RANKIN v R [2019] NZCA 443

RANKIN v R [2019] NZCA 443 [20 September 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA164/2018[2019] NZCA 443BETWEEN MARGARET AILEEN RANKINAppellantAND THE QUEENRespondentHearing: 22 August 2019Court: Brown, Simon France and Dunningham JJCounsel: W C Pyke for AppellantJ E L Carruthers for RespondentJudgment: 20 September 2019 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellant, Margaret Rankin, was charged with six charges of sexualoffending and 41 charges of violent offending against two young girls, who lived withher and her husband during their primary and intermediate school years.[2] The jury found her not guilty of the charges alleging sexual abuse and some ofthose alleging physical abuse, but guilty of the remainder. She was sentenced tofour years, nine months' imprisonment.1[3] She appeals her convictions on the ground that the Judge misdirected the juryon the use that could be made of counterintuitive evidence, with a consequent real riskthat the outcome of the trial was affected.2The facts of the offending[4] The complainants are sisters who moved in with the appellant and her husband,a relative of the complainants, when L was approximately seven years of age and Zapproximately five years old. L suffered from reduced cognitive function. They livedin that household for approximately 10 years.[5] The offending was alleged to have occurred in the context of the appellantphysically disciplining the girls. However, L also alleged that the discipline extendedto sexual assaults, for example, twisting the skin by her vagina. The appellant wasacquitted of these charges.[6] Both complainants gave evidential video interviews. A young friend ofthe complainants gave evidence of having seen Z come to school wearing makeuparound her eye which accorded with evidence given by the teacher (although theteacher did not notice any bruising or injury).[7] The allegations emerged when the complainants went to live with an aunt anduncle in 2015. When an altercation occurred between the girls, Z expressed surprisethat the aunt had not physically punished them. When her aunt told her that hittingpeople was illegal, the disclosure of the offending occurred. The aunt then toldthe girls to write down in a diary what had occurred in their own words.[8] The appellant denied the allegations. Her defence was that Z had fabricatedthem and encouraged L to play along. The appellant gave evidence herself and called1 R v Rankin [2018] NZDC 4441.2 Criminal Procedure Act 2011, s 232(4).a number of witnesses to give evidence that they saw nothing untoward happen andthat the appellant cared well for the complainants.[9] The appellant was found guilty of assaults using tongs, knives, a hairbrush,a broom and spoons as a weapon against L, and of assault using a walking cane againstboth L and Z. She was found guilty of injuring Z with intent to injure and assaultingher, including assaults where she used tongs and a hairbrush as weapons.The counterintuitive evidence[10] One of the witnesses called at trial was Dr Yvette Ahmad, a clinicalpsychologist, who gave counterintuitive evidence about the reporting of allegedphysical and sexual abuse. She explained early on in her evidence that her role was"an educative role, in correcting some of those misconceptions" and that she was "nothere to talk about this case".[11] She noted that research on physical abuse is more limited than that on sexualabuse and that alleged victims of physical abuse do not always report it. She said thatdelay in reporting may be longer where the abuse is by someone the victim has a closepersonal relationship with.[12] In relation to sexual abuse, there was no set reporting pattern and there wasa wrongly held belief that young people would immediately tell someone if they hadbeen sexually abused. For that reason, the timing of the report was not indicative ofcredibility. She pointed out that there are a multitude of reasons why children may notreport sexual abuse, including fear they will not be believed, a sense of embarrassment,a reluctance to burden others, a fear of getting themselves or someone else in trouble,and not wanting to upset parents. She noted that when the offender is known tothe child, the reporting of sexual abuse is associated with longer delays and lowerreporting rates.[13] Dr Ahmad also referred to what is known as traumatic bonding, where youngpeople or children are in unpredictable violent situations and yet they do not want toleave that relationship and can actually show love and affection. Indeed, the victimcan become dependent on the abuser and may resist being removed from offendingparents or caregivers. She also noted that children with developmental disabilities areat higher risk of sexual abuse.[14] She clarified in cross-examination that the information she was giving was"educative" and she was not there to comment on this particular case, nor theseparticular witnesses.[15] The Judge was quite interactive in his questioning of the expert witness.He had her clarify that there are a wide range of responses that can happen when abusehas occurred and there can be delay with both true and false accounts, just asimmediate complaints can also be both true and false. The Judge put it to Dr Ahmadthat in practical terms for the jury, "they have to look at the totality of all the evidenceand come to decisions not necessarily based on time or delay or relationship".Dr Ahmad agreed with that statement.The submissions[16] The appellant's case focuses on the directions given by the Judge in relation toDr Ahmad's evidence during his summing up. While the Judge described Dr Ahmad'sevidence as "an important part of the Crown case because she is effectively sayingthere can be good reason for delay, this is not unusual", Mr Pyke submits that therewas no evidence that delay in physical abuse cases "is not unusual". He says thatthe limitations of the evidence given by Dr Ahmad ought to have been clearlyexplained.[17] Mr Pyke also takes issue with the Judge's direction about delay. The Judge'sdirection was that "the law" says a Judge may caution a jury that:3common sense has shown and experience that there can be delays in sexualoffences being disclosed, often for good and compelling reasons. So humanexperience shows that that can be the case. In this instance, we have got thesexual offences against [L] which Ms Barnaart properly characterises as beingmore about physical abuse but with a sexual overtone to it, the rest of it beingphysical abuse.3 Clearly referring to Evidence Act 2006, s 127.[18] The criticism is that this direction was both muddled and wrong. First, s 127of the Evidence Act 2006 does not use the word "compelling". It only refers to "goodreasons". The appellant submits this is giving additional legal force to the statutorywording about delay which is not warranted by the legislation and effectively directsthat the law endorses delay as a compelling factor.[19] The appellant is also critical of the fact the Judge blended this direction intoa direction about the allegations of physical abuse and had no regard to Dr Ahmad'squalification that there was limited research in connection with physical abuse cases.Because the direction was "clearly wrong", the jury must be assumed to have followedit as the Judge told them to do and that created a real risk of affecting the outcome.[20] The appellant takes issue with the Judge then directing as follows:So I recommend that you consider the evidence of Dr Ahmad carefully,because it is a critical part to the Crown case in saying that this is not a simplecase of saying if this was happening then they would have told somebody.The evidence of [the aunt] to some extent explains that delay and the way inwhich they responded to that.[21] Mr Pyke submits that this direction impermissibly linked the expert's evidenceto the facts of the case in contrast to how the Supreme Court said this type of expertevidence should be used.4 The effect was to give the Crown case a "hand-up",bolstering the Crown contention that there were good reasons to explain why witnessescalled for the defence saw nothing untoward, and for the delayed complaints. This, byimplication, adversely affected the defence case which was reliant on the argumentthat delay in complaining was occasioned by fabrication with Z, who was a "clever,calculating and streetwise girl", making up these allegations and then "infecting" L,who was disadvantaged.[22] The Judge also failed to provide the standard direction about the jury beingthe sole arbiters of fact when considering this expert's evidence. The absence of sucha direction compounded the risk of impermissible reasoning. When summing up the4 The evidence should not be linked to the circumstances of the complainant in the case in whichthe evidence is being given. This is an important limitation, designed to ensure that the evidenceis not used in a diagnostic or predictive way. DH v R [2015] NZSC 35, [2015] 1 NZLR 625 at[30].Crown case the Judge returned to Dr Ahmad's evidence, directing that the affectionatecards and delay were not countervailing factors when considered against the evidenceof Dr Ahmad.[23] In summary, Mr Pyke submits the directions that were given impermissiblyassisted the Crown's case, causing a miscarriage of justice to occur.Did the Judge misrepresent Dr Ahmad's evidence?[24] The first issue on appeal relates to criticisms of the accuracy and completenessof the Judge's summary of Dr Ahmad's evidence, for example, because the Judge didnot remind the jury that the research on allegations of physical abuse was limited.[25] However, Dr Ahmad made this clear when she said: "[i]t's also important tonote that with the sexual abuse research, there has been extensive research conductedin this area, but with physical abuse, the research is more limited". There was no needto reiterate every aspect of Dr Ahmad's evidence in the summing up and, in any event,the primary purpose of her evidence was to comment on patterns of reporting of sexualabuse, given that is the area where counterintuitive evidence is most obviouslyrequired.[26] The appellant also criticised the Judge for saying "there can be good reasonsfor delay, this is not unusual", particularly when there was no evidence this was truein relation to physical abuse. We do not agree. Dr Ahmad said that a study in theUnited Kingdom found that "just over a quarter of the children had not told anybody,informally or formally, until they'd spoken to the Childline counsellors aboutphysical abuse". Similarly, with sexual abuse, "what we do know from the researchis that children often do not tell about the sexual abuse " and there is "often delay[s]in reporting or not telling about the abuse". The Judge's statement that delay in eithercase "is not unusual" was an accurate representation of Dr Ahmad's evidence.Did the Judge err in departing from the wording of the statutory direction unders 127?[27] The next criticism was the Judge's departure from the language of s 127 of theEvidence Act when directing on delayed complaints or failure to complain in sexualcases. Section 127 provides that the Judge may tell the jury that "there can be goodreasons for the victim of [a sexual] offence to delay making or fail to makea complaint in respect of the offence". Mr Pyke's criticism was that the addition ofthe words "and compelling" to describe the reasons for delay was to effectivelyendorse delay as a compelling factor.[28] We accept that the Judge's direction did not precisely mirror the wording ofs 127. However, we do not agree that this had the effect of endorsing delay asa "compelling factor" favouring the complainants.[29] Just as the Judge was careful to confine Dr Ahmad's evidence to generalstatements about how people may respond and had her confirm she could not "saywhether these children are in the category of children who delayed their reportingand were abused or reported later but weren't abused", he took the same care in hisdirections. The fact that he said that there could not just be good reasons, but"compelling reasons", for delay was clearly expressed as a hypothetical statement andnot a reflection of what occurred in this particular case. He promptly went on toremind the jury that Dr Ahmad's "evidence was not about these two girls, it was aboutthe concept of disclosing sexual and physical offending, predominately sexualoffending, by persons who alleged it has happened to them". He again made it clearthat "just because there is a delay does not mean it is true, but conversely it does notmean it is false".[30] In the context of his directions as a whole, we do not consider the suggestionthat there can be compelling reasons for delay in reporting a sexual offence had anyeffect of endorsing delay as a factor in favour of the complainants in this particularcase.[31] The next criticism is that the Judge blended the s 127 direction about delay inreporting sexual abuse into a direction about the delay in reporting the allegations ofphysical abuse. However, we see no reason to criticise this. The girls presenteda range of allegations of physical and (in L's case) sexual abuse, and Dr Ahmad'sevidence covered delay in reporting in both types of cases. It was understandabletherefore that the Judge's delay direction encompassed delay in reporting both typesof abuse. Although Dr Ahmad accepted there was much less research on delay inrelation to physical abuse cases, there was no suggestion that she was tentative in herevidence that there could be delay in physical abuse cases just as there could in sexualabuse cases, and that the same principles applied.Did the Judge impermissibly link the counterintuitive evidence to the facts of thiscase?[32] The final area of criticism was that the Judge impermissibly linked the expert'sevidence to the facts of the case and presented it as supporting the Crown case,particularly when he said that Dr Ahmad's evidence was an "important part ofthe Crown case".[33] However, we accept the Crown submission that although the Judge noted thatDr Ahmad's evidence was an important part of the Crown case, the overall effect ofthe summing up was not to suggest that it was somehow probative of the offending.As we have already discussed, the Judge made it clear that the evidence was importantfor its educative value, to demonstrate that both the delay in reporting the abuse, andthe evidence of affection shown for the appellant, were not necessarily evidence thatthe complaints were false.[34] We are satisfied that the Judge did no more than link the counterintuitiveevidence to the Crown case in this way, saying that a delay "does not mean it is true,but conversely it does not mean it is false" and that the jury would "have to look atthe wider issues". Similarly, in terms of the affection a victim may show to his or herabuser, the Judge simply said that Dr Ahmad's evidence meant that they could not ruleout, as a possibility, that "a person may manifest affection for their carer but stillmay be the subject of abuse which they dislike". That was precisely the relevance ofthe evidence to the Crown case.[35] We also do not consider that there was a need to direct the jury on it beingthe sole arbiter of fact when considering this expert's evidence. Dr Ahmad made itvery clear that she was not giving any opinion about the complainants in this case orthe factual allegations. That was also reinforced by the Judge, particularly in hisquestioning of the expert, where he had her clarify that she was not talking aboutthe specifics of the case, but simply that "the international research and [her] ownclinical experience shows that there is a wide range of possible responses that couldhappen". That meant, as the Judge said, the jury would "have to look at the totality ofall the evidence and come to decisions not necessarily based on time or delay orrelationship".[36] Finally, we agree that the jury's verdicts suggest that Dr Ahmad's evidence didnot have undue influence on the jury. A good portion of her evidence was devoted towhat is known of how sexual abuse complaints are reported and yet the jury foundthe appellant not guilty of all charges of sexual abuse. They also returned mixedverdicts on the charges of the physical abuse, which indicated thoughtful deliberation.On the facts of the case, too, we accept that the counterintuitive evidence probablyadded little to what the jury already knew about physical abuse and that children maywell endure abusive upbringings at the hands of those they love without making acomplaint.Conclusion[37] For these reasons, we are satisfied there was no error or irregularity that createda real risk that the outcome of the trial was affected. The Judge's directions did notmisrepresent Dr Ahmad's evidence, nor impermissibly suggest it was probative of theoffending.[38] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent