NATHAN RICHARD CROOK v R [2020] NZSC 86

NATHAN RICHARD CROOK v R [2020] NZSC 86 [28 August 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 204OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 39/2020[2020] NZSC 86BETWEEN NATHAN RICHARD CROOKApplicantAND THE QUEENRespondentCourt: Glazebrook, O'Regan and Williams JJCounsel: N P Chisnall for ApplicantJ A Eng for RespondentJudgment: 28 August 2020JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] Mr Crook applies for leave to appeal against the Court of Appeal's decisionupholding his convictions in the District Court for sexual offending.Background[2] The applicant was convicted of five charges of sexual offending against a childand sentenced to three years and three months' imprisonment.1 He was in arelationship with the complainant's mother and the Crown case was that the offendingoccurred at times when the mother was absent or asleep. The complainant told hermother about the applicant's conduct some considerable time after the relationship hadended. It is relevant to the issues in the proposed appeal that on hearing of thesematters, the mother initially told the complainant that she would be required to take alie detector test. The complainant was frightened by this and retracted her allegations,saying the whole story was a joke.[3] Two features of the trial were the subject of the applicant's conviction appealin the Court of Appeal. First, in a pre-trial ruling, the District Court held that theCrown was not obliged to call the complainant's mother, who the defence consideredwas likely to give evidence sympathetic to the defendant.2 Second, the complainant'sevidential video interview (EVI) was replayed to the jury, on request, immediatelybefore closing addresses.[4] In respect of the first issue, the trial Judge held that the Crown was justified inconsidering the mother unreliable and unworthy of belief.3 Not only was the mother'saccount contrary to her own statements to Child Youth and Family Services and to thatof other witnesses, it was also contrary to comments the applicant himself had made.4Accordingly, the Judge declined to direct the Crown to call the mother as witness.5[5] As to the second issue, the applicant elected to give evidence and was the lastwitness to be called. Immediately after his evidence, the jury asked for thecomplainant's EVI to be replayed. When the interview was replayed, nocontemporaneous direction was given by the Judge in relation to it, but relevant1 R v Crook [2019] NZDC 7669 (Judge Duncan Harvey).2 R v Crook [2018] NZDC 21091 (Judge Duncan Harvey).3 At [40], distinguishing Rapana v R [2015] NZHC 2286 as to the circumstances in which theprosecution is obliged to call a witness.4 At [41].5 At [42]. See Criminal Procedure Act 2011, s 113(3).directions were given during his summing up. Closing addresses followed thereplaying of the EVI.Court of Appeal[6] The applicant appealed his conviction to the Court of Appeal on two grounds:6(a) that the trial Judge should have directed the Crown to call thecomplainant's mother as a witness; and(b) that the trial Judge's jury directions in summing up were insufficient todeal with the risks arising from the complainant's evidential videointerview being played to jurors a second time before closing addresses.[7] On the first issue the Court accepted that "[t]here is no doubt that in theordinary course of events a person in this situation would be called by theprosecution".7 But the Court also noted this was subject to the principle that theprosecution is not obliged to call a witness whom it believes on valid grounds to beuntrustworthy.8 The Court also considered that the mother was "relevant to thenarrative but not the central player", and that there were factors beyond inconsistentstatements to indicate untrustworthiness.9[8] The applicant then submitted that the Crown took unfair advantage of themother's absence at trial. The Crown did this by suggesting to the jury that thecomplainant had no motive to lie, by exploring with the complainant the circumstancesof her disclosure of the abuse allegations to her mother and her subsequent retraction,and by engaging in speculation about why the applicant remained in contact with themother after he was made aware of the allegations.[9] The Court rejected this submission as itself speculative because it depended onwhat the mother may have said had she been called to address these issues. Further,the Court noted that the defence could have called the mother but did not and there6 Crook v R [2020] NZCA 148 (Clifford, Simon France and Lang JJ).7 At [7].8 At [11], citing R v Wilson [1997] 2 NZLR 500 (HC) at 509–510.9 At [11].was no complaint about trial counsel's decision in that regard.10 Finally, the Courtagreed with the trial Judge's ruling for the reasons he gave.11[10] On the second issue, the applicant submitted that directions on balance anddemeanour should have been given at the time the EVI was replayed. The Courtconsidered there was no merit in this point.12 It held that it was significant the EVIwas replayed prior to the closing addresses, as opposed to during deliberation. Thismeant the closing addresses and the Judge's summing-up applied to the replay as theydid to all other evidence.13 As to the lack of a contemporaneous demeanour warning,the Court considered first that there was no reason to assume the jury was motivatedby demeanour thinking in relation to the EVI. They had already seen the complainantgive evidence in court over an extended period and so had ample opportunity to assessher demeanour, including while under cross-examination. It was equally possible, theCourt considered, that, having just heard the defendant, the jury simply wished torefresh their memory of the content of the complainant's evidence as they were yet toreceive the transcript.14 Second, the Court considered the appellant was going too farwhen he sought to critique the internal structure of the Judge's summing-up (the Judgegave demeanour warnings in opening and summing up, and repeatedly reminded thejury to consider all the evidence).15Applicant's submissions[11] On the issue of the need for directions in relation to replaying the EVI, theapplicant submits that contrary to the Court of Appeal's conclusion, the timing of thereplay did not matter: replaying a complainant's EVI may reinforce the Crown's casethrough the mere fact of repetition irrespective of timing. The error was, it issubmitted, that the trial Judge failed to give the relevant direction and warning at the"critical, first reasonable opportunity to do so".10 At [13].11 At [14].12 At [19].13 At [20].14 At [22].15 At [23].[12] The applicant also submits that the Court was wrong to "presuppose" that thereason the jury asked for a replay was to refresh their memory because they did nothave the transcript, as this was speculative. On the other hand, it is argued, the Courtpenalised the applicant by pointing to a lack of basis for assuming the jury wasmotivated by demeanour thinking. The applicant says that the jury could well havebeen motivated by demeanour thinking and the trial Judge would not have knownbecause he was not able to inquire as to the jury's reason.[13] Further, the applicant submits that the structure of the trial Judge'ssumming-up is relevant on appeal.[14] The applicant submits that his application is a "useful opportunity toconsider the approach that ought to be taken when a trial judge is confronted with arequest by the jury to re-watch an EVI".[15] As to the trial Judge's decision not to direct the prosecution to call thecomplainant's mother, the applicant first submits that the Court of Appeal erred by notexpressly addressing the interests of justice test contemplated by s 113(3) of theCriminal Procedure Act 2011.16 The applicant submits that the Court misapplied thetest when it suggested that the defence could have called the mother. The Court failedto recognise that it may be unfair to oblige the defence to call certain witnesses.[16] Second, the applicant submits that the Court was wrong to say that what themother might have said in evidence was speculative. The Court had the mother'sstatement regarding what the complainant told her when she retracted her complaint.The Crown took unfair advantage of the mother's absence. The Crown submitted tothe jury that there was no evidence that the complainant had a motive to lie, when theCrown knew the witness it had refused to call would have provided such evidence.[17] The applicant then submits s 113(3) engages important fair trial principles andhas not yet been subject to close appellate scrutiny. The applicant says that theproposed appeal provides an opportunity to consider whether the "forward-looking"16 Citing Wilson, above n 8; and McGinty v Attorney-General [2001] NZAR 449 (HC).interests of justice test in s 113(3) should be aligned with the retrospective inquiry ofwhether there is a miscarriage of justice under s 232(4) of the Criminal Procedure Act.Analysis[18] As to the lack of contemporaneous directions when the EVI was replayed, theremay be circumstances where further guidance will be of assistance to judgesconfronted with a jury request to that effect, but we are not satisfied this is theappropriate case for such further consideration. In light of the fact that, withoutexception, the authorities relied on by the applicant relate to requests made duringdeliberations and that in this case the replay was followed immediately by Crown anddefence closings, there are insufficient prospects of success in relation to this groundto warrant the grant of leave.[19] As to the failure to call the complainant's mother, the Court of Appeal appliedsettled authority to these facts. We are not persuaded that further guidance on theapplication of s 113(3) is required generally. Nor are we of the view that suchassessment, if made, has a reasonable prospect of producing a different result in thiscase.[20] We are therefore satisfied that the proposed appeal involves no matter ofgeneral or public importance, nor is there a substantial risk of a miscarriage ofjustice.17Result[21] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent17 Senior Courts Act 2016, s 74(2)(a) and (b).