S (CA140/2016) v R [2017] NZCA 110

S (CA140/2016) v R [2017] NZCA 110 [5 April 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF ANY COMPLAINANTS/PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESSPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA140/2016[2017] NZCA 110BETWEEN S (CA140/2016)AppellantAND THE QUEENRespondentHearing: 6 March 2017Court: Kós P, Courtney and Williams JJCounsel: C J Tennet for AppellantH W Ebersohn for RespondentJudgment: 5 April 2017 at 11.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] S was found guilty at a jury trial of sexual offences against two young complainants, T and M. As against T, he was convicted of five counts of sexual violation by unlawful sexual connection: one of attempting to induce an indecent act on a child, three of doing an indecent act on a child and one of doing an indecent acton a young person. As against M, he was convicted on three charges of doing anindecent act on a child. He was sentenced to ten years' imprisonment in total.1[2] S appeals his conviction, asserting a miscarriage of justice as a result of:(a) a pre-trial ruling by Judge Hastings refusing permission to cross- examine M on allegations of sexual abuse she had made against her father;2(b) failure by the trial Judge, Judge Kelly, to direct on the possibleimplications on the complainant's credibility of the Crown's lateamendment of the charges to extend the alleged dates of the offending; and(c) the trial Judge's refusal to allow defence counsel to put allegations offamily violence to a witness.Pre-trial ruling under s 44 Evidence Act 2006[3] The offending against M occurred between August 2008 and March 2012. She first complained in 2014. Then, in May 2015, she disclosed to her school teacher that she had been inappropriately or sexually touched by her father. The conduct she complained of was her father lying on top of her to hug her, and kissing her on the lips in farewell when he went to work. M's father confirmed that thisconduct had occurred but said that it was just his way of showing affection.[4] M's disclosure was investigated by Child Youth and Family, with assistance from the Police. No action was taken against M's father. Child, Youth and Family concluded that the conduct complained of, although perceived by M to beinappropriate, was no more than genuine affection and M's misinterpretation of it assexual could have been attributable to the earlier sexual abuse by S.1 R v S [2016] NZDC 3677.2 R v S DC Wellington CRI-2014-096-3809, 4 December 2015.[5] S wished to cross-examine M about the allegations she had made for the purposes of undermining her credibility. He required permission under s 44 of the Evidence Act to do so because the questions would relate to the sexual experience of M. The purpose of s 44 is to preclude evidence intended to blacken the character of a complainant. It is not, however, intended to preclude the advancement of a full defence that is otherwise open to an accused.3[6] Section 44(3) provides that:In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.[7] Judge Hastings refused the application, saying:4[11] There appears to be no nexus established between [M's]allegations against her father and any motive to lie with respect to her allegations against the defendant. Far from challenging her credibility or veracity, to permit cross-examination with respect to the allegations against her father would have the effect of bolstering her credibility because herfather's evidence corroborated her allegations against him. It could however come at the price of re-traumatising [M] which s 44 is aimed at preventing.[12] I accept Ms Baker's concern that [M] did not raise the defendant'soffending during her complaint against her father, but as I said earlier, there could be any number of reasons for this and, in any event, I do not see how this assists in determining her credibility during her interview with respect to the offending in this case.[8] Mr Tennet, for S, submitted that the Judge was wrong to find that there was no nexus between the allegations against M's father and those against S. Nor did he accept that the truth of the previous allegations (shown by the father's acceptance ofthe conduct) should preclude cross-examination. He relied on this Court's decisionin R v Tunbridge in which cross-examination was permitted in relation to thecomplainant's true allegations of previous sexual abuse by another family friend,who had pleaded guilty to charges based on the allegations — save for one — for which the charge was withdrawn.53 R v Clode [2007] NZCA 447 at [24].4 R v S above n 2.5 R v Tunbridge [2015] NZCA 456.[9] The circumstances in Tunbridge were quite different to the present case. Cross-examination on the previous true allegations in Tunbridge was to be directed specifically towards the possibility of the complainant having confused the known abuser with the alleged abuser by exploring the possibility that nightmares the complainant had experienced about Mr Tunbridge had been confused with nightmares about the earlier abuse. It was also proposed to explore the possibility, based on the withdrawn charge, that the complainant might have exaggerated what had happened in both cases.6 But even this assertion was treated by the Court as arising in the context of the complainant's nightmares.[10] In this case we cannot see any nexus between the earlier offending by S andthe later allegations against M's father. Nor could Mr Tennet articulate any; he referred only to M's failure to mention the allegations against her father when interviewed by the police in relation to her allegations against S but that could not possibly satisfy the heightened relevance test in s 44(3). There was nothing aboutM's true allegations against her father that could have any relevance to the facts that were in issue in the case against S.[11] The other aspects of the ruling that Mr Tennet identified as errors are, in our view, merely observations by the Judge rather than part of the ratio for the decision. These include the observation that the proposed cross-examination could have the effect of bolstering credibility (a matter that Mr Tennet pointed out was for defence counsel to assess).7 This observation is not an error and does not affect thecorrectness of the Judge's decision.Amendment of charges[12] At the close of the Crown case Judge Kelly allowed the Crown to amend the particulars of some of the charges to expand their date range.8 The earliest date of alleged offending against either M or T was 20 August 2008, when S arrived in New Zealand from Samoa. Seven of the charges that involved T were amended to extend the date range from between 20 August 2008 and 5 November 2008 to between 206 At [18]–[20].7 Relying on R v Tunbridge, above n 4.8 R v S [2015] NZDC 24457.August 2008 and 9 October 2009. The three charges that involved M were amended to expand the date range from between 20 August 2008 and 5 November 2010 to between 20 August 2008 and 29 March 2012.[13] The amendment was permitted by s 133 of the Criminal Procedure Act 2011 which provides that a charge (including any of the particulars required to be specified in a charging document under s 16(2)) may be amended at any stage in a proceeding before the delivery of the verdict or decision of the Court. Mr Tennet accepted that the Judge was entitled to allow the amendments. His complaint was that she had failed to direct the jury adequately on the potential implications of the amendments. In particular, he said that the amendments, which reflected thecomplainant's evidence as it emerged, had adverse implications for the credibility ofthose complainants.[14] It was not in dispute that S lived with T's family for some time when he firstcame to New Zealand and that the offending occurred in that context. However, there was also evidence that after he had ceased living with the family S still visited and stayed overnight. T's evidence was, to a significant extent, grounded in thelocation of the offending. Although T said that most of the offending happened when she was nine (and living at W Street) she also gave evidence about another incident that happened after her family had moved to W Road, by which time she was 10.[15] M alleged offending against her at S's own home on ocassions she and otherfamily members visited to watch rugby on Sky Television. It was not in dispute that the Sky Television subscription had been connected to that house in mid-2010 and disconnected on 11 January 2012. There was, therefore, an evidential basis on which to allege a longer time period.[16] The defence case had been put on the basis that the offending never happened and that S never had any opportunity to offend in the way alleged. In closing, defence counsel referred to the amendments and said:I'm certainly not criticising the Crown for doing that but I guess it is astatement of fact that the time periods for this, for these charges, for the firstgroup of charges, have been extended since this trial started. So I'd ask youto look carefully at those dates as you go through the charges and the time periods referred to by each of the complainants in your [sic] evidence.[17] Defence counsel went on to record that S denied the offending, that he said it did not happen and then drew attention to the issue of credibility, given the age of the complainants at the time of the alleged offending:[T]he issues of witnesses recalling dates, times, facts and details are at theheart of this case and it's important to look at those details when assessingthe credibility and reliability of the Crown witnesses.So it's important when considering each of the charges that you, in additionto considering what the complainants say, consider what other witnesses say was going on during that time period and to consider whether there was, inparticular, opportunity. And that's, in my submission, a key word in this case, "opportunity" for the offending to occur in the way that it has been described.It's also important to consider how the witnesses' ability to remember events can be affected by the passage of time So this is highlighted when weconsider that the complainants were nine and 10 and eight and ninerespectively when most of these events are said to have occurred. So it's mysubmission to you that their ages, again coupled with the passage of time have made their recollection of the key important event unreliable.[18] In summing up the Judge referred briefly to the amended charge sheets and said of the defence case:The defence case is that [S] denies the offending, he says it did not happen.He maintained his position throughout All you have is the oral evidencefrom the various witnesses and their recollection of events said to have occurred up to seven years ago.Ms Baker submits that the issue of witnesses recalling dates, times and events is at the heart of this case. Ms Baker asks you to look carefully at the dates and time periods in the amended charge list when you analyse the evidence.Ms Baker reminds you that the events complained of are said to have occurred some years ago, between 2008 and 2012, when the girls were very young.[19] In summing up the Judge emphasised that the credibility and reliability of thecomplainants' accounts were crucial to the Crown case. She gave an extensive, andorthodox, direction on credibility. Mr Tennet submitted that the Judge should have added a further explanation that made it clear that the change in dates could be relevant to credibility. We do not accept that. The defence did not close on that basis but, rather, on the broader assertion that no offending took place and that thegirls' memories were not reliable because of their age and the passage of time. The direction given was appropriate. The expanded date range was not a factor that warranted a different or more extensive direction on credibility.Cross-examination of witness J[20] In 2009 S married and moved to live with his wife's family. His father-in- law, J, gave evidence about the opportunities that existed for S to be alone with the complainants on occasions when their families visited and about the locks that had been fitted on doors in the house. In closing, defence counsel invited the jury to treatJ's evidence with caution, suggesting that he might have his own reasons for givingthe evidence he did.[21] It was, in fact, no secret that J had a reason to dislike S; after S's marriagebroke up in 2012 he began a relationship with his then mother-in-law, ML. During cross-examination J said that he blamed S for the breakup of his marriage. However, defence counsel sought to put to J that the real reason he and ML had separated wasdomestic violence, not ML's relationship with S. Crown counsel objected, pointing out that J would likely deny the allegation of family violence and that a warning against self-incrimination would be required. The Judge upheld Crown counsel'sobjection; she considered that the issue of domestic violence was of peripheralinterest and that the defence proposition that there were grounds other than S'sinvolvement that caused the marriage to end could easily be put without specific details.[22] Mr Tennet argued that, by preventing defence counsel from cross-examiningon this issue, S was deprived of an opportunity to discredit J. He suggested that if J's credibility remained intact the jury would be misled into thinking that J's family wasmuch more functional than it actually was, though he was unable to identify exactly how this would assist the defence case. In any event, we do not consider that S wasdeprived of the opportunity to discredit J. First, J's view about the reason for hismarriage breaking up was a compelling factor that might have discredited him in thejury's eyes anyway and, indeed, was referred to by defence counsel in closing. Sothis opportunity was not lost. Secondly, discrediting J (on any ground) would not necessarily (and clearly did not) affect the view the jury took of the complainants, on whose evidence the Crown case depended.Result[23] None of the grounds of appeal have been made out. We are satisfied that there was no miscarriage of justice. The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent