R (CA129/2017) v R [2018] NZCA 235

R (CA129/2017) v R [2018] NZCA 235 [3 July 2018]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA129/2017[2018] NZCA 235BETWEEN R (CA129/2017)AppellantAND THE QUEENRespondentHearing: 28 November 2017 and 11 May 2018Court: Winkelmann, Venning and Duffy JJCounsel: M E Goodwin for AppellantA J Ewing and Z R Johnston for RespondentJudgment: 3 July 2018 at 3.30 pmJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal against conviction is dismissed.C We make an order prohibiting publication of the name, address, occupationor other identifying particulars of the appellant pursuant to s 200 of theCriminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] Following trial before Judge Patel and a jury, Mr R was convicted of sexualoffending as follows: one charge of indecency with a girl between 12 and 16 (TT);four charges of sexual violation by rape (MA); and three charges of sexual conductwith a child under 12 (AA).1[2] Mr R advances grounds in support of his appeal as follows:(a) Evidence that MA had self-harmed by cutting herself, and hadattempted suicide should not have been admitted, as the sympathy andunfair prejudice generated by the admission of that evidenceoutweighed any legitimate probative value that it had.(b) The Judge's direction in respect of that evidence was inadequate.(c) There has been a miscarriage of justice because evidence, which couldhave undermined the credibility of a propensity witness, was not calledat trial.[3] The last ground was identified by Mr Goodwin for Mr R very shortly beforethe November 2017 hearing of the appeal. By the time of the hearing he was stillunsure whether the ground would be pursued, as he required more time to make factualinquiries. Counsel agreed the appropriate course was to hear argument on the firsttwo grounds and adjourn the hearing for the last ground. The hearing of the appealre-commenced in May 2018.Background[4] The Crown case was that the offending against TT, MA, and AA, all of whomare related to Mr R, occurred when they were visiting or living in New Zealand:(a) TT described Mr R indecently assaulting her in 2001, when she was 14.1 R v [R] [2017] NZDC 3241.(b) MA said Mr R raped her four times on three specific occasions in 2003,2007 and 2009. She was 13 when he first raped her.(c) AA reported Mr R indecently assaulting her on three occasions in 2013and 2014, starting when she was 9.[5] In addition, propensity evidence was called of other alleged indecent assaultscommitted by Mr R when he was visiting Rarotonga.[6] Mr R met his wife in Rarotonga. They moved to New Zealand in 1987, andby 2003 were living in South Auckland. The Crown case in respect of Mr R was asfollows.Offending against TT[7] The offending against TT was first in time of the charged offending. TT visitedAuckland from Rarotonga when she was 14. On one occasion she lay down in a bedat Mr R's house. He joined her on the bed, lay down beside her, pulling on herwaistband. He stopped when a family member came in and asked them what theywere doing.Offending against MA[8] In May 2003 MA, then 13, was visiting Auckland from Rarotonga. She andher parents and twin sister C stayed with Mr R. Mr R began flirting with MA, askingif she had a boyfriend and touching her. There had been a prior period of groomingwhile MA was in Rarotonga, which included Mr R buying her gifts.[9] One night C explained that Mr R wanted MA to come to his bedroom. MAcomplied and found him naked in bed. He persuaded her to get in, removed herunderwear and had sex with her. She was scared, told him it felt sore and asked himto stop, but he did not initially stop. He ceased intercourse only when her facialexpression showed she was in pain.[10] MA returned to Rarotonga but Mr R kept in contact with her and on occasionvisited. She believed they were in a relationship.[11] At the end of 2005, when MA was 16, she ran away to Auckland to be withMr R. He was then 43, and living with his wife in Auckland. MA and Mr R began aconsensual sexual relationship. MA was living with another relative at the time.The relationship ended in 2006 when MA discovered that Mr R was also having sexwith her twin sister C, who had moved to New Zealand around the same time and waspregnant to him.[12] By 2007, MA had moved into a flat with C, even though C continued herrelationship with Mr R. C was paranoid about MA's past relationship with Mr R, andthe three fought constantly. It was a dysfunctional household.[13] In March 2007 MA was driving home from work when Mr R drove up besideher on the motorway and signalled her to pull over. She did so. When she agreed toget into his van to speak to him, Mr R forced himself on her and then raped her. MAgave birth to a baby boy in late 2007 as a result of the rape.[14] In 2008 MA started a relationship with another man. Mr R became very jealousand behaved in a controlling fashion toward MA, shutting her in her room forlong periods, and on one occasion threatening her with a knife. MA said that C wouldalso try and control her by doing things such as taking her car keys and cutting thephone line. On several occasions, the police were called to arguments at the flat.[15] The last time Mr R raped MA was in January of 2009. MA was dropping offher nephew and saw Mr R driving behind her. She pulled over near a park and, again,he persuaded her to get into his car. When she told him she had a boyfriend, he becameaggressive. He strangled her, asking "do you want to die now?" and brandished a fireextinguisher over her head. He then forced himself on her and raped her. Mr R andMA talked for a while after before having sex again. She says that she did not resistbecause she was fearful for her safety.[16] MA immediately told C, but on MA's account, C's concern was that Mr R hadcheated on her.[17] Three days later the police were called to an argument at the flat. MA gave awritten statement that day complaining only that Mr R had assaulted her in the vanthree days earlier.[18] In consequence Mr R was charged with physical violence against MA andfaced trial for this in May 2009. But at the hearing of that charge, MA recanted herallegations of physical violence. She later explained she did so because Mr R pleadedwith her, saying her son would otherwise grow up without a father.[19] MA's twin, C, also gave a statement to the police in 2009 followed by anevidential interview in 2010. She described Mr R raping her in 2003, when she was13. C retracted this allegation in 2012. C was a defence witness at trial and explainedthat in 2010 her mother had put her up to making what she said were false allegations.[20] In February 2014, MA provided an evidential interview to the police in whichshe described the 2003 rape and subsequent rapes. She said she complained becauseshe realised that Mr R was continuing to sexually assault other female relatives.Defence at trial[21] The defence case in response to MA's allegations was broadly that there wasno sexual contact between MA and Mr R until 2005 when MA was 16, and that allsexual contact was consensual. Overall, the defence case was that the allegations weremade up, that MA had colluded with the other complainants, and that she had beenencouraged in this by her mother who was angry at Mr R for having fathered childrenwith both her twin daughters. There were various planks to support this defence:(a) MA had not mentioned the 2003 rape in her written statement to thepolice in 2009. Instead she said that she first had sex with Mr R whenshe moved to New Zealand in 2005.(b) When, in 2009, MA applied for and obtained a protection order againstMr R, made a statement to the police and she made no mention of the2003 or 2009 rape.(c) In relation to the 2007 and 2009 rapes, Mr R accepted that sex hadoccurred as MA described, but said that it was consensual. He said thatbecause they were still living with MA's twin, C, they had to have sexin the car to avoid detection.(d) MA's behaviour in 2009 was inconsistent with Mr R having recentlyraped her. MA had remained living with her twin sister C, despite thefact this brought her into regular contact with Mr R.(e) MA retracted her 2009 allegation of violence prior to Mr R's trial oncharges flowing out of that complaint.Offending against AA[22] In 2013, when AA was 9 years old, she visited Mr R's home. When she walkedinto a room in the garage she found Mr R lying on a bed. He pulled her down ontothe bed, and pressed his erect penis against her vagina over her clothing, refusing tolet her go when she tried to break free. He told her not to tell anyone.[23] On another occasion that same year, AA was sleeping on a mattress in thelounge of Mr R's home. She woke to find him touching her thigh and vaginal area.He tried to put his hand in her pants but she rolled away. When someone else openedthe door, Mr R moved away from her.[24] The third assault occurred in 2013 or 2014, in AA's home. Mr R approachedAA when she was standing in the kitchen, touching her between the thighs, andmoving his hands toward her vagina. At one stage her offered her money, telling herto "just take it".[25] In mid-2014, AA disclosed the offending to a friend via Facebook Messenger.First ground of appeal: evidence of self-harm and suicide attempt[26] During her evidence MA explained how it was she continued living with hertwin even though it brought her into contact with Mr R. She said she had a youngchild, no job and was on a benefit. Only her twin sister helped her with her child.She could not seek help from her mother as she would then have to tell her"everything" about her relationship with Mr R. Mr R and C were very controlling ofher, which further isolated her. The prosecutor also led evidence of self-harm and asuicide attempt between the time of the police complaint in 2009 and her subsequentretraction:Q You've told us about this unhealthy environment in the home andthe fact that you felt emotionally and physically unable to leave. Wasthere something that you tried to do to yourself around that time?A YesQ And what was that?A I hung myself. And I started cutting.Q What did you start to cut?A I cut my arm.Q So you were trying to harm yourself?A Yeah. Yes.Q Whereabouts were you doing that?A On there.Q On your arms? And was that at the same house —A Same house.Q ... And why was it that you were harming yourself at this time?A So — I felt trapped, I couldn't get out.Q Okay, and did you get any help for that, did anyone from the familycome and try to help you?A No I had no way of communicating with anyone outside. [Inaudible]said at the time if I did it would have been my mum, but I would haveto tell her everything.Q Were you ready to tell her everything at that point or not?A Yeah, I was ready.Q Okay, but did you tell her or not?A No, I hung myself before she knew.Q You say you hung yourself. Did you try to kill yourself by hanging?A Yeah.Q Did — who discovered you?A I woke up with the, with my twin and uncle on top of me.Q By uncle you mean [Mr R]?A Uncle [R].Q And you mean on top of you — were they trying to revive you?A Ah, yeah.[27] Immediately after this evidence was led defence counsel objected to itsadmissibility and applied for an order aborting the trial. Judge Patel ruled the evidenceadmissible and declined the application to abort the trial.2 The Judge accepted thisevidence was relevant as it gave context to why MA reported only part of Mr R'soffending, and why she had retracted her complaint. He did not consider the evidenceto be unfairly prejudicial.[28] Counsel agreed however that a direction was appropriate and agreed to itsform. When the jury returned to court the Judge directed the jury as follows:All right, thank you, members of the jury, for your patience. We've beendiscussing legal points with counsel and I have the following direction to maketo you. You've heard evidence that [MA] self-harmed and attempted suicide.That was in about March 2009. The reason that this evidence has been led isthat the Crown says that it's relevant to what was happening in [MA's] life atthat time and why she acted in a particular way. Now in relation to theevidence of the suicide attempt, you are to put aside all feelings that you mighthave against [Mr R] or sympathy that you may have for [MA] that stem fromthat evidence. You must judge this case on the evidence and not be swayedby emotion and I will be reiterating this direction in my summing up, so doyou all understand that?2 R v [R] DC Manukau CRI-2015-092-7574, 12 December 2016,[29] In closing, defence counsel reminded the jury not to feel sympathy or prejudicebased on evidence about "mental health issues", an apparent reference to MAself-harming:And one of the things I imagine His Honour will talk to [you] about is thisissue; firstly, of sympathy versus prejudice. prejudice against some of themental health issues we've heard that have come about as a result of the livingarrangements and I suppose sympathy for the same issues.[30] Judge Patel had already cautioned the jury about prejudice in sympathy in hisopening comments and in the direction that followed the evidence objected to.In summing up, the Judge returned to the issue. He did not mention the suicide attemptbut did cite other examples of potentially prejudicial aspects of the Crown case:The case involves allegations of a sexual nature. You have heard about [Mr R]having sex outside of his relationship, that he formed a relationship with hisnieces. There is an age gap between [Mr R] and the twins when there was aconsensual sexual relationship between them. Such matters may arousenegative feelings against him and sympathy for other parties. It may not sitwith you well from a moral point of view but you are not here to judge [Mr R]from a moral standpoint. As [defence counsel] pointed out in his closingaddress yesterday, this is not a court of morals.Analysis[31] We are satisfied that the evidence of MA's self-harming and suicide attemptwas relevant to the matters at issue at trial. The prosecution led this evidence becauseit anticipated the inevitable attack upon MA based upon the content of her earliercomplaints, her retraction of a complaint and the continued contact she had with Mr R.The evidence of MA's self-harm and attempted suicide formed part of the explanationfor this conduct.[32] In closing, the Crown pointed out the evidence of MA that she felt unable toleave the home she shared with Mr R and her sister and that this was supported byevidence that she self-harmed and attempted to take her own life at that point. It placedthe latter evidence in the context of her being jobless, having few friends, being amother to a young son while not wanting to be in a relationship with the child's father,and the difficult relationship she had with her sister.[33] The next issue is whether the probative value of the evidence is outweighed bythe risk the evidence will have an unfairly prejudicial effect on the trial. The Crowndid not link the suicide attempt to Mr R's offending. We accept there was a risk thejury would nevertheless make this link, and that this could cause the jury to bringadverse feelings to bear when deliberating on Mr R's guilt. But that risk of unfairprejudice attaching to the evidence was, we consider, adequately addressed byJudge Patel's directions. The critical directions were those given immediately afterthe evidence was led by the Crown. They were discussed with counsel and wereappropriately focused upon the potential unfair prejudicial effect of the evidence.It does not matter that the later direction, given during summing up, was more general.As the Crown submits, to refer to MA's self-harm and suicide attempt in thesumming-up would have risked giving the evidence undue prominence. That maywell have been the assessment the Judge made.[34] We also bear in mind there was a lot of other evidence which was relevant, yetvery prejudicial to Mr R. For instance, the evidence that he was in a sexualrelationship at the same time with twin sisters who were so much younger than himand that they each had a child to him.[35] Accordingly, we are satisfied this evidence was properly admissible — it hadclear probative value to an issue at trial, a value not outweighed by the risk of anyunfair prejudice attaching to the evidence. Any risk was adequately met throughjudicial direction. Moreover, in the context of the overall trial, it was only a minorpiece of a very prejudicial picture painted by the admitted facts.Second ground of appeal: fresh evidence[36] The evidence of the three complainants in the case was supported byallegations of two female relatives who claimed to have been indecently assaulted byMr R in Rarotonga. Because the alleged offending occurred outside New Zealandthese complaints were not the subject of charges but were relied upon by the Crownas propensity evidence. We refer to this evidence as the external propensity evidenceto differentiate it from the evidence of the complainants, which was also propensityevidence insofar as it was cross-admitted between the complainants. The Crown'scase was that this external propensity evidence demonstrated a tendency on Mr R'spart to act in a sexually inappropriate way toward young women in his extendedfamily, a propensity also apparent in Mr R's conduct toward the complainants.[37] The defence case was that the multiple allegations were the result of collusionand that the witnesses were said to have come to a "certain mindset formulatingover the years with the rumours and the tittle-tattle that the family's been talking aboutover the dinner table of years gone by".[38] On appeal Mr R seeks leave to adduce further evidence in connection with histravel to and from Rarotonga to undermine the credibility of L, one of the externalpropensity witnesses. L, who is AA's mother, gave evidence that Mr R indecentlyassaulted her when he was visiting Rarotonga in 1995 in connection with a60th birthday party. L also claimed to have been given money by Mr R — conductwhich linked closely to the offending, on the Crown case, against AA. The Crownmade a submission in reliance upon L's evidence as follows:The Crown says that the evidence of L and MA is important because, as I saidbefore, if you accept it shows a tendency on the defendant's part to touch thethighs of his younger female relatives and, may give extra credibility to whatAA told you happened to her in 2013, 2014.[39] L's evidence was challenged by trial counsel for Mr R duringcross-examination as untrue on the basis that if Mr R had done this to her, she wouldnot have permitted her daughter, AA, to have contact with Mr R. It was not put to Lthat Mr R was not in Rarotonga in 1995.[40] Mr R gave and called evidence in support of his defence. In the course of hisevidence, he explained that he met his wife in Rarotonga when he was around 16, andthat they had lived together for a while before moving to Auckland in 1987. It wasonly during cross-examination that Mr R said he did not go to Rarotonga in 1995.[41] Mr R's wife was called as a defence witness and supported her husband on thispoint. She said she had returned to Rarotonga alone for the 60th birthday. Mr R hadstayed behind in New Zealand.[42] This contradicted an earlier statement Mr R's wife had made to the police. Shehad told police in 2010 that she and Mr R returned to Rarotonga every year other thanthe three years immediately preceding. Her 2010 statement was put to her incross-examination, but she explained that she had been angry at Mr R when she madeit. She thought the first time Mr R came back to Rarotonga, after their move toNew Zealand, was when his mother passed away in around 1996. The next time hereturned was about 2003.[43] At the end of the Crown case, the defence produced a table obtained fromImmigration New Zealand recording Mr R's entries and exits from New Zealand.They ranged from 1998 to 2007. There was no record of a trip to Rarotonga in 1995.[44] On producing the document, the officer in charge noted that it had beenrequested by his predecessor before he was allocated to the file, so he was not surewhat date range had been requested, or whether there might be earlier records. It was,in any case, apparent on the face of the document that the record was not complete.The second and third entries were each arrivals from Rarotonga in 1998 and 2000.While there must have been an intervening departure, there was no record of it.[45] In closing, the Crown prosecutor submitted that the immigration records couldbe seen as evidentially neutral:The defendant's wife also gave evidence that he never went to her toRarotonga in 1995. Unfortunately the only flight details you have don't goback as far as 1995, so I'd suggest to you that defence exhibit A is neutral infact it's of no assistance to you in this matter. However, you do have thecross-examination of [Mr R's wife] on this point. She gave a statement topolice in 2010 which said that before 2007 she and [Mr R] had returned to theCook Islands every year however, in her evidence in Court she said that wasn'ttrue and that she was angry at the time she made that statement to police. Isuggest being angry with your husband about getting your nieces pregnantisn't likely to lead you to lie about how often you returned to the Cook Islands,but that's a matter for you. I suggest [Mr R's wife] had a reason to warrant alie in her evidence on this point, wanting to make it look as though her husbanddid not have the opportunity to offend against [L] in 1995. However, [L's]evidence was very clear about what the defendant did to her during the familybirthday celebrations which was offer her money to come out the back so hecould show her something, and touch her on the thigh in the car ride. She wasclear about what the defendant did, where it happened and what her reactionto it was. I suggest that [L] had no reason to make up that evidence whereasthe defendant's wife did.[46] On appeal Mr R seeks to produce further evidence as follows:(a) His affidavit, in which he says he did not recall being told prior to trialthat L's allegation related to conduct in Rarotonga in 1995. He told histrial counsel, one or two days after L gave evidence, that he had notbeen in Rarotonga in 1995 and he asked the Crown to obtain a recordof his travel movements at that time from Immigration New Zealand.(b) An affidavit from Ms Lawrence, Correspondence and Review Advisorwith the New Zealand Customs Service. Ms Lawrence says that shecarried out a search of the Customs database which keeps records of allgoods, persons and craft entering and departing from New Zealanddating back to 1989. She searched under both names Mr R was knownto travel. The first record of a travel movement by Mr R was on24 March 1998. She concludes there are no records held by Customsof travel movements under either name between November 1989 andMarch 1998.[47] Counsel for the Crown filed an affidavit in reply from Mr Jellard who worksin the Information Systems area of New Zealand Customs. He explained that from1987 to the present, Customs operated two different computerised processing systems— transitioning from one to the other in 1997. Both relied upon manual input orinformation collected from a passport reader. He was asked to comment on thepossibility that an individual's flights might not have been recorded or that it mightnot now be able to be located using search parameters such as their name and date ofbirth. Mr Jellard's evidence was that he could not dismiss the possibility that recordsof flights were missed when data was transferred from one system to the other or thatthere was initial incorrect data entry taking place at the time of the flight. He alsoidentified transposed passport numbers, incorrect name spelling or incorrect date ofbirth as potential sources of error in the database. Finally, he noted that a search basedon Mr R's name and/or date of birth would not capture travel by him under a differentname or with a passport listing a different date of birth.[48] The Crown also filed an affidavit from Mr Tait, trial counsel for Mr R. Mr Taitwas cross-examined by Mr Goodwin at the reconvened hearing. Mr Tait explainedthat the evidence of L had indeed been read to Mr R in advance of trial. He alsoconfirmed that he had not been told by Mr R, prior to L giving evidence, that Mr Rbelieved that he was not in Rarotonga in 1995. The best instructions Mr R was ableto give in connection with L was that the claimed offending did not happen.He accepted that Mr R may have told him after L gave evidence that he did not travelto Rarotonga in 1995.[49] Mr Tait said he did not ask for the schedule of travel movements to be put intoevidence to support Mr R's contention that he was not in Rarotonga in 1995. Ratherthe evidence was produced as relevant to an issue related to whether Mr R hadtravelled to Sydney with one of the complainants. He also said that the schedule hadbeen prepared for an earlier trial involving Mr R.Analysis[50] In order for evidence to be admissible on appeal it must be sufficiently fresh,in the sense that it was not reasonably discoverable with due diligence at the time oftrial, and sufficiently credible and cogent.3 In such circumstances, the new evidenceshould be admitted unless the court is satisfied that it would have no effect on thesafety of the verdict.4[51] We are not satisfied the evidence Mr R seeks to produce is either fresh orcogent. Mr R was aware of the content of L's evidence but failed to raise with hiscounsel, at least in a timely fashion, his claim that he was not in Rarotonga in 1995.More fundamentally however the evidence is not cogent. It takes the issue of Mr R'stravel no further than the evidence at trial took it. The new information from Customsprovides slightly more information but does nothing to complete the immigrationrecord.3 R v Bain [2004] 1 NZLR 638 (CA) at [22] and [26].4 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and Pora v R [2015] UKPC 9, [2016]1 NZLR 277 at [40].[52] We mentioned the missing journey between the two return trips fromRarotonga in 1998 and 2000. To that can be added, on the basis of Ms Lawrence'sevidence, the trip by which Mr R came to New Zealand. That also is missing.Mr Jellard has explained why the immigration records may be incomplete. Thisexplanation seems plausible. The position therefore remains that the immigrationinformation before the jury was incomplete. The jury was left to assess the evidenceof Mr R, and his wife, on the issue.[53] Accordingly we are satisfied the additional evidence should not be admitted.It is not fresh and could have had no bearing upon the verdict. This ground of appealmust also fail. No risk of miscarriage of justice arises.Result[54] The application to adduce further evidence is declined.[55] The appeal against conviction is dismissed.[56] To protect the identity of the complainants, we make an order prohibitingpublication of name, address, occupation or identifying particulars of the appellantpursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent