SEEKKU ARACHCHIGE v R [2016] NZCA 218

SEEKKU ARACHCHIGE v R [2016] NZCA 218 [23 May 2016]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 ZEALANDCA613/2015[2016] NZCA 218BETWEEN SAMEEN RANANJAYA DE SILVASEEKKU ARACHCHIGEAppellantAND THE QUEENRespondentHearing: 13 April 2016Court: French, Asher and Williams JJCounsel: S J Zindel and A N Gulbransen for AppellantP D Marshall for RespondentJudgment: 23 May 2016 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] The appellant, Mr Seekku Arachchige, was convicted after trial before Judge Hobbs and a jury in the Nelson District Court on 18 December 2014 of onecount of male assaults female. He was sentenced by Judge Ingram to 100 hours'community work and ordered to pay $1,000 in reparation to the victim.1[2] He appeals against conviction.Procedural and factual background[3] The appellant and the complainant worked together at a Nelson supermarket. The Crown case was that the appellant became sexually attracted to the complainant and one evening at work when they were both alone he followed her into thewomen's changing room. He pushed the complainant up against her locker and:(a) attempted to kiss her face and mouth;(b) attempted to pull up the jersey she was wearing ; and(c) slapped her twice in the face when his advances were rejected.[4] These allegations resulted in two charges of indecent assault and one of male assaults female. They were tried in December 2014 in the Nelson District Court before Judge Hobbs and a jury. The jury found the appellant guilty on the male assaults female count but could not reach a verdict on the indecent assault charges.[5] The appellant was then retried in October 2015 on the indecent assaults before Judge Ingram and a jury. Once again, the jury was unable to reach verdicts on either count. There being no prospect of a third trial, Judge Ingram discharged the appellant on those counts and sentenced him, as indicated, on the male assaults female count.[6] It is important to understand that the appellant's immigration status isprecarious. This state of affairs is a primary driver in the appeal. He is liable for deportation for any criminal offending.2 He was served with a deportation liability1 R v Seekku Arachchige [2015] NZDC 21768.2 Immigration Act 2009, s 157.notice following conviction. Immigration New Zealand has apparently indicated it will refrain from taking any action on the notice until disposal of this appeal.[7] Although not strictly relevant to this conviction appeal, we note by way of background that when the matter returned to Judge Ingram for sentencing, he declined to discharge the appellant without conviction under s 106 of the Sentencing Act 2002.3 Following inquiry of Immigration officials, the Court was advised that the relevant statutory criterion for deportation was not whether a conviction had been entered but whether a criminal offence had been committed. A discharge under s 106 would not therefore, the Judge reasoned, achieve the objective sought by the appellant.4 Such reasoning cannot be faulted.Grounds of appeal[8] Three grounds of appeal are advanced:(a) in his summing-up, Judge Hobbs inappropriately described the case to the jury as a credibility contest between the complainant and the appellant;(b) the Judge wrongly admitted evidence of a previous incident between the complainant and the appellant; and(c) the Judge wrongly admitted evidence of the complainant's recentcomplaint to her husband.[9] We turn now to deal with these grounds.Credibility contest[10] It is not permissible to direct that a jury must choose between the competing narratives of the complainant and the defendant in a straight contest of credibility.53 R v Seekku Arachchige, above n 1, at [27].4 At [25].5 See R v Bensitel CA133/06, 5 October 2006 at [30]; and R v McFarland [2007] NZCA 449 at [88]–[89].Such a direction risks upsetting the presumption of innocence and casting on the defendant a responsibility to prove his or her innocence in the event he or she chooses to give an evidential interview or give evidence in court. But that is not what Judge Hobbs did in this case. Two extracts from his summing-up will suffice to demonstrate that the Judge did not suggest to the jury that there was such a contest:To prove its case the Crown relies almost entirely on the evidence of [the complainant] for all three charges. To find [the appellant] guilty you will need to be sure that she is an honest and reliable witness who has told you the truth about what happened to her.And later in the summing-up:While this case has taken some time due to the language issues, can I suggest to you that it is not a particularly difficult or complex case. Try not to get bogged down or sidetracked by issues that are not relevant and will not help you. Essentially you need to be sure that [the complainant] is a reliable and credible witness who has told you the truth about what occurred.[11] Here the Judge did exactly what was required. He directed the jury that if they were sure the complainant was telling the truth about what happened then they should convict. These comments supplemented his orthodox directions on onus and standard of proof, including in circumstances where the defendant calls evidence, all of which was repeated and reflected in the terms of the question trail provided to the jury.[12] There is no reference in the Judge's summing-up to a credibility contest between the appellant and the complainant. This ground must fail.Evidence of previous incident[13] At trial, the Crown led evidence of an incident that occurred nearly three months before the events at the supermarket. The complainant said the appellant visited her at home when she was alone. According to the complainant, he enteredher house and while he was there, "he said lots of things which were very sexual" innature.[14] The complainant said the appellant insisted he wanted to "be with" her. Thecomplainant said she rejected all advances, explaining to the appellant why any such relationship was out of the question. The defence raised no objection to this evidence at trial.[15] This was understandable given that in his evidential video interview the appellant gave, unprompted, a different version of the same event. The appellantadmitted he had been at the complainant's house on the day in question. He said hehad simply jogged past her house and had seen her putting out the household rubbish bin at the front of the property. He had exchanged a few sentences with her on the way past. He said he innocently commented that he would like to have a wife like her because she was so hard working. He said the meeting was merely coincidental and that he never entered the house.[16] Before us, Mr Zindel for the appellant (who was not trial counsel) submittedtrial counsel's concession that the complainant's evidence of the previous incident could be led without objection was "unwise". Mr Zindel submitted the evidence was neither propensity evidence in terms of s 40 of the Evidence Act 2006, nor narrative evidence as discussed by this Court in Perkins v R.6[17] In fact, evidence of the appellant's prior sexual interest in the complainantwas clearly propensity evidence in terms of the definition in s 40(1)(a). That interestwas a "particular state of mind" in respect of the same complainant. It was probativeevidence of a matter at issue in the trial in that such a state of mind made it more likely the appellant would make the sexual advances of which he was accused three months later. It went some way to explaining why the appellant tried to kiss the complainant and lift her jersey. And it explained why he became angry when his advances were rejected, causing him to slap her. On the other hand, its risk of unfair prejudice to the appellant was nil. It said nothing prejudicial about him that was not also directly relevant to the charges.[18] With or without trial counsel's concession, this evidence was admissible.This ground of appeal also fails.6 Perkins v R [2011] NZCA 665.Recent complaint[19] The appellant submitted Judge Hobbs ought not to have admitted evidence about the complainant recounting the incident at the supermarket to her husband upon her return home immediately after it allegedly happened. This, Mr Zindel submitted, transgressed the recent complaint rule in s 35 of the Evidence Act. He argued that recent complaint statements are only admissible in sexual cases,7 and that, in any event, the evidence was not necessary to meet her claim of recent invention, as required by s 35(2), because the complainant called the police immediately after recounting the events to her husband.[20] The relevant evidence was given by the complainant's husband as follows:Q. How was [the complainant] acting when she got home?A. She was crying and she was telling, "That man is not stopping me,"stopping troubling her and, and not stopping giving, like, sexual harassment to her.Q. Did she tell you what had happened?A. Yes.Q. What did she tell you?A. She said she went to work and she, she was in the changing room while the defendant came into that place, and she was terrified, and the defendant tried to push him, push her to the, ah, changing cabinets and tried to remove her top, ah, clothe, and then she said, ah, she tried to push him away and, but she tried to kiss him — kiss her but as she refused to kiss he has slapped her on the face. Then she said that afterwards he left the room and she kept crying inside the room, then she said he came into the room with a coffee or something, ah, so I didn't hear much about that, I directly —Q. That's fine, just tell us what you know.A. Yeah. And I directly rang, ah, police because she was not being only tried to abuse and the defendant has hit her as well.Q. Mhm.A. I felt with, ah, unsecured about my family so that's why I phone 111that night.7 R v Smiler CA2/05, 14 June 2005 at [49].[21] This evidence is caught by the terms of s 35(1) in that it is evidence of a previous statement of the complainant that is consistent with the evidence she had given in Court. It is therefore inadmissible unless subss (2) or (3) apply. In this case, subs (2) is the operative gateway. It provides:(2) A previous statement of a witness that is consistent with thewitness's evidence is admissible to the extent that the statement isnecessary to respond to a challenge to the witness's veracity oraccuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.[22] In this case, the Crown argued it was necessary for the prosecution to callevidence from the husband of the complainant's account to him in order to respond to the defence's challenge to the complainant's veracity on the basis of a claim thatshe had recently invented the incident. We agree the defence position was that thecomplainant was lying throughout. This was made clear in the appellant's evidentialvideo interview where he described his stance in the following terms:I can never ah accept something like this because I don't know how a personcould come out and make up such a big lie an ugly one like this.[23] The defence's cross-examination of the complainant immediately before her husband gave evidence followed a similar line, with trial counsel putting to the complainant that her account of events was "not true".[24] As Elias CJ said in Hart v R:8A denial of the offending related by a complainant in evidence is anallegation of invention after the event, or "recent invention" in the terms inwhich it is expressed in the Act.[25] Subsection (2) is therefore engaged in relation to the husband's evidence.[26] There is a further hurdle. Admission of the statement must still be"necessary" to meet the defence challenge. Necessary is a strong word. It means, inthe context of this subsection, that the evidence is reasonably required in the circumstances of the case. This imports an assessment both of any logical8 Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [13]. See also Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23 at [43].connection between the circumstances of the prior consistent statement and the veracity challenge, and of proportionality.9[27] In this case, the complainant left work immediately following the incident even though she had yet to begin her shift. She travelled home and recounted her experience to her husband. The interval between the incident and the recounting would have been no more than a few minutes. The incident was obviously veryfresh in the complainant's mind and, according to her husband, the complainant wasemotional and upset throughout their discussion.[28] A near contemporaneous account by the complainant accompanied by evidence of obvious emotional distress was a powerful response to the recent invention challenge. The timing and circumstances of the statement to the husband tend to suggest the complainant was telling the truth in a spontaneous and uncontrived way.[29] We conclude therefore that its admission was necessary in fairness to the complainant to meet the challenge to her veracity. It was not mere repetition for the sake of enhancing credibility. It had its own independent probative value arising from the particular circumstances in which the statement was made.[30] We note finally that the appellant's further argument that recent complaintevidence is admissible only in cases of sexual offending is wrong on two counts. First, s 35 applies to all prior consistent statements no matter what the charge; and second, this case was a sexual offending case.[31] This ground of appeal must also fail.9 Hart v R, above n 8, at [12] per Elias CJ and at [36] and [51] per Tipping J for the majority;Guy v R [2014] NZSC 165, [2015] 1 NZLR 315 at [29].Result[32] The appeal is dismissed.Solicitors:Zindels, Nelson for AppellantCrown Law Office, Wellington for Respondent