M (CA87/2021) v R [2023] NZCA 205

M (CA87/2021) v R [2023] NZCA 205 [2 June 2023]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFA, B AND M PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA87/2021[2023] NZCA 205BETWEEN M (CA87/2021)AppellantAND THE KINGRespondentHearing: 2 May 2023Court: Courtney, Hinton and Churchman JJCounsel: E J Forster and H A Neumegen for AppellantM J Lillico for RespondentJudgment: 2 June 2023 at 10 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application to adduce further evidence is granted in part.C The appeal is allowed.D The conviction is set aside.E There is no order for a retrial.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In 1999 M was convicted at trial of indecently assaulting his daughter A whenshe was aged between seven and eight. Judge Lance KC imposed a sentence of ninemonths' imprisonment.1 In 2020, A recanted. She says that she gave evidence whichwas untrue because she had been questioned at length by her uncle and was confused.[2] M has filed a notice of appeal against his conviction and applies for anextension of time to appeal.2 We grant the extension of time.Evidence in support of the application[3] M has applied for leave to adduce fresh evidence for the appeal. The evidencecomes from M himself, from A and from one of A's aunts, Ms C.3 There is no objectionto the evidence being adduced. We allow the evidence of M and A.[4] We decline to accept the affidavit of Ms C. Ms C deposes that shortly after thetrial, A's sister, B, (also a complainant at the trial) commented to her that A had liedduring the trial. B did not provide an affidavit and was not called to give evidence inthis Court. Mr Forster, for M, explained that the affidavit was adduced to counter theassertion that A's recantation is a recent fabrication. Clearly, the affidavit is notadmissible for that purpose since it contains no evidence of anything A said. It ismerely hearsay evidence — proffered without any foundation for its admission — ofan opinion expressed by B.Relevant principles[5] The principles applying to appeals involving recantation by a complainant arewell established and were summarised by this Court in Hamon v R.4(a) The mere fact that a complainant or witness recants does not make hisor her trial testimony unreliable or mean there must be a retrial.1 R v [M] DC Whangārei T 990992, 28 January 2000 [Sentencing notes]. M was also sentenced oncharges of driving while disqualified and theft, for which cumulative sentences were imposed and,on a totality basis, a sentence of 12 months' imprisonment was imposed for all the offending.2 The trial proceeded on an indictment and the Court's jurisdiction on appeal is that provided in theCrimes Act 1961: Criminal Procedure Act 2011, s 397.3 Ms C is not the aunt whose husband questioned A.4 Hamon v R [2013] NZCA 540 at [62]. Footnotes omitted.(b) The critical inquiry is why the complainant has recanted – whether itis because the earlier evidence was untrue or because other pressureshave come to bear upon the complainant. Courts must be alive tohuman frailties in this area. As was said in R v Flower:Witnesses may have second thoughts for a variety of differentreasons. Some become emotionally disturbed, others broodon the effect of their evidence, whilst others are subject tomore tangible pressures to induce them to depart from thetruth. It is the witness's state of mind at the trial which mattersand this ought to be judged by reference to the circumstancesprevailing at that time.(c) Where an appeal is brought on the grounds of post-trial recantation,the appeal court has to grapple with "potentially difficult factual issues itself to appraise the effect of evidence which had been or was tobe given". This will usually require the court to review the evidencegiven at trial, and the subsequent affidavits, and any oral evidencebefore them.(d) If the court is satisfied that the recantation is untrue, the appeal willbe dismissed. If there is a doubt, a retrial will be required. In theexceptional circumstance that the appellate court concludes thecomplainant's recantation is true, an acquittal may be entered.[6] These principles have recently been restated by this Court in several cases.5 InA (CA26/2018) v R this Court said:6[1] It is not unknown for appeals against conviction to be brought on thebasis of a sworn affidavit from the complainant deposing that he or she gaveperjured evidence at trial. It may be that the new evidence is true (and theoriginal evidence false). But it may also be that the new evidence is false; theproduct of inducement or pressure. Appellate courts faced with this situationmust look carefully and critically at the reasons given by the complainant forrecanting. The relevant principles were set out by this Court in Hamon v R.The critical enquiry is why the complainant has recanted. As we observed inHamon, the Court must be alive to human frailties post-conviction. BackgroundA's original allegations[7] A and B are the children of M and his former wife, Ms J. The couple had twoother children — sons S and T. In addition, Ms J had an older child, TM. T7 and TMlived with Ms J's sister and brother-in-law, Mr and Mrs P, and their son, PP.5 C (CA491/2018) v R [2019] NZCA 434 at [14]; T (CA670/2016) v R [2018] NZCA 102 at [43];and Rameka v R [2019] NZCA 105 at [49].6 A (CA26/2018) v R [2018] NZCA 428. Footnotes omitted.7 Mr and Mrs P adopted T.[8] In April 1998 M was in prison and Ms J was caring for A, B and S. However,she was not coping. Mr and Mrs P took over the care of the children around Easterthat year. The allegations against M were made a month or so later, in May 1998.[9] A number of incidents occurred during the time A and B and S were stayingwith his family.8 One was that T and PP's teachers had told Mr P aboutuncharacteristic misbehaviour by them and, in addition, "a problem out of control of[S] and [B] poking the boys in the bum". The children were also doing this to othermembers of the family, to the point that it became unacceptable. Mr P had tophysically keep the family separate because it was "a frequent and ongoing problem,it sort of got to the stage [where] the family [was] dysfunctional I had to keep peopleseparate and eat at different [times]".[10] Matters came to a head on 20 May 1998 when PP told Mr P that B had toldhim about M poking her in the bum. Before school on 20 May 1998, Mr P "hadoccasion to growl at [S] for poking [T] in the tero"9 and he "also received a complaintfrom [T] that [B] had also allegedly poked him in the tero".10 Then:I gathered [B] and all the children together and asked [B] what was the story.[B] replied that [M] had done it in the mornings when they were in bed athome.She said that he would hit her and put his finger up her bum.[11] Mr P contacted the Children, Young Persons and their Families Service. Thatevening, Mr and Mrs P spoke to B and asked her to explain, using soft toys, what hadhappened. B told Mr and Mrs P that:He would put his finger in her bum and push it in and out several times.[12] Mr P said that on 25 May 1998, T complained that A had "done something" —the complaint was that A had poked T with a bottle around his bottom. This concernedMr P, and he spoke with A and recorded their conversation in notes as follows:118 This account is drawn from Mr P's evidence at trial.9 Anus in te reo.10 This description comes from Mr Payne's deposition taken on 5 May 1999.11 These notes were produced in evidence before this Court.A [M] poked me in the bum with his finger. When I wanted a differentchannel he would poke me. He would take me into the bedroom withthe clothes in – with Nana's wardrobe and poke me.Mr P How would he poke you?A He would lie me on my stomach, smack me on the bum, and pokeme. Lie me on the stomach on the bed and then do it.Mr P What do you mean, then do it?A He would poke me in the bum like that.[A] poked her finger in her hand.A Right into the bottom.[13] A, B and S were moved to live with another family member after this.The evidential interviews[14] On 10 June 1998 A, then aged eight, gave an evidential interview. Her accountwas consistent with Mr P's record of what she had said to him.[15] The same day B, who was aged five, also gave an evidential interview. Shesaid that when she was three years old, M had poked her in the bum and this happenedonce in the lounge and once in "[TM's] room" and it happened over her clothes. Shealso said that her mother saw and said to her "don't go by Dad again 'cause he mightabuse you again".The case at trial[16] M stood trial in District Court at Whangārei on 2 November 1999 on chargesof unlawful sexual connection in respect of both girls (counts 1 and 3 respectively)and, in the alternative, indecent assault (counts 2 and 4).[17] The evidential interviews were played to the jury before the girls werecross-examined. By then A was aged nine. In cross-examination, she said:12 I was holding a bottle and [T] walked into it12 The cross-examination transcript contained several shortened words and grammatical errors whichhave been corrected in this quote for readability.By accident, was it? YesWhich part of [T] did the bottle touch? His bumSo you were holding the bottle and [T] accidentally banged into the bottle withhis bum? YesDid [Mr P] see that? I don't knowThat's when he asked you to tell him what had happened was it? YesThat's when you said to him that your dad had poked you in the bum? YesWas [Mr P] angry about what had happened with [T]? I think soYou think he was, can you remember, what made you think he was angry? NoMaybe it was just the way he looked at you was it? YesYour dad says that he didn't poke you in the bum, and I'm wondering do youthink he might have made a mistake about that? YesI'm wondering if maybe you just blame dad because he wasn't there? NoIt wasn't that reason, I'm wondering if maybe you blame dad because [Mr P]was angry? No[18] In re-examination, A reiterated her earlier evidence that M had poked her "inthe bum".[19] B, now aged six, said in evidence that when M had "poked [her] bottom" shehad clothes on and that he had not touched her "in that area", referring to the anus.[20] Mr P gave the evidence outlined earlier.[21] The trial Judge discharged M on count 3 — unlawful sexual connection inrelation to B — pursuant to s 347 of the Crimes Act 1961 on the basis that the evidencedid not establish penetration. The jury was unable to agree on the charges of unlawfulsexual connection in relation to A (count 1) and indecent assault in relation to B(count 4). It found M guilty on the charge of indecent assault of A (count 2), whichwas a representative count that alleged the same conduct over a period of about a year.[22] The Judge's sentencing notes are striking for his obvious unease at theverdict:13[5] This whole trial troubled me [M] for a number of reasons, and I think[Crown counsel] is correct when he makes the submission that the problemsthe Jury had in the two counts that were hung was whether or not the Crownhad proved penetration, but there was clear evidence that you had offended atleast insofar as [A] is concerned in the way I have indicated. You havemaintained a denial from then through to now, and I must say, having heardthe evidence myself, there were aspects of it which caused me concern, but inthe end the Jury found you guilty.[6] My concerns were somewhat heightened when I saw your record ofprevious convictions. They are numerous, but there is not one involving anysexual offending. A recants[23] A's recantation is recorded in a letter written in October 2020, a policestatement made in November 2021 and an affidavit sworn in February 2023 in supportof M's appeal, on which A was cross-examined.[24] The circumstances at the time A first recanted were as follows. According toM, he had always sought to clear his name but had difficulty finding a lawyer to assisthim in that. B had always felt strongly about the issue and had been working to obtainall the relevant court papers. By A's account, B was very angry about the convictionand blamed Mr and Mrs P. A, however, had "blocked it out". This may be becauseshe was busy with her own life — she and her partner had eight children together andshe had been imprisoned for offences that were not specified before us.[25] By 2020, M's conviction was posing a particular problem for M because hispartner, Q, was seeking day-to-day care of one of her granddaughters. M's convictionwas an obvious barrier to this.[26] A and M lived in different cities in the North Island. Just before the Covid-19pandemic in early 2020, A and her partner separated. A and the children went to staywith M for a few months. While she was there, there were discussions with M abouttrying to clear his name. Although A did not recall discussions about the effect of M's13 Sentencing notes, above n 1.conviction on Q's efforts to have care of her granddaughter, it seems very likely thatthe discussions about overturning M's conviction arose in that context.14 In any event,when M asked her to support him A agreed straight away because "it was just the rightthing to do".[27] On 13 October 2020, A wrote a letter "To whom it may concern" and deliveredit to M's lawyer. It said:I am writing this letter to clear my father [M] of the false allegations I madeagainst him as a child. It has effected (sic) my life greatly knowing that whatI said was untrue. It started when my sister [B] and brother [S] went tolive with my mum's sister and her husband, [Mr and Mrs P]. I don't rememberhow it exactly came about but suddenly we were being questioned over andover again by my Uncle [Mr P] about my dad touching us ... He would ask usso much that it felt that's what I had to say. At one stage he even used teddybears to demonstrate the sexual assaults I had apparently suffered. I wasscared and confused [that is] why I went along with the lies that wererepeatedly told to me. ...[28] When lockdown was announced A returned to her home with the children sothat her family could be together. However, there appear to have been difficulties withthat situation and A was finding it difficult to cope. M came and picked up two of A'sdaughters and took them back to live with him and Q. In July 2020, without A'sknowledge, M applied for day-to-day care and guardianship of the two children on thebasis that A and her partner were using drugs and that there was violence in the home.We do not know the outcome of that application, though we note that the children arestill living with M and Q.[29] By 2021, A had moved to Auckland to sort out her life. None of her childrenwere (or are) living with her. On 10 November 2021 she made a statement to thepolice, in which she said:I confirm that I definitely want to retract my evidence. I want to retract it infull – the whole thing.My father never – at any time – sexually violated me. He has never insertedhis finger into my anus.I retract my statement because it was wrong.14 In February 2021, after A returned home, Oranga Tamariki advised that Q would not be consideredsuitable for the day-to-day care of her granddaughter because of M's conviction.I provided the evidence, which was used to convict my father, when I was ayoung child.At the time, my siblings and I were living with [Mr and Mrs P]. [Mrs P] wasmy mother's sister. [Mr P] had previously been a Policeman and was a pastor when we were living with them.[Mr and Mrs P] didn't like my father. He was a criminal and I think they feltthat he was responsible for my mother using drugs.I felt coerced by [Mr and Mrs P] into making my statement to Police. [Mr P]sat me and my sister [B] down for days questioning us.[Mr P's] questioning was very intense. I feel like I was manipulated andbrainwashed. At the time I felt scared and confused.[B] has always been mentally stronger than me. She denied the allegationswhen my father went to court in 1999. My father wasn't convicted for any ofthe allegations involving [B].I have included my father in my children's lives. My father currently has twoof my children in his care.My father has gone through a lot because of the wrongful conviction and Iwant him to not have this stigma any longer.[30] A's affidavit sworn on 17 February 2023, includes the following statements:1. I am writing this affidavit to clear my father [M] of the falseallegations I made against him as a child.2. It has affected my life greatly knowing what I said was untrue.4. It started with me, and my sister [B] and brother [S] went to live withmy mum's sister and her husband, [Mr and Mrs P].5. I do not remember how it exactly came about but suddenly we werebeing questioned over and over again by [Mr P] about my dadtouching us etc. He would ask us so much, that it felt that it is what Ihad to say, and at one stage he even used teddy bears to demonstratethe sexual assaults I had apparently suffered.6. I was scared and confused and that is why I went along with the liesthat were being repeatedly told to me.7. It has been a huge part of my life I have wished to forget.8. I am so sorry for not being strong enough to tell the truth and forputting my dad through that while knowing he would never do that tome.[31] A gave evidence before this Court under subpoena. However, she did not showany sign of hostility either towards M or in relation to the proceedings. She was openlycritical of her father for having applied for the care of her children without herknowledge. She expressed the view that M may have been motivated by the financialadvantage of having care of the children. She said more than once that she thought heshould return them to her. Nevertheless, A was also explicit that she did not considerthat there was any risk to her children in living with her father. Nor did she regard herfather's actions in obtaining care of the children as justifying her maintaining a lie.[32] It was apparent from A's evidence under cross-examination that A has beensignificantly influenced by the effect of M's conviction on B. She explained that theconviction has long been a cause of anxiety and anger for B, who sees Mr and Mrs Pas responsible for the situation. The following evidence captures A's position:Q You appreciate you can help your dad, and that's a different thing fromsaying something that happened 23 years ago didn't happen, do youget that?A Yeah I do. I think my dad, I love you dad, but I think my dad's a dick,do you know what I mean. Our relationship, we have a lot of argues.Maybe resentment or anger, I don't know, towards each other, so I amnot doing this just to help him, I'm doing it because it's the right thingto do, it's the truth, it needs to be done. So I am not trying to help himin any which way by just saying this.Q Why did you do it – if it's the truth why did you do it in 2020, twodecades after it all happened, while you were living with him?A To be honest, because I blocked a lot of that out, do you know what Imean, there was trauma, I'm only dealing with it now and my sisterwas real lost, I did it for my sister really, my sister was real lost lookinginto all of this stuff. And I didn't know how to help her.Mr P's evidence and the coaching allegation[33] A's claim that Mr P coached her and B was not pursued. As a result, it isunnecessary to consider the evidence adduced by the Crown from a clinicalpsychologist, Dr Suzanne Blackwell, to counter that allegation.[34] Mr P's evidence essentially confirmed the circumstances in which he hadtalked to A and the notes that he made of that conversation. Although it was put toMr P that he did not like M, there was no serious suggestion that Mr P had actedimproperly in any way. There is only one aspect of Mr P's evidence that we wish torecord. That is our general impression of Mr P as a very imposing figure in terms ofheight, demeanour and gravitas. It is reasonable to expect that his appearance beforeus was similar to the way he would have appeared in 1998, questioning eight year-oldA. There is no question that a young child would be awed by him.Appeal[35] As a child, A gave a clear account of being indecently assaulted. There wasevidence to corroborate her account in the form of Mr P's observation of sexualisedbehaviour and of a psychologist as to the fact that her behaviour was consistent withthat of a sexually abused child. As an adult, however, A vigorously asserts that heraccount was a lie.[36] We approach A's recantation mindful of the many reasons that complainantsrecant. Brooding on the repercussions of the complaint can create an internalimperative to retract the complaint. Pressures from family members, even inadvertent,may lead a complainant to rationalise the complaint as the product of confusion or lies.On the other hand, a recantation might be true, even when these factors are in play.[37] A impressed us as resilient, candid and forthright. She was open andunapologetic about the ambivalent relationship she has with M, especially herunhappiness with his retaining care of her children. She was open about her concernregarding B, who has not coped as well with the trauma of their childhood. She wasopen about her strong desire for her own family to remain intact and her regret that ithas not (for different reasons). A was also candid about the fact that she has a criminalrecord and that she needed to leave her children and move to Auckland in order to"figure all this out". However, throughout her acknowledgements of these aspects ofher life, she repeatedly and explicitly said that she was motivated to tell the truth —essentially because it was the truth.[38] Mr Lillico, for the Crown, submitted that A's explanation for lying at trial wasimplausible (especially after the allegation of coaching was abandoned). Heemphasised the fact that when A first recanted she was living with M. He invited usto see the recantation as motivated by the difficulties M was facing in relation to Q'sgranddaughter. We agree that M almost certainly asked A to provide the letter to hislawyer, and the fact that A was living with him at the time, in a strained emotionalstate, contributed to the timing of her recantation. However, that does not explain why,more than a year later, A made a statement to the police recanting her trial testimonyand why, more than another year after that, she provided an affidavit in support of M'sappeal and then gave fulsome evidence before us, albeit under subpoena.[39] In addition, even if A was influenced by M when she initially recanted,maintaining the recantation has meant acting against her own interests in terms ofhaving him relinquish her children. This is a matter that she plainly feels stronglyabout and yet having the conviction set aside will only put M in a stronger position tokeep the children. We are certain that A appreciates that fact. For these reasons, weaccept that A is not motivated by this aspect of her relationship with M.[40] It seems to us that the more likely driver in A's decision to recant is her sister,B — something she said explicitly in cross-examination. It appears that A and B havedealt with the trauma of their childhood differently. An important aspect to considerin cases of recantation, especially those involving sexual offending, is the risk thatchildren realise later the effect that making allegations of sexual abuse has on thefamily and seek to reverse those effects or make amends. We suspect that A has cometo the conclusion that, in dealing with this aspect of her childhood (which, unlike B,she has put to one side for most of her adult life) and supporting M in his appeal, shewill be helping her sister.[41] A wish to help her sister does not, however, mean that A's recantation is untrue.We have concluded that A was a truthful witness before us. It is not now possible toidentify why she might have given false evidence as a child. All we can say is that sheimpresses us as truthful now.[42] As the conviction depended on A's evidence it must necessarily be set aside.Result[43] The application for an extension of time to appeal is granted.[44] The application to adduce further evidence of M and A is allowed. Theapplication to adduce the evidence of Ms C is declined.[45] The appeal against conviction is allowed and the conviction is set aside. In thecircumstances we do not order a retrial.Solicitors:Crown Law Office, Wellington for Respondent