MS (CA405/2016) v R [2016] NZCA 544

NGATAI v R [2016] NZCA 352 [26 July 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATIONIN LAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA619/2015[2016] NZCA 352BETWEEN TAVAKE PAKIHANA NGATAIAppellantAND THE QUEENRespondentHearing: 20 July 2016Court: Randerson, Fogarty and Collins JJCounsel: M A Simpkins for AppellantK E Hogan and H D Benson-Pope for RespondentJudgment: 26 July 2016 at 11:00 amReissued: 26 July 2016Effective dateof Judgment: 26 July 2016JUDGMENT OF THE COURTA The appeal against conviction is allowed.B The convictions on all charges are quashed.C A retrial is ordered.D Any question of bail is to be dealt with in the District Court.E Publication of the judgment and any part of the proceedings (includingthe result) in news media or on the internet or other publicly availabledatabase is prohibited until final disposition of the retrial. Publication inlaw report or law digest is permitted.F The record of the first strike warning given to the appellant by theRotorua District Court on 9 July 2015 is cancelled in respect of theconvictions quashed.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Introduction[1] On 9 July 2015 the appellant Mr Ngatai was found guilty after a jury trialbefore Judge Rollo on one representative charge of unlawful sexual connection with ayoung person and charges of injuring with intent to injure, male assaults female andindecent assault. The charges all related to a single complainant, Ms M. Mr Ngataiwas later sentenced to a term of imprisonment of four years and nine months.1[2] Initially, Mr Ngatai appealed against both conviction and sentence but laterabandoned the sentence appeal. He advances the conviction appeal on two grounds:(a) The Judge failed to give a reliability warning in terms of s 122 of theEvidence Act 2006; and(b) The Judge misdirected the jury in respect of lies alleged to have beentold by both Ms M and Mr Ngatai.1 R v Ngatai [2015] NZDC 19332.Background facts[3] Mr Ngatai met Ms M in 2007 when she was 14 years of age and still attendingschool. Mr Ngatai was then aged in his mid-forties. He agreed to sponsor Ms M on aleadership course in the United States in June 2009. On the Crown case, the two begana secret relationship in late 2008. In 2009 they commenced a sexual relationship whichcontinued for about four and a half years. The charge of sexual connection with ayoung person related to events prior to Ms M's sixteenth birthday on 1 July 2009. Theother charges on which Mr Ngatai was found guilty arose from events on 26 July 2013when the relationship with Ms M was ending.[4] Mr Ngatai was acquitted on one count of sexual violation by rape and onecharge of male assaults female. He was discharged during the trial on a further chargeof sexual violation by rape. Mr Ngatai denied having a sexual relationship with MsM prior to her sixteenth birthday but admitted having a consensual sexual relationshipwith her after she was 18. Mr Ngatai further alleged that Ms M had made falseallegations against him after their relationship had ended. It was suggested Ms M wasbitter because their relationship had not continued and that she was jealous of MrNgatai's continuing relationship with his partner.Events during the trial[5] The Crown case depended substantially on the evidence of Ms M who was theprincipal Crown witness. In her evidence-in-chief Ms M was asked to be specificabout the occasions when she had sexual intercourse with Mr Ngatai prior to hersixteenth birthday. She said the first occasion was on 5 May 2009 when she was 15.Altogether, there were three occasions, twice before she went to the United States inJune 2009 and once after she came back.[6] In cross-examination, Mr Ngatai's counsel made a concerted attack on Ms M'scredibility and reliability. After confirming her evidence-in-chief to the effect thatthere were three occasions on which she had had sexual intercourse with Mr Ngataibefore her sixteenth birthday, it was put to her that she had told the police in a formalinterview that she had slept with him on more than 20 occasions before she was 16.She readily admitted lying to the jury in that respect.[7] At that point, the Judge immediately gave the complainant a warning aboutself-incrimination. Thereafter, in the main, she refused to answer questions about whyshe had lied. In further cross-examination, she accepted she had told the police wheninterviewed that the first occasion on which she had sexual intercourse with Mr Ngataiwas on 5 March 2009 rather than 5 May 2009. Ms M also admitted deceiving herfamily and lying to them about where she was going on occasions when she wasmeeting Mr Ngatai for sex.[8] In re-examination, Ms M was asked to confirm on how many occasions shehad had sex with Mr Ngatai before she was 16. She said it was "a lot" but she neverreally counted. When asked to explain why she had told the jury that she had sexbefore she was 16 on only two or three occasions she declined to answer. In answerto further questions in re-examination, Ms M explained that she had lied to her auntand other family members because she was too young and both she and Mr Ngataiknew what they were doing was wrong. They had discussed not telling anybody whatthey were doing and making sure they were not seen. She also agreed that she toldlies to the appellant, especially about any relationship she had with any other males.[9] At the end of Ms M's evidence the Judge questioned her himself:Q. Yes, Ms [M], you've just been asked a whole series of questions aboutlies you've told. Was there any discussion between you and Mr Ngataiabout his relationship with his partner [P]?A. Yes.Q. Did he talk to you about how he managed to spend all this time at nightswith you on these drives and incidents of sexual intercourse you'vereferred to?A. Yes.Q. How did he explain that to you?A. Um, he had said that he had just told her that we – ah, he was going tothe gym, um, and when he would go to the gym he was like a hour to twohours maximum and then the time that it would take to drive from [aspecified town] back to his place.Q. Okay.[10] The Crown called a number of other witnesses but their evidence did not addmaterially to the Crown case. Mr Ngatai did not give or call evidence.The summing-up[11] After relatively short closing addresses by counsel, the Judge summed up atconsiderable length. At the outset he noted the Crown's submission that the jury couldaccept Ms M's account as truthful and reliable. To the contrary, the defence case wasthat Ms M had told deliberate lies on important matters. Defence counsel had adopteda description of her evidence "as an orchestrated litany of lies". The Judge gavestandard directions about the difference between credibility and reliability and directedthe jury more than once that care was required in assessing the evidence. It was alsoexplained to the jury that they could accept some parts of the evidence of a witness asbeing truthful and reliable while rejecting other parts. Overall, it was a matter for thejury to assess.[12] No issue is taken with these standard directions. However, Mr Simpkinssubmitted on Mr Ngatai's behalf that later parts of the summing-up on issues ofreliability and lies became confused and, in important respects, amounted to amisdirection. The Judge described Ms M's admission in cross-examination that shehad lied as "baffling" and "surprising". At another point, he suggested "sometimesthe mouth and the brain are not necessarily connected" as a possible explanation butadded he was not suggesting that had happened in Ms M's case. The Judge alsosuggested that she may have adopted a later date for the commencement of the sexualintercourse she alleged, and on fewer occasions, in order to lessen the culpability ofMr Ngatai on the lead charge of sexual connection with a person under 16.[13] After canvassing further possibilities, the Judge then said: So it is a bit of a mystery but ultimately of course your task as the jury isto endeavour to resolve the mysteries in the evidence, remembering it is forthe Crown to satisfy you on the evidence beyond reasonable doubt. You areentitled to pick and choose what parts of the evidence you accept or reject.The defence position is you should reject the totality of the complainant'sevidence because of dishonesty and unreliability. You just cannot be sure andthe Crown says you have got to look at it in a wider sense and try and look atthat aspect where she has been consistent throughout in her evidence that thesexual relationship commenced before she was 16. So it is not a question ofas I said before, this is not a Court of morals, you are not here to punish thisgirl for telling a lie or for being a liar. You are here to dispassionately as judgesof the facts analyse the evidence carefully and come to fair and rationaldecisions about the facts in coming to your judgment on it. And the otheraspect of course is that whilst Ms [M] gave evidence in Court and was cross-examined and admitted that lie and Mr Simpkins has said because of aspectsof evidence she has told other lies and she admitted to telling lies to her familyand Mr Ngatai and so forth that that characterises her as a liar but of courselogic will tell you as indeed does Ms [M] when I asked her questions,Mr Ngatai has obviously lied to his partner and perhaps to others aboutwhere he was on all these occasions, that they were meeting up after kapahaka or other occasions, going for drives, having lovers trysts, and soforth over a number of years and the significance therefore of lies in aCourt case is as follows. The starting point first of all you have got to decidethat what you have been told by a witness and of course the reference to MrNgatai is an inference you would draw from proven facts and your experienceof life and commonsense, the first point is, is it a deliberate lie or is it a mistakethat has been made? If you are satisfied it is a deliberate lie, why has thewitness told that lie and what Judges normally say at this point is of course allof us tell lies from time to time and that is undoubtedly true. We lie aboutthings sometimes because we are embarrassed about a circumstance or anaction we have undertaken or because we want to protect somebody,sometimes a child, sometimes some other person or because we are beingdishonest about something. There can be a number of reasons why we tell liesbut the starting point of course is as you undoubtedly acknowledge, we all telllies from time to time and so when you characterise someone as a dishonestperson, is that because they tell lies when all of us tell lies. Is it because theytell one lie or five lies or 10 or 20 or 100, where do you draw the line and isit critical of course that it is a lie told under oath in Court which as you willacknowledge is a criminal offence. What are the circumstances in which youjudge the honesty and credibility of a person. That is where you have to useyour experience of life and consider what you have heard in its totality incoming to fair judgments about the weight you place on the evidence andnormally what flows from where a jury accepts that a lie has been told is thatit impacts on the issue of credibility and that is the very point that Mr Simpkinshas made so strongly to you yesterday. If a person tells you a lie about pointA, how can you believe them about point B or point C or point D? Are theytelling you lies about that? How do you distinguish between the two? That isthe defence case. The Crown case is to say, well sometimes point B, point C,point D is supported by other evidence, independent evidence that will sort ofindicate to you that that is not a lie and therefore you can come to differentjudgments about those aspects of the evidence. Again, a matter for you.(emphasis added)The argument on appeal[14] Mr Simpkins' argument may be summarised in the following propositions:(a) The Judge ought not to have elicited evidence from Ms M about the liesMr Ngatai was alleged to have told his partner to explain where he wason the occasions he was meeting with Ms M for sex.(b) The Judge ought not to have given a form of lies direction in respect ofMs M's evidence.(c) The approach taken by the Judge had effectively enhanced Ms M'scredibility while diminishing that of Mr Ngatai.(d) There was no call for the Judge to give a lies direction in respect ofMr Ngatai and, to the extent a lies direction was given, it was neithercomplete nor correct in terms of s 124 of the Evidence Act.(e) The Judge did not appropriately caution the jury in respect of thereliability of Ms M's evidence in terms of s 122 of the Evidence Act.AnalysisLies directions[15] We accept Mr Simpkins' submission that the Judge ought not to have askedMs M about what Mr Ngatai had told his partner when he was meeting Ms M forsexual purposes. A judge may ask questions of witnesses in court proceedings wherethe interests of justice require.2 But, particularly in criminal trials, a degree ofcircumspection is required.[16] The role of the judge in such trials has been recently summarised by this Courtin Tahere v R.3 The Judge's questions in this case were not for the purpose ofclarification of Ms M's evidence and were not necessary to enable her evidence to beunderstood. Rather, the questions opened up the topic of Mr Ngatai's truthfulness ina way the prosecutor had not seen fit to pursue. In short, it was not in the interests ofjustice for this topic to be raised.2 Evidence Act 2006, s 100.3 Tahere v R [2013] NZCA 86 at [28]–[32].[17] Of course, a balanced summing-up may sometimes cure the effects of theintroduction of potentially prejudicial evidence. However, in the present case, theerror was compounded by the way the Judge attempted to deal with the issue in hissumming-up. Although the prosecutor did not seek to rely on the lies issue in herclosing address, the Judge drew attention to it and emphasised it by telling the juryMr Ngatai had "obviously lied to his partner and perhaps to others" in his explanationsabout where he was on "all these occasions over a number of years".[18] It is evident the Judge was also referring in the passage we have cited at [13]above to the lies Ms M had admitted she had told. The Judge then attempted to directthe jury about how they should approach the lies both Ms M and Mr Ngatai had told.He directed the jury they must first consider whether the lie was deliberate or was amistake. If so, the jury was to consider why the witness had lied and to take intoaccount that people may tell a lie for a number of reasons. The discussion that thenfollows appears to be directed to lies told by Ms M rather than Mr Ngatai because theJudge said it was critical that it was a lie told under oath which was a criminal offence.Only Ms M had given evidence.[19] We accept Mr Simpkins' submission that the Judge's directions would not onlyhave been confusing for the jury but also amounted in the circumstances to amisdirection. First, the Judge appeared to be giving a form of lies direction in respectof both Ms M and Mr Ngatai. To the extent the direction was dealing with Ms M'sevidence, the Judge was quite entitled to direct the jury that they could take intoaccount Ms M's admitted lies when assessing her credibility and reliability. But thisCourt has held that it is unorthodox to give a s 124 lies direction in respect of a witnesswho is not the defendant.4 We observe that the purpose of a lies direction under s 124is to give a specific warning to the jury where the judge is of the opinion that the jurymay place undue weight on evidence of a defendant's lies, not that of a witness suchas a complainant.[20] Here, the Judge's direction in respect of Ms M's lie ought to have been confinedto confirming that the jury could take her admitted lie into account in determining her4 R v Bensitel CA133/06, 5 October 2006 at [39].credibility and reliability. Instead the Judge invited the jury to consider whatexplanations there might be for her lies and offered various suggestions as to why shedid not tell the truth. This was so despite the prosecutor telling the jury (correctly) inher closing address that "we do not know the reason why [Ms M] lied". There was noevidence about why Ms M lied because she declined to answer questions on that topicafter the Judge's warning to her about self-incrimination.[21] The explanations offered by the Judge were speculative and, as Mr Simpkinssubmitted, tended to reduce the impact of Ms M's admitted lies on her credibility andreliability.[22] Difficulties also arise to the extent the Judge's directions attempted to deal withMr Ngatai's lies. First, it may be doubted that evidence of a defendant's lie was"offered" in terms of s 124(2) of the Evidence Act. All that Ms M said was Mr Ngataihad given explanations to his partner that, by inference, were false. To the extent thiswas presented as evidence of its truth, it was hearsay. Second, the Judge usurped thejury's function by saying Mr Ngatai had "obviously lied". It is possible, even likely,that Mr Ngatai did give false explanations to his partner but there was no evidence tothat effect and it was not for the Judge to tell the jury he had done so. Third, if a liesdirection was being given, he failed to direct the jury under s 124(3)(c) that the juryshould not necessarily conclude that Mr Ngatai was guilty of the offences charged.[23] We are satisfied the overall effect of the way in which the Judge dealt with theissue of lies was to provide unwarranted explanations for Ms M's lies while givingunjustified attention to Mr Ngatai's so-called lies in a way that was prejudicial to hisdefence.Reliability warning[24] Mr Ngatai's second ground of appeal was that a s 122 reliability warningshould have been given.5 On this ground we accept Ms Hogan's submission that itwould have been abundantly clear to the jury from counsel's addresses and the Judge'ssumming-up that the credibility and reliability of Ms M's evidence was the central5 CT (SC 88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465.issue in the case. The Judge urged the jury to take care in considering the evidence onthis subject. None of the circumstances listed in s 122(2) applied such that the Judgewas obliged to consider a warning in terms of s 122. We are not persuaded in thecircumstances the Judge was required to do more than he did.6Miscarriage of justice[25] Ms Hogan acknowledged that the Judge had referred to lies by both Ms M andMr Ngatai but she submitted on the basis of authorities before the passage of thepresent Evidence Act that a lies direction in respect of a complainant's evidence wouldnot necessarily lead to a miscarriage of justice.7 Ms Hogan submitted that the Judge'sobservations on this topic were part of a long general discussion about lies; he hademphasised that issues of fact were for the jury and had left open the possibility thatMs M was dishonest. The defence case was not undermined.[26] We are satisfied there was a real risk of a miscarriage of justice arising fromthe Judge's directions on the subject of lies. This was a finely balanced case wherethe Crown depended almost totally on the jury accepting Ms M's evidence as truthful.Our conclusion at [23] above leads inevitably to the conclusion that the outcome mayhave been different if the identified errors had not occurred. In short, the Judge shouldnot have questioned Ms M in the way he did. Once the impugned evidence wasintroduced, the error was compounded by the Judge's directions on the subject of lies.These had the favourable effect for the Crown of offering unsupported innocentexplanations for the complainant's admitted lies while inappropriately emphasisingwhat the Judge wrongly regarded as the obvious lies of the appellant.Result[27] The appeal against conviction is allowed.[28] The convictions on all charges are quashed.[29] A retrial is ordered.6 See, for example, HP v R [2010] NZCA 617 at [47] and T (117/2015) v R [2015] NZCA 572 at[40]–[41] (leave to appeal refused T (SC140/2015) v R [2016] NZSC 71).7 R v O (CA342/06) [2007] NZCA 87 at [37] and R v Dale CA332/96, 12 December 1996 at 11.[30] Any question of bail is to be dealt with in the District Court.[31] Publication of the judgment and any part of the proceedings (including the result) innews media or on the internet or other publicly available database is prohibited until finaldisposition of the retrial. Publication in law report or law digest is permitted.[32] The record of the first strike warning given to the appellant by the Rotorua DistrictCourt on 9 July 2015 is cancelled in respect of the convictions quashed.Solicitors:Lance Lawson, Rotorua for AppellantCrown Solicitor, Manukau for Respondent