T (CA221/2017) v R [2017] NZCA 523

T (CA221/2017) v R [2017] NZCA 523 [16 November 2017]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA221/2017[2017] NZCA 523BETWEEN T (CA221/2017)AppellantAND THE QUEENRespondentHearing: 7 November 2017Court: Gilbert, Lang and Ellis JJCounsel: F C K Wood for AppellantM J Lillico for RespondentJudgment: 16 November 2017 at 4 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.C 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 Gilbert J)Introduction[1] Following a trial by jury in the District Court at Rotorua, the appellant wasfound guilty of one representative charge of sexual violation by unlawful sexualconnection and three representative charges of indecent assault of a girl aged under12. The appellant was convicted by Judge Cooper and sentenced to 12 and a halfyears' imprisonment.1[2] During the relevant period the appellant was the complainant's stepfather. Thefirst of the representative indecent assault charges occurred in the period fromNovember 2005 to April 2007 when the complainant was aged five and six and thefamily lived in Rotorua. This offending involved the appellant taking the complainantto a secluded area on bike rides and indecently assaulting her by rubbing her genitalarea over her underpants (charge 1).[3] The remaining charges related to the period from April 2007 to January 2009when the family was living in Kaitaia and the complainant was aged seven or eight.The second and third representative charges of indecent assault involved the appellantrubbing his penis over the complainant's genital area when she had no underwear on(charge 2) and simulating sexual intercourse with the complainant over the top of herunderwear (charge 3).[4] The appellant was found not guilty on charge 4 arising out of a specific allegedincident of sexual violation by unlawful sexual connection.[5] The appellant was found guilty of the representative charge of sexual violationby unlawful sexual connection (charge 5) which involved him taking the complainantto a small shed on the Kaitaia property, putting his penis in her mouth and making herperform oral sex. The complainant said this happened 10 to 20 times.1 R v [T] [2015] NZDC 11275.Grounds of appeal[6] The appellant seeks to appeal against these convictions on two grounds. First,he contends that the verdicts were unreasonable because the jury could not reasonablyhave been satisfied of guilt to the required standard. Second, he contends that his trialcounsel failed to challenge the complainant regarding: her possible motives to lie; herdelay in making any complaint; and whether her complaint was influenced by hersister's contemporaneous disclosure that she had been sexually abused by other men.Mr Wood responsibly abandoned a third ground, that trial counsel erred by notapplying to have the charges dismissed under s 147 of the Criminal Procedure Act2011 (the Act) at the conclusion of the evidence. That no such application was madecould not affect the outcome of this appeal.Application for extension of time to appeal[7] The appeal was not filed until 27 April 2017, nearly two years out of time. Theappellant has filed an affidavit explaining the reasons for the delay. The Crown doesnot formally oppose an extension of time although it contends the delay has causedprejudice because it has made it more difficult to respond to the complaint of trialcounsel error. While we accept that some prejudice has been occasioned by the delay,we are prepared to grant the extension of time to appeal in the interests of justice,particularly having regard to the importance of the appeal in view of the seriousnessof the offending and the lengthy sentence of imprisonment imposed.Ground 1 — unreasonable verdicts?[8] Mr Wood submits that the jury's verdicts are unreasonable because thecomplainant's evidence was inadequate to establish guilt to the required standard. Heargues that where the complainant gave specific details her evidence ought to havebeen able to be corroborated but was not and, in some respects, it was inherentlyimplausible. He maintains that her evidence was otherwise confusing and lacking indetail. Mr Wood says that the complainant's evidence was so deficient that the Judgeought to have discharged the appellant on all charges under s 147 of the Act at theconclusion of the evidence, even though no such application was made, because noproperly directed jury could reasonably convict the appellant on any of the charges.[9] We accept that the complainant was unable to recall many specific details ofthe offending and there were some significant inconsistencies between what she saidin her video interview and what she said at trial. Further, some parts of thecomplainant's evidence could be regarded as implausible. The appellant's trialcounsel, Mr Simpkins, exposed many of these weaknesses in the complainant'sevidence in cross-examination and in his closing address. This was the main focus atthe trial because there was no corroborating evidence from eyewitnesses and theappellant elected not to give evidence, as was his right.2[10] However, having reviewed the transcript of the complainant's evidential videointerview and her evidence at trial, we are satisfied that there was ample evidence onwhich the jury could be satisfied that each element of each of the charges was madeout. Given the complainant's age at the time these events occurred (she was aged fiveto eight), the time that had passed before she was first interviewed (when she was aged12) and the further delay until trial (when she was aged 14), errors and inconsistenciesin her evidence would not have been unexpected. Importantly, despite Mr Simpkins'extensive challenge to her evidence in cross-examination, the complainant remainedsteadfast in adhering to her core allegations of what the appellant had done to her. Itwas clearly open to the jury to conclude that the complainant was a truthful witnessand that, even though she was mistaken about some of the details and could not recallothers, her evidence was sufficiently reliable to establish guilt on the charges it foundhad been proved to the required standard.[11] We consider that the experienced trial Judge was correct to leave it to the juryto determine the appropriate verdict on each charge. That was the only proper courseavailable and any application for a discharge under s 147 of the Act would have tohave been declined. It was clearly a question for the jury to determine whether thecharges had been proved to the required standard after assessing what evidence theyaccepted, what evidence they rejected and what weight they should give to any part of2 The appellant denied all of the alleged offending when interviewed by the police.the evidence. These matters were properly left to the jury to assess in the light of theappropriate directions the Judge gave and which Mr Wood does not criticise. As theJudge explained in his summing-up: it is exclusively up to you to decide what evidence you accept and whatevidence you reject, what you believe, what you do not believe, what weightor importance you put on different parts of the evidence. Ultimately, it isentirely and exclusively up to you to decide what the verdict should be.[12] The Judge instructed the jury to take particular care when assessing thecomplainant's evidence and to think carefully about any significant inconsistencies init:[5] An important, and in fact a crucial part of your role as judges of thefacts in this case, is going to be your assessment of the credibility andreliability of witnesses, and in particular, the complainant. [9] When you are assessing credibility and reliability, it is better toexamine what the witness is actually saying. How does what the witness saysstack up in cross-examination. Is it supported by other evidence? A witness'sevidence does not have to be supported by other evidence, but it may help ifit does. Is the witness's evidence consistent with other evidence or consistentwithin itself or are there inconsistencies, and if there are inconsistencies, whatdo you make of them? Does the evidence have a kind of internal consistency,something we sometimes refer to as the ring of truth? Does it seem to makesense when you run the ruler of common sense over it?[10] Now there is no doubt in this case when you are looking at thecomplainant's evidence that there are a number of inconsistencies and thereare a number of areas where she has given evidence in Court different to whatshe gave in her evidential interview, and you are going to have to weigh upthose matters carefully. Are they, when you are looking at them, trulyinconsistencies, or are they the sort of things that you would expect to happenwith someone describing a thing one way and then another for example, thetable compared to the bench is a good example we have talked about.[11] Other inconsistencies are you might think are more significant, and itis a matter for you to consider carefully what to make of those. [13] The Judge then reminded the jury of what the prosecutor and then Mr Simpkinshad said in their closing addresses about the truthfulness and reliability or otherwiseof the complainant's evidence. The Judge summarised Mr Simpkins' concludingsubmission as follows: when you look at those inconsistencies, you will be concerned about thecomplainant's truthfulness and about her reliability and you simply cannotbe sure that what she is telling you is truthful and reliable so that you can relyon it to a point where you can be sure and convict the defendant [14] The Judge also gave the jury the standard directions which emphasise the veryhigh standard of proof required before a jury can return a guilty verdict.[15] It appears that the jury approached their task in accordance with the Judge'sdirections by reviewing the evidence on each charge and assessing whether it satisfiedthem of the appellant's guilt to the required standard. That they conscientiouslyfollowed this approach is indicated by the "not guilty" verdict they returned oncharge 4.[16] For these reasons, we are not persuaded that the jury's verdicts wereunreasonable. In summary, there was sufficient evidence to enable a properly directedjury to find the appellant guilty on charges 1, 2, 3 and 5 and we see no error in theJudge's directions. A properly directed jury acting reasonably could convict, as thisjury did.Ground 2 — trial counsel error?[17] Mr Wood submits that trial counsel ought to have attempted to establish thatthe complainant had a motive to lie and was influenced by her sister'scontemporaneous disclosure that she was the victim of sexual offending by other men.The suggestion is that in making these disclosures, both girls were motivated by adesire to remain with their current caregivers (their aunt and uncle) rather than beingreturned to their mother's care, and that this was orchestrated by the caregivers.[18] Mr Wood argues that it was particularly important to explore this possibility atthe trial because the complainant's evidence was pivotal. In the absence of any cross-examination on this issue, the prosecutor was able to say to the jury in her closingaddress that no motive had been suggested for the complainant to lie. Mr Wood saysthat this gives rise to the risk of a miscarriage of justice, particularly given theinconsistencies in the complainant's evidence discussed in connection with ground 1.Mr Wood accordingly invites us to consider both grounds in combination in assessingwhether a miscarriage of justice has occurred.[19] Mr Wood relies on four documents that were included in the Crown's pre-trialdisclosure as providing a basis for cross-examination on this issue:(a) Notes taken by a social worker on 22 May 2013 of a telephone callreceived from the girls' caregiver (their aunt) reporting that thecomplainant's sister had just disclosed that she had been raped "by afew men" when she was still living with her mother. The notes go onto record that the caregivers brought both girls in to see the socialworker the following day. The complainant's sister gave details ofhaving been sexually abused by three men: her mother's ex-partner (notthe appellant); a relative; and a former neighbour (who may also havebeen related). The complainant disclosed to the social worker that shehad been sexually abused by the appellant. Both girls reported theirbelief that their mother knew that these things had happened to themand they each consented to participating in an evidential videointerview. The girls also said that they felt safe with their currentcaregivers.(b) Video Unit Referral Details dated 5 June 2013. This document recordsthe complainant's response to the question "Is there any reason you aretalking about it now?" Her answer was that her sister "talked about it,she told me the night before that she was going to tell [the caregivers].I think Mum knew and she didn't want to say anything." The documentalso provided a brief summary of the girls' history including previousconcerns for their welfare while in the care of their mother arising outof her aggressive behaviour; drug, alcohol and gambling issues; neglect(leaving the girls with whānau and failing to collect them until herbenefit was cut); and family violence with three of her partners. Thisbrief summary also noted that a custody order had been made in 2011under s 101 of the Oranga Tamariki Act 19893 and that the currentcaregivers were intending to seek day-to-day care, not just for thecomplainant and her sister, but also for their two younger half-sisters.3 Formerly titled the Children, Young Persons and Their Families Act 1989.It was noted that the complainant's mother was aware of the sexualabuse allegations and agreed that there should be further investigation.However, because the girls would not be returning to their mother'scare, the current caregivers would attend and provide consent to theevidential interview.(c) A statement made by one of the complainant's caregivers (her maternalaunt) to the police on 24 June 2013 confirming the disclosures thecomplainant and her sister had made to her and her husband theprevious month.(d) A job sheet prepared by the officer-in-charge recording his discussionson 3 July 2013 with the complainant's mother. These notes contain thefollowing relevant entries. "[The mother] would believe the allegationsagainst [the appellant]" and "would accept him as a suspect". "She saidshe had doubts about [one of the other men the complainant's sister hadaccused] as he was not around much in her life". "[The mother]accused her step sister and her partner of orchestrating all thisstuff the girls were saying to get at her".[20] As noted, Mr Wood submits that trial counsel ought to have explored in cross-examination of the complainant the possibility that she and her older sister hadmanufactured these allegations, orchestrated by their caregivers, to support theirattempt to secure day-to-day care with them. We regard this possibility as beingfar-fetched.[21] First, the existing day-to-day care arrangements were put in place in 2011. Thegirls were content with these arrangements and felt safe. There is no evidence toindicate that any change was likely to be made to these care arrangements. Theprospect of the girls being returned to their mother's care in all the circumstancesseems remote. There was accordingly no need for the girls to concoct elaborate andextensive lies about sexual abuse by multiple offenders in order to maintain theircurrent living arrangements. Nor was there any need for the caregivers to orchestratesuch a labyrinth of lies.[22] Second, the suggestion that the two girls made up these allegations for thatpurpose is undermined by the differing allegations that each made, involving differentmen in different locations and during different time periods. There was no foundationfor a suggestion that the two girls colluded in manufacturing false allegations.[23] Third, the motive to lie proposition would require acceptance that not onlywere the two girls being dishonest, so too were their caregivers. This would have beena very long bow to draw. The only support for this extremely serious allegation is thenote made by the officer-in-charge that the complainant's mother accused thecaregivers of orchestrating the allegations "to get at her". This unsubstantiatedassertion is plainly not admissible evidence. We were not referred to any evidence tosupport it. Further, even if there had been some ill-feeling between the mother and thecaregivers, this would provide no support for the suggested motive to lie which wasto preserve the existing, long-standing, and uncontested day-to-day care arrangements.[24] Not only would this line of cross-examination almost inevitably fail to gainany traction, it would have risked alienating the jury and damaging the appellant'scase. Almost inevitably, it would have focused greater attention on the shortcomingsof the mother's care, reinforcing the Crown's case that the appellant had theopportunity to offend in the manner alleged without detection. To address thecollusion allegation, the jury would also have heard evidence that the complainant'ssister had been sexually abused by other men while she was living with thecomplainant in her mother's care. The Crown would also have been entitled to callthe caregivers to answer the motive to lie claim. This would have run the real risk ofbolstering the complainant's credibility and thereby enhancing the Crown's case.[25] We agree with Mr Lillico that any cross-examination directed to the delay inmaking the complaint would have been neutralised by standard judicial directions, aswere given by the Judge in his summing-up:You might be thinking in this case about the fact that there has been a delay inmaking a complaint by the complainant. The time range in the indictment orthe charge list ends in 2009. It was not until 2013 that the complainant broughtthis matter to the attention of anyone, and what I am required to tell you bylaw in fact because it is so important, is that there may be good reason why acomplainant in a case like this may delay or even refrain altogether frommaking a complaint, and you can imagine members of the jury what thosereasons can be. Fear of not being believed, the sort of power of imbalance ina family dynamic where you have got alleged offender as the stepfather andthe complainant being a young child, confusion not knowing what to do, notknowing who to turn to, feeling unsafe. All of those sorts of things can playa part in a complainant, particularly a young complainant not saying anythingabout it until a later date, if at all. So whether they apply in this case membersof the jury is for you to consider. All I am saying is that when you are thinkingabout well is there a reason why there was no complaint at an earlier time butthere may be good reasons.[26] Mr Wood accepts that competent counsel could have reasonably concluded thatit was not worth pursuing the motive to lie issue because the associated risksoutweighed any potential gain. We agree with that assessment. Competent counselcould well have concluded that the best strategy was the one pursued by trial counsel,namely to challenge the Crown's case from the position of greatest strength byfocusing on the inconsistencies and other weaknesses in the complainant's evidencein an attempt to raise doubts in the minds of the jury about her credibility andreliability.[27] Because of the delay in bringing the appeal, Mr Simpkins cannot now recallspecifically addressing the issue and making a judgment on it. We are therefore unableto determine whether the lack of cross-examination on the motive to lie issue was theresult of his conscious decision-making, or because he did not consider the issue.However, it makes no difference in this case. The ultimate question where trial counselconduct is in issue is whether justice has miscarried.4 For the reasons given, we arenot persuaded that trial counsel made any "error" in not suggesting to the complainantin cross-examination that she had manufactured her allegations in collusion with hersister so that they could remain in the care of their aunt and uncle.[28] We are also satisfied that the jury would not have placed improper emphasison the absence of any suggested motive to lie. The prosecutor acknowledged in herclosing address to the jury that children sometimes do tell lies and that it was not forthe appellant to suggest why the complainant might lie:No motive for [the complainant] to lie has been suggested and it's not for thedefence to find a motive. We all know from our own experience that childrenlie. I know my children do all the time but it is a factor for you to consider in4 Hall v R [2015] NZCA 403 at [1] referring to Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR730 at [70] per Gault, Keith and Blanchard JJ.this case because [the complainant] hasn't seen the defendant since 2010, fiveyears. She's had no contact with him whatsoever. So there's nothing thatwould give you any suggestion that she's got a reason to make this up. Thisis not someone she bears a grudge against or anything of that kind. There'sno reason at all for her to make this up. I suggest to you that also points to hertruthfulness.[29] The Judge gave appropriate directions to the jury to ensure that they understoodthat the onus of proof remained at all times on the Crown and there was no onus onthe appellant to offer any explanation as to why the complainant might lie:And then it has been mentioned to you by [the prosecutor], and I think theinterviewer interviewing the defendant also posed a question to him along thelines, well why would the complainant make up allegations like this? And thatis a matter for you to take into account when you are considering the case butwhat you must be careful of when you are considering that submission bycounsel or considering that question to the defendant, is that it is not for thedefendant to prove that the complainant is telling lies. It is for the Crown toprove that she is telling the truth and so when you are considering thatsubmission, do not think that there is some burden or obligation on thedefendant to come up with some reason why she might be telling lies. It isalways for the Crown to prove the charge and always for the Crown to provethat the complainant is telling the truth.[30] In conclusion, we are far from satisfied that there is any risk that a miscarriageof justice has occurred. The appeal must accordingly be dismissed.Result[31] The application for an extension of time to appeal is granted.[32] The appeal is dismissed.[33] To protect the identity of the complainant, we make an order prohibitingpublication of the name, address, occupation or identifying particulars of the appellantpursuant to s 200 of the Criminal Procedure Act.Solicitors:Tompkins Wake, Rotorua for AppellantCrown Law Office, Wellington for Respondent