CHETTY v R [2017] NZCA 586

CHETTY v R [2017] NZCA 586 [12 December 2017]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA467/2016[2017] NZCA 586BETWEEN SATYAM SIVAM CHETTYAppellantAND THE QUEENRespondentHearing: 12 September 2017Court: Cooper, Brown and Clifford JJCounsel: M A Corlett QC for AppellantA Markham for RespondentJudgment: 12 December 2017 at 3.30 pmJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Chetty appeals his conviction for sexual violation by rape following a jurytrial in the High Court at Auckland presided over by Muir J. The appeal is advancedon the sole ground that expert evidence about the effect of intoxication on thecomplainant's state of mind at the time of the offending should have been called attrial. Mr Corlett QC for Mr Chetty seeks to adduce a report of Professor NicholasBirch on appeal, arguing that, if it had been offered at trial, there is a reasonablepossibility that it would have led to a different result.[2] Mr Chetty's notice of appeal also included an appeal against sentence. It wasnot formally abandoned but nor was it pursued before us. In the circumstances, weformally dismiss the appeal against sentence.Background[3] In early 2014 Mr Chetty, who was then 39 years old, met the complainant, ayoung woman, in a bar in the Viaduct Harbour in central Auckland. The complainantwas there with her cousin. Her cousin was eventually asked to leave the bar on accountof his state of intoxication and the complainant accompanied him. They bumped intoMr Chetty again outside a local takeaway bar. All three decided to go to another baron Queen Street. Mr Chetty stated the complainant made sexual advances to him atthis bar. The complainant had no recollection of this.[4] In the early hours of the morning the complainant, her cousin and Mr Chettyleft the bar. Mr Chetty, who had not been drinking, offered to drive the two home.They stopped at a petrol station in Takapuna in order for the cousin to pay for somepetrol for Mr Chetty's car. The cousin did not have the funds and Mr Chetty decidedto abandon him at the petrol station. Mr Chetty then drove the complainant across theroad to a supermarket carpark.[5] The complainant, on her evidence, was unconscious at this point due to herintoxicated state. She said she awoke to find Mr Chetty having sexual intercourse withher. She told him to get off, which he did shortly afterwards. She said he then pushedher head down to perform oral sex him but she resisted. He then drove her home.[6] Mr Chetty was interviewed by police a few weeks later. In his interview hegave two accounts of what had happened. Initially he admitted having sexualintercourse with the complainant but contended it was consensual. Mr Chetty said thecomplainant started kissing him in the car and said she wanted sex. They then hadconsensual sexual intercourse in the passenger seat of his car, stopping after20 minutes when he realised what the time was. Towards the end of the interview, headded that the complainant performed oral sex on him.[7] After around two hours of questioning, the interview concluded. The policetold Mr Chetty off-camera that they considered he had raped the complainant andaccordingly he would be charged with rape. There was also discussion about themaximum penalty for rape. At this point Mr Chetty indicated he wanted torecommence the interview.[8] In the second portion of the interview he stated that, at the service station, herealised the complainant was unconscious and saw an opportunity when the cousinleft the car. He drove across the road to the car park and had sexual intercourse withthe complainant while she was unconscious. He again said the complainant hadperformed oral sex on him, but stated she was conscious for that and he did not forceher to do so. He said he then dropped the complainant off at her address.[9] Mr Chetty was charged with sexual violation by rape and attempted unlawfulsexual connection. At trial he sought to have the second part of the video interviewexcluded on the basis that it was improperly obtained and should be excluded under s30 of the Evidence Act 2006. A majority of the Supreme Court determined that, whilethe evidence was unfairly obtained in breach of the Chief Justice's Practice Note —Police Questioning (s 30(6) of the Evidence Act 2006),1 the s 30 balancing test did notfavour exclusion of the evidence.2[10] Accordingly, at trial the jury was presented with both Mr Chetty's first andsecond versions of events. The defence at trial maintained that the complainant wasawake at all times and had consented to the sexual encounter, that the first part of1 Practice Note — Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.2 R v Chetty [2016] NZSC 68.Mr Chetty's police statement was true, and that the interviewing officers had pressuredMr Chetty into giving a false statement in the second part of the interview.[11] Although the jury found Mr Chetty guilty of rape, he was acquitted on thecharge of unlawful sexual connection.The new evidenceDefence case at trial[12] An affidavit from Mr Chetty's trial counsel, Mr Lance, explained that thedefence theory of the case at trial was that the complainant was not as drunk as sheclaimed to be, that she was cognisant of events throughout the evening, that sheconsented to intercourse and that Mr Chetty reasonably believed she was consenting.The charges were defended on the basis that it was a case of consent given at the timebut later regretted by the complainant.[13] Mr Lance explained he considered that appeared to be the best and mostappropriate defence case based on the instructions provided and the evidenceavailable.3 He was not then aware of the body of scientific evidence pertaining toalcohol consumption and blackouts and how this affects the brain and memory. Afterthe verdict his attention was drawn to this Court's recent decision in P (CA130/2016)v R,4 where an application to adduce as fresh evidence a similar report of ProfessorBirch was granted and a retrial was ordered. Mr Lance then suggested Mr Chettyshould obtain further advice about the relevance of such evidence for an appeal.Professor Birch's report[14] Professor Birch is an Emeritus Professor of Biomedical Science at theUniversity of Wolverhampton and a "consulting pharmacologist" ofAcademic Consultancy Service Ltd, whose specialist field is psychopharmacologyand psychotoxicology. He filed an affidavit annexing a report that he had beeninstructed to prepare on the alcohol consumed by the complainant on the evening in3 An analysis of the complainant's blood and urine taken around 15 hours after the incident detectedno alcohol in her blood and only trace amounts in her urine.4 P (CA130/2016) v R [2016] NZCA 457.question "with particular reference to the possibility that this may have contributed tothe events at issue".[15] The report is in two parts. It commences with a review of the medical literatureand an explanation of the physiology and pharmacology of memory and the impact ofalcohol on memory function.[16] The Professor states that alcohol primarily interferes with the ability to formnew long-term memories, while leaving previously established long-term memoriesintact. As the amount of alcohol consumed increases, so does the magnitude of thememory impairments. Large amounts of alcohol, particularly if consumed rapidly,can produce partial (fragmentary) or complete (en bloc) blackouts, which are periodsof memory loss for events that transpired while a person is drinking.[17] Importantly, Professor Birch notes, an "alcoholic blackout" does not indicatethat the subject is unconscious. The subject may be acting relatively normally and beable to carry out relatively complex tasks and those that are well learned, although notthose requiring detailed manipulation or higher-level intellect. An intoxicated personmay behave in a manner that, though lacking some social inhibitions, may not appearmarkedly abnormal.[18] The Professor explained two key concepts relied upon by Mr Chetty:anterograde amnesia (which prevents the laying down of any memory traces duringthe height of intoxication), and confabulation (the brain's attempts to fill in the gapsin memory with plausible information). Professor Birch explained the relationshipbetween these concepts in this way:Anterograde amnesia occurs because of interference by alcohol (and manyother toxic substances) with the consolidation of memory traces intolong-term memory: there is no memory trace for the events and therefore thememory cannot be regained by prompting. Indeed, prompting may lead toconfabulation in which the brain attempts to make sense of the missingmemory information by filling in the missing parts with whatever seemsinternally most consistent. If this information is supplied by others shortlyafter an event, or indeed if the person has a sexually explicit dream prior towaking, it is likely that this new information will be subsumed and enteredinto memory as an accurate record of events. Indeed, as far as the individualis concerned this is the only memory which they have for these events andtherefore it must be true. This is distinct from the deliberate telling of untruths.He stated that the literature makes it clear that anterograde amnesia may occur withblood alcohol concentrations of over 200 mg per 100 ml of blood. Because thisabsence of memory is not a normal occurrence, confabulation will often occur andthus false memories are a "serious possibility following alcoholic or other toxicblackout".[19] Anterograde amnesia persists for the time that the blood alcohol is very high.Frequently sleep intervenes soon after the peak blood alcohol is attained if there is nourgent stimulus to remain awake. In particular the Professor stated:If sleep intervenes before the end of the amnesic period the individual maybelieve, unless contradicted by those whom they trust, or by incontrovertibleevidence (for example of their own return to their home) that they were asleepfor the whole of the period for which they have missing memory. In somecases this may lead to an allegation that they were raped while asleep eventhough they were consenting and fully participating in the sexual activity.[20] Professor Birch noted that it was necessary to carry out calculations as to bloodalcohol concentration in order to ascertain whether, at a relevant time, the person hada blood alcohol concentration consistent with a state of anterograde amnesia causedby an alcoholic blackout. These calculations are done on the basis of both a person'sreported intake of alcohol and the result of the forensic analysis of alcohol in samplesobtained at or after the time of an alleged incident.[21] In the second part of his report Professor Birch undertook such calculations inrespect of both the complainant and her cousin, based on "a number of assumptions"as to their physique, the time at which their drinking commenced and the amount ofalcohol they consumed. His estimate of the complainant's blood alcoholconcentration was around 266 mg per 100 ml of blood, consistent with anterogradeamnesia. He concluded:The quantity of alcohol consumed and the resulting blood alcoholconcentrations which are likely to have been present at the time of the allegedrape are sufficient to account for disinhibited behaviour and anterogradeamnesia resulting in the disinhibited sexual behaviour and the inability of [thecomplainant] to recall events leading up to sexual activity. [The complainant]may have believed that she was asleep immediately before the alleged sexualactivity took place but it is equally possible that she was awake and consentingto sex as described in the evidence of [Mr Chetty] but that she was sufferinganterograde amnesia because of high blood concentrations of alcohol. Theaccount given in [the] evidential interview and in court is likely to have beenconfabulated and based on what she might or might not have done and thisaccount might have undergone further elaboration.Unsatisfactory aspects of Professor Birch's report[22] Before turning to consider the admissibility of this evidence on appeal, werecord that there were a number of aspects of Professor Birch's report that wereunsatisfactory in that they strayed well beyond his professed area of expertise andinvolved the expression of opinion on the evidence in the nature of advocacy. Inparticular, Professor Birch:(a) expressed "surprise" that non-consensual intercourse could take placein the front seat of a vehicle, especially without injury or damage toclothing;(b) stated that the complainant's alcohol consumption "was likely to havebeen responsible" for her dancing with and kissing Mr Chetty and thatthis "was of sufficient effect" to give Mr Chetty a belief in consent;(c) implied that any suggestion by the complainant that she would not haveconsented because she is "not that sort of girl" should be disregardedbecause "given enough alcohol we can all be 'that sort of girl'";(d) opined that much of Mr Chetty's version of the events was confirmedby other evidence;(e) commented that it was "noteworthy" that the complainant did not makethe initial complaint to the police; and(f) proposed that the complainant's cousin may have suggested to thecomplainant that she was asleep, which was notable because the cousin"had a grievance" towards Mr Chetty for abandoning him at the garage.[23] These are completely inappropriate observations from a witness ostensiblycalled to give expert evidence about the impact of alcohol on memory function.Mr Corlett properly adopted the position that Mr Chetty would not seek to adduce orrely on evidence of that kind were there to be a retrial. That was appropriate as itwould plainly be inadmissible for breach of the rules that an expert be impartial andconfine the evidence to his or her area of expertise.5 However, there is clearlyjustification for Ms Markham's submission for the Crown that it is of concern that anexpert witness should elect to volunteer such observations. We agree that thesecomments call into question the credibility and reliability of Professor Birch as anexpert witness.[24] The Code of Conduct for Expert Witnesses states that an expert witness has anoverriding duty to assist the court impartially and is not an advocate for the party whoengages the witness.6 While in his report Professor Birch recognised those duties, heomitted to actually comply with the requirement in r 9.43(2) of the High Court Rules2016 that an expert witness must state that he or she agrees to comply with the Codeof Conduct. However, notwithstanding that omission7 and the misgivings we haveabout Professor Birch's report, we proceed to consider that part of his evidence thatMr Chetty seeks to adduce on appeal.Mr Chetty's Submissions[25] Mr Corlett emphasised that the jury had been faced with a stark differencebetween two narratives:(a) the complainant was highly intoxicated, fell asleep and could recallnothing prior to waking during sexual intercourse to which she had notconsented; and(b) the complainant was conscious, initiated and then participated inconsensual sexual activity.He contended that the evidence of Professor Birch would have enabled the jury toreconcile those two different accounts, supporting a narrative that, notwithstanding her5 See Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA 67, [2016] 2 NZLR750 at [96]; R v Carter (2005) 22 CRNZ 476 (CA); R v Hutton [2008] NZCA 126 at [169]–[170];and Lisiate v R [2013] NZCA 129, (2013) 26 CRNZ 292 at [53].6 High Court Rules 2016, sch 4, cls 1 and 2.7 The omission may be addressed by a grant of leave under r 9.43(3).lack of memory of it, the complainant was conscious and behaving in a way thatconveyed to Mr Chetty she was consenting to sexual activity.[26] Professor Birch's evidence of alcoholic memory blackouts and confabulation,as succinctly stated in his thesis at [18] above, was said to be particularly pertinent.Mr Corlett submitted that, confronted with apparently irreconcilable narratives, itcould well have made a difference if the jury had had the benefit of Professor Birch'sevidence. It would have allowed for the acceptance of both parties' evidence, enablingthe jury to conclude that the complainant might honestly believe that she wasunconscious when in fact she was conscious and participated in sexual activity and,because of anterograde amnesia, that she may have consented to such activitynotwithstanding she has no recollection of doing so.Applicable principles[27] There is no issue as to the circumstances in which the Court may admit newevidence on appeal. The test described by the Privy Council in Lundy v R applies:8If the evidence is not credible, it should not be admitted. If it is credible, thequestion then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[28] Mr Chetty here accepts that the proposed new evidence is not fresh. There isa public interest in preserving the finality of jury verdicts such that a person accusedof crimes must put up their best case at trial after diligent preparation.9 However, asstated in Lundy, the overriding question is the interests of justice.10 In all cases theCourt must assess the strength of the evidence and its potential impact on the safety ofthe conviction. If there is a risk of a miscarriage of justice were the evidence to be8 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].9 R v Bain [2003] NZCA 294, [2004] 1 NZLR 638 at [22].10 Lundy v R, above n 8, at [116].excluded, it should be admitted even if it is not fresh.11 A miscarriage of justice willlikely be established where a defendant is convicted and further post-trial evidenceraises a reasonable doubt whether he or she would or should have been convicted hadthat evidence been before the jury.12[29] In this case there is a further test that must be applied. Under s 25(1) of theEvidence Act, expert opinion evidence is only admissible if the fact-finder is likely toobtain "substantial help" from the opinion in understanding other evidence or inascertaining any fact that is of consequence to the determination of the proceeding.AnalysisAdmissibility[30] We address first the issue of admissibility. The established principles for theacceptance of new evidence on appeal do not displace the overriding essentialrequirement that the evidence must be legally admissible. An expert's opinion is onlyadmissible if it meets the substantial helpfulness requirements of s 25(1) of theEvidence Act. Under this test, expert evidence may not be admitted unless it isreasonably required in order to educate a jury in relation to the particular issues thatthey have to consider.13 Whether or not evidence will provide substantial help to thejury therefore requires assessing the relevance, reliability and probative value of theexpert's opinion.14[31] Some aspects of the evidence that it is proposed Professor Birch would givecould be seen as helping the jury to assess the evidence of the complainant in terms ofthe impact alcohol may have had on her memory. But there are various issues as to itsadmissibility.[32] First, memory is generally seen as a matter for the jury. As this Court explainedin M (CA68/2015) v R,15 the courts take that approach because an understanding of11 D (CA95/2014) v R [2015] NZCA 171 at [22]; and Zhang v R [2013] NZCA 87 at [28].12 See Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [103].13 R A v R [2010] NZCA 57, (2010) 25 CRNZ 138 at [27].14 DH (SC9/2014) v R [2015] NZSC 35, [2015] 1 NZLR 625 at [29].15 M (CA68/2015) v R [2017] NZCA 333 at [27].memory is deemed to lie within the experience of jurors. That being so, it is necessaryto identify some issue arising on the facts that is likely to lie outside the jurors'understanding and where expert evidence will assist. An example is "counter-intuitiveevidence", admitted in sexual abuse cases to correct erroneous inferences that jurorsmight otherwise draw from a complainant's behaviour, such as a complainant's delayin reporting the abuse or continued contact by the complainant with the alleged abuser.The Divisional Court which decided P (CA130/2016) v R apparently thought that inthe circumstances of that case, where the complainant had consumed both alcohol andMDMA, Professor Birch's evidence would similarly be of assistance. We do notconsider that will generally be the case, and we do not think his evidence would be ofassistance in this case.[33] Secondly, even if it were otherwise admissible, the evidence would not be of"substantial help" by reason of the number of assumptions it was necessary for theProfessor to make in compiling his report and reaching his conclusions. Thoseassumptions diminish both the relevance and the probative value of his evidence.[34] The Professor commenced his discussion of the technique of makingcalculations concerning blood alcohol concentration by acknowledging that suchcalculations are "subject to a number of assumptions and hence are liable to substantialerrors". In this case, given the discrepancies between the evidence of the complainantand her cousin as to when they commenced drinking and the volume that they drank,those assumptions included the amount of alcohol consumed along with thecomplainant's height and weight.[35] Indeed, Professor Birch commenced his analysis of the calculations of theblood alcohol concentrations by stating: "The calculations in this case are extremelyapproximate and should not be taken to be in any way accurate descriptions." Then,after completing the calculations, the Professor concluded by stating (in bold print)that: "It must be stressed that these are very rough approximations based on estimatedbiodata and vaguely reported alcohol intakes."[36] The blood and urine samples were taken from the complainant at 5.30 pm on11 March 2014 (around 15 hours after the alleged rape) and no alcohol was detectedin her blood. A trace amount was detected in her urine but, as the ESR expert observed,that could be attributed to means other than deliberate ingestion. The evidence fromESR went no higher than it was "possible" the complainant had been affected byalcohol at the time of the alleged offending and that this had been eliminated by thetime her samples were taken.[37] We also note Professor Birch's comment that it may be said that if thecomplainant had a blood alcohol concentration of about 266 mg it would be unlikelythat she could walk and talk and carry on normal conversations. However, theProfessor acknowledged that that is what she appeared to be doing on the CCTVfootage which he viewed. Given this, and having regard to the explicit cautions in thereport noted above, we have real concerns about the integrity and reliability of thecalculations carried out by Professor Birch. For reasons similar to those expressed bythis Court in Morya v R,16 we therefore doubt that the evidence could be said to be ofsubstantial help to the jury.[38] In our view, the Professor's conclusion that at the time of the incident thecomplainant had a blood alcohol concentration over 200 mg per 100 ml of blood andconsequently had an alcoholic blackout and suffered anterograde amnesia is little morethan a possibility. The fact that the complainant had consumed a substantial amountof alcohol and had gaps in her memory as a result was already within the jury'sknowledge. The fact that there was a possibility that this could be termed "anterogradeamnesia" cannot be seen as substantially helpful to the jury in understanding orassessing her evidence because the fact her memory was impaired was already knownto the jury. It was up to the jury to decide whether, notwithstanding those admittedgaps, they found her evidence reliable.[39] We further note that Professor Birch draws not one but two possibleconclusions stating:[The complainant's] subsequent actions appear to have been the result ofanterograde amnesia in which she has forgotten her consent or alternativelyhas regretted her behaviour and wishes to mollify that consent.16 Morya v R [2016] NZCA 325 at [35]–[36]. See also Taula v R [2016] NZCA 194.[40] The fact that a complainant may have been so drunk that he or she forgot orhad gaps in memory regarding a sexual encounter, or the fact that he or she may havebeen embarrassed about his or her actions and therefore lied about his or her consent,are matters within the common knowledge of the jury. It is difficult to see howProfessor Birch's evidence would help the jury to determine whether either of thesetwo explanations was true, or help them in deciding whether the complainant's accountwas in fact reliable.[41] Furthermore, as Ms Markham pointed out, the complainant's evidence as awhole did not support the theory that she confabulated the account of waking up to therape. She was candid about her complete inability to recall aspects of the evening andwas able to distinguish her actual memories from what she had been told by her cousin.There is no indication that she was engaging in a process of "filling in the gaps" withself-serving testimony.Cogency[42] However, even if the Professor's opinion were admissible, we consider it lacksthe cogency required to be admitted as fresh evidence on appeal. It is difficult to seehow such evidence, when placed in the context of the evidence presented at trial, mightreasonably have led the jury to return a verdict of not guilty.17 What the submissionsfor Mr Chetty failed to engage with is the second part of his interview, where heacknowledged that the complainant was unconscious at the time the sexual intercoursebegan. It is apparent from the verdicts returned that the jury believed this part ofMr Chetty's evidence rather than the first part of his police interview, and relied uponit in reaching their verdict. Had the jury believed the first part of Mr Chetty's account,it would have acquitted him entirely on the basis that the encounter was consensual.[43] While Mr Corlett emphasised that Professor Birch's evidence would enable areconciliation between the conflicting narratives of the complainant and Mr Chetty, infact to introduce the evidence of Professor Birch would run entirely counter to thedefence case at trial, which endeavoured to emphasise the complainant's lack ofintoxication. It appears that Mr Chetty's defence at a new trial would now be that the17 Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [35].complainant was so drunk that she suffered anterograde amnesia and cannot properlyrecall the sexual encounter and has confabulated her account by filling in the gaps.[44] While Mr Chetty would not be precluded from running a defence at a new trialbased on a different factual foundation from the first if that is what the fresh evidencesupports, that is not the test for the admissibility of new evidence on appeal. Thequestion of whether the fresh evidence casts doubt on the safety of the convictionsmust be assessed in the context of the evidence that was presented at trial.18 Here, theproblem for Mr Chetty is that to highlight the complainant's account of intoxication isessentially to reinforce her version of events and thus Mr Chetty's confession in thesecond part of his interview. The claim that she was so drunk that she confabulatedwaking up to Mr Chetty having sexual intercourse with her would be incrediblydifficult to reconcile with the fact that it is entirely consistent with Mr Chetty's secondversion of events, the version defence counsel sought to discredit at trial. In our viewthe evidence now sought to be led lacks the cogency required to be admitted againstthe background of a concession that the evidence was not fresh.Admissibility as "counter-intuitive evidence"[45] In his submission, Mr Corlett made the further point that counter-intuitiveevidence is now routinely led in criminal cases to counter what may be seen as defencecounsel playing on commonly held misconceptions about how a truth tellingcomplainant "should" behave. It was his submission that, just as counter-intuitiveevidence properly corrects commonly held misconceptions about complainants,Professor Birch's evidence would have corrected misconceptions that it was said theCrown played on in closing. In particular, the Crown prosecutor is said to havehighlighted the "vivid" nature of the complainant's memory of "waking up with[Mr Chetty] inside her", suggesting that was demonstrative of the truth of the memory.Professor Birch's evidence would correct this "misconception" and would explain howfalse memories are generated as a result of anterograde amnesia and confabulation.[46] However counter-intuitive evidence is only ever led in a general way and doesnot bear specifically on the evidence of the complainant in an individual case. As18 R v Bain, above n 9, at [24].noted, its purpose is to counter common misconceptions or provide a counter to whatthe jury might otherwise assume, and care must be taken to make sure the evidence isby way of general background and says nothing about the credibility of the particularcomplainant.19 In contrast Mr Chetty seeks to lead such evidence as a direct attack onthe reliability of the complainant's account, thus going well beyond mere backgroundevidence that would clear away any "misconceptions as to the accuracy of thecomplainant's memory". The attempt made here to analogise the proposed expertevidence with what is usually accepted as constituting counter-intuitive evidence isrejected.Result[47] The application to adduce further evidence is declined.[48] The appeal against conviction is dismissed.[49] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent19 RA v R, above n 13, at [27].