden or submissive, does not meet the heightened relevance test either. To the extent that Mrs K wanted to portray herself as someone who stood up to Mr K, her evidence regarding the subsidiary reasons for why she stayed away went a fair way along that path. The jury knew that Mrs K was angry with her husband for his failure to accept the complainant's relationship and she was "adamant" that he needed to change his attitude if their daughter was to remain a part of the family. It is difficult to see how the admission of the pregnancy and termination evidence would have added any weight to the evidence already before the Court. Indeed, as Mr Barr for the Crown submits, the fact that the pregnancy and termination was concealed from Mr K right up until the night before the first trial could support the prosecution case that Mrs K was fearful of her husband and his response.[24] The third ground of relevance does not advance the defence case towards the statutory threshold either. It is far from clear that evidence regarding the circumstances of the pregnancy and termination would have supported an argument that the complainant would have confided in her mother about allegations of abuse.In an affidavit sworn for the appeal, the complainant says she felt like she had "no one to go to" when she discovered she was pregnant. In particular, she did not feel like going to her mother as she did not want to be judged. The complainant did not proffer details of her pregnancy to Mrs K; it was only when Mrs K confronted her and asked whether she was pregnant that the complainant admitted she was. According to the complainant, it was Mrs K who suggested termination, and that was the only option on her mother's mind.[25] That account does not support Mr Harrison's argument that admission of the pregnancy evidence might have supported the defence case that, if the acts had occurred, the complainant would have disclosed them to her mother. At its highest, the pregnancy evidence would have only peripheral relevance to the issues at trial. Peripheral relevance falls short of the statutory test.[26] The relevance of the evidence is to be balanced against the impact on the complainant of admitting it at trial. Mr Harrison submits that the evidence would not necessarily affect the complainant's reputation or cast her in a bad light in front of the jury. That submission, however, overlooks one of the purposes of s 44 which is to reduce humiliation and embarrassment to complainants.6 The Judge's ruling on the issue records that the complainant was particularly upset at the mention of her pregnancy during the first trial.7 That is understandable. It is a private and personal matter of some sensitivity. Excluding evidence of marginal relevance was not contrary to the interests of justice in those circumstances.[27] Finally, we are not persuaded that the jury's question regarding Mrs K's evidence raises a real risk of miscarriage of justice. The Judge responded to the jury's question by directing them not to speculate or second-guess what Mrs K's remarks referred to. He asked them to focus on the relevant evidence and to put her remarks out of their mind. We are satisfied that this direction appropriately addressed the jury's concerns and directed the jury to reach their determinations on the evidence called at trial.6 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [53].7 District Court decision, above n 1, at [17].[28] It follows that we do not consider the Judge erred in excluding the evidence of the complainant's pregnancy and termination, and there was no risk of a miscarriage of justice as a result.Result[29] The appeal is dismissed.[30] The complainant's identity is automatically suppressed by ss 203 and 204 of the Criminal Procedure Act 2011. In our view, the familial relationship in this case requires suppression of both the identities of both the appellant and Mrs K to avoid the identification of the complainant's name.[31] Accordingly, we make an order prohibiting publication of the name, address, occupation or identifying particulars of the appellant pursuant to s 200(2)(f) of that Act. We also make an order prohibiting publication of the name, address, occupation or identifying particulars of Mrs K pursuant to s 202(2)(d) of that Act.Solicitors:Crown Law Office, Wellington for Respondent