STIRLING v R [2016] NZCA 550

STIRLING V R AND SOLICITOR-GENERAL V STIRLING [2016] NZCA 550 [23 November 2016]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA185/2016[2016] NZCA 550BETWEEN TAI JOHN STIRLINGAppellantAND THE QUEENRespondentCA190/2016BETWEEN SOLICITOR-GENERALAppellantAND TAI JOHN STIRLINGRespondentHearing: 6 September 2016Court: Asher, Mallon and Whata JJCounsel: A J McKenzie for Mr StirlingC A Brook for the CrownJudgment: 23 November 2016 at 11.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The Solicitor-General's appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Mr Stirling, the appellant, was convicted, following a trial in the Blenheim District Court before Judge Zohrab and a jury, on charges of historic sexual offending against two complainants, T and F. He was acquitted of sexual offending against another complainant, L. Charges against a fourth complainant, H, were stayed at the end of the Crown case. The appellant appeals against his convictions for the offending against T and F.[2] The appellant was sentenced to 11 months home detention, with standard and special conditions applying for six months from the sentence expiry date, and 325 hours community work.1 The Solicitor-General appeals against this sentence on the basis that it is manifestly inadequate and wrong in principle.Background[3] The appellant was 60 years old at the time of his trial. He faced 37 charges against the four complainants (H, T, F and L) who were all part of his wider family. There was also propensity evidence from E, another member of his wider family. The charges and the propensity evidence related to events occurring between 1966 and 1983 when the appellant was aged between 11 and 28 years (33 to 50 years prior to the trial). In a pre-trial decision the Judge determined the appellant was to face criminal charges only in respect of alleged offending when he was 17 years or older.2[4] We set out what occurred at trial in relation to each complainant in chronological order before we turn to assess the grounds of appeal. Those grounds are wide ranging and challenge a number of the rulings the Judge made in the course of the trial. Ultimately the appellant contends his trial was not fair. This is because of the very significant delay in bringing the charges, the charges alleged conduct of a kind that was difficult to defend after such delay, and the case that the appellant was required to defend changed during the trial. The changes during the trial concerned amendments made to the T and F charges. Additionally the H charges were stayed after H gave her evidence but were relied on as propensity evidence and there were1 R v Stirling [2016] NZDC 5640.2 R v Stirling [2015] NZDC 357.difficulties with the reliability of L's evidence. The appellant submits that this meantthat, in the end, a case which began with four complainants and one propensity witness, effectively went to the jury with two complainants and three propensity witnesses when the evidence of the propensity witnesses ought not to have been adduced at all.The H charges[5] The charges relating to H and their outcomes at trial were as follows:Count Charge Date Location Def Age VictimAgeDescription Outcome11 Indecency (girlunder 12) – H1970–1972Kaikoura 15 – 17 7 – 9 Penetrated H's genitaliawith his fingersDischarged12 Indecency (girlunder 12) – H1970–1972Kaikoura 15 – 17 7 – 9 Kissed H Discharged13 Indecency (girlunder 12) – H1970–1972Kaikoura 15 – 17 7 – 9 Kissed H's vagina DischargedH's evidence[6] H's evidence was adduced via her DVD police interview given on 19 November 2013. H lived in Christchurch with her family. In the school holidays she regularly visited her grandparents in Kaikoura. A number of her cousins would be there. On one occasion, when she was between seven and nine,3 the appellant wanted to play the "wedding game" with her. She was the bride, he was the groomand the other cousins were the guests. After they were "married" she and theappellant walked into the orchard by the walnut tree. He told her this is what married people do and pulled down her underwear and touched her vagina. He kissed her on the face and neck. He tried to penetrate her vagina with his fingers (she went tense and he only got his finger half way in, and this was quite painful). He also kissed and licked her vagina. He was talking soothingly, saying "I love you", "we're married".Discharge application[7] Defence counsel applied for a discharge on these charges after H's evidencewas completed. This was on the basis that H could only say that the incident3 She placed it at this age because of the dress she remembered wearing.occurred when she was between seven and nine. At this time Mr Stirling was between 15 and 17. As noted above, the Judge had earlier decided Mr Stirling should not face criminal liability for offending prior to turning 17.4 On the basis ofH's evidence the jury could not be sure the alleged offending occurred when he was 17. The Judge therefore discharged Mr Stirling on these charges. He ruled that theCrown could rely on H's evidence as propensity evidence.5The T charges[8] The charges relating to T were amended during the trial. In their final form the charges and their outcome were as follows:Count Charge Date Location Def Age VictimAgeDescription Outcome1 Indecency (girlunder 12) – T(representative)1972–1975Kaikoura 17 – 20 7 – 10 Induced T to touch hispenis with her handGuilty2 Indecency (girlunder 12) – T(representative)1972–1975Kaikoura 17 – 20 7 – 10 Penetrated T's genitaliawith his fingersGuilty3 Indecency (girlunder 12) – T(representative)1972–1975Kaikoura 17 – 20 7 – 10 Thrust his penisbetween T's legsGuilty4 Indecency (girlunder 12) – T(representative)1972–1975Kaikoura 17 – 20 7 – 10 Kissed T Guilty5 Attempted Rape –T1976–1977Kaikoura 21 – 23 12 Attempted to rape T Not guilty6 Indecency (girl 12– 16) – T(alternative to 5)1976–1977Kaikoura 21 – 23 12 Penetrated T's genitaliawith his penisGuilty7 Indecency (girl 12– 16) – T(representative)1976–1978Kaikoura 21 – 23 12 – 13 Induced T to touch hispenis with her handGuilty8 Indecency (girl 12– 16) – T(representative)1976–1978Kaikoura 21 – 23 12 – 13 Penetrated T's genitaliawith his fingersGuilty9 Indecency (girl 12– 16) – T(representative)1976–1978Kaikoura 21 – 23 12 – 13 Thrust his penisbetween T's legsGuilty10 Indecency (girl 12– 16) – T(representative)1976–1978Kaikoura 21 – 23 12 – 13 Kissed T GuiltyT's evidence[9] T's evidence was given by way of her DVD police interview dated30 November 2013. She said the offending against her happened in Kaikoura at her grandparents' house. This occurred when she stayed with her grandparents during4 R v Stirling, above n 2.5 R v Stirling [2016] NZDC 3631.school holidays and when she lived with them when she was in forms one to three at school. She stayed with her grandparents because her mother was ill. She remembered the offending against her happening from the time she was four until she was around 12. She remembered getting her period at age 10 and the offending happened less frequently following this.[10] The sexual abuse occurred on a relatively frequent basis (not every day, but frequently). It involved the same offending. The appellant would come into T'sbedroom, or lure her into his bedroom with lollies if she was sharing a bedroom with someone else. He would get her to touch his penis. He would also kiss her and put his hands down her pants and touch her vagina. He never penetrated her with his penis, but rubbed it on her and between her thighs. On one occasion when she was 10 he attempted to put his penis inside her but was unable to do so before they were disturbed. He did not penetrate her but he did caress her with his penis. The appellant did not do anything to hurt her and never threatened to hurt her.[11] In T's DVD interview she said she was aware the appellant began offendingon F. This started when F was young and T was getting older. T was in the room and saw the appellant doing things to F but pretended nothing was happening.Earlier allegations[12] The period of alleged offending against T began when the appellant was 15 years old. As noted above, prior to the trial the Judge determined that the appellant was not to be charged with criminal offending prior to when he turned 17 years old.6 The Judge ruled that the earlier offending was relevant as part of T's account of the offending (which gave rise to the charges) and potentially as propensity evidence. This approach was confirmed during the trial.The amendments[13] The week before the trial the Crown applied to amend the charge relating to the incident when the appellant attempted to penetrate T with his penis. This had initially been charged as rape. The Crown sought to change this to a charge of6 R v Stirling, above n 2.attempted rape (charge five) and an alternative charge of indecency with a girl under 12 (charge six). The reason for the change was because the definition of rape at the relevant time differed from today.7 T's description of the offending would notqualify as rape at the time it occurred. The Court granted the amendment.[14] Shortly before the Crown closed its case it applied to amend charges five and six again. The reason for the proposed change was that it had become clear duringT's evidence that the incident which gave rise to charges five and six was alleged tohave taken place between 20 October 1976 and 19 October 1977 (rather than 20 October 1975 and 19 October 1976). This was based on a photograph taken at a family occasion and evidence about when that occasion took place. T said the incident had occurred on the morning after this occasion. The significance of this amendment was that T was 12 years old at this time. The Crown therefore sought to amend charge six to an alternative charge of indecency with a girl aged between 12 and 16 years old. It also sought to amend the particulars of both charges to refer to the 20 October 1976 and 19 October 1977 timeframe.8[15] Defence counsel opposed the amendment. He did so because he had cross-examined T on the basis that the offending could not have taken place between 20 October 1975 and 19 October 1976 as alleged. Had the charge alleged the occasion had taken place between 20 October 1976 and 19 October 1977, he may have talked with people who were present at the family occasion referred to by T to determine whether there had been any opportunity for the appellant to do the things alleged by T.[16] The Judge considered it was in the interests of justice to grant the amendment so the charges were in line with the evidence as it had emerged. He considered the difficulties for the defence in trying to respond to the allegations could be dealt with by a very strong judicial direction under s 122 of the Evidence Act 2006. He7 At the relevant time rape was defined as meaning sexual intercourse without consent: Crimes Act 1961, s 128(1)(a). Sexual intercourse was defined in s 127 as requiring penetration. Rape isnow defined as meaning the introduction of the penis into the victim's genitalia. The slightestdegree of penetration suffices.8 R v Stirling [2016] NZDC 3882.proposed to address specifically the difficulty for the appellant caused by the change in dates.The F charges[17] The charges relating to F were amended during the trial. In their final form the charges and their outcome were as follows:Count Charge Date Location Def Age VictimAgeDescription Outcome14 Indecency (girlunder 12) – F(representative)1972–1975Kaikoura 17 – 20 4 – 6 Kissed F Guilty15 Indecency (girlunder 12) – F(representative)1972–1975Christchurch 17 – 20 4 – 6 Kissed F Not guilty16 Indecency (girlunder 12) – F(representative)1972–1975Kaikoura 17 – 20 4 – 6 Touched F's bodywith his handNot guilty17 Indecency (girlunder 12) – F(representative)1972–1975Christchurch 17 – 20 4 – 6 Touched F's bodywith his handNot guilty18 Indecency (girlunder 12) – F(representative)1972–1975Kaikoura 17 – 20 4 – 6 Lay on top of F Not guilty19 Indecency (girlunder 12) – F(representative)1972–1975Christchurch 17 – 20 4 – 6 Lay on top of F Not guilty20 Attemptedindecency (girlunder 12) – F(representative)1972–1975Kaikoura 17 – 20 4 – 6 Attempted to induceF to touch his peniswith her handNot guilty21 Attemptedindecency – F(representative)1972–1975Christchurch 17 – 20 4 – 6 Attempted to induceF to touch his peniswith her handNot guilty22 Indecency (girlunder 12) – F(representative)1975–1978Kaikoura 20 – 23 7 – 9 Kissed F Guilty23 Indecency (girlunder 12) – F(representative)1975–1978Christchurch 20 – 23 7 – 9 Kissed F Guilty24 Indecency (girlunder 12) – F(representative)1975–1978Kaikoura 20 – 23 7 – 9 Touched F's bodywith his handGuilty25 Indecency (girlunder 12) – F(representative)1975–1978Christchurch 20 – 23 7 – 9 Touched F's bodywith his handGuilty26 Indecency (girlunder 12) – F(representative)1975–1978Kaikoura 20 – 23 7 – 9 Lay on top of F Not guilty27 Indecency (girlunder 12) – F(representative)1975–1978Christchurch 20 – 23 7 – 9 Lay on top of F Not guiltyF's evidence[18] F's evidence was given by way of her DVD police interview dated 9 January2014. She recalled the offending against her beginning when she was three or fouryears old. She stayed at her grandmother's house in Kaikoura during the holidays. She and T would share a double bed. The appellant would come into the bed to have"cuddle time" with them. He would lie between them in the middle of the bed. He would cuddle T and then cuddle F. He kissed F on the neck and ear and brushed her body over her clothes. He touched her around her vagina over her underwear. He would always be gentle with them and treat them like they were his girlfriends. It happened a lot.[19] F said the appellant would lie on top of her. He never penetrated her. The offending involved just touching, kissing and caressing. She remembered one occasion when he pulled his penis out of his pants. He might have grabbed her hand and asked her if she wanted to touch it. She touched it. She was pretty sure this happened in Kaikoura. F also said that on another occasion they were all goingsomewhere in the car. The car was full and she had to sit on the appellant's knee.He manoeuvred her so that she was sitting on his penis and she could feel it.[20] The abuse also happened in Christchurch when he was living with her parents. He would do the same sort of thing (cuddle her, kiss her and touch or caress her) when he got up for work in the mornings. She was about eight or nine at this time. The offending stopped just before she went to intermediate school when the appellant moved into his own place.Amendment to charges[21] When F gave her evidence there were seven representative charges. The first four related to the period between 1972 and 1975 at Christchurch. The remaining three related to the period between 1975 and 1978 at Kaikoura. It is unclear why thecharges were framed that way. This division was not consistent with her evidential interview.[22] She was cross-examined about what happened at each location in light of the way the charges were framed. She said she remembered the same things (cuddling, kissing and touching) happening at both addresses from when she was about three years old until she was about 10 years old. She did not remember any details about the car incident, such as who was in the car, where they were driving or when this happened.[23] Shortly before the Crown closed its case, at the same time as the application to amend the T charges, the Crown also applied to amend the F charges. It proposed that each of the seven charges would cover offending at both Kaikoura and Christchurch. It submitted there would be no prejudice because the defence case was that none of these things happened. Defence counsel opposed the amendment. He contended the case had been prepared on the basis of the charges as brought and he had cross-examined F on that basis. The Judge considered the defence had beenalive to the issue which had led to the Crown's application because the charges didnot make sense. The Judge allowed the Crown to add further charges to cover each location. He said he would give a direction to the jury about the difficulties for the defence in dealing with allegations from so long ago.9The L charges[24] The charges relating to L and their outcomes were as follows:Count Charge Date Location Def Age VictimAgeDescription Outcome28 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Penetrated L'sgenitalia with hisfingersNot guilty29 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Connected hismouth with L'sbreastsNot guilty30 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Ejaculated on L'sfaceNot guilty9 R v Stirling, above n 8, at [25].31 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Touched L's breastswith his handsNot guilty32 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Touched L's bottomwith his handsNot guilty33 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Kissed L on the face Not guilty34 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Penetrated L'sgenitalia with his fingersNot guilty35 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Induced L to touch his penis with her handNot guilty36 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Induced L to connect her mouth with his penisNot guilty37 Indecency (girl 12– 16) – L1980–1983Christchurch 25 – 28 13 – 15 Ejaculated on L'sfaceNot guiltyL's evidence[25] L gave evidence by way of her DVD interviews dated 1 November 2013 and 17 March 2014. She visited the appellant's house during the school holidays as theappellant's father was teaching her Te Reo Māori. At the time she lived in Kaikoura and the appellant lived with his family in Christchurch. She said T was living with the appellant's family at this time as T's mother was unwell, and F would often stay over. L would usually sleep in the same room as T, and if F was also staying they would push their beds together and put F in the middle.[26] She described an incident which occurred when she had her period. The appellant entered their bedroom, T appeared to be asleep, so he approached L. He pulled up her night shirt, flipped her over, and ripped her underwear while pulling them down. He penetrated her vagina with his fingers (she describes this as being his whole hand — at least four fingers). He also sucked her breasts, rubbed his hands over her body while covered in her period blood and ejaculated on her. She said T helped her to get clean after this happened. She described the incident in graphic detail repeatedly in the course of her two interviews. L described the appellant smearing her from head to toe in her period blood. She also described having a torn anus and a raging infection afterwards.[27] L also described another incident when she was in the bathroom. She was wearing a pyjama top and had a towel wrapped around her bottom half. The appellant entered the bathroom, touched her breasts over her clothing and fondled her bottom on the outside of the towel.[28] She also referred to an incident in her bedroom when the appellant made her touch his penis and put it in her mouth. She did not give any detail about when this occurred.[29] She also said the appellant touched her inappropriately (cuddling her, groping her breasts and using his finger to penetrate her) on other occasions. The number of incidents was not clear, at one point she said it was at least seven times and at another point she said it was three other times in addition to the specific incidents above. She did not give any detail about these other occasions but she did make it clear they did not involve rape. She recalls this happening over a period of three to four years. She said the appellant would tell her she was beautiful.Application to dismiss[30] The defence applied for a stay or discharge of the charges involving L.10 The defence submitted there was no credible narrative to support the charges.11 One of the issues was L's inconsistency about when the incidents occurred. At one stageL had said the three incidents all occurred in the same week during the August holidays. She then said the first incident (when the appellant smeared her with period blood) occurred at a different time. A further difficulty was L's evidencerelating to T and F was not consistent with their evidence. Neither T nor F referred to L being present in the bed with them at any time when the appellant was offending against them. The third difficulty was evidence of L's deceptive conduct in anunrelated matter. The Judge considered there remained a narrative to support thecharges and it was properly for the jury to assess L's credibility. The Judge noted hewould have to give a strong direction about the passage of time.1210 R v Stirling, above n 5.11 At [7].12 At [18].The propensity evidence from EE's evidence[31] E's evidence was given by way of her DVD interview dated 3 July 2013. She alleged two instances of rape. She recalled it happening just after her Dad died (when she was nine) and she recalled refusing to go back to Kaikoura after she turned 12.[32] She and the appellant played in the orchard at her grandparents' house. They played a game called "mummies and daddies" where they looked after a doll baby together. This was played over a few days where they cooked for and fed the baby and had parent time. The appellant said they should do what real parents do. He showed her what he had in his trousers and asked her to show him what she had, which she did. A few days later when they were playing the game with the doll, he said that when parents went to bed they did something else. The appellant then pushed her to the ground, pulled down her shorts and underwear, and raped her. She remembered it hurt and her underwear was ripped. The second incident also occurred in the orchard. E thinks she was told to go and feed the geese. The appellant cornered her there. She said she would not play the game but he forced her to the ground, pulled down her underwear and raped her. The appellant threatened her not to tell anyone.[33] On both occasions she bled. This is why she remembered these two particular occasions. She thought there were other occasions in between but they were a blur.The pre-trial ruling[34] The appellant did not face charges on these allegations. That is because the rapes were alleged to have occurred between 1966 and 1968 when the appellant was aged between 11 and 13 years.13 It was therefore the earliest of all the alleged offending, occurring before or around the same time as the offending began against T and well before the appellant had turned 17.13 R v Stirling, above n 2.[35] Prior to trial the Crown applied to adduce E's evidence as propensity evidence. The District Court Judge ruled that E's evidence was admissible.14 On appeal this Court upheld the Judge's decision.15 This was because the charges alleged offending occurring frequently throughout 1966 to 1983, the complainants were all young female relatives of the appellant, the alleged offending all took placeat the appellant's house or the grandparents' house, and the pattern of behaviour wassimilar. Although the appellant was a child at the time of the alleged offending against E, the allegations involved continuous offending from that time until he was an adult.16[36] This Court went on to say:[9] Particularly given that S faces allegations of rape, we are notpersuaded that E's evidence that she too was raped by S is unfairlyprejudicial. It has high probative value in relation to the other alleged offending because of its close connection in time, place and circumstance. We consider that the risk of any unfair prejudice arising out of this evidence can be met by appropriate directions being given to the jury by the trial Judge.Trial[37] On the first day of the trial the defence applied to have E's evidence ruled inadmissible on the basis there had been a change in circumstances.17 The change relied upon was that the rape charge involving T had been replaced with the attempted rape charge and the alternative indecency charge. Referring to this Court's reasoning in the passage quoted above ("[p]articularly given that S faces allegations of rape"), the defence submitted the change reduced the similarity between E'sevidence and the charge, and therefore its probative value was reduced and the risk of illegitimate prejudice had increased.[38] The Judge disagreed. He considered the probative value had not changed as the allegation remained the same. The change to charge five was merely to reflect the different definition of rape at the relevant time.18 The Judge considered E's14 R v Stirling, above n 2.15 S (CA119/2015) v R [2015] NZCA 270.16 At [8].17 R v Stirling [2016] NZDC 3137.18 At [10].evidence continued to have high probative value in relation to charge five and the other alleged offending because of the close connection in time, place and circumstances.[39] During the trial the defence also sought to exclude E's evidence on the grounds that it breached the Evidence Regulations 2007.19 This concerned discussions E had with her support person part way through her DVD interview. The discussions concerned who else may have been present at the time of the offending, whether the appellant had a skin condition on his face and what E remembered about how the appellant smelled. The support person was present at the police station where the interview took place. She was not sitting in the room with E when she was being interviewed. Nor was she sitting with the monitor watching the interview. The discussions took place during a break in the interview. Defence counsel became aware of those discussions as a result of cross-examination of E.[40] The Judge considered what had occurred did not breach the Evidence Regulations.20 He considered, however, that the discussions which had taken place were not in accordance with best practice and this was relevant to the weight the jury might place on the evidence. Both the prosecution and defence counsel made submissions about this in their closing addresses. The Judge summarised their respective submissions in his summing-up. This included reference to the defencesubmission that E's evidence was contaminated by what had occurred.Assessment of conviction appealAltering the date of charges five and six[41] The appellant contends it was unfair to permit the Crown to alter the dates for charges five and six. In cases of historic sexual offending there is likely to be little contemporaneous evidence and the verdicts depend on whether the jury can be sureof the reliability of the complainant's account. The appellant submits that defendants can often only seek to undermine a complainant's reliability by reference to eventswhich might prove the complainant's account is wrong about time, place and19 R v Stirling [2016] NZDC 3871.20 At [10].circumstance. He submits that permitting the amendment of the dates to charges five and six once the defence had demonstrated T was wrong about the date and circumstances unfairly undermined the defence strategy. The appellant submits it was also prejudicial because the defence had not made pre-trial enquiries about the new date.[42] We consider the Judge appropriately dealt with this matter. It is not uncommon that a complainant giving evidence about historic sexual offending cannot remember when the offending occurred or gives inconsistent evidence about this. This complainant was having to recall an occasion that occurred around 40 years ago. Her evolving evidence about when the incident giving rise to charges five and six occurred did not necessarily undermine her reliability about whether that incident happened at all. This was a matter properly left for the jury to assess. Whether the defendant might have been prejudiced by this is speculative (it is not known whether enquiries with people at the family occasion would have assisted the defence) and was appropriately dealt with by the strong warning which the trial Judge gave.[43] The Judge's warning included the usual direction that memories are not liketape recordings and are fallible and that there was "a particular need for caution" inthis case because of the significant delay. The Judge directed that the oral evidence of T, F, L, H and E could be unreliable because their memories may have faded or have been unconsciously altered. He said the jury had seen a direct example of theimpact of time on T's memory, as T had changed the age she said she was when theincident, which forms charges five and six, occurred. He said this was potentially disadvantageous to the defence because, had defence counsel known T tied the incident to the family occasion, he might have been in a position to test this evidence with people who were present on that occasion. He said there were also difficulties for the appellant as his memory may have diminished over the years and he mayhave lost the opportunity to find evidence which could rebut the witnesses' evidenceor could otherwise support his defence. Lastly he referred to possible changes to physical locations which meant it was no longer possible to check the accuracy ofthe descriptions given by the witnesses. The Judge repeated the need for "particular caution" in deciding whether to accept the evidence of T, F, L, H and E.[44] This warning covered all the relevant issues concerning the prejudice that arises from delay and it included specific mention of difficulties because of the changes to charges five and six.[45] We therefore reject this ground of appeal.Additional charges relating to F[46] The Judge allowed an additional charge to be added in relation to each of the existing F charges, so that the charges covered the same offending at each location. The appellant submits these amendments were unfair. The defence had prepared its case on the basis of the original charges. The defence intended to undermine thecomplainant's reliability by way of her uncertainty about where the offending had occurred. The appellant submits that the Judge effectively cured the complainant'sfailure to come up to brief by allowing the amendments, and in doing so the Judge unfairly reduced the impact of the defence strategy.[47] We do not accept this submission. F's DVD interview had always referred tothe offending occurring at both locations. As discussed above, it is unclear why the charges were brought in the form they were in light of her DVD interview. It was therefore not a case of the complainant failing to come up to brief. Rather there wasan error in the drafting of the original charges in light of F's evidence.[48] We consider the error caused no prejudice to the defence. The defence haddisclosure of F's DVD interview prior to the trial. Therefore the defence was, as the Judge said, "alive to the issues" 21 As the Judge said, the charge list "simply did not make sense".22 The defence was able to take advantage of the error in the charge list by cross-examining F in order to show she was confused about what had happened where. However F maintained that she recalled the same offending (cuddling, kissing and touching) happening at both locations. The amendments were made to the charges so that they would conform to the evidence.21 R v Stirling, above n 8, at [13].22 At [13].[49] The jury's verdicts were available on the evidence. In finding the appellantguilty of the first kissing charge that took place in Kaikoura the jury must haveaccepted F's evidence about when the first incident occurred. In the later timeperiod, when the complainant was aged seven to nine and the appellant was living with her parents in Christchurch, the jury must have been sure that the kissing andtouching occurred at both locations (consistent with the complainant's evidence).The jury were not satisfied beyond reasonable doubt on the other charges.[50] This ground of appeal is not made out.Charges drawn broadly[51] The appellant submits the F charges were drawn too broadly. Charges 16, 17,24 and 25 alleged the appellant "]touched] her body with his hand" and charges 18, 19, 26 and 27 alleged the appellant was "lying on top of her". He submits that thedifficulty for the defence was compounded by the fact that these acts were not necessarily indecent and there would have been times when, in normal family interactions, the appellant would have hugged the complainants.[52] We do not accept this submission. The complainants' evidence of thetouching was that it occurred in circumstances amounting to indecency rather than innocent family interactions. To the extent that the interactions were capable of being misinterpreted by the complainants the burden of proof favoured the appellant. The appellant was in fact acquitted of the "lying on top of her" charges. And therewas no charge relating to the incident where F sat on his knee in the car (this was potentially capable of being an innocent incident).[53] This ground of appeal is not made out.Prosecutorial misconduct[54] The appellant submits the charges should have been dismissed or stayed because of misconduct by the prosecutor. The alleged misconduct concerns two matters.23[55] The first is calling H's evidence. Following the Judge's pre-trial ruling that the appellant was not to face charges for alleged offending that occurred before he turned 17 years old, the Crown amended the dates of the charges so that they referred to a time period from when the appellant was 17. The defence anticipated H would attempt to qualify what she said in her DVD interview at trial so as to say the offending occurred when the appellant was 17 or older. She did not so. The result was that the jury heard her evidence which related to charges that had been stayed.[56] We agree the H charges ought not to have proceeded unless there was evidence on which a jury could conclude the incident had occurred when theappellant was 17 or older. H's evidence was that it occurred when the appellant wasbetween 15 and 17 years old. No other evidence was provided to suggest it mayhave occurred later than this. H's evidence should have been adduced only aspropensity evidence and provided it met the requirements of s 43 of the Evidence Act.[57] There was, however, no prejudice to the defence through what occurred. Once it became clear that there was no evidence that suggested the incident occurredafter the appellant turned 17, the defence's application to dismiss the H charges was granted. The Crown applied to have H's evidence remain in for the jury'sconsideration as propensity evidence. The Judge considered it was open to theCrown to submit to the jury that H's evidence was mutually supportive evidence of apattern of behaviour which involved an older male relative sexually offending against the complainants.24 We consider the Judge was correct in his assessment thatH's evidence was admissible as propensity evidence. It was evidence of sexual offending against one of the appellant's young relatives connected in time, place and23 A third matter, concerning late disclosure, was abandoned at the hearing because the appellant accepted prejudice could not be shown as a result of this matter.24 R v Stirling, above n 5, at [19].circumstances with the other charges, over a continuous period beginning with E and ending with F (or L depending on the reliability of her evidence).[58] The second matter of alleged misconduct concerned a submission made by the prosecutor in his closing address. The submission was said to have undermined the burden of proof. The submission concerned evidence from a flatmate about when the appellant had moved into a rental place in Christchurch with him. The prosecutor noted the witness still worked at the same place and it would have been"nice" if he had checked the work records to get the exact dates.[59] This submission, and a submission asking why T, F, H, L and E would all make false allegations of sexual abuse by the appellant after all these years, was responded to in the defence closing address. Defence counsel emphasised the burden of proof was on the Crown, the appellant did not have to explain why theymight be making the allegations up and it was not the defence's role to uncoverdocumentary records.[60] The Judge also addressed this in his summing-up. The Judge gave the usual directions about the burden of proof. The burden of proof was also emphasised inthe Judge's question trail. The Judge emphasised that the appellant had no obligationto prove his innocence. He referred specifically to the prosecutor's submissionsabout the defence witness and that the complainants had no reason to make false allegations. He directed the jury that the burden of proof remained with the Crown and did not shift to the defence. These directions appropriately dealt with any concern that the submissions shifted the onus to the appellant.[61] This ground of appeal is not made out.Tripartite direction[62] Before the Judge's summing-up, defence counsel asked that he give a tripartite direction in relation to the appellant's police DVD interview. The Judgedeclined to do so.25 He noted it was not mandatory to give a tripartite direction when25 R v Stirling [2016] NZDC 4357.a defendant has given an out of court statement. He said he would be giving directions on the burden of proof and how the jury were to approach the DVD interview. The Judge proceeded in accordance with this ruling. His summing-up contained the usual direction that the interview, although not given on oath or subject to cross-examination, was to be treated as part of the evidence. He said the jury could accept some, all, or none of the evidence in the interview and give it any weight they considered appropriate.[63] The appellant challenges this ruling. He submits a tripartite direction was necessary because this was a "he says, she says" case involving allegations ofhistoric offending. He submits it was also necessary because the prosecutor had undermined the burden of proof in his closing address.[64] We do not accept this submission. A tripartite direction is not required when an appellant elects not to give evidence at trial.26 The central issue for the jury was whether they were sure the complainants were giving reliable evidence. If they were sure of that, in the context of all the evidence before them including the appellant's denials in his DVD interview, the charges were proven. The Judge's summing-up was clear as to the burden of the proof. Nothing further was required.[65] This ground of appeal is not made out.Breach of the Evidence Regulations[66] This ground of appeal concerns the Judge's ruling on whether E's DVDinterview breached the Evidence Regulations. The appellant submits the Judge was wrong to conclude there was no breach and wrong to allow the evidence to remain before the jury.[67] Evidence given by way of a recorded DVD interview must comply with the Evidence Regulations.27 The Judge may, however, admit the interview despite a failure to observe all the terms of the regulations.28 Clause 6(1) of the Regulations26 R v Martin [2007] NZCA 386 at [31]; and R v H CA241/04, 26 November 2004 at [30].27 Evidence Act 2006, s 106(2).28 Section 106(8).provides for a support person to be "present at an interview" if the interviewerconsiders it is in the interests of the witness and the person is an appropriate personto support the witness. Clause 6(2) provides that the support person "must not take part in the interview". Clause 11 provides that the person "present at an interview" to support the witness "must be clearly visible throughout the video recording of the interview".[68] We agree with the Judge that E's DVD interview did not breach the EvidenceRegulations. The support person was not "present at the interview" because she was not in the interview room nor watching the interview from the monitor's room. Wealso agree with the Judge that the discussion between E and her support person was not in accordance with best practice and this went to the weight of the evidence. Thecontamination of E's evidence as a result of the discussion concerned just three aspects of E's evidence (the appellant's skin condition, his smell and who else waspresent). E had been cross-examined about her support person's presence andinvolvement in the interview. The officer who interviewed her was cross-examined about the Evidence Regulations. This led to the jury asking a question as to the"legality of [E]'s DVD and its admissibility because of the breaches of interviewregulations". The topic was addressed by both the prosecutor and defence in theirclosing addresses and by the Judge in his summing-up. It was therefore clear to thejury that there had been contamination of E's evidence through these discussions.[69] This ground of appeal is not made out.Propensity evidence[70] The appellant submits the propensity evidence from E should not have beenadmitted. He submits there were a number of things that changed after this Court'sdecision upholding the admissibility of E's evidence. He refers to the change in charge five, a breach of the Evidence Regulations in relation to E's DVD interview, the fact that H's evidence became propensity evidence and that L's evidence wasunsatisfactory and the Judge had allowed her evidence to go to the jury by a narrow margin. He submits the Court would not have admitted the evidence of E, H and L as propensity evidence solely in relation to T and F, yet that is what transpired.[71] Insofar as this submission is based on the change to charge five, we agree with the trial Judge. The changes to charges five and six did not alter the allegationon which it was based and did not diminish the probative value of E's evidence to those charges. E's evidence also remained relevant to the other charges for the reasons stated by the District Court Judge and this Court in the pre-trial rulings.29That is, it was evidence of sexual offending by the appellant on his young relatives connected in time, place and circumstances, over a continuous period beginning with E and ending with F (or L depending on the reliability of her evidence). As we havediscussed above, H's evidence remained relevant as propensity evidence for the same reason. L's evidence was problematic in that it was vague, internally inconsistent and inconsistent with the evidence of the other witnesses. It also appeared to be somewhat exaggerated. However the Judge gave a strong warning of the need forcaution before accepting L's evidence. Moreover the prosecutor, in his closingaddress, accepted her evidence was "a challenge" and relied only on H and E aspropensity evidence.[72] The appellant contends the Judge's propensity directions were inadequate.We do not agree. The Judge reminded the jury that the Crown relied on the evidence of H and E as propensity witnesses. He explained what that meant. He explainedthe Crown's contention that the similarities showed the appellant had a tendency tosexually offend against his younger relatives and this behaviour followed a pattern. The Judge informed the jury that it was for them to decide whether they accepted there was that pattern and what weight to place on that pattern. He reminded the juryof the defence's submissions about the evidence. He told them that if they did not accept there was a pattern as relied on by the Crown, they had to assess the charges individually on only the evidence of the particular complainant on that charge. He told the jury they must not reason that, because the appellant had done these things to one complainant or propensity witness, he must have done the other things he was charged with.[73] This ground of appeal is not made out.29 See the District Court decision: R v Stirling, above n 2, and the decision of this Court:S (CA119/2015) v R, above n 15.Stay[74] Prior to the trial the defence applied to stay the prosecution on the basis that a fair trial was not possible because of the delay between the alleged offending and the prosecution. The defence contended prejudice arose because the landscape at thegrandparents' property in Kaikoura had changed, the Christchurch address had beendemolished following the earthquakes, work and medical records were not available,and witnesses (including the appellant's parents and grandmother, and T's mother)had died. The defence submitted the delay was very significant, the charges were not at the higher end of the spectrum, and the complainants' narratives were not clearand compelling and there had been some discussion and interaction between the complainants over a number of years.[75] The Judge declined to grant a stay.30 He referred to the principles set out inCT v R.31 He considered that:(a) The loss of buildings and the change to the landscape was remedied by the complainants and the appellant having drawn sketch diagrams which would assist the jury. Evidence could be called about the physical layout of the properties and that the orchard was exposed to the public.(b) The loss of work and medical records could assist the defence. However, as the charges were mostly representative alleging a course of conduct, the records would be largely peripheral.30 R v Stirling, above n 2, at [109].31 CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [32]. As set out by the Supreme Court, a stay should be granted if the Judge is persuaded that, despite the burden and standard of proof, and the steps the Judge took to mitigate the risk of prejudice, there cannot be a fair trial. This involves an evaluative judgment based on all relevant circumstances. Relevant considerations include the availability or otherwise of defence witnesses and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in thedefendant's health, insufficiently specific allegations as to place or circumstances especiallywhere the alleged offending relates to an isolated act, and the apparent strength or weaknesses ofthe Crown's case.(c) The potential witnesses who had died would not give direct evidence of the offending. Rather they could assist only with physical layout of properties, family arrangements and potential opportunities to offend.(d) The prejudice arising from the loss of this evidence was, therefore, speculative at best. There was general prejudice from the lapse of time but it was common for complainants to delay reporting sexual offending.(e) The charges were serious given the number of complainants, their ages and the overall context.(f) The credibility and reliability of the complainants' evidence was amatter for the jury (the Judge was not able to conclude at this point that it was unclear and not compelling). Any discussion and interaction between the complainants could be explored in cross-examination.(g) The Judge would give a warning under s 122 of the Evidence Act.[76] The appellant submits the Judge was wrong to decline the stay application. He relies on the same arguments as advanced prior to the trial. In addition he says that the Crown's case had been weakened as the date was changed on the mostserious charge (charge five), the charges against H were dismissed, there was abreach of the Evidence Regulations in relation to E, and L's allegations were soproblematic that they required a strong warning from the Judge. The appellant further submits the charges of kissing and touching were so general, and could have been innocent kissing and cuddling, that it was impossible for the appellant to defend them after all these years.[77] We consider the Judge's decision to refuse the stay was correct for thereasons he gave. On appeal the issue is whether the failure to order a stay gives riseto a miscarriage of justice.32 We are not satisfied there was any miscarriage in this case.[78] The Crown's case was strong given the mutually supporting allegations that were made. T and F's evidence was mutually supporting evidence regardless of theevidence of the other complainants. Their evidence did not materially change at trial. The change to the date for charge five was not a significant recasting of the case.33 The propensity evidence from H and E provided further support of T and F's accounts. H's evidence remained relevant because the dismissal of these chargesrelated only to whether the appellant was 17 or a year or two younger. Thecontamination of E's evidence was only on limited points. The case therefore remained strong even if L's evidence was put to one side.[79] The Judge's directions were full and fair on the effects of time on memory and the difficulties for the defence and on the burden and standard of proof. Thejury's verdicts indicate they undertook a careful consideration of each charge. Onmatters where there may have been doubt about whether the conduct was indecent, the burden of proof operated in the appellant's favour. He was acquitted of thecharges of laying on top of F. The appellant did not face any charge relating to F sitting on his knees in the car.[80] This ground of appeal is not made out.Sentence appeal[81] In sentencing the appellant the Judge adopted a starting point of two years and nine months imprisonment for the offending against T. He uplifted that to three years and three months imprisonment to take account of the offending against F. He reduced the starting point to three years imprisonment for totality.34 He then applieda 35 per cent discount to reflect the appellant's youth at the time of the offending, thelength of time that had elapsed between the offending without any further offending,32 At [5].33 Compared with, for example, the situation in CT v R, above n 31, where an entirely new charge of rape was introduced.34 R v Stirling, above n 1.and the appellant's publicised fall from grace. This led to a sentence of 23 monthsimprisonment.[82] The same factors that led to the discount also persuaded the Judge that it was appropriate to convert the sentence to home detention. The Judge considered imprisonment was not necessary for specific deterrence and denunciation and accountability could be met with a sentence of home detention and community work. Therefore an end sentence of 11 months home detention and 325 hours of community work was imposed.[83] The Solicitor-General does not challenge the starting point of three years imprisonment which the Judge arrived at before mitigating factors. She submits the end sentence was manifestly inadequate because of the 35 per cent discount. Shesubmits the appellant's youth did not warrant this discount because he continued to offend as an adult. She submits it cannot be said that the appellant had"self-rehabilitated", as the Judge had described it, because he continued to deny theoffending. She submits any credit for the absence of convictions over this long period of time must be balanced against the absence of any acknowledgement ofresponsibility or remorse. Lastly she submits the publicity and the appellant's fallfrom grace are not relevant because it was his position in the rūnanga that enabledhis offending to be concealed for so long.[84] We do not accept these submissions. We consider the 35 per cent discount was well open to the Judge for the reasons he gave. As the Judge said, this offending began when the appellant was young. The Judge considered, on the evidence he heard, that the offending on T began before the appellant turned 17. He said it was apparent that, from before the appellant was a teenager, through his teenage years, and on to early adulthood, the appellant had a "warped attitude towards sexual matters".35 The Judge was correct to take into account that the offending began when the appellant was a boy and ceased when he became a mature adult. He was also correct to take into account that the appellant had self-rehabilitated because the offending came to an end, even though the appellant has continued to deny the offending. He was correct to take into account that the appellant had not offended in35 At [54].any relevant way for around 40 years and that it was a significant fall from grace for him with attendant publicity.[85] The Solicitor-General also submits home detention was an inappropriate response to serious sexual offending against children. We do not agree. We consider it was open to the Judge to impose home detention for the reasons he gave. The offending occurred a long time ago when the appellant was young. His self-rehabilitation demonstrated he was no longer a risk. The fall from grace and associated publicity brought with it a degree of denunciation and accountability. Home detention combined with community work met the purposes of denunciation and accountability.[86] We dismiss the sentence appeal.Result[87] The appeal against conviction is dismissed.[88] The Solicitor-General's appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent