SATEKI V R COA CA719/2010

SATEKI V R COA CA719/2010 1 June 2011ORDER THAT THE REASONS FOR JUDGMENT ARE NOT TO BEPUBLISHED IN THE NEWS MEDIA OR ON THE INTERNET OR IN ANYPUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OFTRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS,HOWEVER, PERMITTED.NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA719/2010[2011] NZCA 239BETWEEN TAMEILAU SATEKIAppellantAND THE QUEENRespondentHearing: 10 May 2011Court: Chambers, Venning and Courtney JJCounsel: M I Koya for AppellantR J Collins for RespondentJudgment: 1 June 2011 at 9:30 AMJUDGMENT OF THE COURTA The appeal is allowed.B The convictions on counts 3, 4 and 5 are quashed.C A new trial is ordered on those counts.D An order is made that the reasons for judgment are not to be publishedin the news media or on the internet or in any publicly availabledatabase until final disposition of the new trial. Publication in a lawreport or law digest is, however, permitted.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] The appellant was convicted on three counts of sexual offending against achild under the age of 12 following a jury trial in the Manukau District Court. Hewas acquitted on two other counts. Judge Andree Wiltens imposed a sentence oftwo years three months imprisonment. The appellant appeals against both convictionand sentence.[2] In his appeal against conviction the appellant asserts a miscarriage of justiceas a result of the following errors in the Judge's summing up:(a) Placing undue weight on the evidence of a psychologist called by theCrown which had the effect of boosting the complainant's credibility.A separate argument as to the admissibility of that evidence wasabandoned during the course of the hearing.(b) Failing to properly address the issue of opportunity in relation toCount 5 (indecent assault by performing simulated intercourse).(c) Directing the jury not to place weight on the demeanour of witnesses.(d) Failing to address the complainant's previous lies in a balanced way.[3] On the appeal against sentence the appellant asserts that the Judge failed togive significant weight to personal circumstances, particularly the fact that hefinancially supported his mother and his daughter.The Crown case[4] The Crown alleged various indecent acts by the appellant against a friend'sgranddaughter over a period of about two years when the child was aged under 12.The offending was alleged to have occurred on occasions when the complainant wasvisiting during holidays or weekends and usually happened at the appellant's home.[5] Counts 1 and 2 alleged indecent assaults and the appellant was acquitted onthese charges. Count 3 related to an incident in which the appellant indecentlyassaulted the complainant by sucking and/or licking her breasts. He was convictedon that count. Counts 4 and 5 each related to incidents of indecent assault byperforming simulated sexual intercourse. Count 5 was further particularised byreference to the occasion being a visit by the complainant to Auckland for anunveiling ceremony. The appellant was convicted on both these charges.The expert evidence of Dr Calvert[6] The first ground of appeal related to the expert evidence of the Crown'switness, psychologist Dr Sarah Calvert. Dr Calvert's evidence was of a generalnature and not directed towards the complainant. It was evidence of the kind oftendescribed as counter-intuitive evidence, that is, evidence intended to neutralise theeffect of common misconceptions. It is now commonly offered in cases of allegedsexual abuse against children. This Court has recently considered the admissibilityof such evidence in M v R1, confirming that it will be admissible if it is relevant, itsprobative value is not outweighed by the risk of an unfairly prejudicial effect on theproceeding and it would be substantially helpful to the jury in the particular case.[7] Where there are allegations of sexual abuse against children the jury's verdictis likely to depend on its assessment of the complainant's credibility. But researchindicates a substantial risk of the jury's assessment of a complainant beinginfluenced by assumptions that are wrong. These particularly include the fact of andreasons for a child delaying making a complaint. In M v R the Court cited from the1 M (CA23/2009) v R [2011] NZCA 191.Law Commission's explanation as to the reason such evidence can be substantiallyhelpful in these cases:2See 110 [T]he purpose of such evidence is not diagnostic. Rather, thepurpose of the evidence is educative: to impart specialised knowledge thejury might not otherwise have, in order to help the jury understand theevidence of and about the complainant, and therefore be better able toevaluate it.See 111 [P]art of that purpose is to correct erroneous beliefs that juries mightotherwise hold intuitively. That is why such evidence is sometimes called"counter-intuitive evidence": it is offered to show that behaviour a jurymight think is inconsistent with claims of sexual abuse is not or may not beso; that children who have been sexually abused have behaved in a waysimilar to that described of the complainant; and that therefore thecomplainant's behaviour neither proves nor disproves that he or she has beensexually abused. The purpose of such evidence is to restore a complainant'scredibility from a debit balance because of jury misapprehension, back to azero or neutral balance.[8] Mr Koya submitted that the manner in which the Judge directed the jury as tothe use of this evidence was erroneous and misleading because he failed to advisethe jury that the expert evidence was based largely on other people's research andcare should be exercised because the doctor had not personally interviewed thecomplainant and therefore could not make her own assessment of the complainant'scredibility. For the reasons we have just discussed, this type of evidence is, bynature, general and is specifically not directed towards the particular complainant.Therefore such a direction would have been inappropriate.[9] There are, however, aspects of the Judge's direction regarding Dr Calvert'sevidence that are concerning. The Judge gave the following direction:[6] The other evidence you need to have regard to is the evidence of DrCalvert. Mr Koya may well have some regrets about the fact that thatevidence was called, but it is still evidence that was presented to you, and itis relevant, and it is something that you need to have regard to. Now she isan expert witness and as a result of that she is entitled to give you heropinion. Other witnesses are not entitled to give opinions, they can onlyrelate to you what they saw and what they heard and what they did. She isentitled to give you an expert opinion because she knows more about thisfield than you or I put together, quite frankly. Her qualifications wereextraordinary, I suggest to you, and what she said to you was that sometimespeople in the situation of [the complainant] a young child who alleges being2 Law Commission Evidence, Volume 2: Evidence Code and Commentary (NZLC R55, 1999) at67.sexually abused, sometimes they do not make any complaints at all. Onother occasions they make their complaints somewhat later than what mightbe expected and Dr Calvert's evidence is of use to you because she puts thatinto context, she explains that this happens frequently and she explains thatthere are a number of factors that impact on the decision of the child tocomplain, if they do complain, and to complain late. Partly that is to do withthe age of the child, partly it is to do with the relationship between the childand the alleged perpetrator and also there is this aspect of being party to asecret and therefore being less inclined to come forward and make acomplaint. I am not going to tell you what to make of Dr Calvert's evidence,that is for you, it is factual finding that you need to make to decide how herevidence affects what you think occurred here. She of course cannot tell youwhether or not [the complainant] was telling the truth. She cannot tell youwhether or not these things occurred. All she can do is put into context thefact that [the complainant] made her complaint in June 2008 for someevents, at least, that occurred as early as April 2006, so there is a delay ofsome two years, on one view, before [the complainant] has made acomplaint. You decide what the effect of what Dr Calvert's evidence is.[10] We have concerns about the way in which the Judge expressed himself at theoutset of this direction. The fulsome endorsement of Dr Calvert as a witness,coupled with the reference to Mr Koya possibly having regrets about the fact that theevidence was called, went beyond what might reasonably be expected in terms of adirection as to the use to which such expert evidence could be put. It had thepotential to suggest that greater weight could be put on the Crown case because ofDr Calvert's evidence.[11] In addition, although the Judge subsequently provided a more balancedexplanation as to the purpose of Dr Calvert's evidence, pointing out that the evidenceis intended as general comment rather than comment on the particular complainant,his final remarks tended to suggest that Dr Calvert was, in fact, commenting on thereason for the complainant in this case having delayed making a complaint.Judge's direction on Count 5[12] The second ground of appeal related to the Judge's direction on Count 5,which alleged that the appellant had indecently assaulted the complainant by"simulating sexual intercourse when she was present in Auckland for an unveilingceremony". The defence asserted that there was no opportunity for offending tohave occurred. This position was made clear through cross-examination of thecomplainant and in closing.[13] The complainant came to Auckland with her mother for the ceremony. Theyarrived on Friday night. The complainant's aunt, C, picked the complainant and hermother up from the airport. They went to the house where the appellant lived withother relatives and where C was staying at the time. The complainant stayed at theappellant's house on Friday night, while her mother stayed elsewhere.[14] In her video interview the complainant said the offending occurred "in theweekend" when she came to Auckland for the unveiling ceremony but was notspecific about when during the weekend it occurred. In cross-examination, however,she said that the offending did not occur on the Friday night. She said that itoccurred on the Saturday morning but then later said that she was not sure about that.[15] Mr Webby, for the Crown, opened on the basis that the offending occurred onthe Friday night when the complainant went into the appellant's room and was sittingon the bed watching television. The Crown's theory was, no doubt, based on theappellant's statement in his police video interview that he was alone with thecomplainant on the Friday night for about 15-20 minutes, which provided anopportunity for the offending. However, he denied any wrongdoing. The appellantalso said that he and the complainant were alone briefly on Saturday morning whenhe had got up early to go out and the complainant came into his room as he wasabout to leave. He asked if she wanted to come with him but she did not.[16] C gave evidence that effectively excluded opportunity on Saturday morning.She said that the complainant slept with C and another female relative of theappellant on Friday night. They went to bed at about 10 or 11pm. The complainantwas asleep first and was still in the bedroom on Saturday morning. C's reliabilitywas put in doubt when she was recalled, declared hostile and cross-examined on aprevious inconsistent statement but there was no inconsistency in her account of theevents on Saturday morning.[17] Mr Koya fairly put to the complainant that there was no opportunity for theappellant to offend on Friday night or Saturday morning, though in his closingaddress he did accept that an opportunity existed on the Friday night, albeit only of15-20 minutes. It is clear from Mr Koya's closing address that, in relation to Fridaynight, the defence was not lack of opportunity, but that the opportunity was veryshort, making it unlikely for the offending to have occurred and the fact that thecomplainant herself said that it did not happen then. In relation to Saturday morning,the defence was both lack of opportunity and the complainant's vagueness aboutwhether the offending happened then.[18] On the question of opportunity the Judge gave a direction specifically inrelation to Count 5 and a general direction that would have applied to Count 5 aswell as the other charges:[20] Count 5 is a similar charge but this is one specific event which is atthe time of the unveiling of [the appellant's] father's headstone which is onor about 17 October 2008; and you know that at that time [the complainant]was under 12 and you know it was shortly after the September 2008 schoolholidays because it was a week after that that she came back to Aucklandspecifically for this event. Now it has been suggested that [the complainant]cannot remember whether it occurred on Friday or Saturday or Sunday andthat she is extremely vague about that. That is a matter for you. The point Iwant to address is that the allegation here is that it occurred on or about the17th so it does not have to be proved by the Crown so that you are sure itoccurred on any of those three days, as long as it occurred on or about,namely within that weekend and bear in mind she did not go back until theMonday. As long as it occurred on or about, that is sufficient. Now theuncertainties that Mr Koya addresses go to whether or not you believe what[the complainant] says, not so much in relation to the date. Again you needto make sure that right thinking people would regard this conduct, if itoccurred, as being indecent. And again the real issue in this particular countis whether or not it occurred[23] [W]hile there is some evidence as to opportunity, both by theprosecution and in terms of cross-examination as to whether these thingscould have happened, the answer is that if someone is in the shower anythingcan be happening in the room next door. While somebody is having a smokeand playing music in a room with the door closed anything can be happeningin the room next door in the hallway outside downstairs. It is not possible toknow what is happening at all times around us. I can see what you're doingif I am looking over there I cannot see very much to the left, I cannot seebehind me, so while these categoric statements of opportunities not existinghave been made I would question those if I were you, because it is easy tosay "of course it can't have happened" because you want to supportsomebody; it is much harder to say 'well I don't think it happened becausehe's not that type of person but I can't be sure", it is a much lesser statementit is less categoric and therefore it is going to carry less weight and if I reallywant to help I have got to be firm about my conclusions and be adamant. Sothe evidence as to opportunity, one way or the other, I suggest to you is notthat important in this case. What is important here is whether or not theseevents actually occurred.(emphasis added)[19] Mr Koya submitted that the Judge failed to fairly put the defence position inrelation to opportunity. We agree. Although the thrust of the defence was that thecomplainant was lying, the question of opportunity was important. Whilst there wasopportunity on the Friday night, it was very short and both the appellant andcomplainant denied that any offending happened that night. It was open to the juryto consider whether the offending did, nevertheless, happen then but if it were to doso it should have taken into account the fact that the opportunity was very limited.In relation to the Saturday morning, the evidence was inconsistent as to whetherthere was an opportunity for the appellant to offend, leaving open the possibility of afinding that there was no such opportunity.[20] The effect of the direction, however, was to tell the jury that opportunity wasnot important and need not be considered at all. That undermined the defence in asignificant way, leaving only the appellant's denial of the offending for the jury toconsider.Direction regarding the complainant's previous lies[21] It was common ground that the complainant had, prior to the trial, madeuntrue statements about her father having died. Although the complainant herselfwas not cross-examined on these lies the issue was raised with Dr Calvert in cross-examination and she agreed with the obvious proposition that if a person had lied onone occasion it was possible that she could lie on other occasions as well.[22] The fact of the complainant having lied was touched upon by both Mr Webbyand Mr Koya in their respective closings and the Judge gave the following directionon it:[22] You know that she has told lies on another occasion, and it is not justa small white lie, it was, as Mr Koya described it, a whopper. She has toldother people on occasions that her biological father was deceased, which isapparently untrue and she accepts that it was untrue, she accepts that she toldthat lie. What impact did that have on her credibility in relation to theseallegations? That is a matter for you to decide. Bear in mind thateverybody, I would say, without exception, has told a lie at one time oranother in their life, possibly two year old children have not as yet but youknow what I mean. There are very few people who avoid that throughouttheir lifetime. It does not mean to say that they lie all the time and whatneeds to be considered is the reason for the lie, the motive if you like,because people lie for different reasons and what you need to work out iswhether or not she is lying to you when she says these things occurred. Inrelation to that, bear in mind, if you would, she had ample opportunity tofurther make allegations against [the appellant]. She could have said thatthese matters went much further, that she was in fact raped; she did not. Shecould have said some of these events occurred more than once; she did not.She has restricted herself to the allegations that you have seen, despite theopportunity of making wider or larger or more frequent allegations againsthim. That may help you in deciding whether or not she is telling the truth ornot. She has also apparently told [C] that at one stage [the appellant] tried toput his penis into her vagina, [C] told us that but that he could not and thatinstead he tried to put it into her mouth. That is what [C] has told you.When that was put to [the complainant] she denied it so you need to decidewhether or not that undermines the allegation she has made before you andwhether that has undermined her credibility in your eyes, because theycannot both be right about that. One of them is right and one of them iswrong. You work that out for yourself, that is a finding of fact. It was alsoput to her that she was unsure about the first occasion with the dates being2003 or 2004 and Mr Koya put to her "Well that's obviously what you'vetold somebody previously because that was the dates in the first informationthat was laid against [the appellant]". She denied that and the reason thatyou can be sure that denial is correct is because you know from DetectiveSenior that he drafted that information. He drafted that information on thebasis of what [the appellant] told him during his interview. So her denial asto that is correct.(emphasis added)[23] We agree that the way the Judge dealt with the complainant's previous liesgives cause for concern. The first part of the direction is unobjectionable. It simplyputs the obvious proposition that because a person had lied previously he or she didnot necessarily lie while giving evidence and whether they were lying was for thejury to decide. However, the Judge then went on to refer to three aspects of the casein way that suggested that the complainant was to be believed.[24] The Judge said, first, that the fact that the complainant could have made other(presumably false) allegations against the appellant but chose not to might help thejury decide whether the complainant was telling the truth. There could, however, beno justification for suggesting that the jury might assess the complainant's credibilityby reference to the fact that she had refrained from making a false allegation of rape.The question for the jury was whether the allegations that had been made weretruthful. Speculating as to what the complainant might have alleged had she beeninclined to make a false allegation could not help the jury and risked leading it into adangerous and false reasoning process.[25] Secondly, having told the jury that the complainant had not made widerallegations against the appellant when she could have, the Judge referred to C'sevidence of the complainant having done just that and the complainant's denial ofhaving done so. Although the Judge invited the jury to decide whether it was thecomplainant or C who was right, against the preceding comments and the fact thatC's general reliability had been put in doubt by her previous statement the overalleffect was to subtly prefer the complainant. This was reinforced by the thirdcomment in which the Judge told the jury that the complainant's denial of beingunsure about the date of the first occasion of offending was correct.[26] We agree with Mr Koya that the Judge's directions regarding thecomplainant's credibility was unbalanced. Because the Crown case turned on thejury accepting the complainant's account it was essential that it received a balanceddirection regarding the credibility assessment. In the absence of that, there was areal risk of the jury being influenced in its assessment of the complainant.Demeanour[27] The next ground of appeal was that the Judge had made an error in directingthe jury regarding demeanour. The Judge said:[25] Do not look too much at the manner in which any particular witnessgave his or her evidence, because tests have now shown, experiments havebeen done, and it is impossible to look at someone and say "yes they'retelling me the truth", "no they're lying" it just does not work and you knowfrom your own experience that sometimes you think "Mmm, doesn't soundvery likely to me," but in fact it proves to be true, that the best liars are infact the best witnesses because you believe them, but they are not telling youthe truth they just happen to be good at it, so you cannot tell just by lookingat people. Do not make that mistake. Look instead, and this is what judgestry and do as best they can, for consistency. Consistency within a person'saccount and consistency between people's accounts and that way you can seethat the picture builds up. If I tell you at five o'clock last night a flock ofbirds was flying overhead this Court, you might think "Mmm that doesn'thappen very often in Manukau" but if five different people tell you fromdifferent vantage points that they saw it as well, suddenly the picturebecomes fairly comprehensive, doesn't it, and it is easy for you to accept ifeven if it does initially sound unlikely. So it is consistency that you arelooking for. And when you are looking for consistency look not only forconsistency in allegation but also consistency in denial because consistencyis more likely to be an indicator of someone trying to tell you the truth.[28] Mr Koya submitted that the Judge was wrong to direct the jury not to looktoo much at the manner in which the evidence was given because there is noauthority to the effect that the demeanour of a witness has become irrelevant orsignificantly lost its impact in the decision-making process. However, it is nowaccepted by trial judges that demeanour is a notoriously unreliable means ofassessing credibility. The first part of the direction is therefore correct.[29] The second part of the direction does, however, give cause for concernbecause the use of the example of consistency between witnesses had no relevance inthis case, which turned mainly on whether the jury accepted the complainant'saccount. The direction seems to suggest that there were several accounts thatsupported the same proposition but this was not so. It was therefore likely toconfuse the jury and to risk conveying, wrongly, that there were several consistentaccounts that supported the complainant's account.Result[30] We have concluded that the overall effect of these directions was to convey tothe jurors that the complainant's account was to be preferred and that they need notconcern themselves with the question of opportunity. Because the Crown casedepended almost entirely on the credibility of the complainant we consider that therewas a real risk of a miscarriage of justice that would affect not only the conviction oncount 5 but also those on counts 3 and 4 as well.[31] The appeal is allowed. The convictions on counts 3, 4 and 5 are quashed anda new trial ordered.Solicitors:Crown Law Office, Wellington for Respondent