N (CA17/2021 v R [2022] NZCA 252

N (CA17/2021 v R [2022] NZCA 252 [17 June 2022]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFAPPELLANT REMAINS IN FORCE.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA17/2021[2022] NZCA 252BETWEEN N (CA17/2021AppellantAND THE QUEENRespondentHearing: 22 February 2022Court: Cooper, Peters and Palmer JJCounsel: C R Horsley for AppellantE J Hoskin for RespondentJudgment: 17 June 2022 at 9 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] On or about 19 November 2020, following a jury trial before Judge Harding inthe District Court at Tauranga, the appellant, N, was found guilty of sexual offendingagainst A and B. In December 2020, the Judge sentenced N to 17 years' imprisonment,with a minimum period of imprisonment of eight and a half years.1[2] N appeals against his convictions for the offending against A. He submits thata miscarriage of justice has occurred due to an erroneous pre-trial ruling by the Judgeunder s 44 of the Evidence Act 2006 (the Act), which in turn is said to have created areal risk that the outcome of the trial was affected.2 Alternatively, N appeals on theground the jury's verdicts were unreasonable.3[3] If his appeal against conviction succeeds, N seeks to be re-sentenced on theoffending against B. This would happen in any event but does not arise if the appealagainst conviction fails, as it does.Charges[4] N was charged with 23 offences.[5] Of these, 18 (including charges 9 and 10, which were alternatives to each other)were alleged to have been committed against A, between 2011, when A was aged sixor seven, and 2018.[6] The remaining five charges were alleged to have been committed against B,between 2013 and 2017. B was aged 15 in 2013.[7] In the course of trial, the Judge discharged N on charges 9 and 15 in respect ofA, and charge 19 in respect of B.A[8] Of the charges left to the jury in respect of A, the jury found N guilty of 11.These were: a representative charge of sexual violation by rape (charge 1); six furtherrepresentative charges of indecencies on or against a child or young person (charges 3to 8); an indecent assault on a child and sexual violation by unlawful sexual connection1 R v [N] [2020] NZDC 26875.2 Criminal Procedure Act 2011, s 232(2)(c) and 232(4)(a).3 Section 232(2)(a).said to have been committed in a shed on the property (charges 10 and 11); sexualviolation by rape, alleged to have been committed in the course of a trip to Tauranga(charge 14); and a representative charge of assault on a child (charge 18).[9] The jury found N not guilty of a representative charge of sexual violation byunlawful sexual connection (charge 2), and four specific charges being an assault withintent to commit sexual violation (charge 12), sexual violation by rape (charge 13),and two indecent acts (charges 16 and 17).B[10] The jury found N guilty of the four remaining charges relating to B, these beingthree indecent assaults, one of which was a representative charge, and one charge ofsexual violation by unlawful sexual connection.Background[11] A went to live with N and his wife in the Bay of Plenty in 2011, when she wassix or seven years old. A was related to N's wife, but remained in N's household whenhis wife died in 2013.[12] Aside from N, several of his adult children, and their partners and children,including B, also lived in the household.[13] A disclosed the offending to the police in early May 2018. She completed anevidential video interview (EVI) shortly thereafter, in which she described theoffending she said had occurred.[14] In her EVI, A said she had disclosed N's offending to one of her aunts, and tosome of her friends at school.[15] The police subsequently conducted EVIs of two of A's school friends, WHand HN. We come back to this below as it is relevant to the first ground of appeal.[16] N was then charged and arrested on the charges pertaining to A.[17] In late 2019, B disclosed the offending against her. B also gave an EVI.[18] The case went to trial in November 2020. A, B, WH, and HN's EVIs wereplayed to the jury as their evidence-in-chief, as was the EVI of another child in thehousehold, M. We do not have a copy of the transcript of M's EVI but his evidence attrial was that he observed at least some of what is referred to as the "shed incident",being the offending covered by charges 10 and 11. Other members of the family andthird parties also gave evidence for the Crown.[19] N gave evidence in his defence, denying all allegations against him.Other members of the household also gave evidence in N's defence, to the generaleffect that they had not observed anything untoward between N and A or N and B.First ground of appeal — pre-trial ruling[20] The Judge gave the pre-trial ruling that is in issue on appeal on 5 November2020.4 The ruling concerned the evidence of A, B, WH and HN.A and B[21] It appears from the Judge's ruling that Crown and defence counsel acceptedthat A and B had each been abused by other males. A had been abused by her fatherand B, in her EVI, made express reference to other abuse against her. The Crownapplied for a ruling that this evidence of other abuse was inadmissible at trial.The Judge granted this ruling, holding that evidence of the other abuse wasinadmissible as it was irrelevant and, if adduced at trial, would be in breach of s 44 ofthe Act (see below). We note that the Judge said this ruling was by consent.5 That isinconsistent with Mr Horsley's submission to us, as we discuss below.WH and HN[22] Turning to WH and HN, in her EVI, WH said that A had spoken to her ofoffending by her father as well as by N. WH's evidence as to when these conversations4 R v [N] [2020] NZDC 26920.5 At [4].took place was imprecise but it was when WH was between nine and 12 years old.WH was aged 13 at the time of her EVI, as was HN. The interviewer first questionedWH about what A had said regarding her father's offending. This took upapproximately five pages of the transcript of WH's interview. The interviewer thenquestioned WH about what A had said about N's offending. This too was a reasonablylengthy discussion.[23] In her EVI, HN said that A had spoken of offending by someone else that A didnot name, and of offending by N. The interviewer did not pursue whatever A mayhave said about the "someone else", and focused on what HN could recall of A'sdisclosures regarding N.[24] At the pre-trial hearing, the Crown said that it wished to edit the EVIs of HNand WH to exclude HN's reference to "someone else" and WH's recollection of whatshe recalled A telling her about A's father's offending.[25] Mr Horsley, counsel for N at trial and on appeal, opposed the proposedexclusions on several grounds, discussed below.[26] The Judge granted the Crown's application and declined Mr Horsleypermission to question WH and HN on the possibility of confusion, holding that suchevidence would be in breach of s 44 and would not be of such direct relevance to anyissue in the case that permission should be granted.6[27] Accordingly, WH and HN's EVIs were edited as the Crown proposed andMr Horsley did not cross-examine WH and HN as he had wished.Submissions[28] On appeal, Mr Horsley submits that the Judge erred in this ruling.[29] In submissions to us, Mr Horsley said that he wished to question WH and HNas to whether they were, or might have been, mistaken in their EVIs and that A had6 At [14].said the offending had in fact been committed by her father or the "someone else" towhom HN referred. This argument is not entirely captured by the Judge's summaryof Mr Horsley's submissions but nothing particularly turns on the point, given whatwe say below. Mr Horsley also said to us that he had wished to cross-examine Aherself on this possibility, that is whether the offending she attributed to N might infact have been committed by her father. We shall address this submission also,although it conflicts with the Judge's statement that Mr Horsley consented to his rulingas to A.Discussion[30] Section 44 of the Act precludes evidence and/or questions in a sexual caserelating to the sexual experience of the complainant with any person other than thedefendant, except with the permission of a Judge.7 A Judge may only grant permissionif satisfied the evidence is, or the questions are, of such direct relevance to the facts inissue that it would be contrary to the interests of justice to exclude them.8[31] It is well accepted that the principal purpose of s 44 is to prevent defencecounsel seeking to blacken the character of a complainant in a sexual case; that theprohibition is applied less stringently in the case of a child complainant when therecan be no suggestion of such a blackening of character; and that the provision is notto be applied so as to preclude or truncate the advancement of a full defence otherwiseopen to a defendant.9[32] That said, whether the complainant is an adult or child, it is incumbent oncounsel who seeks permission under s 44 to make out an evidential basis for theevidence or questions proposed, so that the court knows the exercise is not purelyspeculative. In ascertaining whether the required basis exists, at a minimum the courtconsiders the surrounding background.107 Evidence Act 2006, s 44(1).8 Section 44(2).9 Lindsay v R [2011] NZCA 500, [2012] 1 NZLR 62 at [10], citing R v Clode [2007] NZCA 447 at[24]; R v Tunbridge [2015] NZCA 456 at [12]–[13]; and Marsters v R [2019] NZCA 140 at [18]–[21].10 R v Andrews [2018] NZCA 421 at [26]; and R v M (CA654/2018) [2019] NZCA 138 at [16].[33] Turning to this case, that a child complainant, A, is accepted to have beenoffended against by another person is not an unusual state of affairs. By way ofexample, this was the situation in R v M, Marsters v R, and R v Andrews, in whichthis Court declined permission to cross-examine the complainant despite it beingaccepted in those cases that another person had offended against him or her.11[34] More than the fact of other abuse would be required to warrant grantingpermission to cross-examine A. Mr Horsley did not point us to anything which wouldhave met that threshold.[35] In respect of WH and HN, we do not believe they could have beencross-examined on the risk of confusion if A herself was not to be questioned on theissue. Regardless, our review of the transcripts of WH and HN's EVIs does notsuggest confusion was likely.[36] Questioned about what A had said as to her father's offending, WH started bysaying it was when A was living "in Whangarei or Whanganui somewhere witha W". This was correct. A lived in Whanganui between the ages of three and six.[37] WH said that A had said her father used to come into "her room". A did nothave a room at N's house.[38] WH said A's mother had "kicked [A's father] out" when she found out aboutthe offending. This was consistent with A's mother's evidence at trial to the effect thatshe had relocated from Whanganui as she needed a "break" from A's father.[39] WH also named N and said that A had sought to avoid N by sleeping in themiddle of two of A's cousins whose names WH recalled.[40] There is a similarity in the acts WH said A had attributed to her father and toN, in that both had touched her vagina, but this would not be unusual in sexualoffending against a girl. We note also that WH said A was scared both of her father'soffending and of N's, and the editing of her EVI meant that the jury would have been11 R v M (CA654/2018), above n 10; Marsters v R, above n 9; and R v Andrews, above n 10.left with the impression N alone was the cause of A's fear. However the Crown madelittle of that in closing and we do not think much turns on it.[41] As to HN, her account of what A had told her of N's offending was consistentwith A's account of rape and indecencies. HN also said that A had identified the loungeas being where much of the offending occurred and that it was a very full household.Both of these matters were correct. In addition, HN said that A had tried to tell amember of her family whom HN thought was A's aunt but that no one had believedher. Both of these matters were also correct.[42] These matters do not indicate confusion or inaccurate recall but the opposite.[43] To conclude, it was for Mr Horsley to identify more than a risk of confusion ifhe were to be granted permission to cross-examine A, WH, and HN on these matters.It does not appear that he did so before the Judge, and nor did he do so before us.Accordingly, we are not persuaded that the Judge erred in his ruling.[44] If we are wrong, we are not persuaded that any error by the Judge on this pointgave rise to a real risk the outcome of the trial was affected.[45] First, as we say below, A's EVI was clear in respect of the representative andspecific offending of which the jury found N guilty.[46] Secondly, WH and HN's evidence was not the only "recent complaint"evidence. M gave evidence that A had complained to him that N was touching her,and A's aunt gave evidence that A had complained to her and her sister-in-law on morethan one occasion, but they had not believed her and had done nothing about it.[47] Thirdly, B's mother said that she deliberately went into the shed one night whenA was in there with N, seeking to extricate A on the pretext of dinner being ready, butN told her to "piss off [and] go away". She also gave evidence that N treated A and Bbetter than the other children, with A given more pocket money than the others and Bbeing given mobile phones from time to time.[48] Fourthly, a neighbour whose husband frequently socialised with N (in the shed)gave evidence largely concerned with the offending against B and what she consideredan inappropriate physical relationship between N and B. However, she also gaveevidence that she had overheard a loud argument in which one of N's daughters wasshouting at N to "leave the girls alone".[49] Fifthly, there was the obvious cross-propensity of the evidence in respect ofthe charges relating to B. The evidence against N on the charges relating to B wasoverwhelming. B's own mother, who was N's daughter-in-law, gave evidence of arequest to N that he stop sleeping in the bed with B, and A and B's aunt gave evidencethat she and her sisters had raised the issue with N.[50] To conclude on this ground, we are not persuaded the Judge erred in his ruling.If we are wrong in that, we are not persuaded there is a real risk the outcome of thetrial was affected.Second ground of appeal — unreasonable verdicts[51] Mr Horsley submits the jury's guilty verdicts were unreasonable, in the sensethat they were inconsistent with the jury's not guilty verdicts. We must allow theappeal if we accept this submission.12[52] To recap, the jury returned not guilty verdicts on charges 2, 12, 13, 16, and 17,and guilty verdicts on charges 1, 3 to 8, 10, 11, 14 and 18. We say no more aboutcharge 18 as it was one of assault, and so quite different to the others.[53] Charges 1 to 8 were representative charges. Charges 10 to 17 concernedspecific incidents.[54] Mr Horsley prefaced his submissions on this ground by acknowledging thatverdicts will not be inconsistent if the evidence provides a basis for the differentverdicts, and that it is open to a jury to accept parts of a complainant's or a witness'sevidence and reject other parts.12 Criminal Procedure Act, s 232(2)(a).[55] Subject to that, Mr Horsley advanced the following submissions in support ofthis ground of appeal.[56] First, the jury's not guilty verdicts indicate it rejected A's evidence on thoseparticular charges. This in turn indicates the jury did not consider A a wholly credibleand reliable witness. Mr Horsley submits this is further reinforced by the fact the notguilty verdicts were unanimous whereas the guilty verdicts were majority verdicts(other than charge 18 which was unanimous).[57] Secondly, Mr Horsley submits that, just as there was no supporting orindependent evidence in respect of charges 12, 13, 16, and 17, there was no suchevidence on charges 10 and 11, being the shed incident, or charge 14, being the rapecommitted in the course of a trip to Tauranga. On the contrary, Mr Horsley submitsthat, to the extent there was any other evidence on those charges, it contradictedA's evidence.[58] Thirdly, Mr Horsley submits that, if the evidence of WH and HN is set aside,there is no independent evidence supporting A's allegations on the representativecharges, and A's evidence, such as it was on these charges, was limited and general.Discussion[59] We can deal with Mr Horsley's first submission very briefly. In Spittle v R,this Court said that there is no reason in principle to place less weight on a majority,as opposed to a unanimous, verdict.13[60] As to Mr Horsley's second and third submissions, in B (SC12/2013) v R, theSupreme Court said that if there is some evidence to support the verdict(s) said to beinconsistent (in this case the verdicts on charges 1, 3 to 8, 10 and 11, and 14), anappellate court will not usurp the jury's function by substituting its view of the factsfor that of the jury.14 The focus must be on the guilty verdicts, not the acquittals.1513 Spittle v R [2017] NZCA 116 at [14].14 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [68(d)].15 At [105].[61] Accordingly, the issue is whether the evidence at trial was sufficient to supporteach guilty verdict.[62] There was such evidence, from A, as the Judge identified in his summing up.We do not accept Mr Horsley's assessment of A's evidence as limited and general, atleast not in relation to every charge on which the jury returned a guilty verdict.Regardless, limited and general evidence is still evidence. All that is required is thatit establishes the elements of the offence, as it did.[63] Moreover, it was not necessary that A's evidence be corroborated, but it wasopen to the jury to treat WH and HN's evidence as corroboration. There is no need toput that evidence to one side, given that we have dismissed the first ground of appeal.Not guilty verdicts[64] As we have said, it is unnecessary to identify a reason as to why the jury mayhave returned some not guilty verdicts. That said, Ms Hoskin, for the Crown, submitsthat the not guilty verdicts in this case are likely to reflect that A's evidence at trial onthose charges was insufficient.[65] The only supporting evidence as to charge 2, a representative charge of sexualviolation by unlawful sexual connection, was a brief statement in A's EVI saying N"made me suck his willie". Nor did A, when describing N's usual pattern ofoffending at trial, say this included a connection between her mouth and his genitals.[66] The offending covered by charge 12 was said to have occurred at a marae.A resiled from this at trial and ultimately said she was unable to remember whathad occurred.[67] Charge 13 was a specific incident of rape which A said in her EVI had occurredon a mattress in the lounge when she was 12. However, this evidence was inconsistentwith evidence given by other family members at trial about the sleeping arrangementsusually adopted in the lounge. This was a point Mr Horsley himself made to the juryin his closing remarks.[68] Charges 15 and 16 were that N had attempted to sexually violate A and hadmasturbated in front of her, both on the same occasion at a public toilet. As it turnedout, A's evidence at trial in relation to charge 15 was that N had only tried to grab herwaist. Given this, N was properly discharged on charge 15. Ms Hoskin submits that,in those circumstances, the jury's not guilty verdict on charge 16 was not surprisingand, indeed, consistent with Mr Horsley's closing remarks to the jury to the effect thatthey could not rely on anything A said had occurred at the toilet.[69] Charge 17 reflected an allegation by A in her EVI that N had masturbated infront of her somewhere in nearby bushes. At trial A was unable to recall anysuch incident.[70] We accept Ms Hoskin's submission that the not guilty verdicts may well reflectthat A's evidence on those charges was insufficient. However, as we have said, it isnot necessary to explain those verdicts. The important point is that we are satisfiedthere was sufficient evidence before the jury to support its guilty verdicts.Specific charges — charges 10 and 11[71] Although it is unnecessary for us to do so, we turn now to Mr Horsley'ssubmissions as to evidence contrary to A's and/or the lack of corroborating evidence.[72] A said the offending covered by charges 10 and 11 had been committed inthe shed when N put her on his lap, that she was seven at the time (which would haveput it at about 2012), and that M had seen it when he came into the shed through aside door.[73] M's evidence was that he had walked up to the shed and stood at the door.From there, he observed N standing with his pants down and his penis exposed whilstA was sitting down. His evidence was that this had been in 2017, and that he had beenat the main roller door entrance to the shed.[74] Mr Horsley submits that, contrary to the Crown submission at trial,M's evidence did not corroborate A's account.[75] We accept that there are obvious differences between the two accounts.That said, we are not persuaded A's and M's accounts are so different that a jury mightnot consider M's evidence corroborative of at least some aspects of A's evidence oncharges 10 and 11. Even if it were not, the very best that could be said for N is thatM's account was evidence of other serious offending by N against A that was notcaptured in the charges laid against him.Charge 14[76] Charge 14 reflected A's allegation that N had raped her in his van in the courseof a trip to Tauranga to see one of N's relatives. In her evidence, A identified otherspresent on that trip as including M, N's son and daughter-in-law, and two ofN's daughters.[77] All of those whom A identified and who gave evidence said that they were notpresent on any such trip.[78] That said, A's aunt gave evidence that N would take both A and B on trips inhis van and she also recalled N taking A alone with him.[79] N himself gave evidence of taking his son and others, including A, to Waihi tocollect a vehicle. N said that, although several of those present had returned in thevehicle, he had returned with A and B and that they had called into Tauranga en route.[80] This was far from evidence ruling out what A alleged, even if there was disputeas to some matters of detail.[81] To conclude on this ground of appeal, we are satisfied that the evidence beforethe jury was sufficient to support the guilty verdicts it returned.Result[82] The appeal is dismissed.[83] As noted at [3] above, given our conclusion on the conviction appeal we donot need to consider N's sentence for the offending against B.Solicitors:Crown Law Office, Wellington for Respondent