L (CA631/2021) v R [2023] NZCA 246

L (CA631/2021) v R [2023] NZCA 246 [19 June 2023]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION AND IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROECEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA631/2021[2023] NZCA 246BETWEEN L (CA631/2021)AppellantAND THE KINGRespondentHearing: 14 February 2023Court: Cooper P, Ellis and Churchman JJCounsel: H G de Groot and E T Blincoe for AppellantR K Thomson for RespondentJudgment: 19 June 2023 at 11.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B We make an order suppressing the appellant's name, address, occupationand identifying particulars pursuant to s 200(2)(f) of the Criminal ProcedureAct 2011.____________________________________________________________________REASONS OF THE COURT(Given by Cooper P)[1] Following a successful appeal against conviction,1 the appellant L was tried fora second time on charges of sexual offending against his step-daughter and niece, N.He faced seven charges of doing an indecent act on a young person under 16 (four ofwhich were representative charges), six charges of sexual violation by unlawful sexualconnection (of which four were representative charges) and one representative chargeof sexual violation by rape.[2] He was again found guilty, on all 14 charges. He now seeks to appeal againsthis convictions alleging that the trial Judge erred in two respects:(a) by refusing to admit hearsay evidence that was crucial to the defence;and(b) by failing to give appropriate directions about evidence that wasadmitted under s 44 of the Evidence Act 2006.Background[3] Some of the relevant background was set out in this Court's decision allowingL's previous appeal against conviction.2 That appeal was allowed on the basis that thetrial Judge incorrectly refused permission to cross-examine N about her alleged sexualmistreatment by S, the appellant's son.3 In allowing that appeal, this Court set out anarrative giving the background of the offending which we can adopt for presentpurposes:4Narrative[2] The appellant's offending is said to have happened between 2012 and2015, when the complainant was aged between 12 and 15 years. The periodof sexual activity between her and [S] is said to have been betweenFebruary 2013 and February 2014.[3] In April 2014 the complainant disclosed to a school counsellor thatshe had been involved in sexual activity with [S]. She reported fear andembarrassment, and concern at potentially being pregnant. Oranga Tamariki1 [L] v R [2019] NZCA 382 [Court of Appeal judgment].2 Court of Appeal judgment, above n 1.3 At [20]–[21], [24] and [43]–[44].4 Footnote omitted.was called in. An investigation concluded that the sexual activity wasconsensual.[4] The complainant did not disclose at this time that she was alsoinvolved in sexual activity with the appellant. In her evidence at trial she saidthat she was scared to complain because she feared her mother would hate her.It appears that this concern was not without justification, because her motherdid side with the appellant and the complainant is now estranged from her.[5] The complainant's disclosure about [S] led to her going to live withher grandmother, but she subsequently indicated a desire to return to her home,where the appellant lived, and did so. She was sometimes truant from school,apparently preferring to be at home where he routinely was as he did not work.His alleged offending is said to have ceased when she threatened to tell.[6] About 18 months later the complainant disclosed the appellant'soffending to her aunt, with whom she was staying in Australia. When asked,she denied that the appellant had raped her but said [S] had done so. She thenreturned to the family home although she could have gone to hergrandmother's. Other family members were told of her allegations and shewas "interviewed" by an uncle who is a police officer. Despite his leadingquestions she did not say that the appellant had raped her. She then went tothe police in May 2017. The appellant was interviewed. He denied theoffending. In due course charges of unlawful sexual connection (by oral sexand digital penetration), indecency with a young person, and rape were laid.Some charges were representative.[7] The appellant's police interview was not played at trial. He gaveevidence, denying any sexual contact. He said that he did not know why shewas making the allegations. He said they had a close relationship in whichshe would confide in him. In closing, defence counsel highlightedinconsistencies in her accounts and her late and gradual disclosuresculminating in the allegation of rape. Counsel also emphasised that she hadalso chosen to stay with the appellant instead of avoiding him. He wasconvicted on all 14 charges he faced. We record that there is no complaintabout the summing up, in which the Judge cautioned the jury that the defencedid not have to show why she might have made it up.[4] It is relevant to note that N was both L's biological niece (being the daughterof L's brother) and his step-daughter. When his brother died, L and N's mother (M)began a relationship and eventually married. Both had children from a previousrelationship.The hearsay evidence ground[5] For the second trial the Crown sought to rely on a hearsay statement by N'scousin, C. C was the daughter of M's brother, B.[6] C was residing overseas when she made her statement. In the statement shereferred to occasions when, both in New Zealand and overseas, N had spoken to herabout not liking L and wanting to get rid of him. When C asked her to explain whyshe felt that way, N denied anything had happened between them, but said he was lazy,that he expected M to cook and clean for him, that M did everything he asked, and Nhated him for this. Similar discussions took place between N and C on a number ofoccasions. When C asked again whether anything had happened, N repeated herdenial, confirming that she could not stand seeing her mother work and do the samethings over and over while he just sat and watched TV. N claimed she told M to tellthe appellant to get a job. N told C that she hated the appellant and he was not her realfather, but her real father's brother. During the recounted conversations N made nomention of the allegations she was later to make concerning the appellant.[7] Later, C learned from her parents that N had made allegations to an aunt, A,that the appellant had molested her. She said she was shocked and confused by thissince N had previously told her she hated A, because of A's conduct towards N whenthey lived in the same household. The statement then detailed some disagreementsaffecting the wider family, resulting from N's allegations. The disagreements led to Nand her parents losing contact with the other family members. C had tried to reach outto N via various messaging platforms, but she was blocked by N. She described howshe only learned of the appellant's first trial after it was over. She had not comeforward earlier, because she had not realised there was a trial. Had she known, shewould have made a statement or contacted the appellant or M.[8] After delivery of the Court of Appeal judgment, Ms Freyer, who was actingwith Mr Taumihau for the appellant, learned through M that C might be able to giverelevant evidence at the retrial. Ms Freyer swore an affidavit for the purposes of thisappeal. Counsel were eventually able to make contact with C and a brief of evidencewas settled between Mr Taumihau and C. It was signed by her on 28 January 2021.In early February, some minor additions were made and the updated version forwardedto C in Brisbane on 8 February. It was intended that she give evidence remotely fromBrisbane at the retrial, which had been scheduled for 15 February 2021, and defencecounsel understood that she would cooperate to that end. She was not summoned toappear, because she was living in Brisbane.[9] However, the trial had to be adjourned because of the COVID lockdown inAuckland. A new date was set for 19 April 2021. According to Ms Freyer, very shortlybefore the trial, counsel learned that C was depressed, would not come out of herbedroom and refused to see a doctor. She was living with her parents, but they couldnot persuade her to seek help. Ms Freyer decided in the circumstances to seek anadjournment of the trial, or in the alternative, an application that her statement beadmitted and read at the trial.[10] These applications came before Judge Bergseng on 19 April. He was able tohear from C's mother A in Brisbane by telephone in his chambers. She told the Judgeabout C's mental state in a manner that was consistent with what M had said in anaffidavit. The Judge decided to adjourn the trial. His reasons for doing so were setout in a minute issued that day in the following terms:[1] [L]'s trial was due to commence this morning. He applies to adjournthe trial.[2] The allegations he faces involve his stepdaughter. They are from2012. His first trial was in 2017. That resulted in guilty verdicts on allcharges, but there was then a successful appeal in respect of a s 44 issue.[3] The matter has since then been given two firm trial dates.Unfortunately, both of those trial dates have been affected by the COVID-19restrictions and the inability of the court to operate during those times.[4] The basis of the application is that there is an important defencewitness, [C] who is unavailable. She is the complainant's cousin.Her evidence is in respect of dealings that she had with the complainant in late2016 into early 2017. The evidence that she proposes to give is importantevidence for the defendant, and without that evidence it would impact on hisability to receive a fair trial.[5] The issue that has arisen is that on 11 April, it seems veryunexpectedly, [C] became mentally unwell. She has a history of mental illnessgoing back to 2015.[6] I have spoken this morning with her mother. This witness is based inBrisbane. She is now 20 years old. In the past, her parents have still retainedguardianship rights, which have enabled them to force the issue of treatment.At this stage, [C] is refusing treatment. Her mother describes her as presentingwith suicidal thoughts. Her mother is of the view that she would not be wellenough, even later this week, to give evidence.[7] I am conscious of the length of time that this matter has been beforethe Court, and just as a defendant has a right to receive a fair trial, acomplainant has a right to expect an expeditious hearing. However, in thecase that I am faced with, the right of [L] to receive a fair trial would becompromised whereby it would almost be inevitable that if we proceeded totrial this week and the witness was not available, there would be a subsequentappeal on the basis of a miscarriage of justice. It seems to me that would havea very strong possibility of being granted.[8] The application is opposed by the Crown, on the basis of perhaps alack of detail in terms of the medical situation of the witness. That has beenexplained by her mother, in that [C's] father attempted to take her to hospitalon Sunday the 11th. Because of the COVID-19 situation that was present inBrisbane at that time, they refused to admit her to hospital and the family hasnot been able to progress the matter since then.[9] Accordingly, I am vacating this week's trial. I would ask that theregistry, in conjunction with the jury trial liaison judge, look to give therescheduling of this matter some priority, given the length of time it has beenbefore the Court. However, that needs to be balanced against the availabilityof [C] as a defence witness. It may be that if her situation does not improve,then the application for her statement to come in as a hearsay statement couldbe further pursued. But that is for another day, not today.[11] A new trial date was established for 6 July 2021. C initialled her amended briefand this was forwarded to defence counsel on that day. But on the new trial date Cremained unwell. Her mother had sent an email to defence counsel on 5 July that wasprovided to the Court by counsel. The email stated that C's mental health had notimproved since Judge Bergseng granted the first application to adjourn the trial on19 April. Relying on the email, defence counsel advanced an application that C'sstatement be admitted in her absence on the basis that she was unavailable as a witness.Judge Bergseng, who was again to preside at the trial, rejected the application, and anapplication for a further adjournment that was then made. The trial proceeded withoutC's evidence.[12] The Judge gave reasons in writing for rejecting the applications, on 29 July.5He set out the email from C's mother, A. C was still refusing to seek medical care, notsleeping well, and "locking herself away in her bedroom". Her mother claimed thatC would not be fit to give evidence remotely at the hearing. Since she was an adult,her parents could not force treatment on her in circumstances where she was notdeemed to be a threat to herself or members of the family. A could offer no timelinefor when C might decide to seek medical help.6 Counsel told the Judge that they hadnot been able to speak to C directly since 11 February, although they had spoken to5 R v [L] [2021] NZDC 13278 [District Court reasons judgment].6 At [18].her before then for the purpose of preparing her brief of evidence.7 Counsel also toldthe Judge that there was no medical evidence available, and that C had not beensummonsed for the trial.8[13] The Judge referred to ss 16 and 18 of the Evidence Act and discussed thedecision of Wylie J in R v Alovili.9 He considered that there was an insufficientevidential foundation upon which he could find that C was unavailable.10 He said:11[31] The only evidence regarding [C's] unavailability comes from hermother who was also unavailable to respond to any queries in respect of herdaughter. At its highest, she describes her daughter as having been mentallyunwell when she was 15. That her latest mental health issues came onsuddenly and on 11 February 2021 her father took her to a local hospital,although she was not admitted. Since then she has been at home spendingmost of her time in her bedroom. It is her mother's opinion that she wouldn'tbe able to give evidence at the trial. There is no medical evidence of the typethat was considered by Wylie J in Harmer.[32] I note that [C] was available to sign her statement on 4 July 2021 sometwo days before the trial was due to commence. She also initialled each of thepages of her statement on 6 July 2021. She makes no mention in her statementof her mental health issues.[14] In the circumstances the Judge considered it unnecessary to consider whetherthere was a reasonable assurance that C's statement was reliable.12 Turning to theadjournment application, the Judge noted it had been advanced on the basis the trialdate should be adjourned to an unspecified date when C could give evidence.13 Butthe trial had been "long outstanding", the complainant had already given evidence ata trial and been cross-examined, she was ready to give evidence on 19 April and wasagain ready to, and did give that evidence on 6 July.14 It was in the interests of justicethat the trial proceed. The Judge recorded that there would still have been time to callC's evidence remotely, since defence evidence would have begun no earlier thanWednesday 8 July.157 At [20].8 At [21].9 At [24]–[30], citing R v Alovili HC Auckland CRI 2007-404-162, 27 June 2008.10 At [33].11 Mr de Groot told us the Judge's reference to C becoming unwell should been to April, notFebruary, but nothing turns on that.12 At [35].13 At [36].14 At [38].15 At [39].The argument on appeal[15] Mr de Groot, for L, submitted the Judge's refusal to allow C's statement to beadmitted in evidence at the trial was wrong. The Judge also erred in deciding that Cwas not unavailable as a witness. She was unavailable in accordance with boths 16(2)(b) and (c) of the Evidence Act, because she was outside of New Zealand andit was not reasonably practicable for her to be a witness, and she was unfit to be awitness because of her mental condition.[16] Mr de Groot dealt with C's mental condition first. As to this, he distinguishedR v Alovili on the basis that it had concerned a Crown witness whose mental healthwas at risk of deteriorating if required to give evidence, not a defence witness whosemental health was such that she was unable to attend the court. Mr de Groot submittedthe Judge erred by finding there was no medical evidence to support the application:the Evidence Act did not require that evidence establishing a mental condition beproved to a specific standard or through any particular form of evidence. A properconsideration of the available evidence should have led the Judge to a differentconclusion, like the one he had previously made on 19 April. He had then concludedthat C was "mentally unwell', and it was contradictory to take a different approach inJuly. Given C's ongoing refusal of medical treatment the Judge's approach inimposing a requirement for medical evidence created an insurmountable evidentialhurdle for the defence. This was not justified by the terms of the Evidence Act.[17] Mr de Groot also argued the Judge had been wrong to be influenced by theabsence of a reference in C's statement to her mental health issues and that she hadnot been summonsed. As to the former, her brief had been prepared in February beforethe relevant mental issues arose. As to the latter, while s 154 of the Evidence Actallowed for the service of a subpoena on a witness in Australia, there would have beenno means of compelling attendance. In any event, whether attempts had been made tosummons C was irrelevant to the test in s 16(1)(c) of the Evidence Act. That was amatter of evidence, and the only available inference on the facts was that her mentalhealth had rendered her unable to attend court.[18] Alternatively, Mr de Groot submitted that C was unavailable under s 16(1)(b)of the Act. Counsel had made efforts to engage with C and to ensure her attendancewhich were proportionate in the circumstances, namely by contacting her directly andthrough her mother. The fact that C was briefed and ready to give evidence byFebruary showed that counsel had done what they reasonably could and, on theapproach taken by this Court in Solicitor-General v X, the Judge should haveconcluded the unavailability threshold had been met.16 Similarly, in accordance withthe reasoning in Gao v Zespri Group Ltd, the Judge could have concluded that C wasunwilling, effectively "beyond compulsion" and therefore unavailable.17[19] For the respondent, Ms Thomson submitted the Judge correctly held C was not"unavailable" and her hearsay statement was not admissible under s 18 of theEvidence Act. She emphasised, relying on Anderson v R, that establishingunavailability due to a mental condition required a high threshold to be met.18Evidence commensurate with this high threshold was required and had not beenprovided here. The evidence from C's mother was insufficient, even putting aside thefact that it was itself hearsay. There was simply no evidence that C was incapable ofgiving evidence. Nor could it be said that was not "reasonably practicable" for C togive evidence. C's mother had previously given evidence remotely from their homeabout C's mental condition. The issue was that C was unwilling to give evidence.Decision[20] We are not satisfied the Judge erred by rejecting the claim that C wasunavailable to give evidence on either of the bases claimed.[21] Section 18 of the Evidence Act provides that a hearsay statement is admissiblein any proceeding if the circumstances relating to the statement provide reasonableassurance that the statement is reliable; and either (i) the maker of the statement isunavailable as a witness, or (ii) undue expense or delay would be caused if the makerof the statement were required to be a witness. The issue for us is that of unavailability.16 Solicitor-General v X [2009] NZCA 476.17 Gao v Zespri Group Ltd [2021] NZCA 442, [2022] 2 NZLR 219.18 Anderson v R [2020] NZCA 106, [2020] 3 NZLR 429.[22] Section 16(2) of the Act defines the phrase "unavailable as a witness". Itprovides:(2) For the purposes of this subpart, a person is unavailable as a witnessin a proceeding if the person—(a) is dead; or(b) is outside New Zealand and it is not reasonably practicablefor him or her to be a witness; or(c) is unfit to be a witness because of age or physical or mentalcondition; or(d) cannot with reasonable diligence be identified or found; or(e) is not compellable to give evidence.[23] Our present concern is with para (c), in particular whether C was unfit to be awitness because of her mental condition. It is noteworthy that the concept is unfitbecause of mental condition rather than unwilling because of mental condition. So,the focus must be on a mental condition that makes the witness unfit. In the presentcase that issue has to be considered against the background that C was able to conferwith counsel to put together a coherent brief, which she later altered and was quitehappy to initial as her own right up to the date of the trial as adjourned. The logic ofthe brief, which was clearly potentially helpful to the defence, the plausibleexplanation she gave for not coming forward earlier, and her cooperation with counselfor the purpose of giving evidence, do not provide any basis for finding her to bementally unfit to give evidence. Until the problem arose on 19 April counsel cannothave had any intimation that she was unfit to give evidence because of a mentalcondition.[24] The language of the statute explains why some of the cases have focused onthe question of whether the witness will have some difficulty, related to mental illness,in giving evidence. Such a link was never established in this case. Taking her mother'sevidence at face value, C was mentally unwell and would not seek treatment or leaveher room. It could be inferred that because she was mentally unwell, she would notcooperate for the purpose of giving evidence. But that falls short of what must beestablished under the statute: it does not demonstrate she was unfit to be a witness.[25] In Anderson this Court observed that "the inquiry into whether a witness isunavailable is an intensely factual one", and although previous decisions were of"limited relevance", they served to show that the threshold before it can be said aperson is unavailable as a witness because of a mental condition was a high one.The Court said "it will only be in rare cases that the risk of exacerbating a pre-existingmental condition by giving evidence can impact on a person's availability to be awitness".19 The threshold was met in that case, where the issue concerned the mentalcondition of the complainant, on the basis of evidence from a psychiatrist and twoclinical psychologists, all of whom had been involved in the treatment of thecomplainant. She had been diagnosed as suffering from post-traumatic stress disorder,major depressive disorder and dissociative disorder. All three experts agreed that thecomplainant was incapable of giving evidence.20[26] It can readily be seen that this case is very different. There is no expertevidence about C's mental condition. Further, she has engaged with counsel for thepurpose of settling an apparently rational and coherent statement brief of evidence.While we accept Mr de Groot's submission that expert evidence may not be necessaryin every case where it is sought to establish unfitness to give evidence, we expect thosecases will be exceptional. Here there is only the evidence of C's mother that C isunwell and is locking herself away in her room that forms the basis of the claim she isunfit. We think the Judge was right to reject this as insufficient to rule her unavailabledue to her mental condition.[27] The threshold for unfitness is rightly a high one. Where the evidence of thewitness is significant, whether for prosecution or defence, it will be important for thewitness to be available for cross-examination unless there is very good reason whythat cannot occur.[28] As noted above Mr de Groot referred to R v Alovili which he endeavoured todistinguish because the application to admit the hearsay evidence in that case wasmade in respect of a Crown witness who was one of the complainants and whose19 At [52].20 At [34]–[36].mental health was at risk of deteriorating if they were required to give evidence.21The case involved charges of attempted murder and serious assault against twodefendants. The Crown sought to rely on a statement given to the police by one of thevictims. It called extensive evidence from a specialist forensic psychiatrist whointerviewed the victim and considered reports prepared by other doctors and clinicalfile notes from district health boards.22 This established to the Judge's satisfaction thatthe witness had a severe psychiatric disability, paranoid schizophrenia, which hadproven resistant to treatment for some years. This meant the victim suffered from"social phobia", and he had clear anxiety symptoms including both anticipatoryanxiety and phobic avoidance of circumstances likely to place him under scrutiny. Ifhe could not manage his anxiety, a relapse of his psychotic symptoms could occur.Giving evidence would markedly increase his anxiety, because being in the courtroomwould significantly increase his social phobic symptoms.23 The need to recall stressfulmemories would "greatly reduce" his capacity to give evidence and have a majorimpact on his mental health.24[29] Notwithstanding the strength of the evidence about the victim's mentalcondition, the High Court was not satisfied that his mental condition was sufficient tooverride the fundamental requirement that the accused should have a fair trial.25The charges were serious, and there were issues on which the defence should have theright to cross-examine.26 Many of the stresses that the victim would suffer in givingevidence were similar to stresses which are often suffered by persons giving evidenceat a trial, and while the stresses involved might affect the quality of the evidence thatwas not a justification for allowing his hearsay statement to be admitted.27[30] Whether or not the correct outcome was reached in that case is not for us todecide, but the judgment does show that strong evidence is needed to establish21 R v Alovili, above n 9.22 At [14].23 At [15]–[16].24 At [16]–[17].25 At [33].26 At [32].27 At [27]–[28].unfitness in terms of s 16(2)(c).28 To the extent that Mr de Groot suggested thereshould be some difference in approach according to which party is seeking to rely onthe evidence in question we can find no justification for such a distinction in the wordsof the statute, or in principle. The availability of a witness raises a factual issue whichshould be determined in the same way regardless of which party will be affected bythe presence or absence of the witness. It hardly needs repeating that both prosecutionand defence are entitled to a fair trial process in the interests of justice.[31] Nor do we see the relevance of a distinction between, on the one hand, a claimthat a witness' mental health will suffer if they are required to give evidence, and onthe other, a claim that a witness' mental health is such as to render them unable toattend court. In either case, the statutory threshold needs to be met. That will generallyrequire expert evidence, unless the case is exceptional. While we are sympathetic tothe difficulties defence counsel faced in adducing evidence of C's mental condition,without any evidence beyond that of C's mother, we are unable to accept the Judgeerred by not finding her to be unfit because of her mental condition.[32] We see nothing in the other issues raised by Mr de Groot criticising the Judge'sapproach. We do not accept his decision on the fitness issue was influenced by thefact C had not been summonsed, or the absence of reference to mental issues in herbrief. It was of course relevant to note, as we have done, that she had participated inthe preparation of the brief. In summary, the Judge's conclusion that the statutory testin s 16(2)(c) was not satisfied cannot be impeached.[33] Turning then to s 16(2)(b), the issue for decision is whether the Judge shouldhave found C was unavailable as a witness because it was not reasonably practicablefor her to be a witness. Arrangements were able to be made for her to give evidenceremotely, which would have overcome any difficulty caused by the fact that she wasin Brisbane. That is evidently the basis on which the defence had intended herevidence be given all along. Whatever the reason, she would not cooperate for thatpurpose.28 Other cases illustrating the strength of the evidence needed to establish unavailability on the basisof unfitness were referred to by Ms Thomson, namely R v Downes [2021] NZHC 3034; and R vDuncan [2022] NZHC 701, [2022] 3 NZLR 254.[34] It is not clear that the Judge was asked to find that she was unavailable on thisground. Having rejected the defence's unfitness argument the Judge turned to thequestion of whether he should adjourn the trial — a different issue from whether Cwas unavailable on the basis that it was not reasonably practicable for her to be awitness. As the Judge said when declining the adjournment, there was still time forappropriate arrangements for remote participation to be arranged. That did not occur.There is no evidence about any further attempt that may have been made before theconclusion of the trial.[35] The issue now is to be approached on the basis that C would not give evidence.Counsel must have been aware that this was a possibility given what had previouslyoccurred in April, although we accept defence counsel may have been expecting C tocooperate as a result of the interactions concerning her brief. Possibly a subpoenamight have been persuasive if served in advance of the hearing, although C being outof New Zealand meant there would be no practical means of ensuring compliance withit.[36] In the end, the problem was that C was unwilling to give evidence, not that itwas not reasonably practicable for her to do so. This case is very different from theauthorities on which Mr de Groot sought to rely. In Solicitor-General v X thedefendants were charged with dishonestly using a document and money laundering,contrary to ss 228 and 243 of the Crimes Act 1961.29 The Crown sought to rely on ahearsay statement from a witness who was in China. In response to a request made bythe New Zealand Central Authority to China's Central Authority under the MutualAssistance in Criminal Matters Act 1992 (Mutual Assistance Act) Chinese lawenforcement officials interviewed the witness. His evidence, if accepted, wouldestablish the defendants were offering a dishonest defence to the charges.30 Unders 12 of the Mutual Assistance Act, the Attorney-General requested assistance from theChinese authorities in arranging for the attendance of the witness at a preliminaryhearing in Christchurch, but there was no response. A further request was made forassistance to secure the attendance of the witness at the trial, either in person or by a29 Solicitor-General v X, above n 16.30 At [21]–[23].video-link. But the witness refused to attend, for unknown reasons which were notconveyed by the Chinese authorities.[37] This Court considered that the Crown had failed to demonstrate that it was notreasonably practicable for the witness to give evidence.31 It was significant that therewas no evidence about why direct inquiries of the witness were no longer permissibleor practicable or that the witness himself was unresponsive. It was insufficient for theCrown to simply assert that the Chinese authorities had not responded.32[38] Here, there was the hearsay statement of C's mother that C was unable to giveevidence because she was mentally unwell. It was not because it was not reasonablypracticable for her to do so. Unlike Solicitor-General v X this is not a case ofinsufficient evidence to establish impracticability: it was perfectly practicable, hadshe been willing.[39] The other case relied on by Mr de Groot was Gao v Zespri Group Ltd, a civilproceeding which concerned rights in respect of the sale of reproductive material andpropagation of golden kiwifruit varieties under the Plant Variety Rights Act 1987.33A finding that a witness in China was unavailable as a witness was upheld incircumstances where the witness (who was a co-conspirator with the defendant) wasrefusing to cooperate unless a commercial agreement were entered into.34The circumstances of that case are so removed from these that we do not find it helpfulin the present context.[40] For all these reasons we reject the hearsay evidence ground of appeal.Section 44 directions[41] L's previous appeal against conviction was allowed on the basis that the trialJudge incorrectly refused permission for the defence to cross-examine N about heralleged sexual mistreatment by the appellant's son, S. This Court held that the alleged31 At [37].32 At [38]–[39].33 Gao v Zespri Group Ltd, above n 17.34 At [53].offending against N by S was sufficiently relevant to her credibility to require thatlimited questioning be permitted in the interests of justice. Accordingly, the trialJudge's decision was not justified under s 44 of the Evidence Act.35[42] N told a counsellor that she had a sexual relationship with her cousin S, L'sson. Although she later claimed L was sexually assaulting her at that time, she had notdisclosed his offending to the counsellor. At the retrial, N was asked to explain whyshe did not tell her counsellor in 2014 about L's offending against her. In herevidence-in-chief she said:I didn't tell her 'cos I was more worried about what was going on for me and[S], what we were doing with each other. I didn't really feel the need to openup to the school counsellor about what was happening with [L].I think I was just scared, I mean just scared.[43] Asked why she was scared, she responded:Because then I knew it was going to be bigger. I didn't want my family toknow, I didn't want my mum to know.I didn't want her to know because um, I knew she wasn't going to believe me.Sorry, I knew she wasn't going to believe me and I knew she was going topick [L] anyway.[44] N was cross-examined about her disclosures to the counsellor, and her decisionto return to live with L and her mother after spending time staying with hergrandmother.[45] N's first disclosure about L's conduct was to her aunt, A. In cross-examinationA said that she and N had a close relationship and that she believed N would confidein her. A said that N told her that L had sexually molested her but that he did not rapeher. Instead, N had told her that S had raped her when she was around 13 or 14 yearsof age and that she had thought that she was pregnant.35 Court of Appeal judgment, above n 1, at [20]–[21].[46] When A's account was put to her by defence counsel, N said she could notremember telling A that S had raped her. She stated that she only told her that L hadtouched her inappropriately, rather than disclosing the full extent of his offending. Shesaid:I didn't tell her that [L] raped me because I couldn't get the words out. I wasso stuck on he touched me inappropriately, I couldn't get to the next point. Weboth started crying, there was a lot of tears and then that's when she took overand told me her story 'cos I was still crying.[47] In cross-examination, N also accepted that while she was very close to C, shedid not tell her about L's offending when she was in Australia. When asked why thatwas, she responded:I don't know. Probably 'cos me and [C], we were close, really close, but whenI got there we just weren't as close as we were back then.The defence relied on the fact that N had been prepared to tell A that S had raped her,but had not made a similar allegation against L.[48] In summing up, the Judge reminded the jury of the importance of approachingits task influenced by prejudice or sympathy for or against L or N or any of the otherwitnesses who had given evidence. He continued:[9] The nature of this trial can easily raise issues of emotion, sympathyand prejudice. As judges you must put aside such feelings, not let them playany part in your decision making process. Any reactions to either unpleasantor pleasant behaviour or matters are irrelevant and dangerous to take intoconsideration. The reason for this is that they can make your minds andreasoning, or take your mind and reasoning process away from the evidenceand the very specific job that you have to do.[10] When you are considering your verdicts you are judges and mustnever allow yourselves to be influenced by feelings of prejudice or sympathyor emotion. [49] Later in the summing up the Judge summarised the defence case about whatinferences the Jury could draw from the evidence about S. He said:[81] Mrs Freyer asks that you consider carefully these different versionswhich have been given to different people by [N] over a relatively short periodof time when you consider if she is a credible witness, that is one that you canbelieve. Or did she make things up, embroider afterwards, change details ormake things more dramatic? In these circumstances, Mrs Freyer poses thequestion for you: "What can you believe?"[82] Mrs Freyer reminds you of the evidence in relation to [S], [N's]stepbrother. The issues regarding this evidence highlighted by Mrs Freyer arefirst that there are inconsistencies between what [N] said she told the schoolcounsellor and what she later told [A] about her discussion with the counsellor.This relates to [N] telling [A] that she was raped by [S].[83] Second, if [N] was comfortable enough with [A] to tell her about [S],that is thinking she may be pregnant and was suicidal, but when asked if [L]had raped her she said "No." Mrs Freyer is effectively posing the question:"Does this evidence have a ring of truth about it?"[84] Third, if [N] was worried that she was pregnant to [S], then why wasshe not worried she was pregnant to L if he was raping her? Again Mrs Freyeris effectively raising the issue: "Does this sound credible?"[85] Mrs Freyer poses the question for you: "When you consider thisevidence how can you be sure of what [N] says about being raped by [L] orabout other acts she has complained of? How can you be sure that they evenhappened when you consider the issues that she has identified with [N]'sevidence?"The argument on appeal[50] Mr de Groot submits that the Judge erred by failing to give tailored directionsregarding the evidence adduced under s 44 of the Evidence Act about N's sexualrelations with S. He noted that defence counsel had been permitted to question Nregarding the sexual conduct with S and that this Court had envisaged the questioningwould be limited, saying that questions about S's behaviour could have been limitedto establishing that N had spoken to a counsellor at Oranga Tamariki because she hadcomplained about his sexual behaviour toward her.36 But in fact, a broader narrativefocusing on S's conduct toward N had emerged at the trial, to the effect that, insummary:(a) N was raped by S (although she neither affirmed nor denied this at trial).(b) S was excluded from the address where the two of them had livedtogether, "shoring-up" the inference that whatever occurred wasimproper.36 Court of Appeal judgment, above n 1, at [20].(c) S was the appellant's son, linking the two.(d) The rapes said to have been committed by S were contemporaneouswith the sexual offending alleged against the appellant.(e) N feared pregnancy.(f) N was suicidal.(g) L could be said to have accepted at trial some responsibility for S'sbehaviour. He gave evidence that N had disclosed S's conduct to himand he had responded saying what had happened was not her fault, thatS was older and should have known better, and he had "taught him afew things on his journey growing up".[51] Mr de Groot submitted that the evidence ranged far more widely than thisCourt contemplated in allowing the conviction appeal and carried with it significantrisks that required firm and tailored directions from the Judge, controlling the risks ofprejudice, sympathy and improper reasoning. Specifically, Mr de Groot argued that:(a) All of the elements comprising the narrative of interactions between Sand N created prejudice against the appellant while creating sympathyfor N.(b) The father-son connection between S and L may have led the jury todraw inferences about the likelihood the latter was also guilty of sexualoffending.(c) The evidence might have suggested that N was inherently vulnerable tosexual offending, which itself could be taken as probative of theCrown's case.(d) The jury might have inferred that N's concerns about pregnancy mighthave been attributable to actions of L and may have been again takento be probative of the Crown's case.(e) The jury might also have inferred that N's suicidal ideation wasattributable to offending by L as well as S.(f) If L was seen as taking some responsibility for S's behaviour that mighthave generated inferences about his own attitudes towards sexualrelationships.[52] Mr de Groot did not argue that the decision by defence counsel to elicit theevidence was an error, and conceded that the detail surrounding S's conduct made itall the more significant that N had not complained about the alleged contemporaneousoffending by L. But he submitted that, at a minimum, the Judge's directions shouldhave included:(a) expanded comment on the relevant forms of prejudice and sympathyand their irrelevance to fact-finding;(b) a direction that the evidence could only be used to show that N hadfailed to complain about L's conduct when making disclosures about S;and(c) a caution that the evidence could only be used to the benefit of thedefence and could not be used in support of the Crown's case.[53] In response, Ms Thomson submitted that the evidence of N's relationship withS was only used in legitimate ways at the trial. In closing, both sides addressed N'sexplanation as to why she initially made disclosure about S and not about L. Defencecounsel pointed, for example, to the facts that N did not make disclosures to hercounsellor about L's offending against her and that N never had a good answer as towhy she was not afraid of pregnancy due to L raping her. These were the pointsrepeated by the Judge in his summing up. He did not otherwise refer to the evidenceabout S.[54] Moreover, the defence used the evidence about N's relationship with S for thereasons this Court accepted it could. The jury were also told about the legitimate waysthat the evidence could be used, including by defence counsel, unlike in Couper v R,a case to which Mr de Groot had referred.37 Ms Thomson submitted that rather thanclarifying matters, raising other, illegitimate lines of reasoning based on the evidencemight have put those very lines of reasoning in the jury's minds.[55] The Crown says that general directions given at trial were sufficient to guardagainst the risk the jury might reason improperly. Limited use directions cannot berequired in every case where evidence is given under s 44; that section, unlike othersin the Evidence Act, does not expressly adopt "specific use" limitations.38 In this case,the s 44 evidence was straightforwardly relevant to N's credibility and so limited usedirections were not necessary — unlike in other cases where the evidence might berelevant to one limb of the relevant legal test but not others.39Decision[56] Mr de Groot was correct that in the Court of Appeal judgment this Court heldit would be legitimate for N to be questioned about her failure to complain toOranga Tamariki about L, and it was said that questions about S's behaviour couldhave been limited to establishing that N had seen a counsellor at Oranga Tamarikibecause she had complained about S's sexual behaviour towards her.40 But this Courtwent further, stating:[21] we also accept that the defence ought to have been able to establishthat when she first complained about the appellant she said that [S] had rapedher but the appellant had not. In cross-examination she was asked about herdenial of rape by the appellant, but could not be asked why she made a partialdisclosure only while simultaneously making a full disclosure against [S].[22] To avoid any inference that she was in the habit of making falsecomplaints, it would have been necessary to specify that the defence did notsay her complaints about [S] were false.[57] The Court also contemplated cross-examination of N about the fact she hadconfided in L about the situation with S which counsel contended would be unusual ifhe was also abusing her, about why she wished to return to L's home and about why37 Citing Couper v R [2021] NZCA 632 at [28].38 Citing Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54].39 Citing Pegler v R [2015] NZCA 260 at [24]–[32].40 Court of Appeal judgment, above n 1, at [20].she feared she was pregnant to S but not to L.41 While we accept that the evidence infact given at the re-trial about S's conduct may have been more extensive than thisCourt contemplated in the Court of Appeal judgment, to the extent that occurred it waslargely the result of questions asked by defence counsel. There is, and could not be,any suggestion of counsel error in pursuing this strategy. In any event, we do notconsider that this Court was intending to place limits on the extent of the evidence thatcould be given, which would be an issue to be controlled by the trial judge.[58] Ms Thomson was right to point out that evidence admitted pursuant to s 44 ofthe Evidence Act is not subject to any statutory limitation as the use to which it can beput once admitted. Here, the evidence was deployed in a way that was intended bydefence counsel to advance L's defence that N was falsely accusing him. It wasdirectly relevant to N's credibility. Both defence and prosecution dealt with theevidence in those terms and the Judge summed up accordingly. A direction that theevidence could only be used to show that N had failed to complain about L's conductwhen making disclosures about S might have risked diminishing the importance of theevidence for the defence. This was not a case like Couper where it was argued thatthe full implications of the evidence were not put before the jury.42[59] We also consider there is force in Ms Thomson's submission that dealing withthe risks identified by Mr de Groot in the summing up might have beencounter-productive by raising possible illegitimate lines of reasoning which wouldotherwise have been adequately covered by the general direction dealing withprejudice and sympathy.[60] We reject this ground of appeal.Result[61] The appeal is dismissed.41 At [13(b)–(d)] and [23].42 Couper v R, above n 37.[62] N's name and identifying details are automatically suppressed under ss 203 and204 of the Criminal Procedure Act 2011. In order to protect her identity, we make anorder suppressing the appellant's name, address, occupation and identifyingparticulars pursuant to s 200(2)(f) of the Criminal Procedure Act 2011.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent