K (CA445/2018) v R [2019] NZCA 264

K (CA445/2018) v R [2019] NZCA 264 [27 June 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.ORDER PROHIBITNG PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANT'SFAMILY MEMBERS WHO WERE WITNESSES AT TRIAL PURSUANT TOS 202 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF WITNESSES UNDER 18 YEARS OLDPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA445/2018[2019] NZCA 264BETWEEN K (CA445/2018)AppellantAND THE QUEENRespondentHearing: 29 May 2019 (further material received 7 June 2019)Court: French, Miller and Lang JJCounsel: L A Andersen and C M Andersen for AppellantM J Lillico and R K Thomson for RespondentJudgment: 27 June 2019 at 11 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B Order prohibiting publication of name, address, occupation or identifyingparticulars of the appellant pursuant to s 200 of the Criminal Procedure Act2011.C Order prohibiting publication of name, address, occupation or identifyingparticulars of the complainant's family members who were witnesses at trialpursuant to s 202 of the Criminal Procedure Act.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] K was convicted of sexual offending following a jury trial in the District Courtpresided over by Judge Phillips.[2] K now appeals his convictions.The Crown case[3] The complainant, A, was the daughter of K's partner. A alleged that duringthe early hours of the morning after her 11th birthday in January 2010, K came into herbedroom and raped her. She further claimed that the rapes continued for anotherfive years and that throughout the same period K also subjected her to severalinstances of forced oral sex as well as fondling and groping of her breasts.According to A, the sexual abuse was sometimes accompanied by additional physicalviolence including choking and punching her.[4] She also alleged that throughout the offending K told her not to tell anyonewhat he was doing, saying no one would believe her and threatening that, if she didtell anyone, it would ruin her family and hurt her mother. Sometimes, she said, if therewas no one else present, he would force her against a wall or kick her shin.[5] A did not disclose the alleged offending until May 2015 some four or fivemonths after K had broken up with her mother T and moved out of the house. The firstdisclosure was to a school friend. A later told her mother after the latter discovered Awas receiving counselling through ACC and wanted to know why. The police becameinvolved. A gave an evidential interview in November 2016 and K was arrested inFebruary 2017.[6] He was charged with a total of eight offences, comprising(a) three charges of sexual violation by rape, one of which wasa representative charge;(b) four charges of unlawful sexual connection, one of which wasa representative charge; and(c) one charge of indecent assault of a girl aged under the age of 16 years.[7] When arrested, K declined to make any statement. He did however giveevidence at trial. He denied all the charges and said there had never been any sexualcontact between him and A.[8] The jury found him guilty of all eight charges.Grounds of appeal[9] K's counsel Mr Andersen advanced several grounds of appeal.[10] First, that K was unfairly prejudiced by the admission of inadmissible"relationship evidence".[11] Secondly, that various errors made by trial counsel Mr Dawson prevented Kfrom being able to fairly present his defence and prejudiced his chance of acquittal.The alleged errors include wrongly consenting to the Crown adducing prejudicialrelationship evidence, failing to call various witnesses most notably K's sister, as wellas other alleged deficiencies in the cross-examination of A, her sister and her mother.[12] In Mr Andersen's submission, all these matters whether viewed individually orcollectively mean there must be a real concern as to the safety of the verdicts. He saidthat must be especially so in a case where there was no corroboration ofthe complainant's allegations and where there were numerous inconsistencies bothinternal and external in her evidence.AnalysisThe relationship evidence1[13] K and A's mother, T, had started living together in 2008. T had two otherdaughters, E who was a few years older than the complainant and S who was someyears younger. All three girls lived in the same house with their mother and K.K's own daughter M also stayed at the house from time to time. The relationshipbetween K and A's mother ended in 2015. There was a dispute as to whether it endedin January 2015 as K claimed, or February 2015 as A claimed.[14] At trial evidence was given by A, her mother, her older sister and her step-sisterabout the family dynamics of the household. They all described K as a dominatingand controlling figure prone to angry outbursts, abusive language and, on occasion,violence. E and M gave evidence of specific incidents of alleged violent behaviour byK towards them. They also said the complainant was K's favourite and that heappeared to be always very nice to her. A was portrayed as the "peacemaker" ofthe family, the good girl who did what she was told, the one who did not cause anytrouble, unlike E who was headstrong and who clashed with both K and her mother.Admissibility of the relationship evidence[15] The evidence was admitted by consent. On appeal, Mr Andersen says that wasa major mistake on the part of trial counsel. He should have objected to it.1 Evidence of the type at issue here is also commonly called "background" or "narrative evidence"with the phrase "relationship evidence" used for evidence solely about the relationship betweenthe complainant and the defendant. For convenience, we have adopted the terminology used bycounsel.[16] In Mr Andersen's submission, the evidence was inadmissible propensityevidence, inadmissible because it was not relevant, and it was unfairly prejudicial.[17] It was not relevant, Mr Andersen contended, because it was not evidencerelating to the alleged offending or even to A herself. There was no connectionbetween it and the allegations of sexual abuse. It was not needed to explain thoseallegations or make it more likely that sexual offending occurred, and it was unfairlyprejudicial because all it did was to blacken K's character. This was made even moreunfair because it was an uneven contest. With four witnesses lined up against K,including his own daughter, portraying him as a nasty violent man. no one was goingto believe either his denial of the relationship evidence or his denial of the offending.[18] We agree with Mr Andersen that although the evidence was not orthodoxpropensity evidence and not led for the purpose of coincidence reasoning, it wasnevertheless within the definition of propensity evidence under s 40 of theEvidence Act 2006.2 However, we do not agree that the evidence should have beenexcluded and therefore do not agree that Mr Dawson erred in consenting to itsadmission.3[19] In our view, the evidence was relevant because it provided context tothe offending and a possible explanation for A's passive and uncomplainingbehaviour, as well as an explanation as to why K may have targeted her and was ableto persuade her for example (as she claimed) that their sexual interactions were"normal." It also bore on why A delayed complaining, her delay being something thedefence put in issue. One of the main reasons A gave for the delay was that she wasscared of K. Although the other witnesses did not give any evidence of violenceagainst A herself, she had witnessed the incidents involving E and M and would havebeen well aware of K's volatile behaviour. To have excluded this evidence would inour view have been wrong and have resulted in the jury being presented with asanitised and quite misleading picture of the household.2 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.3 In fairness to Mr Dawson, it should also be noted that by reaching an agreement withthe prosecutor regarding the evidence, he was able to secure the exclusion of other adverse Crownevidence that might otherwise have been included.[20] It is noteworthy that in his evidence, K himself agreed with several aspects ofthe evidence given by the Crown witnesses about the family dynamics including thatA was the family peacemaker. Importantly, he also accepted he was angry and hadengaged in behaviour that could be considered abusive, saying that he was "very angrya lot of the time", that the household was "abnormal", that he was "a bit of a shit tolive with" and that everyone would have walked around on eggshells. He alsoadmitted to pounding a wall with his fist during what he said was an anxiety attack,and to calling E "a fat bitch."[21] He denied being violent but even his own account of the various incidentsinvolved him manhandling the children: carrying M out of a car and pushing andshoving her into her bedroom,4 and pushing a trampoline towards E which hit her.On another occasion he said he followed E to her bedroom — she shut the door whichwas an old one — he put his foot out and some of the door hinges came loose. He didnot recall whether he then pulled a towel off E's head as claimed by A.He acknowledged that on another occasion he put his arm out to stop E and she fellover.[22] K further testified that his angry behaviour was due to a serious head injury hehad suffered in January 2009. He said it had made him irritable and highly sensitiveto noise, to the point where at one stage he rented a separate flat where he could escapeand chill out. As for being controlling, he appeared to accept this may have beenthe girls' perception but his take was that it was only normal parenting, getting childrento do chores and avoiding conflict by insisting on them always sitting in the same seatsat meal times. He said he "like[d] to think [he] was nice some of the time."[23] Significantly the Crown witnesses also identified the head injury as relevantaccepting it was an explanation for his volatile behaviour.5 It was also not disputedthat K had as he claimed supported the children, especially A, in terms of takingan interest in their activities.4 In this regard his evidence at trial is inconsistent with the affidavit he provided for the appeal inwhich he denies any pushing.5 The head injury K suffered in January 2009 was not his first head injury and A was confused inher evidence about the dates.Should the Judge have given the jury a direction about the relationship evidence?[24] Mr Andersen argued that even if (contrary to his submission), we consideredthe relationship evidence was admissible, it nevertheless had occasioned a miscarriageof justice because of the Judge's failure to direct the jury about it.[25] In his summing up, Judge Phillips did not specifically address the relationshipevidence, but he did give a standard general direction about the importance of the jurynot allowing prejudice or sympathy to influence its decision.[26] At the appeal hearing, Mr Lillico said he accepted a specific direction aboutthe relationship evidence should have been given. However, he resiled from that viewin a subsequent memorandum after researching the case law at our request.[27] A review of the authorities shows there is no general rule requiring a trial judgeto give an orthodox propensity direction whenever there is relationship evidence andpropensity reasoning is not relied upon.6 In some cases, the general "prejudice andsympathy" direction has been coupled with directions about the relevance ofthe evidence,7 but in others the general prejudice and sympathy direction has stoodalone and that has been held not to constitute error.8 It has also been noted there issome risk to the defendant in directing about the relevance of the relationship evidenceas it may give it undue emphasis.9[28] The reason a direction is sometimes considered necessary is becauserelationship evidence may often be only marginally relevant and there is an obviousrisk of highly prejudicial reasoning. The concern is that juries may reason that becausethe relationship evidence shows the defendant has behaved badly, he must be guilty ofthe offence charged.6 Perkins v R [2011] NZCA 665 at [28]; Awhi v R [2013] NZCA 554 at [43]; Mahomed v R,above n 2, at [92]; and Taniwha v R [2016] NZSC 123, [2017] NZLR 116 at [63]–[65].7 See for example, Perkins v R, above n 6, at [24] and [28]; and Grooby v R [2018] NZCA 344 at[33]–[34].8 See for example, Taniwha v R [2015] NZCA 434 at [53]; and Taniwha v R, above n 6, at [66]–[67].9 Perkins v R, above n 6, at [28].[29] In this case, we consider a specific direction would have been desirable.The Judge should have explained why the evidence was being called — that is,the trial issues to which it related as detailed in [19] above — and warned the juryagainst impermissible reasoning.[30] However, while we consider a specific direction would have been desirable,we are not persuaded that the failure to give one warrants appellate intervention in allthe circumstances.[31] Those circumstances include the fact that the evidence was directly relevant totrial issues, that the Crown had explained in closing why it had been called and that toa very real extent its limitations would have been self-evident. Further, while theJudge did not give a specific direction on the relationship evidence, his summing upwas structured in a way that very much focused the jury's attention onthe complainant's evidence regarding K's alleged sexual conduct and not any of hisother alleged conduct. The summing up centred on a question trail which the Judgehad tailored to the specific facts and which he went through question by question,referring to the relevant evidence from the complainant.[32] We conclude that the failure to give a specific relationship evidence directiondid not occasion the risk of a miscarriage of justice.Alleged deficiencies in the cross-examination of Crown witnessesFailing to cross-examine A on text messages sent to K's sister[33] A was close to K's sister whom we shall call H.[34] Before the trial, H gave Mr Dawson copies of some text messages that A hadsent her. H told Mr Dawson that in 2014 A had claimed to her she was being raped bya group of boys, and that, although A later recanted that allegation and said it was Kwho had raped her, H believed the incidents with the boys had taken place.[35] The first set of texts sent between late January 2015 and 17 April 2015 suggestA had made a claim of rape to H against some boys and was or had been in a sexualrelationship with a boy her own age.[36] The second set of texts were sent late 2015 and January 2016 prompted by Aseeing a message H had posted on her Facebook page congratulating K on hisengagement to a new partner. A's texts bristle with hostility and also appear to involveissues about H's own partner whom H says A's family treated badly. In a text of30 January 2016, A again rails against H's betrayal and says she sees too much of Kin H and that it "makes me feel sick after everything he done to me and my family."[37] The third set of texts are exchanged in 13 January 2017 and are initiated by H.She begins by asking if she can ask A a personal question. When told by A "go for it",H asks "When you told me you were raped by those guys, was that true? Or was that[K]?" H explains she is asking that because "It is all going around in my head."[38] The reply from A is that when she opened up to H, she was trying to talk aboutK, that nothing happened with a group of boys and when H suggests the allegationsagainst the boys must be true and she can help A, A says to leave her alone.[39] In another text which for some reason H is unable to date, A provides somedetail of the first time K allegedly raped her. The text is consistent with A's evidenceat trial.[40] Mr Dawson had the texts or some of them but did not cross-examine A aboutthem.10 Mr Andersen says that was a significant error. In his submission, the textswere important for several reasons, including that they show H was A's confidanteand someone to whom she would have disclosed K's offending had it happened;the allegations about the boys included allegations about bruising and applyingpressure to her throat, allegations also made against K; and bruising in a photographsent by text to H could not have been caused by K because the text was sent well afterK had left the household.10 There is a dispute between H and Mr Dawson as to whether she gave him all the texts.[41] In order to be able to cross-examine A about these texts, Mr Dawson wouldhave needed to obtain a ruling from the Judge. And to do that he would have neededto articulate how they advanced the defence. He would have had to assert that either:(a) the prior complaint was false — A had not been raped by the boys —and that this went to A's veracity. That would primarily have engagedthe heightened relevance test under s 37 of the Evidence Act;11 or(b) as H believed, the prior complaint was true. That is, A had been rapedby the boys but for some reason — presumably to get revenge againstK (and possibly H) was transferring the allegations to K. This approachwould have triggered the heightened relevance test of s 44 ofthe Evidence Act.[42] In our view, either approach would have presented Mr Dawson withinsuperable difficulties.[43] The second option — prior complaint was true — would, for example, havebeen contrary to the trial strategy he and K had adopted. Their trial strategy was tohighlight the significant inconsistencies in A's evidence and to suggest she was lyingbecause she was depressed, had made the allegations to get attention and had thenbacked herself into a corner. This strategy was more consistent with other evidenceabout A's character and conduct than a revenge theory would have been. Not onlywould the revenge theory have sat uneasily with other evidence and be contrary to thetrial strategy, it also ran the risk of alienating the jury. All of that of course assumesthe cross-examination would have been permitted under s 44 of the Evidence Actwhich we consider it would not have been. The allegations against K weresignificantly different allegations to those made against the boys in the texts.11 We say primarily because if the test under s 37 of the Evidence Act 2006 was satisfied, the Courtwould then have had to consider under s 44 of the Evidence Act: first whether it was contrary tothe interests of justice to exclude the evidence and, secondly, if it was whether the evidence couldbe limited so the focus was on the falsehood of the previous complaint and not the complainant'sprevious sexual experience. See Best v R [2016] NZSC 122, [2017] 1 NZLR 186 at [75]–[78].[44] Mr Andersen recognised those difficulties but said his primary contention wasthat the texts could and should have been put in cross-examination to impeach A'sveracity on the basis the prior complaint about the boys was false.[45] In Best v R, the Supreme Court held that where there is evidence of a previousfalse complaint or an allegedly false complaint, the complainant should be asked inthe absence of the jury to confirm whether or not the previous complaint was false.12[46] Had that happened in this case, it is likely A would have admitted makingthe allegations about the boys. It is also likely she would have admitted they werefalse and given the explanation she gave H in her text. The Judge would then havebeen required first to consider under s 37 of the Evidence Act whether evidence ofthe prior false complaint was substantially helpful in assessing A's veracity and evenif it was whether under s 44 of the Evidence Act it would be contrary to the interestsof justice to exclude it.13[47] Veracity for the purposes of s 37 is defined as a disposition to refrain fromlying. In determining whether the proposed evidence is substantially helpful inassessing a witnesses' veracity, the section lists various factors the Judge mayconsider.14 None of those factors would have applied in this case. We acknowledgethat the statutory list is not exhaustive but in light of A's explanation in the texts forher false complaint, and the fact it was made to a person who was her alleged abuser'ssister, we do not consider the substantially helpful test would have been satisfied.[48] It follows from all of the above that we do not consider it was trial counselerror to fail to cross-examine A on the texts to H. We would add that even if (contraryto the above) defence counsel had been granted permission to conduct sucha cross-examination, it carried considerable risk for the defence. A jury might readilyunderstand why a complainant in A's position would be reticent to directly disclose12 At [65].13 At [66].14 Evidence Act, s 37(3) provides that the matters a judge may consider, among other matters, whendeciding if the proposed evidence is substantially helpful, are: lack of veracity on the part of theperson when under a legal obligation to tell the truth (for example, in an earlier proceeding or ina signed declaration); that the person has been convicted of one or more offences that indicate apropensity for a lack of veracity; any previous inconsistent statements made by the person; biason the part of the person; and a motive on the part of the person to be untruthful.sexual offending by K to his sister. The texts may therefore have provided the Crownwith greater assistance than the defence.Failure to put tenancy agreement to A[49] As mentioned, there was a dispute in the evidence between A and K as to whenhis relationship with her mother ended. A said it was February 2015. K said it wasearly January 2015 and that he had stayed with a friend for two or three weeks beforehe got a flat. He produced a tenancy agreement to confirm this.[50] Mr Andersen submits trial counsel should have put the tenancy agreement to Awhich would have shown K was correct and thus undermined A's credibility.[51] Mr Dawson's explanation for not doing so is that his focus was oninconsistencies in A's account as to when the alleged offending ended, and K had leftthe property. He had successfully established those inconsistencies incross-examination and producing a tenancy agreement (which we note was actuallydated 23 February 2015) would not have added anything. We agree and considerthe criticism unfounded. During the trial, the Crown had to seek leave to amend theend date of one of the charges because of A's inconsistencies, something whichMr Dawson was able to emphasise in closing.Failure to cross-examine E on family violence notes[52] Certain family violence notes made by police called to the property had beenprovided to Mr Dawson. They contain comments such as that E's parents saw her asvery angry and abusive as well as someone who could go off the rails.[53] On appeal, Mr Andersen submits trial counsel ought to have cross-examined Eabout these notes because he says they portray K and T as exasperated and concernedparents doing their best to deal with a difficult child. The notes would, he says, havealso shown K was not a violent aggressor and had not assaulted E as she claimed.Mr Andersen says too the notes would have put a different complexion on evidencethat the police were called to the address following the incidents described by E. As itwas, the jury were left to draw adverse inferences against K from the fact the policewere called.[54] We do not accept this was a significant error on the part of trial counsel northat it could have affected the outcome of the trial. As already mentioned, the fact thatE was headstrong and clashed with her mother as well as with K was already beforethe jury. Further, in her evidence-in-chief, E acknowledged it was she who had calledthe police and that she was disappointed in their response which was not to take anyaction against K.[55] The family violence notes also carried risk for K. They confirm he was a manwho resorted to physically overpowering E.Failing to cross-examine T on ACC file[56] K gave evidence that as a result of his head injury he had erectile dysfunctionproblems which meant it was physically impossible for him to have raped A. TheCrown acknowledged libido difficulties in the sexual relationship between him and T(putting it to K in cross-examination that was why he had turned his attentions to A)but disputed he was incapable of achieving an erection.[57] The ACC file on K's head injury and associated health issues was not obtainedbefore the trial. Mr Andersen contends it should have been because it supported K'sclaims. As it happens, a psychiatric report from the file did become available toMr Dawson during the trial but he did not take the opportunity to use it to impeach Tas Mr Andersen says he should have done. Mr Andersen says the report should havebeen put to T because it records her as being present when K discussed his loss oflibido with the doctor, yet in evidence she had denied there were any libido problems.[58] According to Mr Anderson, the failure to impeach T's denials on this key issueallowed the Crown to tell the jury that K was not telling the truth about erectileproblems.[59] In our view, this submission overstates the position. It is correct that T deniedthat K had erectile dysfunction. She said they had sex and that he was able to getan erection but she also acknowledged there were difficulties in their sex life. She saidthat at times K "could not and did not want to keep it up". She attributed this to a lackof interest in her. She did not deny that K had been talking to his General Practitioner(GP) about libido issues. The fact she may have been present at a consultation witha psychiatrist when libido problems were discussed was not necessarily inconsistentwith this.[60] What enabled the Crown to confidently submit that it was possible for K tohave achieved an erection and rape A was evidence that during the period of the allegedoffending he had a discussion with his doctor about a vasectomy and that in April 2015he commenced a sexual relationship with a new partner who became pregnant to him.Witnesses not called[61] There are two aspects to this ground of appeal.[62] The first is whether Mr Dawson was instructed to call witnesses and failed todo so. In an affidavit sworn for the purposes of the appeal, K says he instructedMr Dawson to call his sister H and also to call evidence from a specialist about hishealth issues. According to K, Mr Dawson breached his instructions and unilaterallydecided not to call H and to limit the medical evidence to a GP. A further criticism isthat when a GP was called, Mr Dawson called the wrong one. K wanted the GP whohad been his original doctor — Dr Muir — but Mr Dawson called Dr Lloyd who hadonly been K's doctor from November 2014 onwards.[63] Mr Dawson disputes this. He contends he and K had various discussions aboutwhat defence evidence they would call and that ultimately all the decisions were madeby K himself on advice.[64] We prefer the evidence of Mr Dawson supported as it is by detailed and attimes lengthy file notes recording the discussions with K about the defence evidence.[65] The second aspect of this ground of appeal is to consider whether the absenceof the witnesses in question has occasioned the risk of a miscarriage.The proposed evidence of K's sister H[66] H has filed an affidavit, detailing the evidence she would have given. As wellas giving evidence about the texts (which we have already addressed) she would havegiven evidence about the following:(a) E being very difficult and out of control;(b) the dynamics of K's relationship with T including that T told her K haddifficulties with sex, that T had never told her of any domestic violencewithin the household and never presented as someone who was scared;(c) her close relationship with A and that A would have told her if K hadbeen raping her; and(d) she could have refuted the claims A made in evidence that H used toask her if K had sexually abused her and that H may have seenthe bruising.[67] We are not persuaded this evidence was significant.[68] It was already in evidence that A had not disclosed the allegations to a numberof people she was close to. Adding one more would not have made any appreciabledifference. T did not dispute the existence of sexual problems between herself and Kand never claimed that K had assaulted her. K's own evidence suggestedthe household was a volatile place, that T and her daughters would have been walkingon eggshells and that he manhandled the children. It was accepted by T that E wasdifficult, and A only said that H may have seen the bruising. She did not categoricallysay she had and her comment was based on surmise.[69] It is correct that when asked in the evidential interview whether she had toldanyone about K's offending, A replies that K's "sister did ask, used to ask me, his,[K's] sister but I used to lie and say no."[70] Mr Andersen submits that had H given evidence, she "could have negatedserious prejudice from A's evidence that H had made those inquiries".However, the text messages do show H asking that very question without anyprompting from A. The text is capable of being explained as triggered by H learningthat A had been to the police about K but nevertheless it does detract from the weightthe jury might place on H's denials.[71] We are not persuaded that the probative value of the evidence H says shewould have given is such that it could have impacted on the verdicts.Failing to call Dr Muir[72] The focus of the argument about the adequacy of the medical evidence calledby Mr Dawson was on whether he should have called Dr Muir, the GP who treated Kduring most of the period of the offending, rather than K's current GP, Dr Lloyd, whoonly became K's doctor in November 2014.15[73] Mr Andersen contends it was an error to call Dr Lloyd because of his lack ofknowledge of K's health at the crucial times. Dr Lloyd was of necessity reliant onnotes and that enabled his evidence to be effectively discredited by the Crown.In Mr Andersen's submission, if a GP was to be called, it should have been Dr Muirwho had been the one treating K over a significant period of time and who could havegiven authoritative evidence as to K's erectile dysfunction.[74] In the absence of an affidavit from Dr Muir and, having regard to the fact thatby the time of trial it would have been four years since he last treated K, it is difficultto know what difference calling him could have made. He would of necessity havebeen reliant on his notes.15 Mr Andersen did not pursue the argument that evidence from a medical specialist should havebeen called.Failure to obtain A's file from the Family Planning Clinic[75] A testified that in 2014 she went to a Family Planning Clinic because she wasconcerned she might be pregnant as a result of being raped by K. Tests were done,and these confirmed she was not pregnant.[76] According to K's affidavit, he instructed Mr Dawson to obtain A's file fromthe Family Planning Clinic. Mr Dawson denies this. He says his instructions werenot to call any Family Planning evidence and to raise the issue of lack of corroborationin closing. His file contains a note stating "likely to leave and just close on it."[77] In closing, Mr Dawson made this submission to the jury:"She says she went to Family Planning at some stage. She says she tooka friend. Did you hear from the friend? Did you see any paperwork thatconfirmed she went to Family Planning? You didn't see either. A big hole inthe Crown case where that information might be. You might then drawthe conclusion she never went at all."[78] On appeal, Mr Andersen contends Mr Dawson's filenote shows the matter hadnot been finally decided which supports K's assertion that he expected the file to havebeen sought. In Mr Andersen's submission, if the file revealed some other person ashaving sex with A, that would have assisted the defence and it should have beeninvestigated when K denied the offending.[79] For reasons already explained, where there is a conflict in the evidencebetween Mr Dawson and K, we prefer the evidence of Mr Dawson. In any event, Khas made no attempt to obtain the file for the purposes of the appeal — which he couldhave done by filing an application for disclosure — and submissions as to its contentsand likely impact on the trial are entirely speculative.Conclusion[80] In our view, none of the grounds of appeal whether viewed individually orcollectively warrants appellate intervention.[81] The appeal against conviction is accordingly dismissed.[82] We make an order prohibiting publication of name, address, occupation oridentifying particulars of the appellant pursuant to s 200 of the Criminal ProcedureAct 2011, to prevent publication of those details which might lead to the identificationof the complainant. 16[83] We make an order prohibiting publication of name, address, occupation oridentifying particulars of the complainant's family members who were witnesses attrial pursuant to s 202 of the Criminal Procedure Act, to prevent publication of thosedetails which might lead to the identification of the complainant.17Solicitors:Crown Law Office, Wellington for Respondent16 We note that the District Court sentencing notes contained a banner suggesting that there wasautomatic suppression of the appellant's name under s 201 of the Criminal Procedure Act 2011.This section is only engaged where there are charges under ss 130 or 131 of the Crimes Act 1961.There are no such charges in these proceedings and consequently the purported suppression underthat section was technically made without jurisdiction. The Crown has submitted, and theappellant has not contested, that an order suppressing the appellant's details should have beenmade by the District Court under s 200(2)(f) of the Criminal Procedure Act as publication ofthe appellant's details could lead to the identification of the complainant. Consequently, we makesuch an order.17 Criminal Procedure Act, s 202(2)(d).