R (CA379/2018) v R [2019] NZCA 255

R (CA379/2018) v R [2019] NZCA 255 [26 June 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.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 AOTEAROACA379/2018[2019] NZCA 255BETWEEN R (CA379/2018)AppellantAND THE QUEENRespondentHearing: 29 May 2019Court: Collins, Peters and Mander JJCounsel: P K Hamlin for AppellantJEL Carruthers for RespondentJudgment: 26 June 2019 at 11.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B Order prohibiting publication of name, address, occupation or identifyingparticulars of appellant pursuant to s 200 of the Criminal Procedure Act2011.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] R was convicted by a jury of sexual offending against his daughter thatoccurred between 2006 and 2008, when she was six to eight years old.1 In support ofthe daughter's evidence, the Crown relied on evidence of sexual offending against R'sstepdaughter between 2002 and 2006, when she was aged between 11 to 15 years.Those allegations had previously been the subject of two trials. Both juries wereunable to agree on verdicts and the charges were eventually stayed.[2] R appeals his convictions on the grounds that the propensity evidence ofthe stepdaughter should not have been admitted, that the trial Judge failed toadequately direct the jury on the use to be made of that evidence, and that prejudicialcomments made by the prosecutor resulted in his trial being unfair.Background[3] At the time of the offending, R was separated from his daughter's mother.However, the daughter would often spend time at his house, including stayingovernight. On one such occasion, while watching television, R exposed his penis andforced it into his daughter's mouth. Later, he dressed her in what she described asa "rude suit" and positioned her so she was bent over with her head near his exposedpenis. He took photographs. The daughter was first spoken to by police in 2009, atwhich time she did not disclose the full extent of R's offending. However, inJanuary 2015, the daughter completed an evidential video interview. As a result,R was charged with sexual violation and committing an indecent act on a child.[4] The stepdaughter's allegations were of R kissing her using his tongue ona number of occasions when she was aged 11 years, and of forcing his hand downthe front of her pants and touching her vagina when she was approximately 12 yearsold. Her evidence was that when she was 13 there was an occasion when R came intoher bedroom and put his hand down the back of her pants. The stepdaughter calledout to her mother and R explained what had occurred as being an accident, about which1 R v [R] [2018] NZDC 11672.he was very embarrassed. It was further alleged that, when the stepdaughter was14 years old, R entered a caravan where she was sleeping and forced his fingers insideher vagina. On another occasion, he gave her alcohol to drink, put his arms aroundher and started to kiss her. The stepdaughter also gave evidence of R takingphotographs of her and offering her $300 to model for him if she wore a see-throughtop.Admission of propensity evidence[5] Judge Patel, who also presided at R's trial, ruled the stepdaughter's evidenceadmissible as propensity evidence.2 The Judge considered the probative value ofthe stepdaughter's evidence outweighed any unfair prejudice to R from its admission.[6] Mr Hamlin, counsel for R, argued that the Judge had erred in admittingthe stepdaughter's evidence. He submitted there had been a failure to considerthe material differences between the girls' allegations and that the Judge had notconsidered the risk of collusion and suggestibility when determining the evidence'sprobative value. Mr Hamlin further submitted the Judge failed to adequately considerthe risk of unfair prejudice to R by admitting the stepdaughter's evidence.[7] We consider the propensity evidence was properly admitted.The stepdaughter's evidence was plainly propensity evidence which had considerableprobative force in respect of the issue in dispute at trial, namely whether the daughterwas telling the truth about the alleged sexual acts. The stepdaughter's evidence wascapable of demonstrating that R had a propensity to be sexually attracted to and toengage in sexual conduct with young girls.[8] Mr Hamlin relied on the different ages of the girls and the "lack ofparticularity" or similarities in the alleged sexual misconduct. As this Court hasconsistently held, such differences have largely been held irrelevant when assessingthe underlying propensity which this type of evidence discloses.32 R v [R] [2018] NZDC 2379 at [61].3 M (CA85/2013) v R [2013] NZCA 239 at [18]–[19]; C v R [2015] NZCA 262 at [10]–[12]; andR v O (CA465/2017) [2017] NZCA 472 at [9].[9] The offending itself may not have been particularly distinctive and there aredifferences in the complainants' ages. However, both girls were relatively youngchildren at the time of the offending, or in the case of the stepdaughter at least atthe time the sexual conduct commenced. Both were in the care of R, either asthe child's father or fulfilling the role of a "father figure". There was an overlap inthe timing of the alleged conduct in the mid 2000s, and the photography aspect isa notable similarity. Moreover, engaging in sexual activity with children of that ageis inherently unusual behaviour, especially for a man in a paternal relationship withthe complainants.[10] The trial issue was whether the offending had occurred against the daughter.The orthodox reasoning of the unlikelihood and coincidence of two youngcomplainants disclosing R's sexual interest in them and acting in such an overt sexualway towards them while in his care meant their evidence in combination hadsignificant probative force.[11] R relied on the risk of collusion and suggestibility by reference to the evolvingway the daughter's disclosure was finally made, and evidence regarding an unrelatedincident. That incident involved a knife and the stepdaughter's mother. The daughterpurported to be present notwithstanding the evidence of other witnesses who did notrecall her being present at the time. We do not consider either feature materially affectsthe admissibility of the propensity evidence. A delay in the making of a complaint bya child, particularly in respect of an offender with whom she has a family relationship,is not uncommon. To the extent that the incident involving the knife may have beena potential indicator of the two girls discussing matters between themselves, that wasa topic able to be fully explored at trial.[12] We do not consider the fact there had been two hung juries in respect ofthe stepdaughter's allegations gave rise to unfair prejudice to R. A trial court mustconsider whether it is unfair to require a defendant to respond again to evidence whichhas not resulted in a conviction on an earlier occasion.4 However, that considerationmust be assessed against the knowledge that a previous acquittal, or in this case4 Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298 at [9].previous juries not being able to agree, occurred when the propensity witness'sallegation was assessed in isolation without the benefit of the additional evidence ofanother complainant testifying of being offended against by the same person, ina similar situation.5[13] Mr Hamlin submitted that inadequate consideration had been given tothe impact on the trial as a result of the considerable time and focus that would haveto be paid to the stepdaughter's evidence. This was said to include the evidence Rwould have to traverse about the dysfunctional relationship between the stepdaughter,her mother, and himself during the period of the alleged offending, which wouldnecessarily unfairly raise prejudicial evidence of which the incident with the knife wasan example.[14] We do not consider the additional evidence that was required to be traversedas a result of the admission of the propensity evidence derailed or unnecessarilyprolonged the trial. The original Crown case which constituted two witnesses(the complainant and her mother) giving oral evidence was extended to include twofurther witnesses (the stepdaughter and her mother). While we accept other issueswere then required to be canvassed in an effort to meet the propensity evidence,the preparation of that aspect of the case does not appear to have been onerous.No difficulties were identified regarding being able to prepare a response to thepropensity evidence as a result of the time that had elapsed since the previous trials orfrom when the offending was alleged to have taken place.[15] We consider Judge Patel was correct to find that the probative value ofthe propensity evidence outweighed the risk of any unfair prejudice to R. The primaryprejudice that arose from the admission of the stepdaughter's evidence derived fromits probative value in determining the essential issue of whether the daughter'sevidence was true and whether she had been offended against by R. We considerthe evidence of the stepdaughter constituted orthodox propensity evidence which wasrightly admitted at the trial.5 At [21]–[23]; and T v R (CA117/2015) [2015] NZCA 572 at [25]–[26].Jury directions about the propensity evidence[16] Judge Patel provided directions to the jury regarding the propensity evidenceboth before the stepdaughter gave her evidence and as part of his summing up.Having reviewed Mr Hamlin's critique of the trial Judge's directions, we do notconsider any error arises that is sufficient to give rise to a miscarriage of justice.[17] Mr Hamlin submitted that the trial Judge failed to adequately direct the jury onthe proper use to which the propensity evidence could be put and that he failed to alertthe jury to the risk of collusion. He further submitted that the Judge failed toadequately caution the jury about impermissible reasoning and unfair prejudice againstR. In particular, it was submitted that there had been a failure to warn the jury againstconvicting R based on the "failure" of the two previous juries to convict R in respectof the stepdaughter's allegations.[18] We accept the trial Judge did not expressly articulate how the probative valueof the stepdaughter's evidence arose from the unlikelihood or improbability oftwo girls in R's care complaining of sexual misconduct. However, we do not considerthat resulted in a misdirection or non-direction regarding the legitimate use to whichthat evidence could be put by the jury. The Crown's thesis of the unlikelihood of twogirls fabricating such allegations would have been obvious to the jury. Any failure toexpressly refer to the value of the evidence in those terms likely detracted fromthe Crown's case rather than R's defence.[19] In his summing up, Judge Patel identified to the jury the propensity whichthe Crown contended could be derived from the stepdaughter's evidence, namely thatR had a tendency to sexually offend against "young women" that were in his care andof how that was capable of assisting to prove the charges as they related to thedaughter. The Judge referred to the Crown's submission that the stepdaughter'sallegations were reliable and pointed to pieces of evidence that supported that beingthe case, including her complaint to a teacher in 2003, and another complaint to hermother near the end of 2006, when she wrote a letter which was produced in evidence.[20] The Judge referred to the similarities upon which the Crown relied, inparticular the connection in time, that the girls were young when these things happenedto them, and that the offending occurred at R's house at night when they were in hiscare. Reference was also made to both girls having referred to R asking them to model"explicit clothing". Judge Patel noted the Crown argument that those aspects ofthe evidence indicated a tendency on R's part which could be used to assist the jury inassessing the daughter's allegations.[21] Judge Patel then proceeded to summarise the defence response tothe propensity evidence; that the stepdaughter's evidence was not truthful, that it didnot have the tendency contended for by the Crown, and did not help the jury in termsof proof of the charges. The Judge reminded the jury of the stepdaughter's personalproblems, referencing her shoplifting and use of alcohol and cannabis, together withother aspects of her personal life and her relationships with family members which, ithad been submitted, was the context against which the stepdaughter had made hercomplaints against R. Judge Patel reiterated the defence's stance thatthe stepdaughter's evidence constituted a false complaint. The Judge then directedthe jury in the following terms:It is for you to decide whether [the stepdaughter's] evidence is truthful andwhether the tendency, the Crown submits, exists. If you are not satisfiedthe tendency exists you must leave the evidence entirely out of consideration.If you find that the tendency does exist you may use the evidence as part ofthe total evidence in the case when you are assessing the issues includingthe reliability and credibility and the truth of [the daughter], and ultimatelywhether the Crown has proved the defendant's guilt.[22] We consider the trial Judge's directions, read as a whole, adequately explainedto the jury the legitimate use to which the propensity evidence could be put inthe circumstances of the case. We also reject the criticism that the Judge failed to referto the possibility of collusion in the context of providing directions relating tothe propensity evidence. Judge Patel, in summarising the defence response tothe propensity evidence, referred to the stepdaughter's evidence as having "spawned"the daughter's false complaint and that each was falsely bolstering the other.Those directions followed an earlier specific direction regarding collusion between thegirls when addressing the issue of the witnesses' credibility and reliability.The respective positions of both the Crown and R in regards to the question ofcollusion were addressed in some detail.[23] We do not consider the jury would have failed to appreciate the importance ofthe issue of possible collusion when considering the propensity evidence. It wasa theme which ran through the whole case, and was one which the trial Judge raisedfor a second time when addressing the issue of making inferences, albeit not inthe same detail as he had previously canvassed that topic earlier in his summing up.[24] Finally, there is the complaint that the Judge did not adequately providedirections regarding the risk of unfair prejudice arising from the propensity evidence.However, Judge Patel provided an orthodox direction to the jury warning them againstfalsely reasoning that, should they accept the stepdaughter's evidence that R hadbehaved in a certain way on a previous occasion, he must be guilty of the charges.The jury were directed that any tendency to offend in the past was not sufficient toprove R's guilt, and that it was only one item of evidence to be considered with allthe rest of the evidence. Having provided that direction, the Judge then remindedthe jury of not allowing feelings of prejudice to be aroused or of sympathy to beengendered from the stepdaughter's evidence.[25] The second concern relating to unfair prejudice Mr Hamlin identified wasthe Judge's omission to direct the jury that they ought not convict R due to the"failure" of previous juries to convict him of the stepdaughter's allegations. What wasto be said to the jury about the previous trials was the subject of discussion betweencounsel. R's trial counsel argued at a pre-trial hearing that if the jury were told of theprevious two trials this may result in the jury convicting him to "make up" for theresult of those earlier trials. In the event, the jury were directed that R had stood trialon two occasions in relation to the stepdaughter's allegations, that on both occasionsthe jury could not agree, and that, as is usually the case where two juries cannot reachagreement, a third trial had not taken place. There was no complaint at the timeregarding the appropriateness of those directions.[26] We accept that it would have been preferable for the trial Judge to haveprovided the direction which he indicated he would give to the jury about not beingtempted to convict because of the outcome of the earlier trials. However, we do notconsider that omission gives rise to a possible miscarriage of justice. In order to usethe stepdaughter's evidence, the jury were required to be satisfied that her allegationswere truthful. R's position was that those allegations were false. That was the basisupon which the jury was asked to reject the propensity evidence. We are satisfiedthe trial Judge properly directed the jury that they needed to be satisfied ofthe truthfulness of the stepdaughter's evidence before it could be used to provethe present charges. When viewed against those explicit directions, we do not considerthat a caution of the type sought would ultimately have been of any material effect.[27] Being satisfied that adequate directions relating to the propensity evidencewere provided by the trial Judge, this ground of the appeal is dismissed.The prosecutor's inappropriate comments[28] In the Crown prosecutor's closing address, she made the following submission:I want to now speak briefly about another aspect of the defence case,the defendant's so-called lack of previous convictions. Of course, that'sa pretty glib argument in this case. We know he has some history; charges ofdomestic assault in 2007 were proven but he escaped conviction, and two trialsof sexual offending against his stepdaughter resulted in hung juries. Even ifthe defendant had a truly clean history, how does that help you? Logic dictatesthat every offender at some time or other receives his first conviction.[29] The mentioned domestic assault is the knife incident to which we have earlierreferred, about which trial counsel cross-examined the daughter, the stepdaughter andher mother. That incident gave rise to a charge of assault to which R pleaded guilty.He was discharged without conviction. Evidence of R's lack of previous convictionswhich the defence sought to adduce, presumably as good character evidence, waselicited through the officer-in-charge. Her evidence was read by agreement.[30] Trial counsel had a tactical decision to make regarding the introduction ofthe "knife incident" after the propensity evidence was ruled admissible. The decisionto elicit evidence about that incident was an attempt to highlight the daughter's falsememory of events in an effort to argue that it was the product of collusion betweenherself and the stepdaughter. However, it also potentially painted R in a bad light.Mr Hamlin submitted that the Crown prosecutor's comments aggravated thisprejudice.[31] As we have previously held, we do not consider the perceived need to introducethis evidence materially affected the validity of the decision to admit the propensityevidence. However, we acknowledge that the Crown prosecutor's comments, whichwere made in response to R's claim of being of good character, were inappropriateand are to be deprecated. They should not have been made, but we do not considertheir utterance resulted in any real risk of prejudice.[32] Firstly, the trial Judge provided specific directions regarding R's lack ofprevious convictions. He did not expressly link those directions to the prosecutor'sremarks but, clearly, they applied to them. The Judge stated:[117] You have heard the read evidence of Detective Patton thatthe defendant pleaded guilty to a charge of assault, and that related tothe incident in the kitchen with [the stepdaughter's mother]. He wasdischarged without conviction. In law that is the same as a not guilty verdict.Therefore you must treat the defendant as having no prior convictions.[118] The defendant asked you to give that evidence weight in assessingthe case against him, and indicating he is not the type of person likely to havecommitted these offences.[119] Of itself however, the evidence may be of limited assistance to you asa matter of logic. Every offender must commit a first offence.[120] However, you may treat the evidence as some evidence that he isa person of good character.[121] Being of good character is not in itself a defence to the charges.A defendant may have committed an offence even though she, he or she wasotherwise of good character.[122] Now, in relation to the evidence about the defendant holding a knifeto [the stepdaughter's mother] and his being charged with it. The relevanceof that evidence is in relation to whether [the daughter] was at the incident ornot. You must not reason that because the defendant was involved in thatincident and charged that he must be guilty of the offences that you areconsidering.[33] In providing this direction about character evidence, the Judge cautionedthe jury about any prejudicial reasoning arising from the incident involving the knife.The jury were directed that they could take into account that R had no previousconvictions and that he had legitimately obtained a discharge without conviction inrelation to the knife incident, which the Judge directed the jury must treat as a findingof not guilty.[34] Mr Hamlin submitted that the Judge failed to correct the remarks made bythe prosecutor. However, R's counsel in his closing address very effectively tookthe prosecutor to task about the inappropriateness of her remarks. When takentogether with the Judge's directions, which confirmed defence counsel's viewregarding the correct position, we consider any potential prejudice arising fromthe prosecutor's comments was largely extinguished.[35] We are reinforced in that view because it would have been plain to the jury thatpart of the Crown's case was that R had engaged in sexual conduct with hisstepdaughter. It was asking the jury to rely upon her evidence to support the daughter'sevidence to prove the charges. It followed that R's reliance on his "good character",based as it was on his lack of previous convictions, was not one that the Crownaccepted. Because of this aspect of the trial contest, R's reliance on his good recordwas always potentially limited. The prejudice that may otherwise have flowed fromthe prosecutor's comments must be viewed in that light. Having made thatobservation, we repeat that we consider the prosecutor's remarks, both in terms oftheir content and tenor, were neither appropriate or balanced.[36] For the reasons discussed, we do not consider this particular aspect of the trialhas given rise to any miscarriage of justice.Result[37] The appeal against conviction is dismissed.[38] To protect the identities of the complainants, we make an order prohibitingpublication of the 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