N (CA425/2022) v R [2023] NZCA 313

N (CA425/2022) v R [2023] NZCA 313 [24 July 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA425/2022[2023] NZCA 313BETWEEN N (CA425/2022)AppellantAND THE KINGRespondentHearing: 9 May 2023Court: Mallon, Moore and Fitzgerald JJCounsel: K E Hogan for AppellantE J Hoskin for RespondentJudgment: 24 July 2023 at 11 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________Table of contentsIntroduction [1]Background facts [4]Conviction appeal [15]Supplementary questioning of the complainant [16]The evidential interview and supplementary questioning [16]The appeal [36]Discussion [39]Absence of motive to lie [44]What happened at trial [44]The appeal [62]Discussion [65]Tone of the closing address [72]The appeal [72]Discussion [74]The cumulative effect of the grounds of appeal [78]Sentence appeal [82]The material before the Judge at sentencing [82]The sentence adopted in the District Court [90]The appeal [93]Discussion [95]Result [100]REASONS OF THE COURT(Given by Fitzgerald J)Introduction[1] Following a trial before Judge Grau and a jury in the District Court atManukau, N was found guilty of one charge of sexual violation by rape,1 one chargeof strangulation,2 one representative charge of male assaults female,3 two charges ofmale assaults female,4 and one charge of threatening to kill.5 The complainant wasN's former wife. N was sentenced to nine years' imprisonment and a protection orderwas also imposed.6[2] N now appeals against his conviction and sentence. His conviction appealreduces to three grounds. First, he says that in asking supplementary questions of thecomplainant following the playing of her evidential video interview as herevidence-in-chief, the prosecutor adduced unbriefed and repetitive evidence. Second,he says the prosecutor, in both his cross-examination of N and his closing address,improperly emphasised the proposition that the complainant had no motive to lie, and1 Crimes Act 1961, ss 128(1)(a) and 128B; maximum penalty 20 years' imprisonment.2 Section 189A(b); maximum penalty seven years' imprisonment.3 Section 194(b); maximum penalty two years' imprisonment.4 Section 194(b); maximum penalty two years' imprisonment.5 Section 306(1)(a); maximum penalty seven years' imprisonment.6 R v [N] [2022] NZDC 14642 [Sentencing notes]; nine years' imprisonment for rape; three years'imprisonment for strangulation; one year's imprisonment for the assaults; and one year'simprisonment for the threat to kill, all to be served concurrently. The protection order was madeunder s 123B of the Sentencing Act 2002.that N was not able to suggest any credible reason for her to do so. Third, N says thatthe prosecutor's closing address was unnecessarily intemperate. Ms Hogan, counselfor N on the appeal, emphasises that it is the cumulative effect of these three mattersthat is said to have led to a miscarriage of justice.7[3] N appeals against his sentence on the basis that the Judge erred in not giving adiscount to reflect his personal and cultural background, as set out in a report putbefore the Judge pursuant to s 27 of the Sentencing Act 2002.8Background facts[4] N and the complainant met in April 2019 and married two months later. Therelationship quickly became physically abusive.[5] In August 2019, having become angry about a meal the complainant hadprepared, N said the complainant would have to sleep overnight in the lounge. Aftershe had been asleep for about an hour, N came and apologised and told her to comeback to bed. But as she was falling asleep in the bed, N strangled her. He told her thathe could kill her and choked her until she lost consciousness. He then threw water ather. After she regained consciousness, he verbally abused her.[6] In early 2020, the complainant went to Fiji for approximately three weeks tocare for her sick mother. On her return to New Zealand, N told her the relationshipwas over and that she should move out. The complainant went to live with a friend.[7] In March 2020, N contacted the complainant and asked her to return to thehouse to meet with their landlord. The complainant said that while she was at thehouse, she and N discussed their relationship. She confirmed that things were overbetween them and that they should live apart. N did not accept this, saying that hewanted the relationship to rekindle, to which the complainant replied that this wouldnot happen because of how he had treated her during the relationship.7 Criminal Procedure Act 2011, ss 229, 232(2)(c) and 232(4).8 Criminal Procedure Act, ss 244 and 250(2).[8] Evidently angered by the complainant's response, N admitted that his requestto get her to the house to speak with the landlord was a pretext. When the complainanttried to leave, he grabbed her and took her into the bedroom. He pushed thecomplainant onto the bed and held her hands back while he removed her pants. Hethen raped her.[9] It seems that N and the complainant did, however, resume living together atsome point after this incident.[10] The assault charges related to various episodes of violence over the course ofthe relationship. Throughout the marriage, N repeatedly punched and slapped thecomplainant to her face and body, and pulled her by the hair. This gave rise to therepresentative charge of male assaults female. On another occasion, inSeptember 2020, he punched her to the face, causing swelling to her eyes and nose.This gave rise to a charge of male assaults female. In November 2020, N punched thecomplainant in the head, causing pain and swelling to both her head and ear. This alsogave rise to a charge of male assaults female.[11] On the day that the relationship ended permanently, 19 December 2020, thecomplainant had a bad toothache. She left for work, which angered N as he hadwanted to have sex with her before she left. He sent the complainant the followingtext messages:Go you bitch.suck ur boss dick.stay with him.Get out of my life.Don't come home in the night.[12] Upset by the messages, the complainant phoned N to reassure him that she wasworking. When she spoke with him, he was angry and threatened that he would cuther throat if she came home that night and that he would kill her. He texted her saying,"I have to go to Fiji when my visa expires on 3 January 2021. I will kill you and thenI will go". The complainant was upset and concerned enough that when she finishedwork, she went to a nearby police station to report what N had said to her.[13] N was arrested the following day and completed an evidential interview. Hedenied that any of the offending had occurred. He said that there was no violence atall in the relationship, and he gave evidence to that effect at trial. The complainantalso completed an evidential interview a few days later on 24 December 2020. Asnoted, it was played at trial as her evidence-in-chief.[14] As with most cases of this nature, the Crown's case turned largely on the jury'sassessment of the complainant's credibility and reliability. By its verdicts, the juryclearly rejected N's narrative of events and accepted the complainant's evidence.Conviction appeal[15] As noted earlier, the conviction appeal is advanced on three grounds. Weaddress each in turn. Having done so, we then stand back to consider whether theappeal grounds, on a cumulative basis, give rise to a miscarriage of justice.Supplementary questioning of the complainantThe evidential interview and supplementary questioning[16] Ms Hogan submits that the prosecutor's supplementary questioning of thecomplainant amounted to a "wholesale repetition" of her evidential interview. Giventhat submission, we first summarise the content of the interview.[17] The evidential interview lasted approximately one and a half hours. The first40 minutes addressed the rape that occurred in March 2020. The interviewing officertook the complainant through that incident in some detail, including asking her to drawsketches of the house and the bedroom, and where N and the complainant were on thebed when the rape occurred. When asked, the complainant gave evidence about thepositioning of her and N's bodies during the rape, how he had restrained her, removedher pants, and then raped her.[18] The next part of the interview addressed the strangulation. The complainantsaid as soon as she got into bed and relaxed, N quickly turned around and grabbed herthroat, suggesting that he had one hand on her throat and then turned her on her side.During this he said words to the effect of: "You know what I can do to you? You justdo what I say". The complainant said N told her "I can kill you", while he continuedputting pressure on her neck until she passed out. The next thing she recalled was Nputting some water on her face and asking, "are you alive?". He then said, "womenlike you should not be alive".[19] The interviewing officer then had the complainant draw a sketch of thebedroom and then took her through the episode of strangulation in more detail. Shereiterated that N's right hand was on her neck and that it seemed like it remained therefor what she estimated to be four to five minutes. The complainant said she waspushing back at N and trying to take his hand off but was unable to do so.[20] The latter part of the interview covered the other assaults. The complainantsaid that the strangulation was "the start of this time that he started doing all this". Shesaid that N had beat her on a number of occasions "in between that month". Whenasked what she meant by being beaten, she said that N "punch me, he slap me, he pullmy hair. He, he bang me on the thing, on the sofa". She estimated that this wouldoccur monthly, although then said:And once a week, ah, once a month, yeah, kind of. Sometimes it's twice amonth. Sometimes in, in like, it's two, three months and nothing happened. [a]nd then suddenly something happens and he beat me again.[21] The complainant then said:And once he beat me, not long ago, it was ah, in this year. It was in September,he beat me, and he told me, sit and cry, if you want you can call the cops, it'sokay, let them take me.[22] The interviewer then asked the complainant some more general questionsabout where on the body N would beat, hit or slap her.[23] The interviewer then turned to the events of Saturday 19 December 2020. Thecomplainant explained that she had a bad toothache following root canal work, as wellas a bad headache. She explained how she and N had woken up earlier that morningand N wanted to have sex with her. Given her toothache and headache, thecomplainant suggested she have a couple of hours more rest before they could havesex later that day. The complainant said that N tried to pull up her nightie and removeher pants but she managed to push him away. The evidential interview did not addressthe events of that day any further.[24] The last part of the interview covered a few follow-up questions during whichthe complainant clarified that in November 2020, N had punched her in the head andthat she had gone to the doctor as a result. She said that N had accompanied her andtold her to tell the doctor that it was simply a headache, fever, and sneezing. Thecomplainant said that this incident had taken place in their kitchen.[25] Turning to the complainant's evidence at trial, she was called to give evidenceat approximately 4.10 pm on day two of the trial. The prosecutor first took thecomplainant through the sketches and diagrams she had drawn during her interview.Having confirmed that the sketches in the exhibit booklet were drawn by her, theprosecutor noted that he would come back to ask some further questions about thediagrams later in her evidence. The complainant's evidential interview was thenplayed. Immediately before it started, the prosecutor again flagged that he would havesome supplementary questions for the complainant following the playing of theinterview. This did not elicit any objection from N's trial counsel.[26] The evidential interview was then played, with the jury retiring at 5 pmpart-way through the video.[27] The trial recommenced the following morning at approximately 10.20 am.Before resuming the playing of the complainant's interview, the prosecutor reorientedher to where they were in the transcript and again flagged that he would have a fewmore questions for her after playing the interview. This was completed just before11 am.[28] The prosecutor's supplementary questioning of the complainant began justbefore 11 am and finished just before 12.30 pm, with an almost half hour break from11.30 am until noon.[29] The first set of supplementary questions asked by the prosecutor sought thecomplainant's clarification about a number of the diagrams she had sketched duringthe interview and what she had written on them. Ms Hogan takes no issue with thisaspect of the questioning.[30] The prosecutor then turned to the strangulation incident. He commenced bystating: "I know you described in your interview and we've watched it where his handswere placed on your neck but can you just again help us by showing us where heplaced his hands around or onto your neck?". He then sought to clarify with thecomplainant where and from what direction the pressure was applied on her neck. Thecomplainant responded that it was at the front of her throat and pushing backwardsinto her throat. The prosecutor also asked whether she recalled if N used one or twohands around her throat; she confirmed that it was one. The prosecutor then asked herfurther questions about when she regained consciousness. The complainant clarifiedthat N was slapping her cheeks on either side of her face, shaking her, and had thrownwater on her. The prosecutor also asked questions about her body positioning at thattime. This line of questioning lasted approximately six minutes.[31] The prosecutor then asked supplementary questions about the alleged assaults.The prosecutor asked at what address or addresses the assaults had occurred. Thecomplainant responded that the assaults had happened continuously over therelationship until she and N permanently separated in December 2020. The prosecutorthen noted that the complainant had said in the interview that N had punched her andasked whereabouts he had punched her. The complainant clarified that he wouldpunch her anywhere, and that the slapping was to her face.[32] The prosecutor then turned to the September 2020 incident (see [21] above)and asked her to "tell us what he did in terms of this beating". The complainant thengave evidence about that incident in more detail than in the evidential interview.[33] The prosecutor then turned to the November 2020 assault (see [24] above). Henoted that the complainant had said she was punched in the head, and asked,"whereabouts in the head did he punch you on that occasion?". He then asked howmany times N had punched her and at what address it had occurred. The prosecutorthen noted that the complainant had talked about "the swelling part" in the interviewand asked her to explain that.[34] The prosecutor then noted that he was going to move to the final matterdiscussed in the interview — namely the events on 19 December 2020 to clarify someof the timing of what had happened that day. He took the complainant through thetext messages N had sent to her; he also asked her why she had sent some of themessages she had. The prosecutor then took the complainant through the phone callbetween herself and N on 19 December 2020 and what N had said to her. Next, theprosecutor had the complainant explain what she had done after receiving N's texts —namely going to the police station and making a statement.[35] There is nothing in the notes of evidence that suggests that trial counsel for Nobjected to any of the supplementary questions. The Judge did not intervene.The appeal[36] Ms Hogan first highlights that the prosecutor's supplementary questioningtook almost as long as the complainant's evidential interview itself, and that he workedmethodically through the evidential interview transcript. She says this highlights thatthe questioning went well beyond the simple clarification of a few points that wereunclear in the interview. Ms Hogan further submits that the Crown is not entitled torestate its case or "plug holes" in the complainant's evidence-in-chief by way ofsupplementary questions — which she says was really what the prosecutor's questionswere aimed at. She argues that doing so offends against the restriction uponintroducing prior consistent statements into evidence, which leads to repetition andunfair bolstering of the Crown case.[37] In support of this submission, Ms Hogan referred us to Hart v R (whichconcerned the admissibility of the evidence of a friend of the complainant, who saidthat the complainant had told him about the offending),9 and to Taylor v R (being achallenge to the admissibility of text messages between the complainant and a friendof her mother's, on the basis that they amounted to prior consistent statements).10Ms Hogan also referred to Elias CJ's observations in Guy v R (writing for both herselfand Glazebrook J), namely that the policy behind the prior consistent statement rules9 Hart v R [2010] NZSC 91, [2011] 1 NZLR 1.10 Taylor v R [2022] NZCA 240.is to avoid prolonging trials with evidence that is repetitive, and to "avoid theimpression that repetition bolsters the credibility of evidence".11[38] Ms Hogan also referred us to this Court's decision in R v E (CA308/06), inwhich the Court held that where a videotape of a child's interview is played, it isacceptable to ask the child if he or she confirms what was said in the interview and toask supplementary questions on topics not covered in the interview, but that it was"not the occasion for a wholesale repetition of what was said in the interview andcertainly not elicited by leading questions".12Discussion[39] We can deal with this aspect of the appeal briefly.[40] First, we do not accept Ms Hogan's characterisation of the supplementaryquestioning of the complainant as a "wholesale repetition" of her evidential interview.On the contrary, a significant portion of the supplementary questions comprised theprosecutor taking the complainant through the diagrams she had drawn during theinterview and having her explain what was shown in them. In addition, the latter partof the supplementary questioning sought further detail from the complainant about theassaults on her by N, which were addressed relatively briefly in the evidentialinterview. In the event, Ms Hogan quite properly did not press her submissions inrelation to these aspects of the supplementary questions.[41] The large majority of the remaining questions were by way of clarification ofmatters the complainant had addressed in her evidential interview. There is nothingimproper in that. We accept that there was some repetition in the supplementaryquestioning about the strangulation incident. Again, however, most of the prosecutor'squestions on that topic were also by way of clarification. For example, he asked howmany hands N had used when strangling the complainant and from which direction hehad applied pressure. We see nothing in this aspect of the supplementary questionsthat gives rise to concern, let alone a miscarriage of justice. In addition, Ms Hogan11 Guy v R [2014] NZSC 165, [2015] 1 NZLR 315 at [54].12 R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [66].rightly did not suggest that anything surprising or new arose out of the supplementaryquestions. This is reinforced by the fact that trial counsel did not object to any of thequestions at the time, nor did he seek an adjournment to take further instructions fromN. And as noted, the Judge did not see any need to intervene. While that is notdeterminative, it is nevertheless instructive.[42] This case is accordingly far removed from those relied on by Ms Hogan andreferred to above.13 While there was some (although not substantial) repetition of thecomplainant's evidence about the strangulation, this is not the type of repetition thats 35 of the Evidence Act 2006 is primarily aimed at, being out-of-court priorstatements made by a complainant that are consistent with his or her evidence givenin court. Rather, any (brief) repetition here was simply between different aspects ofthe complainant's evidence-in-chief.[43] This ground of appeal is dismissed.Absence of motive to lieWhat happened at trial[44] The complaint under this ground of appeal is the prosecutor's focus during hiscross-examination of N and his closing address on the proposition that the complainanthad no motive to lie, and that N was unable to advance any credible reason why shewould do so.[45] Fairly early on in his cross-examination, the prosecutor asked N "can you thinkof any reason, any logical reason why your wife would be going into the police stationthat night". Trial counsel for N objected at that point. In the presence of the jury, theJudge accepted the prosecutor's submission that it was an appropriate question, going13 In Smith v R [2022] NZCA 448 at [28], this Court emphasised the particular context in which thedecision in R v E (CA308/06), above n 12, is to be viewed.on to state "bearing in mind that [N] does not have to prove his case". The prosecutorwas accordingly permitted to continue, with the following exchange taking place:Q. Now I acknowledge and I will acknowledge again to the jury when Iclose the case that you don't have to prove anything, and you know thatdon't you?A. Yeah.Q. Okay. And I'm not asking you to put yourself into [the complainant's]mind on the night of the 8th of March 2020, I'm not asking that. WhatI am asking you is can you, given that you were married to her at thetime, can you think of any reason why she would've gone into the policestation on the night of the 8th of March 2020 as she appears to havedone, and the evidence has not been challenged, and told the police thatshe was fearful for her safety because of you? Can you think of anyreason why she would've done that?A. Yes.Q. Well, please tell us what you say to that?A. Because daytime on eight when we had an argument I said: "You getout of my life. I don't need you any more and we are getting separate."Q. Right.A. So because she might be saving, she don't want to lose me or anything,so she's fear about that.Q. So you told her: "Get out of my life"?A. Yes.Q. "I don't want anything further to do with you"?A. Yes.Q. And you're suggesting to us that that may have led her later that nightto have gone into the police station and reported to them that she wasfearful for her safety, is that what you're suggesting?A. Yes.Q. All right. [46] Later in the cross-examination, the prosecutor put a similar question to N:Q. Right. My question for you is this and if you don't have an answer,please just tell me. Can you think of any reason why your wife appearsto have driven directly to the police station once she's finished workthat night and she's gone in to see the police and she has reported tothem that she's fearful for her life, that her husband has just threatenedto kill her and she has provided a statement to the police in relation tothat? Can you think of any reason why she may have done that –A. Yes.Q. - and taken those steps if nothing in fact had been said to her by you?A. No, I can sir, that because I told her not to come home and she wasworking till 11 pm night. I wouldn't text her around 3.30, so she mighthave come back to my place, but I told her not to come home, so shemight have gone to the police asking for help so that because after work,where is she gonna go and stay. So might be she wanted to get back tothe house because once somebody's chased from house or then they'llbe finding a bit hard to come back there and there'll be fearing abouteverything that why that person has chased me out from the house orhas told me not to come home, and then I'll be knocking off at 11 andthen where I'll be going. So the best idea is to go to the police stationand her seek some help, so that's my thinking.[47] Following that answer, the prosecutor questioned N further about a suggestionhe made to the effect that the complainant went to the police station because she didn'thave anywhere to stay, asking:And you're suggesting, are you, that that's a reasonable explanation for [thecomplainant's] actions on the night when she drives directly to the policestation and makes her report?[48] N answered "yes".[49] Almost immediately thereafter, the following exchange took place:Q. Do you accept that there must have been some reason for [thecomplainant] to go into the station that night and talk to the police orare you saying to us: "Look, she might've just done that for the hell ofit, she might've done it for kicks"?A. Well, I don't have any idea why she did that.[50] A little later, in the context of addressing the assault charges, the prosecutorasked:Q. And again and I acknowledge, of course, that you do not have to proveanything, but I ask you can you think of any reason why [thecomplainant] might be saying these things on oath and giving the detailshe has provided to us about these assaults if none of this happened?Can you think of any reason why she may have said those things?A. No reasons.Q. No reason?A. I don't know.Q. You're not aware of any reason why she would just say these things forno good reason, are you?A. No.Q. No. All right.[51] The afternoon adjournment was then taken and shortly after court resumed thefollowing exchange took place:Q. ... And are you saying to us [N] that again, what [the complainant] hasdescribed occurring on that occasion is simply all made up, is that whatyou are saying?A. Yes.Q. Okay. All right. So for some reason [the complainant] has seen fit, hasthought it appropriate to make that allegation against you as well and togive that detail as to when it occurred and what occurred when you say:"Nothing happened," do I have that right?A. Yes.Q. All right. I'm suggesting to you, it won't come as any surprise to you[N] that the reason why [the complainant] has said that that occurred toher in September 2020 is because she's telling the truth, that is whathappened, that's why she's saying it. What do you say to that?A. It never happened.[52] Finally, in cross-examining N about the rape allegation, the followingexchange took place between the prosecutor and N:Q. And just so I've got it right and the members of the jury have got itright, are you once again suggesting that [the complainant] has, forsome reason, simply made all of this incident up? She has given us thislevel of detail when none of it happened, is that your evidence?A. Yes. None of thing happen, because from 8 March, I got separated withher, and then we reconcile on 16, and that's the first time I met her again.From 8th to 16th, I never met [the complainant] anywhere. I was notwith her.A. [N], I am obliged to put to you, and I do, that you're lying. You arelying on oath that you have committed these offences, that [thecomplainant] has told us the truth and that you are lying on oath as towhat you did to her. Do you have any comment to make to thatproposition?A. Yes. I'm not lying.[53] Turning to the prosecutor's closing address, it is fair to characterise it as a firmaddress, that had some focus on the submission that the complainant had no motive tolie and that N had not suggested any reasonable basis why she would have done so.[54] In addressing the individual charges, the prosecutor reminded the jury "to payattention carefully to my learned friend and whatever he may say as well. It cuts bothways". He highlighted the stark contrast between the complainant's account of theshort-lived marriage and that of N. He then said:But in reality, [N] suggests to us, and suggests to you, and you have to engagewith this, because that's what he's suggesting, and take it front on, you needto look at it, I suggest to you it's absolute rubbish. That's for you 12, but youneed to consider it. He says to you [the complainant's] evidence in respect ofall of this offending is just a ruse, a calculated attempt by her to misleadeveryone in this courtroom. That's really what he's saying. It's an enormousproposition, but that is what he is suggesting to you: that she has embarked,for some reason – and there can be no logical reason, I suggest to you, and hehasn't suggested one – that she has embarked upon a journey back in late 2020to go to the police and tell them what he has been doing to her, then undertakethe evidential interview that we saw, and we've watched and listened tocarefully, and go into the detail that she has done. And this is all some part ofan elaborate ploy, seems to be the suggestion being made to you by [N].And it went further than that, because you will recall yesterday when I asked[N]: "Well, look, are you really suggesting to us that the emotion we saw from[the complainant] when she gave her evidence in this trial was just a put-on?That that was part of the game, the ploy, the deception?", and he said to us:"Yeah. Yeah, I am suggesting that."Well, that's his position. He's entitled to that. He's entitled to that view,because he's put it out there. He's pushed the boat out there, and he's askingyou to actually consider that. Well, do consider it. It's nonsense. And I'mraising it because that's what he's asking you to accept.Just don't forget, please, not just what [the complainant] said to us, but theway she said it, the raw emotion that we saw when she gave her evidence tous in this trial. Crocodile tears, fake tears, is what he's suggesting. It'sabsolute nonsense.(Emphasis added)[55] The prosecutor then reminded the jury of the onus of proof:Let me please remind you, respectfully, just to be absolutely clear about it, [N]doesn't need to prove anything, and I know that you know that. It's importantyou do, and it's important and fair that I again remind you of that. There's noonus on him to prove anything or disprove anything, and we've talked aboutthat already. Her Honour has had a mention about that with you, I know, andwill again remind you of that in summing up, and that's right. That's fair andproper. I just want to remind you of that.[56] The prosecutor then highlighted that N had chosen to give evidence andproceeded to make submissions on why the jury should reject his evidence. Thisincluded the submission that it was "completely lacking in any value at all", was"unbelievable" and "incredible". He went on to say:Complete and utter nonsense is what we heard from him yesterday, in mysubmission to you. He had no explanation as to why [the complainant] wouldhave made these serious allegations against him if they were not true. Andagain, okay, he doesn't need to have an answer, and I accept that, and I madethat, I hope, clear when I questioned him.But that tells its own story, I suggest to you 12. He couldn't think of a logicalreason why she would somehow come up with these allegations if they werenot true. There is simply, in my submission, no reasonable, no logical reasonat all why [the complainant] would have made these allegations against herhusband, as he then was, unless they were true, unless she was telling thepolice and telling us what he did to her. And that's a very valuable indicator,and it won't have been lost on you 12, I know. But just bear that in mind,please, when you consider the evidence we have in this trial.So, look, those are some introductory remarks which I hope are useful to you.(Emphasis added)[57] The prosecutor then turned to charge 1, including the submission that: there's absolutely no logical reason for any of this to be made up by [thecomplainant], and nothing has been suggested to you on that score. And that'sa problem for [N]. That's a real problem.[58] The prosecutor then turned to charge 2, again noting that N's position was thatthe complainant had made up the allegations. He said:And he's also saying in the same breath, as he did for charge 1: "Look, I can'tthink of any reason why [the complainant] would make that allegation up if itwasn't true. I don't know." And again, he doesn't have to prove anything,and you know that. But he's inviting you to, you 12, to conclude that [thecomplainant] has for some reason concocted, made up, a further false anddetailed and serious allegation against him. That is what he is asking you toaccept.[59] Finally, the prosecutor made a similar submission in relation to charge 6. Aftersubmitting why the jury could accept the complainant's evidence on this charge, hesaid:And [N] doesn't have to prove anything, and I don't want to overdo the point,but it's important. He's chosen to give evidence, and he's got no plausibleexplanation at all as to why his wife would have finished work that night anddriven straight to the police station, in a state, and reported that her husbandhad threatened to kill her that afternoon. There isn't any plausible explanationas to why she would have done that and said that if it were not true, in mysubmission to you. There just isn't.[60] The defence closing was relatively brief. N's trial counsel did not expresslyaddress the proposition that the complainant had no motive to lie, instead focussingon the suggested implausibility of the complainant's account, the fact she did not makeany complaint about the alleged offending until December 2020, and suggested errorsand inconsistencies in her evidence. The only aspect of the defence closing thattouched on the complainant's motive to lie was trial counsel's final comment to thejury, namely "[w]e don't know why she made this up. We don't, we're not in herbrain".[61] In her summing up, the Judge gave the usual directions about the burden andstandard of proof, that counsel's submissions were not evidence, as well as a tripartitedirection because N had given evidence. Importantly, she also directed the juryspecifically on the proposition that N had no credible response to why the complainantmight lie about the events in issue, stating:I remind you here again that the Crown must prove the charge. [N] does nothave to prove anything. He does not have to suggest a reason why his wifewent to the police or why she might lie.The appeal[62] Ms Hogan first refers to this Court's observations in R v T in which the Courtstated:14We accept that the proposition "Why would the complainant lie?" should notbe presented in a way which would deflect or distract the jury from the centralissue, whether the Crown had proved the charge and each element of thecharge beyond reasonable doubt. Nor should any suggestion be allowed that14 R v T [1998] 2 NZLR 257 (CA) at 265–266.there was an onus on the accused to advance a credible answer. Generally, thetrial Judge would be required to intervene firmly if these principles wereinfringed. And without wishing to burden Judges with yet another topic whichmust be covered in summing up, in any case where the prosecution had soughtto bolster the complainant's credibility by reference to the absence of a motiveto lie, the charge to the jury needs to be clear that regardless of the absence ofevidence of motive, the onus of proof remains on the Crown throughout.We also accept the distinction between questions relating to facts on the onehand and opinion on the other, and that absence of evidence of motive shouldnot be equated to absence of motive. The question: "Why should she lie?"must be interpreted as and confined to the eliciting of facts known to theaccused, not speculation as to possible motives.[63] Ms Hogan also refers to this Court's subsequent comments in R v Hayman,where it said:15R v T should not be read as suggesting an invariable requirement. A directionis not required every time there is mention of any absence of motive on thepart of the complainant to make a false allegation (see for example R v AdamsCA70/05 5 September 2005 at [74]). The critical issue is whether there is arisk that the jury may view the burden of proof as being shifted from theCrown. Where it is clear from the summing up, viewed as a whole, that theonus of proof rests with the Crown, as was the case here, no such direction isrequired.[64] Ms Hogan submits that despite the Judge directing the jury on the absence ofa motive to lie and that N bore no onus of proof in that regard, the frequency and forcewith which the prosecutor questioned N about that issue, and the emphasis on it in hisclosing address, overwhelmed the Judge's direction, and gave rise to a real risk of thejury proceeding on the basis that N bore an onus to provide a credible answer to theprosecutor's questions.Discussion[65] Historically, whether a prosecutor could question a defendant on whether he orshe knew of any reason why the complainant might have a motive to lie had given riseto some controversy, as addressed by this Court in R v T.16 However, as the Courtexplained:17 New Zealand trial practice has allowed the accused to be asked whether heknows of any reason for the complainant to fabricate her account, and for the15 R v Hayman CA478/05, 23 June 2006 at [32].16 R v T, above n 14, at 264–266.17 At 265.prosecutor to use the absence of any credible reason as a closing argument infavour of the complainant's credibility.[66] However, while such questions and associated submissions are permitted, theybecome improper when their effect is to deflect the jury from the task of determiningwhether the Crown had proved the charges beyond a reasonable doubt.18 In R v E, thisCourt said:19The greater the repetition of any questions on motive to lie, the more likely itis that the trial process will be improperly perverted. Prosecutors should notpersist with their questions on motive after an accused has clearly stated thathe or she can give no explanation.[67] The Court further stated that:[125] In a case where the prosecution has sought to bolster thecomplainant's credibility by reference to the absence of a motive to lie, thesumming up needs to be clear that, regardless of the absence of evidence ofmotive, the onus of proof remains on the Crown throughout. In particular, thejury should be directed that it is not for an accused to prove motive Theabsence of such a direction will not always lead to an appeal being allowed.The critical issue is whether there is a risk that the jury may view the burdenof proof as being shifted from the Crown [68] Turning to the present case, as can be seen from the extracts from theprosecutor's cross-examination of N, there were more than just a few instances inwhich the prosecutor asked N if he could suggest any reason why the complainantmight lie. The prosecutor also returned to this topic a number of times in his closingaddress. Most of these questions and submissions were, however, directed to differentcharges. Further, the prosecutor's questions did not press N to speculate on why thecomplainant might have a motive to lie. Instead, the questions sought to elicit factsknown to N, the complainant's husband, as to why she might lie — reflecting thedistinction highlighted in R v T.20 And in response to most of the questions, N saidthat he did know of facts which he said gave the complainant a motive to lie. The jurywas entitled to consider the reasonableness or otherwise of N's responses in assessinghis and the complainant's respective credibility.18 R v E (CA308/06), above n 12, at [52].19 At [52].20 R v T, above n 14.[69] The prosecutor also reminded the jury several times, during both hiscross-examination of N and in his closing address, that N did not have any onus toprove anything, including a motive for the complainant to lie. Such "reminders" bythe prosecution will not always cure a scenario in which the court considers counselhas overstepped the mark. As this Court said in R v E, despite the prosecutor in thatcase giving the jury such a reminder, the prosecutor "immediately undid any effectthat may have had",21 by submitting to the jury that "if there had been any reason why[Mr E] or his family might have thought that [the complainant] was lying you canbet your bottom dollar you would have heard about it, but there's been nothing."22The Court considered this last aspect of the prosecutor's submission to be "tantamountto placing an obligation on the defence to prove motive".23 In the present case,however, the prosecutor made multiple references to the fact that N bore no onus toprovide an explanation of why the complainant might have a motive to lie, to the pointhe apologised for "labouring" the point, but reminding the jury that it was "important".[70] Further, and unlike in R v E, the Judge expressly directed the jury on thecomplainant's motive to lie and that N carried no burden in this regard. That theCrown carried the burden of proof throughout was also the subject of the usualdirections given by a trial judge on that topic, as well as the tripartite direction, and afurther reminder of the burden of proof when addressing the question trail. Thecombined effect of these matters means there is no risk the jury would have beendeflected from the central task of determining whether the Crown had proved thecharges against N beyond a reasonable doubt.[71] This ground of appeal also fails.Tone of the closing addressThe appeal[72] The remaining ground was effectively advanced in a supporting role to theground just addressed. Ms Hogan characterises the prosecutor's closing address as21 R v E (CA308/06), above n 12, at [57].22 At [56] (emphasis in original).23 At [57]."intemperate". She highlights the prosecutor's submission that N's version of eventswas "absolute rubbish", "nonsense", "completely lacking in any value at all","unbelievable" and "incredible". Ms Hogan also refers to the prosecutor's referencesto N as being a "nasty, domineering husband who treated his wife appallingly", andthat N's suggestion that the texts sent on 19 December 2020 were not abnormal to sendto a wife were "nonsense".[73] Some of the flavour of the closing address can also be seen from those extractsset out at [54] to [59] above.Discussion[74] We start by making the obvious point that the particular remarks or aspects ofa prosecutor's closing address on which an appellant focuses "should not be viewedin isolation".24[75] While we agree that the prosecutor's closing address overall was forceful, weare not persuaded that it was improper. As well as considering the closing address asa whole, it is also to be viewed in the context of a case such as this — a head-to-headcredibility contest between the complainant and N. The closing address is also to beviewed against the backdrop of the defence case being that the complainant had liedin all aspects of her evidence and was making up the entirety of her detailed allegationsof sexual and physical abuse. The prosecutor also emphasised several times duringhis closing address that the jury must also have regard to what counsel for N had tosay and reminded the jury that the lawyers' submissions were not themselves evidence(a point reiterated by the Judge in her summing up).[76] Finally, we are bound to observe that aspects of N's evidence do appearsomewhat unbelievable and nonsensical. For example: his suggestion that there wasnothing unusual or untoward about the tone of his text messages sent to thecomplainant on 19 December 2020; that the complainant went to the police stationthat night because she did not have anywhere to stay; and his denial that he was angrywhen he sent the text messages (particularly given in his evidential interview he had24 Satini v R [2014] NZCA 413 at [10].said he was "very angry"). In those circumstances, it was not improper for theprosecutor to make submissions to the jury about the implausibility of N's evidence,including in a relatively forceful way, and certainly nothing that gives rise to amiscarriage of justice.[77] This ground of appeal is also dismissed.The cumulative effect of the grounds of appeal[78] Standing back, we do not consider the matters raised under each of the threegrounds of appeal, considered on a cumulative basis, give rise to a real risk of amiscarriage of justice.[79] As noted, this case involved a sharp conflict of evidence between thecomplainant and N. The prosecutor was entitled to challenge N on his evidence, whichin a number of respects lacked credibility. While at times the questioning and theclosing address were forceful, we do not consider the prosecutor overstepped the marksuch as to give rise to a miscarriage of justice. Further, the jury was reminded onmultiple occasions, by both counsel and the Judge, that the Crown bore the onus ofproof throughout and that N did not have to prove anything. Finally, the Judgespecifically directed the jury that N did not have to establish a motive for thecomplainant to lie.[80] The conviction appeal is dismissed on this basis also.[81] We turn now to the sentence appeal.Sentence appealThe material before the Judge at sentencing[82] To assist with sentencing, the Judge had before her a Provision of Advice toCourt (PAC) report, as well as a s 27 cultural report addressing N's background.[83] The PAC report recorded that N maintained his innocence and, while he andthe complainant had arguments, everything else was "made up". He was assessed asbeing at a moderate risk of reoffending and a high risk of harm, particularly in anintimate relationship. Given his denial of the offending, the report writer recorded thatthere was no demonstration of remorse by N.[84] The report touched briefly on N's background. It recorded N's view thatgrowing up in Fiji was at times difficult as the family had little money, but "despitethis he said that he enjoyed a good childhood and has always been grateful for theopportunities given by his parents, particularly around education". The reportrecorded N telling the report writer that much of his upbringing and education wasassisted by the Hindu community, as both his parents worked long hours on a farm tosupport the family. N told the report writer that part of the reason for coming toNew Zealand was to enable him to provide financial support for his parents.[85] The s 27 cultural report was relatively brief. Its factual content wasself-reported by N, but with some reference to academic literature about Hindu culture.[86] The report recorded that:[N] grew up in a very poor environment. His father was a farmer and hismother a home maker. Women were treated as slaves and were there tosupport the men in order to attain their goals.[87] This comment was supported by academic writing saying that an aspect ofHindu culture includes the "reproduction of male dominance and stark genderdifferences". The report writer also referred to another article on the basis of whichthe report writer described a suggested tendency in Hindu culture to operate on apatriarchy that devalues women, viewing men as the "ruler of the household" whilepushing women into subordination.[88] The report then addressed N's upbringing. Unlike N's account to the PACreport writer of a good childhood, the report recorded that N suffered severe beatingsfrom his father and had witnessed his mother and sister also being beaten by his father.N said that these beatings occurred on a regular basis. The report recorded:He suffered the same as what they did. Women were considered slaves in theirhouseholds. They had no say over the running of the family or home and didwhat they were told to do. [N] said there were times he considered killinghimself as he was powerless to protect his mother and sister. He said hischildhood was not a happy time for him or his sister. His mother neveranswered back because of the fear of being beaten. [N] did say his motherand sister instilled good morals in him with regards to the treatment of women.He was taught to respect them and not treat them as slaves or less than himself.[89] N told the report writer that he was introduced to the complainantapproximately 18 months after arriving in New Zealand, through a mutual friendduring a religious ceremony. He also told the report writer that he had never been ina relationship with a woman before.The sentence adopted in the District Court[90] In sentencing N, the Judge adopted a starting point of seven years'imprisonment for the lead charge of rape — the bottom of band 2 in R vAM (CA27/09)25 — and then uplifted that by three years for all other offending.26 Noissue is taken with these aspects of the sentence. From the overall starting point of10 years' imprisonment, the Judge reduced the sentence by six months, orapproximately five per cent, for the fact N had no previous convictions.27 The Judgealso adopted a further discount of six months for the 12 to 15 months N had spent onEM bail.28 Again, no issue is taken with these discounts.[91] The Judge then turned to the report, stating:29[26] That brings me to the cultural report. It makes for difficult reading. Iam not sure whether I am supposed to accept that because women are said tobe treated as slaves in your culture, that this somehow makes you less culpablefor the way you treated your wife in New Zealand. I cannot accept that.[27] I am also unable to accept that there is a link between your backgroundand culture of devaluing women and the treatment of your wife from the verystart of your marriage.[28] The first point is that there is a complete denial of the offending. Youdo not even admit that you have been violent towards your wife. The secondpoint is all of the inconsistencies between various accounts that come fromyou. On the one hand you say you have had a good childhood and then on theother hand that it was a violent household. But leaving that aside, you have25 Sentencing notes, above n 6, at [16] referring to R v AM (CA27/09) [2010] NZCA 114, [2010]2 NZLR 750.26 At [22].27 At [25].28 At [25].29 Sentencing notes, above n 6.said that your mother and sister taught you how to respect and treat women. Icannot be sure anything that you have said is true or whether you are justtrying to paint yourself in a good light. But the fact that you have said thatyou have tried to protect your mother and sister, or you could not, and thatthey have taught you how to respect and treat women means that you knewyou could not treat your wife like this. This is an acceptance that you knewwhat you were doing to her was wrong.[29] As I have said, all of this seems a rather clumsy attempt by you topaint yourself in a better light. All of the material is self-reported. I am notprepared to give any discount for the cultural report. I can see no basis onwhich to do so.[92] The Judge accordingly sentenced N to an overall sentence of nine years'imprisonment.30 No minimum period of imprisonment was imposed.The appeal[93] Ms Hogan submits that the s 27 cultural report detailed cultural factors whichmay have assisted in providing an explanation for N's behaviour that mitigates hisculpability. She refers in particular to those aspects of the report that record:(a) N grew up in another country, in an environment where women werepoorly treated;(b) N was beaten severely by his father in his childhood, and witnessed hisfather beat his mother and sister;(c) his family was very poor and his childhood was unhappy;(d) he had not previously been in a relationship with a woman; and(e) he was suffering ill health.31[94] Ms Hogan submits that the Judge rejected these factors without providing anopportunity for the credibility of the report to be properly tested and determined. Shesubmits that if a disputed fact is a matter of mitigation (here, the link between N's30 At [30].31 The cultural report recorded N's advice that he had suffered a heart attack three weeks prior andwas suffering a serious kidney complaint. N reported that his health was being monitored by theDepartment of Corrections' Health Department in conjunction with Auckland Hospital.background and his offending), an opportunity for oral evidence on the point shouldhave been afforded to N, as well as the prosecution.32 Ms Hogan submits that this isconsistent with the enactment of s 24 of the Sentencing Act which provides for adisputed fact hearing. She accordingly submits that the Judge should not have madeany findings against the link between N's background and his offending without firstproviding the opportunity for oral evidence on that issue.Discussion[95] A disputed fact hearing in this case was unnecessary. In all cases in which as 27 report is put before a sentencing judge, the judge must evaluate and assess thecontent of the report, often in conjunction with a PAC report, and any suggestedconnection between the offender's background and their offending. TheSupreme Court in Berkland v R addressed a similar point in the context of a s 27 reportregarding the appellant, Mr Harding.33 It accepted the Crown's submission that thereport had a number of shortcomings, including inconsistencies between it and apsychiatric report. There was no suggestion that those shortcomings ought to be dealtwith by way of calling of oral evidence. Rather, the Court stated that "suchshortcomings as there may be can be adequately addressed in the weight to beattributed to the various conclusions in the report".34 Similarly, the Court doubted thesuggestion in the s 27 report that Mr Harding had been physically abused as a child,and again there was no suggestion that oral evidence ought to be called on that topic.35[96] It is instructive to consider what would have been the subject of a disputed facthearing in this case. If it was to determine the truthfulness of N's statements to thecultural report writer about his unhappy childhood, including that his father regularlybeat his mother and sister, family members inevitably would have needed to be calledto give evidence on those matters. We see a disputed fact hearing in this context ashaving the potential to become a mini-trial and therefore quite unworkable. Instead,the inconsistency between the s 27 cultural report and the PAC report was readilyapparent on the face of the reports, and counsel for N had an opportunity to take32 Referring to R v Moananui [1983] NZLR 537 (CA) at 543.33 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [175]–[186].34 At [175]. See also [129].35 At [183].instructions from N on those inconsistencies and address the Judge on them at thesentencing hearing. Alternatively, in light of the inconsistencies and given theinformation in the cultural report was self-reported by N, there was nothing to preventthe report writer, or N's counsel, taking steps to speak with N's family members(presumably his mother and/or sister) to seek further information.[97] We reiterate that a sentencing judge's assessment of a s 27 report is anevaluative exercise, against all of the information available to the judge at sentencing.And while the Supreme Court in Berkland said that self-reported facts in a culturalreport are not to be put to one side merely because they are self-reported,36 that is notto say that sentencing judges cannot bring a critical eye to such matters, particularlywhen they conflict with what the offender has told another report writer.[98] Even accepting the content of the s 27 cultural report, however, we do notconsider that the Judge erred in not giving a discount for it. As the Supreme Courtsaid in Berkland, an offender's background must have acted as a causative contributorto their offending before it will be relevant to the sentencing outcome.37 Acceptingfor present purposes that N's cultural background might involve the subservience ofwomen, this does not explain ongoing physical and sexual violence in his maritalrelationship. N told the report writer of his father's physical abuse of his mother andsister. But N also said that his mother and sister had taught him how to respect womenand not to treat them as slaves or less than himself. On that basis, it is difficult to seeany ongoing causal connection between N's background and his offending.[99] Finally, even if a modest discount might have been warranted for the culturalreport, we do not consider the Judge's end sentence was manifestly excessive. Theseven year starting point on the rape charge was unremarkable, and the uplift ofthree years for the remaining offending, which was serious in and of itself (particularlythe strangulation charge), was arguably somewhat generous. It is also arguable thatthe five per cent discount for N's lack of previous convictions was also generous, giventhe extended period over which N's offending occurred. For these reasons, the36 At [129].37 At [109].sentence imposed was within the range available to the Judge and the sentence appealmust therefore fail.Result[100] The appeal against conviction is dismissed.[101] The appeal against sentence is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent