BELSEY v R [2022] NZCA 484

BELSEY v R [2022] NZCA 484 [17 October 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA79/2022[2022] NZCA 484BETWEEN RAYMOND JOHN BELSEYAppellantAND THE KINGRespondentHearing: 19 September 2022Court: Gilbert, Brewer and Moore JJCounsel: J D Lucas for AppellantP A Norman and C J Flatley for RespondentJudgment: 17 October 2022 at 9.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] On 5 November 2021 a jury found Mr Belsey guilty on one charge of sexualviolation by unlawful sexual connection. Mr Belsey appeals his resulting conviction.[2] We must allow the appeal if we are satisfied that, having regard to the evidence,the jury's verdict was unreasonable, or a miscarriage of justice has occurred for anyreason.[3] "Miscarriage of justice" means any error, irregularity or occurrence in orrelating to or affecting the trial that:1(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.Background[4] Mr Belsey and the complainant shared a prison cell.[5] The complainant said he took exception to sexualised comments made byMr Belsey about a young girl on television. Mr Belsey then became angry and inthe course of an assault on the complainant he penetrated the complainant's anusthree times with a thumb.The appeal[6] There are three grounds of appeal:(a) Mr Belsey's statement to a police officer should not have been put inevidence. It was inadmissible.(b) The trial Judge's summing up was unbalanced and unfair to Mr Belsey.(c) The trial Judge erred in not giving a "motive to lie" direction.Mr Belsey's statement[7] A police constable spoke to Mr Belsey about the incident some two monthsafter it occurred. Having ensured Mr Belsey understood his rights, there was thisexchange:1 Criminal Procedure Act 2011, s 232(4).Question: "Tell me what happened with your cellmate [the complainant]."Answer: "I have no idea. All I know is that someone has made a sexual assaultcomplaint about me. I don't know what's happened or anything."Question: "Tell me about how long you were in a cell with [the complainant]."Answer: "Almost five months."Question: "How did you two get along?"Answer: "Very well."Question: "So what happened on the evening of 27th of July 2020?"Answer: "So we were watching TV. Then we got into an argument oversomething and I ended up smashing the TV and remote and pretty much wentto bed."Question: "Did you touch [the complainant] at any point in any way?"Answer: "Definitely not, nor did he touch me."Question: "Do you know what the actual allegation is?"Answer: "No, I just know that it is sexual assault. That's all I know. This isthe first I am talking about it with you."Question: "Would you like me to read out briefly what it is about?"Answer: "Oh, yep."[8] The constable then read from her notebook notes she had made in the courseof an interview with the complainant recording the account given to her bythe complainant. When she finished, Mr Belsey responded: "It's all bullshit.What's the process from here? This makes me furious."[9] The constable gave evidence at Mr Belsey's trial. She recounted her interviewwith Mr Belsey, including the notes she read to him (the notes).[10] Mr Lucas, for Mr Belsey, submits that the evidence of the notes wasinadmissible because it was an account of allegations by the complainant which wererejected by Mr Belsey. Accordingly, the notes had no probative value and putting thembefore the jury was unfairly prejudicial.22 Mr Lucas did not suggest that the earlier part of the constable's evidence was inadmissible.[11] Mr Lucas submits that the unfair prejudice was increased becausethe complainant's evidence given at trial omitted some of the allegations contained inthe notes.[12] We agree with Mr Lucas that the constable should not have been permitted toread the notes to the jury. It has long been accepted that allegations which are nototherwise in evidence are irrelevant and therefore inadmissible unless a defendantaccepts them.3 The constable should simply have made a general statement tothe effect that she read her notes to Mr Belsey, and then given his denial.[13] The issue is whether the jury hearing the notes caused a miscarriage of justicein the sense that it created a real risk that the outcome of the trial was affected, orresulted in the trial being unfair.[14] The complainant gave evidence via his recorded evidential video interview(EVI) and orally. Mr Lucas helpfully provided us with a table in which the differencesbetween the EVI and the notes are set out. In our view, the only significant differencesare that in the notes the complainant is recorded as saying:What led up to it was his sexual preferences. He was expressing things forabout four months.He always talks about young kids under 10 and, like, young females straddledthe fence on TV and that.[15] The complainant's evidence does not contain these passages. However, in hisEVI the complainant does say that the argument arose because of Mr Belsey'scomments that a young girl on a television advertisement was "hot", the girl was under10, it sounded like Mr Belsey at the time was masturbating, the complainant said"that's not right" and "you watching kids on TV you're into, the wrong stuff".[16] Further, the complainant was cross-examined on his relationship withMr Belsey and on the complainant's account of Mr Belsey's behaviour. Some relevantquestions and answers are:3 R v Halligan [1973] 2 NZLR 158 (CA) at 161–162.Q. So did you want a break from him?A. Yeah, I just wanted to be in a different cell, you know, that feltnormalised and that because you're living in an environment whereyou're sorta, gotta adapt to something, you've got no choice, like youdo but, you know, and I'd brought it up that I was uncomfortable withthe behaviours and nothing was taken serious and I didn't know howto, just didn't know, I didn't know what to do.Q. I'm going to just talk to you now about the argument that you had withMr Belsey. Did you and Mr Belsey joke about a young girl on theTV?A. It wasn't, it wasn't really joking, it was just in a conversation, 'cos wehad a few conversations with things brought up around – like him intoyounger girls and it was just, (inaudible 14:47:24) weird, you know,I'd had enough like 'cos, you know, waking up and he'd quietlymasturbated above the bed and it was just not nice waking up, youknow, with watching (inaudible 14:47:42) come on and they hadflipped between channels and ads and, you know, it was just –Q. did you get into an argument with him that night?A. Well, it was spontaneous and I didn't see it as an argument at the time.I just said that it's sick and disgusting that he seems to think it's okayto masturbate over kids and it just went from that to smashingeverything up and doing that.A. I just turned round and said like: "You know all your core valueshave gone out the window," you know and you (inaudible 14:50:22)masturbating over kids and talk about how hot like young girls are,like on like the news and stuff so (inaudible 14:50:32) and I just gotsick of hearing it and I just, you know, (inaudible 14:50:41) and that'swhat happened and the result of this here.(Emphasis added.)[17] We conclude this is not a case where material was put before a jury whichwould otherwise not have come before it, and which was then used to bolsterthe complainant's credibility. The notes should not have been read to the jury becauseMr Belsey's denial of the allegations means the notes have no probative value.But the complainant's evidence (which the jury heard before it heard the notes) wassubstantially the same as the notes. There is nothing in the notes, either in detail oremphasis, so different to the evidence of the complainant that unfair prejudice arises.There is no miscarriage of justice arising from the jury hearing the notes.[18] Mr Lucas, additionally, objects to evidence given by the constable thatMr Belsey became aggressive after the interview such that the overall evidence"created a real risk that the jury may find that [Mr Belsey] was an angry, aggressiveperson with prurient and persistent paedophiliac [sic] views or beliefs".[19] In her evidence-in-chief the constable said:8. BELSEY became aggressive and tried to smash through the glasswindow separating us, so the interview was terminated.9. The statement was therefore not signed by BELSEY. I produce anunsigned copy of what he told me and which I recorded.[20] As we have said, we do not see unfair prejudice to Mr Belsey arising fromthe jury hearing the notes. Nor does the evidence of his aggression raise significantunfair prejudice. The evidence was led to explain why the record of the constable'sinterview with Mr Belsey was not signed by him.[21] Further, in cross-examination it was put to the constable that "it was when heheard the specific details of the allegation being made against him that he lost histemper". The constable accepted that proposition and agreed that "[h]e was furiousabout the allegation".[22] We agree with Mr Lucas that it would have been better if the constable had notmentioned the aggressive behaviour. It would only have become relevant and ofprobative value if the fact that Mr Belsey did not sign the constable's record ofthe interview became an issue. But, in context, and in conjunction with the reading ofthe notes, Mr Lucas's objection is not made out.[23] It follows that this ground of appeal does not succeed.The summing up[24] Mr Lucas submits the Judge's summing up was unbalanced and unfair toMr Belsey.[25] The first criticism relates to the Judge's treatment of evidence thatthe complainant made a claim for Accident Compensation Corporation (ACC)compensation immediately after the alleged incident. The defence case was thatgetting ACC compensation was a motive for the complainant to make false allegationsagainst Mr Belsey.[26] The complainant accepted he made an ACC claim but said he told the prisonofficer responsible that he did not want compensation. The prison officer said that ifa prisoner did not want to make a claim then the claim form would not be completed.Defence counsel referred to this in her closing address.[27] The Judge in his summing up made three references to the ACC issue:[51] Secondly there was a ... it was put to [the complainant] that he wasmotivated to obtain a payment from ACC. He accepted that an ACC claimform had been submitted but you have heard from [the medical practitioner]that she completed the form as part of the standard protocol of the prison incircumstances where an accident or any injury had occurred. And[the complainant] denied that he was motivated to seek money. He said "There's nothing like that you can make up. It's the humiliation I had to dealwith as well. You know you just can't make up that stuff." Well that will befor you to consider.[79] [The prosecutor] also submitted that making an ACC claim wasdenied or in order to obtain money and described it as a red herring. Also tothe suggestion that [the complainant] could have pushed the emergency buttonafter the event.[92] Next [defence counsel] submitted that there was an inconsistencybetween [the complainant's] evidence about the ACC claim and that of[the prison officer] who completed the form. It was submitted that an ACCpayment was a motive for [the complainant] to fabricate his allegation but theevidence indicates that [the complainant] denied that he was seekingcompensation when in cross-examination the allegation was put to him.There was no evidence to the contrary and there the matter must end.And [the prison officer's] evidence did not touch on the issue of compensationitself in relation to the ACC form she filled out. She said that it was protocol,practice, simply to fill out a form when someone had been injured. And weknow from our general knowledge and experience that ACC is not just aboutmoney, not just about compensation. It also provides mechanisms for atherapeutic response to those who have suffered an injury or trauma.[28] Mr Lucas submits that the first reference by the Judge "seems to be suggestingthat merely because the complainant had answered in the negative around his reasonswhy he filled in the ACC, that had to be accepted as gospel". Mr Lucas submits furtherthat by quoting the complainant's response the Judge was endorsing the response astruthful, compelling and an answer to the defence's proposition. Mr Lucascharacterises the Judge's comment "[w]ell that will be for you to consider" as coy.[29] As to the third passage, Mr Lucas submits:(a) The Judge should not have said "[t]here was no evidence to the contraryand there the matter must end".(b) The Judge misconstrued the evidence when he remarked: "She said thatit was protocol, practice, simply to fill out a form when someone hadbeen injured."(c) The Judge told the jury matters not in evidence when he said: "And weknow from our general knowledge and experience that ACC is not justabout money, not just about compensation. It also providesmechanisms for a therapeutic response to those who have suffered aninjury or trauma."[30] It is, of course, the law that a judge in summing up must be fair and balancedas between the Crown and the defence and make it clear to the jury that decisions onthe facts are for it and not for the judge.[31] When a complaint is made that a judge in summing up was not fair andbalanced as between the parties it is important to analyse the complaint againstthe summing up as a whole.[32] In this case the Judge gave orthodox directions making it absolutely clear whatthe jury's role was, and distinguishing his own role. We found the followingcompilation of the Judge's comments in the Crown's submissions useful:Matters of fact- You are the judges in this case and you are judges of the facts. You havesole responsibility for determining all facts in this case. It is for you andyou alone to decide what evidence you accept, what evidence you rejectand what weight, what significance you give to any part of the evidence.So if the course of this summing up I appear to indicate a view ofthe evidence or of any witness which [does] not accord with your viewthen you must disregard what I say because findings of fact and findingsof credibility of the witnesses are entirely for you and not for me.- I give directions on the law which you must follow. I may comment onthe evidence but those comments you are free to ignore.- As I have previously noted in these remarks, if in directing you on thesematters, I appear to take a view of the evidence which does not sitcomfortably with your view, then you must disregard what I say.- How you assess a witness is entirely up to you.- And it is entirely for you.- So it is for you to decide what weight, what level of significance you puton each witness when taking account of those types of matters.- So it is entirely for you to decide.- So in summary about assessing the witnesses evidence and its weight andworth and any inferences that you chose to draw from it, you will applyas I have said your collective common sense and knowledge of humannature because you are here as representatives of this community to applyyour fair and wise judgment.- [summary of the closing addresses] It is not to be seen as a substitute, it isintended to simply highlight matters as I noted them to be. There may beother matters that you noted and if my comments do not accord withyours, feel free to ignore what I say.[33] Accordingly, we do not accept Mr Lucas's submission on the first reference.In context, the Judge simply juxtaposed the defence allegation as to motive withthe complainant's response. His concluding comment was not coy. It was onereminder of many to the jury of the primacy of its role.[34] As to Mr Lucas's criticisms of the third reference, it is again useful to set outthe relevant compilation of the Judge's comments in the Crown's submissions:Decisions based on evidence- Now I mentioned to you at the start of the trial that your verdicts mustbe based solely on the evidence that you have heard in thiscourtroom;- Now what counsel have said to you in their addresse[s] a short timeago, they are submissions and you should carefully consider what theyhave said to assist you in your deliberations but what counsel say isnot evidence in itself and of course what I say is not evidence.- Mr Belsey is entitled to be judged only on the evidence you have heardand seen in this case.- Evidence is what a witness says in answer to questions. It is notthe question itself. So it follows that a proposition put to a witness butnot accepted by the witness, is not evidence of the proposition unlessthere is other evidence on the same topic. So if something is put to awitness, "this happened" and the witness says "no" and there is noother evidence on that topic, the matter ends there. It is not evidence.It is simply a proposition.- And on that theme I ask that you not speculate on matters which havenot been led in evidence. Your task is to decide the case only on whathas been led in evidence before the Court. An example of that mightbe the Department of Corrections reclassification process or theirprocedure for disciplining prisoners who have misbehaved. There hasbeen some comment on that but not a lot of evidence. So do notspeculate on other matters. Your task is to decide the case on theevidence you have heard and the evidence you accept.- When you are assessing a witness consider everything a witness hassaid, evidence-in-chief, cross-examination, re-examination.(Emphasis added.)[35] The Judge was correct to tell the jury there was no evidence to contradictthe complainant's denial that he was seeking compensation. There was acceptancefrom the prison officer that the purpose of filling out the form was so thatthe complainant could claim "full cover or entitlements from ACC". But the prisonofficer was not asked whether the complainant said that he wanted, or did not want,compensation. Nevertheless, we accept that telling the jury that "there the matter mustend" was incorrect. It was still up to the jury to decide whether the inferencethe defence asked it to draw was available to it on the evidence. However, the pointhas no significance in the context of the trial. There was no evidence as to whetherACC might pay compensation to victims of sexual assault. There was no evidence asto whether the complainant sought or received financial compensation.Defence counsel raised the issue, but for the jury to give it weight would have beenspeculative.[36] The other criticisms of the third reference are likewise of no moment.The Judge's comment that the prison officer said that it was "protocol, practice, simplyto fill out a form when someone had been injured" was correct. The Judge did not goon to say that if a prisoner did not want to get help from ACC then the form would notbe filled out. But that evidence was before the jury, it had been addressed by counseland the Judge had made it clear that it was the evidence that must be considered.[37] We accept that the Judge's comment that ACC "is not just about money" wasnot based on evidence. But defence counsel's submission that the complainant wasmotivated to lie so as to get compensation was not based on evidence either. There isno evidence that compensation might be available. All the Judge was trying to do wasprovide balance. He was not wrong to do so in this context.[38] The next criticism of the Judge's summing up relates to a defence theory thatthe complainant wanted to get Mr Belsey out of his cell and this was a motive formaking up his allegation.[39] The theory was advanced in cross-examination of the complainant:Q. You'd asked to be moved and you weren't moved, were you ?A. Hey, I could have waited 'til his classification. His classification was,like, three days away and he would have been gone down to lowsecurity and that's what I was waiting for, because there was no wayI could move. So why would I make this up if he was going down tolow security in a few days? It's not a very viable option to make up aload of bullshit.[40] The complainant's account of the incident included that in his anger Mr Belseybroke the television in the cell. Defence counsel developed a theory that breaking thetelevision might threaten Mr Belsey's reclassification, that the complainant wouldknow that, and so the motive to make up the allegation so as to get Mr Belsey out ofhis cell remained. But this was not put to the complainant.[41] Defence counsel did try to broach the matter with a police officer who wascalled by the Crown. But all she could say was that prisoners could be reclassified upor down as a result of behavioural issues.[42] Defence counsel addressed the jury on this matter:The Crown say well why would he make this up to move cells when he knewthat Mr Belsey was likely to reclassified to low security in a few days? Well,we only have [the complainant's] opinion on that, we do know there was goingto be consequences for smashing the TV. [The complainant] told us Belseywas going to go to the pound at page 28 of the notes of evidence.Now [the constable] explained that if a prisoner got a misconduct, one waythat they might get punished would be to go to the pound. So you mayconsider that smashing the TV by Mr Belsey would have resulted in amisconduct and [the constable] confirmed that prisoners can have theirclassification changed as a result of behavioural issues.Now, we just don't know if he did go to the pound, we don't know if he wasdue to be reclassified, or if he received a misconduct for smashing the TV andif he did, what if any effect that would have had on his reclassification, butyou might think that these are all questions that were running through [thecomplainant's] mind in the 10 hours that he was waiting in silence, at nightfor his cell to be unlocked in the morning. [The complainant] was clearly ofthe view that he only had to put up with Mr Belsey for a few more days untilhe thought that he was going to be moved out of his cell. He said he was goingto the pound, so it's possible isn't it that [the complainant] was worried thatthis incident might have an effect on Mr Belsey's reclassification, and hisimpending move out of [the complainant's] cell.[43] The Judge, in outlining the defence case, said:[87] The principal one is that [the complainant] was tired of beingMr Belsey's cellmate, did not enjoy double bunking with him and viewedMr Belsey as someone who was "into the wrong stuff". The defence submitsthat [the complainant] used the opportunity of the argument to construct anallegation which would result in the two of them no longer sharing a cell.[44] The Judge then directed:[88] Although [defence counsel] submitted to you that there was only[the complainant's] opinion as to Mr Belsey being re-classified in a few days'time, I remind you that his evidence was not challenged on that point nor wasit put to [the complainant] that in the 10 or 12 hours between the allegedoffending and [the complainant] leaving the cell, that he ruminated on mattersand what might happen to Mr Belsey for smashing the TV, that he could bere-classified or would receive some punishment. So I direct you to put thatsubmission to one side. There is no evidence on that at all. That is speculation.[45] Mr Lucas submits the Judge was wrong to direct in this way:89. The direction to disregard that motive was erroneous.The complainant had given evidence essentially that he was stuck inthe cell with [Mr Belsey]. That there was no way out but there was areclassification coming up. It is a reasonable inference to draw thatthe complainant would be worried about [Mr Belsey's] impendingmove would be affected by the misconduct of breaking the TV.While it was not explicitly put, [Mr Belsey] was asked directly that hehad made this up to put himself in a better position and that he wanted[Mr Belsey] gone from the cell.90. It was a valid inference for a jury to draw – that the complainant waskeen for the appellant to leave by any means necessary. That thebreaking of the TV might put that at risk.[46] We do not accept Mr Lucas's submission. The Judge had put the defencetheory that the complainant wanted Mr Belsey out of his cell and this gave him amotive to lie. The complainant had denied he had such a motive and referenced thereclassification. There was no other evidence that Mr Belsey was due to bereclassified, no evidence that breaking the television might affect any reclassificationand no evidence that this was a factor that might induce the complainant to make uphis allegation. The Judge was correct to direct the jury that to consider that line ofsubmission would be to speculate.[47] Finally, Mr Lucas submits the Judge was wrong to direct the jury:[52] And finally it seemed to be suggested that [the complainant] wasannoyed that the television had been broken and he would not be able to watcha TV programme. Again that was denied by [the complainant] and perhapsyou may think the matter ends there.[48] We do not accept the submission. The Judge was entitled, on this very minormatter, to make the suggestion he did.[49] We have discussed individually Mr Lucas's criticisms of the Judge's summingup. We have also considered their collective weight. In our view no miscarriage ofjustice arises from them. This ground of appeal does not succeed.A "motive to lie" direction[50] As is evident, the ultimate issue for the jury was whether it could be sure thatthe complainant's account of being sexually violated by Mr Belsey was true.Mr Belsey's defence was that the violation never happened; the complainant lied aboutit.[51] Mr Lucas submits:102. There was an intense focus on [Mr Belsey's] reasons put forward whythe [complainant] was making it up in the closing addresses by boththe Crown and defence. As such, the jury should have been remindedand given a what is sometimes called a "motive to lie" direction.Namely:a. That while the defence have raised motives or reasons as towhy the [complainant] is making it up, they do not have toprove that there is a specific reason why the victim is makingit up;b. That if the jury find that there was no motive to lie thenthe jury should not just conclude guilt but rather go back andassess the evidence presented by the Crown as the Crown hasto prove the charge beyond reasonable doubt.[52] It is common in criminal trials for a defendant to submit that the complainantlied about what happened. Or that a significant Crown witness lied about whathappened. Conversely, it is common for the Crown to submit that a defendant, or adefence witness, lied about what happened. When lies become a significant issue in atrial the judge is expected to direct the jury on how to regard evidence of lies.[53] If the focus is on whether the defendant lied, the judge should tell the jury thatif it finds that a lie was told it may give the fact of the lie such significance as it thinksjust. But the jury should bear in mind that a lie can be told for many reasons andthe jury must not jump to the conclusion that because a lie was told the defendant mustbe guilty. The jury should also be told that if it finds the defendant lied, then it muststill decide whether the Crown has proved the charge beyond reasonable doubt.That is because the onus of proving guilt is always on the Crown.[54] If the focus is on whether a complainant lied then the judge may be required todirect the jury that the onus is on the Crown to prove that the complainant's accountis true and not on the defendant to prove that it is untrue. Whether such a direction isnecessary may depend on how evidence of the alleged lie is adduced. A direction maywell be necessary if the evidence is given by the defendant or a defence witness.It may not be necessary if the evidence arises from cross-examination of Crownwitnesses.[55] There can also be situations where there are indicia of unreliability that causea judge to warn the jury of the need for caution in deciding whether to accept evidenceor the weight to be given to evidence.4 A judge must consider whether to give such awarning if evidence is given by a witness who may have a motive to give falseevidence that is prejudicial to a defendant.5[56] In this case, Mr Lucas does not submit that the Judge was required to warnthe jury that the complainant had a motive to lie such that there was a particular needfor caution. His submission is that the Judge needed to direct the jury that it was forthe Crown to prove that the complainant was telling the truth and that there was noonus on Mr Belsey to prove the complainant lied.[57] However, the Crown did not say that the complainant had no motive to lie.All it did was respond to defence counsel's identification of motives to lie. The Crownnever departed from the orthodox, and required, acceptance that it bore the onus ofproving guilt.[58] Likewise, the Judge gave the orthodox, and required, direction on the Crown'sonus:[15] The starting point in this trial is the presumption of innocence andcounsel have referred to that during the course of the trial. You must treatMr Belsey as innocent until the Crown has proved his guilt. The onus of proofis on the Crown from the beginning of the trial to the end of the trial. Thereis no onus on Mr Belsey at any stage to prove his innocence. So thepresumption of innocence means that Mr Belsey does not have to give or tocall evidence and he does not have to establish that he is innocent of thischarge. The Crown must prove Mr Belsey guilty beyond reasonable doubt.I am sure you have heard that expression before. Proof beyond reasonabledoubt is a very high standard of proof which the Crown will have met only ifat the end of the case you are sure that Mr Belsey is guilty. It is not enoughfor the Crown to persuade you that Mr Belsey is probably guilty or even thathe is very likely guilty but on the other hand it is virtually impossible to proveanything to an absolute certainty when dealing with the reconstruction of pastevents and the Crown does not have to do so.(Emphasis added.)[59] The Judge referred to this again when summarising the defence case:[85] [Defence counsel] correctly reminded you of the burden and[standard] of proof being on the Crown and that Mr Belsey is not required to4 Evidence Act 2006, s 122.5 Section 122(2)(c).prove anything, and furthermore the fact he gave a statement to the police didnot change that position.[60] Finally, the Judge returned to the point when discussing the motives to lieraised by the defence:[87] She said to you that as Mr Belsey is not required to prove or disproveanything in this trial, he does not have to suggest a motive but the defence didraise with you a number of possibilities for consideration as to why[the complainant] would fabricate the allegation.[61] In our view, in the circumstances of this case, the Judge was not required to domore. There is no risk that the jury might have thought there was an onus onMr Belsey to prove that the complainant had lied.[62] This ground of appeal does not succeed.Result[63] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent