MCLEAN v R [2022] NZCA 114

MCLEAN v R [2022] NZCA 114 [6 April 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA708/2020[2022] NZCA 114BETWEEN PAUL ELVIS RAWIRI MCLEANAppellantAND THE QUEENRespondentHearing: 16 February 2022Court: Gilbert, Katz and Edwards JJCounsel: S Jefferson for appellantF E Cleary for respondentJudgment: 6 April 2022 at 2 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Following a jury trial, Paul McLean was found guilty of two counts of indecentassault,1 two counts of doing an indecent act on a young person (under 16),2 and twocounts of sexual violation by unlawful sexual connection.3[2] Mr McLean now appeals his convictions.4 His grounds of appeal are thatcertain evidence that was admitted at trial by agreement5 was unfairly prejudicial andshould not have been before the jury, namely:(a) evidence relating to anal bleeding suffered by one of the complainants;and(b) counterintuitive evidence relating to delayed complaints, and sexualoffending taking place in close proximity to other people.Background[3] The two complainants are siblings. AB was 16 and CD was 11 years old whenthe offending occurred. Mr McLean was 32 years old at the time.[4] The offending took place when Mr McLean and the complainants wereattending a weekend celebration at a marae. AB went to bed in the wharenui, wheremattresses had been laid close together in a row on the floor. As AB was going tosleep, she felt Mr McLean (who was intoxicated) behind her, putting his head underthe blankets. Mr McLean touched AB's arms, placed his hands over her stomach andattempted to take her shirt off. He then moved his head further down under the blanketand attempted to unbutton her pants but was unable to. He touched her bottom andrubbed it for a couple of minutes. AB eventually managed to move Mr McLean's handoff and pretended to be asleep with the blankets over her head.61 Crimes Act 1961, s 135. Maximum penalty of seven years' imprisonment.2 Crimes Act 1961, s 134(3). Maximum penalty of seven years' imprisonment.3 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty of 20 years' imprisonment.4 Originally the appeal was against conviction and sentence, but the sentence appeal is no longerbeing pursued.5 Pursuant to s 9 of the Evidence Act 2006.6 The two counts of indecent assault relate to this offending against AB.[5] A short time later CD came into the wharenui and went to bed. Mr McLeangot into CD's bed. CD asked Mr McLean to get out of her bed and sleep on a sparemattress some distance away. Mr McLean refused. CD lay on her side facing awayfrom Mr McLean, Mr McLean lay behind CD, facing in the same direction.Mr McLean then began rubbing CD's stomach. CD felt uncomfortable and keptattempting to push Mr McLean's hand away. Mr McLean then moved his hand furtherdown CD's body into her groin area. Mr McLean forced his hand under CD'sunderwear and started rubbing CD's genitals. CD took hold of Mr McLean's hand andremoved it from her underwear.7[6] Mr McLean then put his hand under CD's underwear again, this time forcinghis finger into CD's anus. This caused CD significant pain, which worsened asMr McLean continued the violation. CD eventually managed to pull Mr McLean'shand away. Mr McLean then placed his hand over CD's mouth, pulling her head backtowards his body. Mr McLean then pulled CD's underwear down and forced his penisinto CD's anus. Mr McLean then had anal intercourse with CD. This caused CDsignificant pain. She tried to bite Mr McLean's hand, which was still held tightly overher mouth, but was unable to do so, due to Mr McLean's overpowering strength.CD eventually managed to elbow Mr McLean which enabled CD to escape and run toalert AB, who was in a nearby bed.8[7] The offending took place on 20 May 2017. CD made a partial disclosure toher sisters the following day. Subsequently, in January 2018, both complainants toldtheir mother what happened. On 11 February 2018, CD and her mother went tothe police. That same month, CD presented to her GP with anal bleeding. She wasbeing treated for chronic constipation at the time.[8] On 27 February 2018 both complainants were interviewed by the police.Several days later, on 2 March 2018, CD was examined in the child sexual assaultclinic, following a referral by the police. An anogenital examination was normal andthere was no visible injury or haematoma around the anus.7 The two counts of doing an indecent act on a young person (under 16) relate to this offendingagainst CD.8 The two counts of sexual violation by unlawful sexual connection relate to this offending againstCD.Should medical evidence relating to CD's anal bleeding have been admitted?[9] The first issue on appeal is whether medical evidence relating to CD's analbleeding, that was included in a "Memorandum of Agreed Facts Pursuant to s 9 ofthe Evidence Act 2006" ("Agreed Facts"), should have been admitted.The evidence of anal bleeding[10] In her evidential video interview ("EVI")9 CD gave evidence that the morningafter she was sexually assaulted, she noticed bleeding from her anus:Q. Mmmmm. You said that your arsehole was hurting, tell me about ithurting.A. Like, it felt like it was opening it up wider than it should be and thenthe next day I went to the bathroom and there was bleeding.Q. So tell me about that.A. Like, because I went for a poo then I ended up wiping my bum andthen I got up and then the toilet paper was like full up with blood thenI looked at my pants and they had blood in there so I was, I just startedjust keeping on wiping and putting toilet paper underneath so itwouldn't come out as much. And yeah.Q. How long was it bleeding for?A. Since last year November or October.Q. Mmmm. Is it still bleeding?A. Not as much as it used to.Q. Mmmm. Do you want a tissue? How long was it sore for?A. It only goes, oh I can only feel the same pain when I go toilet for ohfor a poo.Q. Okay.A. And I went to the doctor's and they gave me this cream to use and it'sbeen like, it's been working but it still bleeds but it only drips.Q. When did you go to the doctors?A. Not, oh I think it was two weeks ago.9 Given on 27 February 2018.[11] CD gave further evidence regarding this issue at trial, as follows:Cross examinationQ. You also talked about the next day noticing some bleeding?A. Yeah.Q. Was that the first time you had noticed bleeding in that area or hadthat happened before?A. That was my first time.Q. Now you told us about the bleeding that you had and you said that itstarted after what you say Paul did to you?A. Yep.Q. And that it carried on until after you'd seen the two doctors, it wasstill happening, is that right?A. Yep.Q. And do you say the bleeding was caused by what Paul did?A. Yep.Q. Weren't you also being treated for constipation during that period?A. Yep, only because that's what one of the doctors thought it would havebeen caused from was constipation and haemorrhoids.Q. Right. It's an agreed fact in this trial that the constipation andthe haemorrhoids together could have caused the blood spotting youwere seeing so –A. Pardon?Q. Sorry, I'll rephrase that question. Do you accept that the bloodspotting you were seeing was because of the constipation issues notbecause of what you say Paul did?A. Yep.Q. You do accept that?A. Yep.The Court:Q. Well did you understand that question [CD]?A. Sort of, mostly I do.Q. All right, well –A. ButQ. It was slightly ambiguous so I'll get Mr Clarke to put the propositiona different way.Cross-examination continues (Mr Clarke):Q. What I suggest to you [CD] is that [the defendant] never put his penisup your bottom and the only reason why you were having this bloodspotting is because of your constipation and haemorrhoids issue.Do you accept that?A. No.Re-examination (Ms Cleary):Q. Hi [CD], I've just got a couple more questions for you. You said in yourevidence that the bleeding started the morning after you say Paul put hispenis in your anus?A. Yep.Q. When did your constipation start?A. Like a week after.[12] The Agreed Facts set out the following agreed facts regarding CD's analbleeding:Medical11. In February 2018 [CD] presented to [her] GP in respect of perianalbleeding. [She] was prescribed rectal cream.12. On 2 March 2018 [CD] was seen in the child sexual assault clinicfollowing a referral by Police. [She] was subsequently examined.The anogenital examination was normal with no visible injury or haematomavisible around the anus. The result of the examination does not prove ordisprove sexual assault.13. The perianal bleeding exhibited by [CD] is consistent with injury to ahaemorrhoid caused by the alleged assault and is also consistent with chronicconstipation.14. [CD] was being treated for chronic constipation at the time of medicalexamination on February 2018.The appeal[13] Mr Jefferson, counsel for Mr McLean, submitted that the medical evidenceincluded in the Agreed Facts should not have been before the jury because it had little,if any, probative value in circumstances where:(a) the medical examinations post-dated the alleged offending by nine toten months; and(b) the anal bleeding exhibited by CD was equally consistent with injuryto a haemorrhoid caused by the alleged assault and chronicconstipation.[14] Mr Jefferson submitted that, given this context, the limited probative value ofthe evidence was outweighed by its likely prejudicial effect. Specifically, the jury wastold that there was medical evidence that supported what CD had said. Mr Jeffersontook particular issue with the prosecutor's reliance on the medical evidence in herclosing address, where she said:Remember as well that you have the medical evidence. You have the evidenceof [CD] who says that the day, the morning after these things are alleged tohave happened [she] notices bleeding in [her] underwear and we hear fromthe medical evidence that this bleeding is consistent with the offendingoccurring. You will hear that it's also consistent with chronic constipationwhich the complainant [CD] was also being treated with but recall [CD's]evidence that the bleeding occurred the morning after the alleged offending.So again, this is evidence that the Crown says is consistent with what [CD]says had been actually happening.[15] Mr Jefferson acknowledged that defence counsel had also addressedthe medical evidence in his closing address. Mr Jefferson suggested that although thiswas aimed at defusing the effect of the medical evidence, reference to it by defencecounsel simply reinforced its presence. The relevant passage from the defence closingis:And that, of course, effects the amount of time that'd passed before any kindof medical intervention occurred. [She] says that [she] was bleeding from theday after but there's no suggestion of medical treatment for many, manymonths. Is that likely ladies and gentlemen? Or is it the simple explanationfor any bleeding that was occurring is [she] had constipation, [she] hadhaemorrhoids, it's in the medical evidence and [the] medical evidence, Isubmit to you, doesn't really take you anywhere. It was an examinationconducted nine months after, or eight to nine months after, observed noinjuries and showed that there was a perfectly benign explanation for anybleeding that was being suffered.[16] In summing up, the trial Judge noted that both the Crown and defence hadmentioned the medical evidence. The Judge directed the jury that because the twoexplanations for the bleeding were equally consistent, the medical evidence wasneutral and to go one way or the other would be wrong:[142] Ms Cleary talked about the medical evidence captured in the agreedfacts. Those agreed facts talk about [CD's] condition being equally consistentwith either proposition, sexual assault or constipation. It is described as beingequally consistent. But the Crown says to you but look at what happened thenext morning. [CD] noticed bleeding the very next morning. And that is true.[143] But I give you this direction about use of this evidence. It will bethe same direction in relation to Mr Clarke's submission on this point.The agreed facts on this proposition is equally consistent, one is not greaterthan the other, they are equally consistent and therefore neutral. So to go oneway or the other, Crown or the defence on this point, is actually wrong. It isneutral evidence that takes you nowhere in the end.[156] And Mr Clarke makes use of that medical issue about whether it isconstipation or bleeding indicative of injury. And he says it is more consistentwith constipation. But for the same reasons given earlier, this evidence inthe agreed facts is neutral. You cannot guess one way or the other on it.[17] Mr Jefferson submitted that simply saying that the medical evidence wasneutral, and took the jury nowhere, ignored the inflammatory nature of one ofthe possibilities (that the evidence was consistent with sexual assault). He suggestedthat the jury would have struggled to put the medical evidence to one side.The probative value of the evidence was therefore outweighed by the risk of unfairprejudice.Discussion[18] As set out above, CD's evidence included that:(a) The day following the alleged assault her anus was "opening up widerthan it should be" and painful. She said that she could still feel the samepain at the time of the EVI, but only when she passed a bowel motion.(b) The day following the alleged assault CD bled heavily from her anus.This was the first time that she had experienced anal bleeding, and shebelieved that it was due to what Mr McLean had done to her, notbecause of any issues with constipation. She also stated that (at the timeof her EVI in February 2018) she was still bleeding from her anus, butnot as much as she used to.(c) CD went to the doctor's and they gave her some cream to use, whichhad been working – "it still bleeds but it only drips".[19] Given the existence of this evidence, which was already before the jury, weaccept the Crown submission that the inclusion of the medical evidence in the AgreedFacts was helpful to the defence. The medical evidence largely neutralised CD'shighly damaging evidence about anal bleeding, by providing an alternativeexplanation for it (chronic constipation and associated haemorrhoids). CD's evidenceof anal bleeding was further neutralised by the inclusion in the Agreed Facts of the factthat on 2 March 2018 she was seen in the child sexual assault clinic and the anogenitalexamination was normal, revealing no injury or haematoma visible around the anus.The Agreed Facts then stated, unequivocally, that the medical examination did notprove or disprove sexual assault.[20] In the absence of the agreed medical evidence, the overwhelming inferencefrom CD's own evidence would have been that her anal bleeding was causedby the alleged sexual assault. It is therefore not surprising that defence counsel(not the Crown) requested that the medical evidence regarding anal bleeding beincluded in the Agreed Facts. The Agreed Facts put the defence in a stronger positionon that issue than it would otherwise have been.[21] We are therefore satisfied that the medical evidence was appropriately includedin the Agreed Facts and that no miscarriage of justice has resulted from its inclusion.Should the counterintuitive evidence have been admitted?[22] Mr Jefferson acknowledged that counterintuitive evidence is generallyadmissible in cases involving alleged sexual offending against children. However, hesubmitted that the counterintuitive evidence in this case was deficient, and unfairlyprejudicial, because:(a) the evidence regarding proximity went too far;(b) the evidence regarding delayed complaints was not sufficiently relevantto a live issue in the case, and therefore not substantially helpful;10 and(c) the evidence was not specifically tailored to the particular features ofthis case but was simply "boilerplate" evidence.The counterintuitive evidence[23] The Agreed Facts set out a lengthy passage of counterintuitive evidence, asfollows:Counter intuitive evidence15. The following admissions constitute educative evidence aboutthe behaviour of sexually abused children. This evidence does not prove ordisprove that the complainants were sexually abused by the defendant.Reporting patterns in child sexual assault16. There is no typical reporting pattern for sexually abused children;reporting may be immediate or delayed, direct or indirect, purposeful oraccidental. Reporting of abuse by a child or adolescent may also be a gradualor incremental process.Delayed reporting of child sexual assault17. The research literature and professional experience indicate that reportingof childhood sexual offending is most usually delayed. However, the timingof a complaint does not assist in determining whether the complaint is true oruntrue because false complaints may be immediate or delayed and truecomplaints may be immediate or delayed.Reasons for delayed or non-reporting of child sexual assault18. There are a large number of reasons why a child will delay reporting theirsexual victimisation. These will vary from child to child and in the differingcircumstances in which they may find themselves:10 DH v R [2015] NZSC 35 at [30(c)].Relationshipsa. Reasons for delayed reporting include the relationship betweenthe child and the offender, because children are less likely to reportchild sexual abuse by those with whom they are familiar or have aclose relationship, or upon whom they are dependent. Children arealso less likely to report sexual assault to adults or caregivers who theyperceive to have a close relationship with the offender.The availability of protective adultsb. People might wonder why a child would not tell an available adultor parent about sexual offending perpetrated on them. If a child oradolescent is to report sexual offending that is occurring they willrequire a supportive, competent adult who has the ability to stopfurther instances of abuse and who will protect them from anyretribution by the alleged offender. They will also require an adultwho is prepared to believe them and take their disclosure seriously.The child's perception as to whether a parent or caregiver will protectthem to stop the abuse will be dependent on the child's history withthat adult, specifically whether they have been protective in the past.That perception may also be dependent on the actual past competencyof the adult to protect the child.Shame and embarrassment and fear of not being believedc. Research shows that when asked what had prevented disclosures ofchildhood sexual abuse, participants gave the following reasons:expected to be blamed or disbelieved, embarrassment, not wanting toupset anyone, not bothered by abuse, wished to protect the abuser, fearof abuser, wanting to obey adults, feeling responsible for the abuse,shame and stigma, fear of being blamed and/or negatively judged,hesitance to break the promise to keep the secret, fear of not beingbelieved and fear due to threats made by the offender.Continued contact between victims and offendersd. Although some people may think that a child who is being sexuallyabused would try and avoid the offender, this does not take intoaccount the dynamics that surround child sexual abuse. It is notuncommon for a child to continue having contact with someone whohas abused them sexually.e. If the child is concerned about possible consequences of reportingthe sexual abuse, they may continue having contact with the offenderin order to avoid the sexual abuse from being discovered.f. If the child's family has a close association with the offender andthe child is still dependent on others, who may have contact withthe offender, the child may simply have no choice but to continuehaving contact with someone who has sexually offended against them.g. Due to the nature of their relationship with the offender, a child whohas been sexually abused can have ambivalent or mixed feelingstoward the offender, and can feel both affection as well as hate.The proximity of others during child sexual assault19. It may be difficult to consider that someone would take the risk ofcommitting a sexual assault in close proximity to others, even if those othersare asleep or in another part of a building. However, while sexual abuseusually takes place in secret, it often occurs with others nearby.20. Research literature, court records, incarcerated sexual offender files andclinical experience with both sexual offenders and victims, have collectivelyindicated that children have been sexually abused in virtually anyenvironmental situation, often with others close by but not witness to theoffending. In some cases, normalising of the abuse and/or the child's fear ofthe offender ensures lack of detection by others who may be in the vicinity.[24] The counterintuitive evidence therefore covered two key issues — delayedcomplaints, and sexual abuse committed in close proximity to others.Was the counterintuitive evidence on proximity appropriate?[25] Mr Jefferson submitted, in relation to the proximity evidence, that onlythe second sentence of paragraph 19 of the Agreed Facts (set out above) was necessary,as it makes the point that while sexual abuse usually takes place in secret, it oftenoccurs with others nearby. He submitted that the first sentence ("It may be difficult toconsider that someone would take the risk of committing a sexual assault in closeproximity to others, even if those others are asleep or in another part of the building")took the matter too far, by excluding an otherwise valid consideration.[26] We disagree. In M v R this Court observed that counterintuitive evidence isdirected at correcting erroneous beliefs and restoring the complainant's credibility toa neutral level.11 The first sentence of paragraph 19 simply identifies the relevanterroneous belief. The second sentence sets out the counterintuitive evidence that isrelevant to that belief.11 M v R [2011] NZCA 191.Was the counterintuitive evidence on delayed complaints sufficiently relevant to a liveissue in the case?[27] Counterintuitive evidence must focus on a live issue in order to be substantiallyhelpful.12 Mr Jefferson submitted that the counterintuitive evidence regarding delayedcomplaints was not sufficiently relevant to a live issue in the case, and therefore notsubstantially helpful. Specifically, he submitted that delayed complaints were not alive issue because AB and CD made partial complaints to family members onthe evening of the offending and again the following day. Further, both complainantsgave clear and cogent explanations as to why they did not immediately make fulldisclosure of what had occurred. Mr Jefferson submitted that these explanations, incombination with the standard judicial direction on delay (which the Judge gave in hissumming up) were sufficient.[28] It is clear from the timeline of AB and CD's disclosures, however, that therewas a live issue in relation to delayed complaints. In particular:(a) AB told two aunts on the night of the incident (May 2017) thatMr McLean was touching CD.(b) AB told CD the next day that Mr McLean had touched her.(c) CD told another older sister the next day that Mr McLean had touchedher and AB. CD said that when she told her sisters they startedlaughing. She therefore did not make a full disclosure, because shethought they wouldn't believe her. CD also said that she did not tell herfather because she was worried he would do something violent toMr McLean.(d) AB and CD did not fully disclose what had taken place untilJanuary 2018, when they told their mother about it.(e) Police were informed on 11 February 2018 and evidential interviewsconducted on 27 February 2018.12 DH v R [2015] NZSC 35 at [110].[29] Given this timeline, it is clear that full disclosure of the alleged offending wasnot made until eight months after it took place. This constitutes a delayed complaint.The counterintuitive evidence aimed at addressing misconceptions about delayedcomplaints was therefore relevant.[30] Of particular significance, the counterintuitive evidence included informationabout gradual and incremental disclosure (as occurred here) and the reasons why childsexual assault victims might not make a full disclosure immediately. Such evidencewas relevant and admissible and was not precluded by the fact that the complainantsgave evidence (which was consistent with the counterintuitive evidence) about theirspecific reasons for not fully disclosing what had occurred sooner.Consistency between the reasons provided by the complainants and thecounterintuitive evidence does not mean that the counterintuitive evidence becameredundant or unfairly prejudicial. Rather, the role of the counterintuitive evidence inhelping to counter commonly held assumptions was potentially relevant to the jury'sassessment of the plausibility of the explanations for delay offered bythe complainants.[31] In conclusion, we are satisfied that the counterintuitive evidence on delayedcomplaint was appropriate, relevant and admissible.Was the counterintuitive evidence deficient on the basis that it was insufficientlytailored to the specific features of the case?[32] Mr Jefferson submitted that the counterintuitive evidence was simply too"boilerplate" to be helpful and was not sufficiently tailored to the specific features ofthis case.[33] We disagree. As noted above, the specific issues that the counterintuitiveevidence was directed to (proximity and delay) were both live issues in the case.It would not have been appropriate to tailor the counterintuitive evidence by linking itmore directly to the specific facts of this case. As the trial Judge directed the jury:[45] This counterintuitive evidence, as recorded in the agreed statement, iseducative evidence only for a jury. It educates you about the behaviour ofsexually-abused children. It does not prove or disprove the complainants inthis case were sexually abused here. It is general educative material [49] In particular you need to understand that this educational evidence doesnot relate to the credibility of [AB] or [CD], the complainants in this case.You cannot use it to bolster their evidence. It is important for you to recognisethat. The educative evidence is not directly concerned with the facts of thiscase. It is general, educational, neutral evidence. And as I said it has simplybeen put before you to correct any misconceptions you may have.[50] And in the end, it is for you to decide whether and to what extent thelateness of either complaint affects your assessment of the credibility andreliability of [AB] and/or [CD's] evidence. Agreed facts onthe counter-intuitive material may inform that assessment but it does not ofitself add to the evidence against Mr McLean.[34] As the Judge correctly directed the jury, the counterintuitive evidence wasgeneral, educative, neutral evidence provided to dispel any misconceptions thatthe jury may have held. It was not intended to be a specific commentary onthe evidence against Mr McLean. Indeed, it would have been inappropriate to tailorthe counterintuitive evidence more specifically to that evidence. Given thatthe purpose of counterintuitive evidence is to correct erroneous assumptions aboutthe likely conduct of victims of sexual abuse, it should be generic evidence rather thanevidence linked specifically to the circumstances of the complainant.13Conclusion[35] In conclusion, we are satisfied that both the counterintuitive evidence andthe information set out in the Agreed Facts relating to CD's anal bleeding wereproperly admitted. No miscarriage of justice has arisen as a result of such informationbeing before the jury.Result[36] The appeal is dismissed.Solicitors:G J Burston, Crown Solicitor, WellingtonS Jefferson, Barrister, Napier13 Kohai v R [2015] NZSC 36, [2015] 1 NZLR 833 at [18].