MG v POLICE [2017] NZHC 3137

MG v POLICE [2017] NZHC 3137 [14 December 2017]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS ORIDENTIFYING PARTICULARS OF APPELLANT UNTIL THE FINALDISPOSITION OF TRIAL [RETRIAL].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 ANY COMPLAINANT/PERSON UNDERTHE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMEDWITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000307[2017] NZHC 3137IN THE MATTER OF an appeal against charges being foundprovedBETWEEN MGAppellantAND NEW ZEALAND POLICERespondentHearing: 6 November 2017Counsel: S J Lance for the AppellantD G Johnstone and J C Bull for the RespondentJudgment: 14 December 2017JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 14 December 2017 at 2.00 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] MG was convicted of seven charges of rape, and two charges of sexualviolation by unlawful sexual connection following a Judge alone trial in theNorth Shore Youth Court.1 All of the charges related to offending against ZS and tookplace during the course of a relationship between MG and ZS. MG was 16 and ZSwas 15 years old at the time.[2] There was no dispute that sexual activity between MG and ZS had taken place.The key issue in dispute was consent. Judge Ronayne found that ZS "specifically,clearly and firmly" made it clear on each occasion that she did not want the sexual actsto take place.2[3] MG appeals his convictions on the grounds that the Judge erred in theassessment of the evidence to such an extent that a miscarriage of justice has occurred.He says the Judge erred in various ways but in particular by:(a) Failing to properly assess Facebook messages, including those of asexually explicit nature, sent by ZS to MG both prior to and during thecourse of their relationship;(b) Referring to a counterintuitive explanation for ZS's delay incomplaining which was implausible and not supported by anycounterintuitive evidence called by the Crown;(c) Relying on extraneous matters in assessing ZS's credibility.[4] MG also seeks leave to adduce fresh evidence. The evidence is a statement ofBN, who was a friend of ZS at the time she was in a relationship with MG. BN'sevidence is that ZS told her about each sexual occasion with MG and she did not eversuggest she was being forced to have sex against her will. In fact, BN's evidence isthat ZS said she enjoyed having sex with MG.1 New Zealand Police v MG [2017] NZYC 417.2 At [69].The offending[5] ZS and MG met at school in mid-2014. They began exchanging Facebookmessages in August 2014 and started dating on 13 March 2015. By this time, ZS wasattending a different school.[6] Sexual intercourse between MG and ZS first occurred on the weekend of 23 to24 May 2015 and forms the basis of the first charge which is described in more detailbelow. ZS said that all occasions of sexual intercourse after that (12 in total) werenon-consensual. In addition, ZS said that MG would make her perform oral sex onhim without her consent. The summary of offending in relation to each charge is setout below.3Rape, between 23 and 24 May 2015 (Disney movie)[7] The first rape occurred while ZS was staying at MG's place for the weekend.His mother and sister were present in the house. She had a fever and was not feelingwell. ZS and MG were in bed together, watching a Disney movie. There was kissingand mutual touching which was consensual. However, when MG started taking ZS'sclothes off she said "no" and "please stop". Despite this, MG covered her mouth andinserted his penis into her vagina. She says she was crying after the event.Rape, between 23 May 2015 and 25 July 2015 (Office)[8] This took place in the office at ZS's house. ZS's family members were presentin the house. While MG was sitting on an office chair, he pulled ZS onto his lap soshe was sitting on him with her back facing him. He then pulled her pants down andremoved his own pants. He put on a condom and then forced her to sit on him, withintercourse then taking place. ZS said she told him she did not want to do it, and triedto get off him, but he held her in place.3 The dates of the charges are taken from the charge sheet. There are some variations between thosedates and those in the summary of facts, and the District Court judgment.Sexual violation and rape, between 23 May and 21 July 2015 (Painting room)[9] Two charges relate to an incident in the painting room at ZS's house. Thesexual violation charge relates to penetration of ZS's mouth with MG's penis. ZS saidshe told MG that she did not want to perform oral sex, that it was "gross", and that shedid not want to do it there in her father's painting room. Her evidence was that MGgrabbed her head, "like a claw hand grabbing a whole handful of her hair", put hispenis into her mouth and controlled her head movements with his hand.[10] The rape charge arises out of what happened next. MG got on top of ZS andput his penis in her vagina. MG then flipped ZS so that she was on top of MG, andMG held her hips to move her up and down. ZS's evidence is that she told him not todo what he was doing, saying "please not now, please stop".Rape, between 23 May and 25 July 2015 (Bathroom)[11] This occasion was in the bathroom at MG's house. MG's mother and sisterwere present. MG grabbed ZS by the hand and led her to the bathroom in the middleof the day. There was consensual kissing. She says she began objecting as soon as hestarted removing her pants. He put a condom on and she closed her legs. Sherepeatedly told him that she did not want to do this. However, MG picked her up andlaid her on the floor, spreading her legs, and inserting his penis into her vagina.Rape, 28 July 2015 (After school ball)[12] A further charge of rape concerned events following the school ball. In the caron the way home, MG whispered sexually explicit comments to ZS about sexualintercourse. ZS told him she did not want to have sex with him as he was very drunk.Back in his bedroom, he removed her clothes and forced her to have sex. Shedescribed him as angry and verbally abusive, and the intercourse as forceful, heavyand going on for a long time. She repeatedly asked him to stop, telling him that shedid not want to do it. MG responded by laughing and joking about how she wasactually enjoying it. MG then said to ZS that if she told her parents then he would getinto a lot of trouble and he would go to jail.Rape, 9 August 2015 (MG bedroom)[13] This occasion took place in MG's bedroom on 9 August 2015, shortly beforethe relationship ended. ZS described being grabbed by the wrist and pulled onto MG'sbed. She was pulled on top of him with her pants and underwear down to mid-thigh.Vaginal intercourse took place for a short time. ZS said she told him she didn't wantto do this. ZS describes MG on this occasion as cold and mean, and says that MG wastalking in detail about getting with other girls at school.Rape, between 23 May and 9 August 2015 (Representative charge)[14] The representative charge relied on ZS's evidence that vaginal intercourse tookplace on 12 occasions. ZS could not remember the details of all these occasions buther evidence was that she told MG that she did not want to have intercourse and shewould protest that she was underage. She said his reaction was sometimes to yell andeven throw things at her. She described him throwing her around into differentpositions, grabbing her hair and covering her mouth.Sexual violation, between 23 May and 9 August 2015 (Representative charge)[15] This representative charge was based on ZS saying that when she was havingher period, MG would make her perform oral sex. This occurred in multiple locationsin both their houses. ZS said she made it clear she did not want to perform this sexualact. She says that MG emotionally manipulated ZS by saying he was going to get withother girls so that eventually she "gave in".The complaint[16] ZS complained about the rape and sexual violation in August 2016,approximately one year after the relationship had ended. ZS was attending a differentschool, and taking part in a drama production which involved a character sufferingsexual abuse. It was following the last performance of this production that shedisclosed to a fellow student that she had been raped by an ex-boyfriend. Shesubsequently spoke to her drama teacher and repeated the same allegation. She wasthen interviewed by police, and MG was subsequently charged.District Court decision[17] The hearing took place before Judge Ronayne in the North Shore Youth Courtbetween 12 and 14 June 2017. ZS's evidential interview was played as her evidencein chief. The student to whom she initially complained, the drama teacher, and theofficer in charge all gave evidence. MG's interview with the police was played, butMG did not give evidence or call evidence.[18] The Judge delivered his reserved decision on 21 June 2017. MG was foundguilty on all charges.[19] The Judge reviewed the legal provisions, the elements of both offences, thegeneral principles, ZS's evidence in respect of each charge, and the parties'submissions. The Judge gave himself the standard warnings about the evidence, andnoted that he had scrutinised the evidence with special care given the young ages ofboth the complainant and defendant.4 Furthermore, he made observations about thedemeanour of each witness. However, that was done in the context of a warning tohimself that he should "place very little weight on demeanour alone or out of context".5[20] In terms of ZS's evidence, the Judge noted that she seemed genuinely veryupset when describing what, for her, were non-consensual encounters, and that shewas generally a consistent witness.6 He did not detect any evidence of any tendencyto invent, distort or exaggerate in her evidence, and he noted she did not unjustifiablyor gratuitously criticise MG. In fact, he considered her evidence "measured and fair"and noted that she even praised him several times or conceded the good qualities shesaw in him without prompting.7 He also took into account that ZS's credibility wasintact regarding her claims about the physical acts taking place. It was only hercredibility regarding the issue of consent and the extent to which she communicatedthat lack of consent which was at issue.84 New Zealand Police v MG [2017] NZYC 417 at [57].5 At [23].6 At [58] and [59].7 At [60] and [67].8 New Zealand Police v MG [2017] NZYC 417 at [62].[21] The Judge noted one aspect of MG's police interview which caused himconcern. ZS gave evidence that on one occasion MG said that if she ever got pregnant,he would punch her in the stomach until the baby died. MG admitted he said thesewords, but replied that he meant it in jest because his biggest fear was accidentallygetting someone pregnant. The Judge found that this not only corroborated a detail inZS's evidence but was a "somewhat chilling window into MG's personality and how,in reality, he treated ZS".9[22] The Judge reminded himself that he was required to focus on consent elementsat the time of any sexual act, although he did not ignore the context and circumstancesin which the acts occurred. He then observed:10Even if I took into account what may, at times, have been a lack of physicalresistance or a degree of surrender to the inevitable by ZS, that did not, in fact,constitute consent or provide a reasonable basis for MG to believe that therewas consent. Consent cannot be inferred from silence or inactivity. It mustbe given positively by words or conduct and there is no obligation on ZS tosay "No".[23] That observation was made in reliance on the decision in Christian v R, inwhich the Court of Appeal concluded that a positive expression of consent is necessaryfor establishing consent in cases of sexual violation.11 That case has since beenpartially overturned by the Supreme Court. The Supreme Court held that while afailure to protest or offer physical resistance does not, of itself, constitute consent andsomething more is required, that "something more" may be something other than apositive expression of consent.12[24] In relation to the Facebook messages, the Judge observed that the issue ofconsent had to be assessed at the time of any penetration or oral sex. The Judgeaccepted ZS's explanation that, despite the content of the Facebook messages, she wasnot ready for sex at the relevant time and she made that perfectly clear to MG.139 New Zealand Police v MG [2017] NZYC 417 at [66].10 At [65].11 Christian v R [2016] NZCA 450 at [49].12 Christian v R [2017] NZSC 145 at [5], suppressed pending disposition of retrial.13 New Zealand Police v MG [2017] NZYC 417 at [67].[25] The Judge also noted that the nature of some of the sexual activity, whenassessed in isolation, might provide a basis for MG to believe she was consenting. Forinstance, in the painting room ZS was sitting backwards on MG's lap, a position whichthe Judge said was arguably indicative of consent. But the Judge went on to say that:14 such a one-dimensional assessment is flawed. Physical actions alonecannot be assessed in isolation and out of context. The nature of the ongoingrelationship, other sexual activity, other communications between ZS andMG, and her specific communications prior to any particular penetration ororal contact, all must be considered.[26] The Judge addressed the question of ZS's delay in making the complaint. TheJudge referred to the counterintuitive explanations for delay which he observed "arewell understood by the courts and reflected in s 127 of the Evidence Act 2006". ZS'sexplanation for the delay was her fear that by complaining she might get the youngman she loved in what she described as "major trouble". She said she wanted toprotect him and she also had high regard for his family and especially loved his mother.The Judge considered this explanation "plausible and cogent", and so he found thatthe delay in complaining did not adversely affect his assessment of ZS's credibility.15[27] The Judge also mentioned the circumstantial evidence of ZS's ongoing contactwith MG, despite the fact that she said the rape was occurring.16 However, in thecourse of considering all the circumstantial evidence, he stressed that the Court cannotconsider consent "as if watching a silent movie isolated from knowledge of the truedynamics of this relationship".17 He held that the nature of the relationship was suchthat by the time of the first act of sexual intercourse, it had reached a point where ZSwas overpowered both physically and psychologically by MG.18[28] Finally, the Judge accepted as truthful and reliable the evidence of ZS andrejected as untrue MG's denials of a lack of consent. He was satisfied beyondreasonable doubt that MG was explicitly told during at least some of these sexualencounters to stop and did not do so. Moreover, the Judge found that on every14 New Zealand Police v MG [2017] NZYC 417 at [69].15 At [71].16 At [63].17 At [69].18 At [70].occasion that sexual activity referred to in the charges took place, MG knew, prior tothe commencement of the sexual activity, that ZS was not consenting.19Approach on appeal[29] The right of appeal from a decision of the Youth Court arises under s 351(1) ofthe Oranga Tamariki Act 1989. Appeals are governed by the Criminal Procedure Act2011 (CPA) with any necessary modification.20[30] Under s 232(2) of the CPA, the appeal court must allow the appeal if it issatisfied that, in the case of a Judge alone trial, "the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage of justice hasoccurred".[31] A miscarriage of justice is defined to be an error, irregularity or occurrence inrelation to or affecting the trial that has created a real risk that the outcome of the trialwas affected; or has resulted in an unfair trial or a trial that was a nullity.21[32] The approach to an appeal against conviction on the basis of an error in theassessment of the evidence was summarised by the Court of Appeal as follows:22(a) The appellate court is performing a review function, not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and reliability of the witnesses is a classicexample.(c) The weight to be given to individual pieces of evidence is essentiallya jury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding the facts isthe jury. Appellate courts should not lightly interfere in this area.19 New Zealand Police v MG [2017] NZYC 417 at [72].20 Oranga Tamariki Act 1989, s 355(1).21 Section 232(4).22 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87, endorsed by the Supreme Court in Owen v R[2007] NZSC 102, [2008] NZLR 37 at [5] and followed in Ahmad v R [2017] NZCA 320 at [59]and Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [55].(f) An appellant who invokes s 385(1)(a) must recognise that theappellate court is not conducting a retrial on the written record. Theappellant must articulate clearly and precisely in what respect orrespects the verdict is said to be unreasonable and why, after makingproper allowance for the points made above, the verdict shouldnevertheless be set aside.[footnotes omitted][33] As recently confirmed by the Court of Appeal in Ahmad v R, the sameprinciples apply to appeals from judge alone trials. However, where full reasons aregiven, an appellate court is in a better position to assess the justification for andcorrectness of the judge's verdicts than in a jury case.23[34] As to the challenge to the judge's findings of fact and assessments ofcredibility, the appellate court will generally place much weight on credibility findingsmade by a judge who has had the advantage of seeing and hearing all materialwitnesses give evidence. That is because the trial judge gains an impression from theevidence which is not necessarily or usually apparent from the "cold typeface of thetranscript of that evidence on appeal".24Did the Judge err?Facebook messages[35] Facebook messages exchanged between MG and ZS were produced as a 500-page exhibit in the Youth Court. They included messages exchanged prior to the startof their relationship in which ZS indicated she might be prepared to engage in sexualactivity. They also included messages exchanged during the course of the relationship,and in particular, after the sexual activity had occurred. Some of the messages sent byZS are sexually explicit, and, in the case of the rape charge after the ball, include adiscussion of their sexual activity in the early hours of that day.23 Ahmad v R [2017] NZCA 320 at [59].24 Rae International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 199;and Housten v New Zealand Police [2017] NZHC 2203 at [13].[36] The Judge addressed these messages as follows:25The issues of consent and any belief in consent have to be assessed at the timeof any penetration or oral sexual contact. That unarguable observationassumes prominence in this case because of the sexually explicit nature andtiming of some of the Facebook messages between ZS and MG. ZS franklyaccepted that at times she was communicating to MG that she was willing toengage in sexual acts. However, she also said that while she thought she wasready for sex, that turned out not to be so when the opportunities arose andshe made that perfectly clear to MG. It is a complete misconception thatconsent to specific sexual activity, whether expressed directly or indirectly andregardless of how graphically expressed, can be taken as consent for all time.That reflects both the legal position and plain commonsense. Furthermore,here, there is, in my view, no evidential basis for a reluctant consent narrative.ZS has said that she did not consent and clearly communicated that to MGrepeatedly immediately prior to and during the sexual acts occurring. For hispart, MG says that she clearly did consent and that, to the extent that she claimsthat she did not consent, she is not telling the truth. Nothing in either versionof events suggests reluctant consent. Even if broad advance consent couldsuffice here, to the extent that the Facebook messages might be susceptible tosuch an interpretation, ZS's evidence, if accepted, is to the effect that sheclearly communicated a lack of consent on each and every occasion. I detecteda degree of self-effacing blame in the evidence of ZS which is inconsistentwith somebody overegging her evidence or exaggerating any lack of consent.In the same vein, I considered her to be measured and fair. For example, sheconceded, unprompted and without any need to do so, that with digital contact,MG would stop when asked to do so.[37] Mr Lance submits the Judge erred in his assessment of the Facebook messagesin a number of different respects each of which is addressed below.[38] First, Mr Lance submits that the Judge overlooked Facebook messages sentprior to the relationship commencing. These messages include statements that ZSwould be prepared to perform oral sex on MG and others which suggest that she wouldbe willing to lose her virginity to him. Mr Lance submits that these messages areinconsistent with the Judge's view that ZS and MG reached a point prior to the firstact of sexual intercourse where ZS was "overpowered both physically andpsychologically by MS".[39] ZS gave evidence that these messages were flirtatious in nature. She said thatshe thought when she sent them she was ready for sexual activity but when it came toit she was not. The Judge accepted that evidence. There is nothing inherentlycontradictory about a relationship which starts with flirtatious behaviour, but, by the25 New Zealand Police v MG [2017] NZYC 417 at [67].time of the first sexual act some months later, is characterised by psychologicaldominance. There was no error in the Judge's conclusion.[40] More importantly, the Judge observed that many of the messages pre-dated, bya number of months, the sexual activity the subject of the charges. He remindedhimself that the relevant point in time for assessing consent and reasonable groundsfor consent was at the time of the sexual activity. These messages did not bear anyweight when it came to assess whether ZS had consented at the relevant time.[41] Second, Mr Lance submits that the Judge erred in relation to his assessment ofthe Facebook messages which were sent during the course of the relationship betweenZS and MG, and specifically on or soon after the dates in the charges. Mr Lance saysthe Judge only addressed the Facebook messages in terms of "broad consent", and didnot assess whether the messages sent after the rapes and sexual violation charges wereinconsistent with ZS's evidence that each occasion was non-consensual.[42] The Facebook messages exchanged between MG and ZS during the course oftheir relationship include photographs, videos, jokes and expressions of love. ZS tellsMG how happy she is, how much she loves MG, and how the last few months havebeen a highlight of her life. Some of the messages include ZS describing what sheenjoys sexually in fairly graphic terms. Other messages sent by ZS appear to offeroral sex. There are messages exchanged later on the same day as the rape after theball. The exchange refers to the sexual activity between them and ends with ZSthanking MG for making the night amazing.[43] All these messages were put to ZS in cross-examination. She explained thatthis is just how ZS and MG wrote to each other sometimes, but that the messages weredifferent to what it was like in reality. The Judge referred to the messages sent afterthe ball in his summary of the evidence in relation to that charge. He also referred toZS's explanation for these messages. The Judge was clearly aware of the potentialconflict between ZS's evidence and what was said in the messages, and neverthelessaccepted ZS's evidence as credible. That finding was open to the Judge in my view,and there was no error in that assessment.[44] The Facebook messages exchanged during the period of the charges raise thepossibility that ZS may have consented to some sexual activity on some occasions, butnot on other occasions. In other words, the Facebook messages draw into question thereliability, if not the credibility, of ZS's evidence that she had made it plain she did notconsent to each and every occasion of sexual activity.[45] The Judge did not expressly address the possibility that ZS could haveconsented on some occasions but not on others. It may have been preferable that hedid so. But I do not consider that omission resulted in any miscarriage or real risk ofa miscarriage of justice. The Judge reminded himself at the outset that the police hadthe burden of proving the charges and they had to do so separately in relation to eachcharge. He also reminded himself that he could accept all or some of the evidence.26Ultimately the Judge accepted all of ZS's evidence and rejected MG's evidence. Hefound that "on each occasion that sexual activity referred to in the charges took place",MG knew, prior to the commencement of the sexual activity, that ZS was notconsenting.27 The Judge was entitled to reach that decision on the evidence beforehim.[46] Third, Mr Lance submits that the Judge provided no analysis or reasoning asto how the messages received by MG would have affected his belief as to whether ZSwas consenting. For example, Mr Lance submits that the Judge did not consider how,if ZS had said "no" on the first occasion of alleged rape, how the messages thatfollowed indicating a desire to have sex and that she enjoyed having sex, impacted onMG's reasonable belief in consent at the time.[47] That submission does not bear scrutiny in my view. The Judge made a clearand unequivocal finding that ZS communicated a lack of consent on every occasion,and that MG understood that she was not consenting. Those findings obviate anyreasonable grounds for consent. Whatever ZS may have said and done on previousoccasions is irrelevant if she clearly communicated that she was not willing to engagein sexual activity on the occasion in question. There was no error in the Judge'sapproach.26 New Zealand Police v MG [2017] NZYC 417 at [13] and [19].27 At [72].[48] Fourth, Mr Lance says that the messages, and the ongoing nature of therelationship, mean that it is just not credible that ZS was being raped and sexuallyviolated on each occasion. He says the Judge did not take this into account in assessingZS's reliability and credibility.[49] The underlying premise of this submission is that it is not possible to havemultiple rapes in the context of an ongoing relationship. Such a premise is flawed inmy view. The dynamics of the relationship between ZS and MG had to be taken intoaccount. ZS was young, and inexperienced. She said she was in love with MG andshe enjoyed other aspects of being in a relationship with him. She said she wasconfused about why her sexual experiences did not appear to be the same as others.She also gave evidence about MG being manipulative. He would talk about gettingwith other girls when he was with her. Finally, she gave evidence about hoping hewould not continue to force sexual activity on her. These were all plausibleexplanations given by ZS for continuing the relationship. This evidence was beforethe Judge and he expressly referred to the issue of ongoing contact in his reasons.28He weighed the relevant factors and reached a conclusion which was open to him onthe evidence. There was no error in that approachCounterintuitive explanation[50] Mr Lance submits that the Judge erred in referring to counterintuitiveexplanations for the delay in reporting the rape.[51] The relevant passage from the judgment provides as follows:29Issues of delay in complaining have been raised. The sometimescounterintuitive explanations for delayed complaint are well understood bythe Courts and are reflected in s 127 Evidence Act 2006. Here plausible andcogent explanation for delay has been given. ZS thought that by complainingshe could get the young man she loved in what she described as "majortrouble". Simply put, she wanted to protect him. She also had a high regardfor his family and she loved his mother. In her evidential video interview shedescribed MG's mother as "an awesome person". ZS went on to explain thatshe feared, even at the time of her evidential video interview, that MG wouldtry to hurt her or her sister or that his friends would do the same or that shewould get threatening messages from everyone at college. In my view, the28 New Zealand Police v MG [2017] NZYC 417 at [63].29 At [71].delay in complaining does not adversely affect my assessment of ZS'scredibility.[52] Mr Lance submits the explanation for the delay is not credible as none of thecommon counterintuitive reasons for delay in complaint (such as violence, or livingunder the same roof) were present. He submits that it is simply implausible to believeZS's explanation that she did not want to get MG into trouble when she did exactlythat a year later. He also questions how someone can continue to "love" someone whohas been continually raping them. Mr Lance submits that a more plausible explanationfor the delay in complaint is jealousy, and/or psychological issues that stem from ZS'srole in a play about sexual abuse.[53] To the extent that Mr Lance's criticisms are directed at the absence ofcounterintuitive evidence called by the Crown, then they must be rejected. Thepurpose of adducing expert counterintuitive evidence is to correct erroneous beliefsthat a jury might hold about the likely conduct of a victim of sexual abuse.30 This wasnot a case which required counterintuitive evidence to be called. The issue for theJudge was whether to accept the explanation offered by ZS as to the delay.[54] The Judge did accept ZS's explanation, and I consider that it was open to himto do so. ZS's young age, her confusion about what she had experienced, her love forMG, her desire not to get him in trouble, and her attachment to his mother, are allplausible explanations for the delay in making a complaint. The Judge was entitled toreach the view that he did on the evidence and there is no error in that approach.Other alleged errors[55] Mr Lance says that the Judge erred by relying on extraneous matters inassessing ZS's credibility. These extraneous matters were the fact that the physicalacts took place and ZS's "clear willingness to concede the good qualities that she sawin MG without being pressed to do so".3130 DH (SC9/2014) v R [2015] NZSC 35, [2015] 1 NZLR 625 at [2] and [30](a).31 New Zealand Police v MG [2017] NZYC 417 at [68].[56] Further, Mr Lance submits that the Judge did not properly assess actssurrounding some of the incidents which, on their face, would appear inconsistent withallegations of continuous rape. He refers to the presence of the others in the house,the sexual position described during the office rape, and the "sneaking" down atmidnight to the painting room, as being inconsistent with an allegation of rape.[57] I do not consider the Judge erred in any of the ways contended for by Mr Lance.All of the circumstances surrounding the alleged rapes were before the Judge. He wasentitled to take into account ZS's concessions about MG's good qualities in assessingher credibility. Further, he expressly referred to the sexual position described duringthe office rape in his analysis, observing that the fact that ZS may not have "physicallyresisted or put up some kind of physical fight on every occasion does not provide acomplete answer".32[58] The Judge's factual finding that ZS had said "no" or else made it plain that shewas not consenting to the penetrative or oral sex, means that the enquiry into whetherher conduct could be regarded as consent did not arise. The fact that others may havebeen present in the house, or there was an element of sneaking around, is notinconsistent with ZS consenting to kissing and touching, but not consenting to thepenetrative or oral sex itself. In this case, the Judge weighed up all the relevantcircumstances and found ZS's evidence that she made it plain she was not consentingcredible.[59] Finally, Mr Lance submits that the Judge erred by finding that ZS's demeanourin making the complaint showed consistency in her evidence. Mr Lance submits thatthis was in breach of s 35(1) of the Evidence Act 2006. That section provides that aprevious statement of a witness is not admissible unless subsection (2) applies, whichprovides:35 Previous consistent statements rule(2) A previous statement of a witness that is consistent with the witness'sevidence is admissible if the statement—32 New Zealand Police v MG [2017] NZYC 417 at [69].(a) responds to a challenge that will be or has been made to thewitness's veracity or accuracy, based on a previousinconsistent statement of the witness or on a claim ofinvention on the part of the witness; or(b) forms an integral part of the events before the court; or(c) consists of the mere fact that a complaint has been made in acriminal case.[60] I do not consider the Judge's reference to ZS's previous demeanour engageds 35 in this case. That is because a "statement" is defined in the Evidence Act toinclude non-verbal conduct of a person if it is intended by that person as an assertionof any matter. There is no evidence that ZS's demeanour was intended to be anassertion of any matter.[61] To the extent this submission extends to the evidence of the complaint moregenerally, then I note that there was no objection to the evidence of the friend, or thedrama teacher, or to ZS's evidence about the complaint, taken at trial. If there hadbeen, the evidence may well have been admitted pursuant to s 35(2)(a). That isbecause the defence was challenging the veracity of ZS's evidence that the sexual actswere non-consensual on the grounds of invention.33 I do not consider the admissionof this evidence gave rise to a real risk of a miscarriage of justice in the circumstances.Summary[62] In summary, I do not consider the Judge erred in his assessment of theevidence. The conclusions that he reached were open to him on the evidence beforehim. There is no risk that a miscarriage of justice occurred based on the Judge'sassessment of the evidence.33 Hart v R [2010] NZSC 91, [2011] 1 NZLR followed in Rongonui v R [2010] NZSC 92, [2011] 1NZLR 23 at [3].Should BN's evidence be admitted?BN's evidence and ZS's response[63] BN swore an affidavit for the purposes of the appeal, and ZS swore an affidavitin response. Both appeared and were cross-examined at the appeal hearing.[64] BN said she and ZS had been good friends since they were approximately nineor 10 years old and became "best friends" when they attended the same high school.When ZS changed schools, they remained in contact and would regularly messageeach other and speak to each other on the phone.[65] The key parts of BN's evidence relate to what ZS told BN about herrelationship with MG after it had commenced in early 2015. In brief, BN says:(a) ZS had told her that she had lost her virginity whilst they were watchinga Disney movie. They had tried to have sex before this occasion but itdid not work out. On that occasion ZS had told MG that it hurt, so hestopped and they cuddled. After losing her virginity watching theDisney movie, ZS said that she loved having sex and was excited aboutlosing her virginity. BN described ZS as boasting how she had won abet about who was to lose their virginity first.(b) ZS said they had sex when people were at home and in risky placessuch as her dad's office. ZS said that she liked it because it was riskyand that she couldn't wait for BN to have sex and lose her virginity too.(c) ZS gave MG oral sex and said that she was fine with "swallowing".(d) ZS looked forward to catching up with MG in the weekends and theywould have sex whenever they could. ZS said that when she stayed atMG's house, she slept in his bed which is where they had sex most ofthe time.(e) After the ball, ZS said she went back to the house and had sex with MG.She gave the impression that she was very happy to be with MG andsaid that she loved having sex with him.(f) When ZS and MG broke up, she said that she would miss the sex.[66] BN's evidence is that ZS did not say that she had said "no" prior to having sexand that MG would continue on regardless. ZS had never indicated that she feltpressured or forced into having sex during this time. The only negative comment ZShad made was that she said on an occasion when they were having sex that MGgrabbed her hair and she did not like it.[67] BN was cross-examined about whether she could have confused statementsmade by ZS to the effect that she loved MG, with statements about loving sex. BNremained firm, saying that while ZS did talk about loving MG and loving cuddling,she also mentioned loving sex.[68] In the course of cross-examination, BN said that ZS had first told her about therape allegations some time before the play commencing. During this conversation,BN said ZS told her that she had been raped on one occasion.[69] In ZS's evidence in response, she accepted many of the statements made byBN. For example, she accepted that there was a joke about losing their virginity, andthat she told BN about losing her virginity whilst watching a Disney movie. She alsoaccepted that she told BN about each sexual occasion the subject of the charges, butshe denied bragging about it. She also denied saying that they would have sexwhenever they could, although she admitted that she told BN that they slept and hadsex in MG's bed.[70] In relation to the oral sex, she accepted that she told BN that she "swallowed"but denied saying that she was fine with it. She said that she did tell BN that she didnot like it when MG grabbed her hair one time.[71] ZS denied telling BN that they had tried to have sex but that it did not workout and denied that this ever happened. She says the first time she heard about thiswas during her cross-examination when MG's lawyer brought it up. She also deniedtelling BN that she was excited about losing her virginity and that she loved havingsex with MG. She says she tried not to make it seem like she was "super into havingsex" because she was not. However, ZS accepted that she said that they were havingsex, and that she loved MG.[72] ZS also denied stating that she liked having sex in her dad's office because itwas risky. She did not recall saying that she could not wait for BN to lose her virginitybut did not think she would have said that given that "the sex that I was having wasn'tsomething you would wish on anyone". She said she did not recall saying that shewould miss the sex when they broke up.[73] In relation to the ball incident, ZS said that she lied to BN about the sex afterthe ball because she did not know how to tell her it was not sex, but rape.[74] By way of explanation as to why she did not say anything to BN about thesexual activity being non-consensual, ZS said that she was scared that BN would tellher parents and thought BN would say something. She did not want BN to tell herparents or the police because she loved MG and did not want to ruin his life.[75] ZS also said that she may have told BN about the rapes before the play but shedid not think she told her that it was "rape". She said that after the play was the firsttime she told someone she had been raped. She also recalled telling BN that MG hadraped her in the office during one of their telephone conversations after the play.Relevant legal principles[76] The principles upon which new evidence will be admitted on appeal are set outin Lundy v R and R v Bain and were recently summarised in Ahmad v R.34 Thoseauthorities establish that a "sequential series of tests" is to be applied before a courtwill admit fresh evidence on appeal. The first step is for the appellate court to assess34 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at[24]; Ahmad v R [2017] NZCA 320.whether the new evidence is both credible and fresh. The approach was described bythe Privy Council in Lundy v R as follows:The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series of tests.If the evidence is not credible, it should not be admitted. If it is credible, thequestion then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[77] If the evidence is admitted, then the court must then consider the effect of thenew evidence. The question is whether its existence demonstrates that there has beena miscarriage of justice or a real risk that a miscarriage of justice has occurred onaccount of the new evidence not being before the decision-maker who convicted theappellant. A real risk will exist if the new evidence, when considered alongside theevidence given at the trial, might reasonably have led to a verdict of not guilty.35Is the evidence credible?[78] There was no real contest around the credibility of BN's account. ZS said shedid not consider BN was lying, but had misunderstood a lot of what ZS said. Thatraises issues about the reliability of BN's evidence, but does not raise issues aboutcredibility. For the purposes of admitting the evidence, I consider it to be credible.Is the evidence fresh?[79] The Crown says that BN's evidence is not fresh. Evidence is fresh if it couldnot have been obtained for the trial with reasonable diligence.36[80] The fact that BN was ZS's best friend, and was in a position to give evidenceat the trial was known by MG prior to the first trial. After the charges were laid, but35 R v Bain [2004] 1 NZLR 638 (CA) at [24] cited in Lundy v R [2013] UKPC 28, [2014] 2 NZLR273 at 143.36 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].before the hearing, MG bumped into BN at a shopping mall. She told him that sheknew about the charges, and MG asked whether she would be willing to be a witness,to which she replied "maybe". In that sense, the evidence was available, could havebeen obtained with reasonable diligence, and was not fresh.[81] However, I accept that MG is unlikely to have known what BN would havesaid at trial, and may not have known about the content of the conversations betweenBN and ZS. MG did not tell his counsel about the encounter with BN or that she mighthave relevant evidence to give. He cannot be criticised for not doing so given hisrelative youth and inexperience in criminal matters. In that sense the evidence is fresh.But either way it is necessary to go on and consider whether the evidence is cogent.Is the evidence cogent?[82] The Crown submits that the evidence is not cogent because it is not probativeof whether or not the rapes occurred. The Crown submits that it is in the same categoryas the Facebook messages in that what one teenager says to a friend, or writes inFacebook messages, may be completely at odds with what happened on any particularoccasion.[83] As a general proposition, I accept that it would be open to a Judge to find BN'sevidence was not probative of whether the sexual activity was consensual. It is entirelyplausible for ZS to have told her friend one thing, but for the reality to be quitedifferent. But that is a question of fact to be determined by a trial judge. It relies onthe trial judge accepting ZS's explanation for what she told BN, and, at least in respectof the rape after the ball, why she lied to her friend about the nature of the sexualactivity. In that respect, I consider BN's evidence is relevant to the assessment of ZS'scredibility and reliability. It calls into question ZS's testimony that she said "no" oneach and every occasion of sexual activity. To that extent at least the evidence iscogent and I consider it should be admitted.Is there a risk of a miscarriage of justice?[84] The final stage is to consider the effect of the new evidence and whether itsexistence demonstrates that there has been a miscarriage of justice or a real risk ofmiscarriage.[85] Ascertaining the effect of the new evidence is not without difficulty in thiscase. The credibility and reliability of a witness' account is the province of the trialjudge who has the advantage of seeing and hearing all the witnesses give evidence attrial.[86] Although I have seen and heard both BN and ZS give evidence, that was forthe purpose of determining whether or not the evidence should be admitted. It wasnot for the purpose of assessing credibility and reliability more generally. In anyrespect, it is not the function of the appellate court to engage in a retrial of the evidenceon appeal.[87] As I have already noted, it is reasonably possible that the same reasoning whichthe trial judge adopted in relation to the Facebook messages would be applied by himto BN's evidence, and the convictions would stand. However, it is also reasonablypossible that the weight of both the Facebook messages and BN's evidence combined,could have caused the Judge to reach a different conclusion – if not in relation to allof the charges, then perhaps in relation to some.[88] BN's evidence regarding ZS's complaint prior to the play may have somesignificance in that respect. BN's evidence is that ZS only mentioned being rapedonce, and not multiple times, in that conversation. That raises a reasonable possibilitythat ZS may have said "no" on some occasions, but not on others. To be sure of MG'sguilt on each and every charge, a trial judge would need to discount this as a reasonablepossibility. Faced with that evidence, I cannot be sure that the Judge would havereached the same conclusion on each and every charge.[89] It follows that I consider that BN's evidence gives rise to a reasonablepossibility that had the Judge heard BN's evidence, he may have reached a differentconclusion, if not on all charges then at least on some. In that sense, the new evidenceposes a real risk of a miscarriage of justice. In the circumstances, I consider theconvictions should be quashed and a new trial ordered.Result[90] The application to adduce the evidence of BN on appeal is allowed.[91] The appeal is allowed. The convictions are set aside and I direct that a newtrial be held.___________________Edwards JSolicitors: S J Lance, AucklandMeredith Connell, Auckland