W (CA310/2022) v R [2023] NZCA 45

W (CA310/2022) v R [2023] NZCA 45 [8 March 2023]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S)UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [ORNAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA310/2022[2023] NZCA 45BETWEEN W (CA310/2022)AppellantAND THE KINGRespondentHearing: 15 February 2023Court: French, Ellis, Churchman JJCounsel: G A Walsh for AppellantJ E Mildenhall for RespondentJudgment: 8 March 2023 at 2.15 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Churchman J)Introduction[1] Following a jury trial in the District Court at Hamilton, on 6 May 2022 theappellant was convicted of 18 charges of sexual and violent offending committedbetween 2003 and 2010 against two of his daughters, TW and AW.1[2] The appellant now appeals his convictions on the grounds a miscarriage ofjustice occurred. Specifically, the appellant contends the trial Judge erred by:(a) allowing the Crown, prior to closing its case, to call an additionalwitness, Detective Webber, in order to rebut a proposition put to TWabout whether she initiated contact with Police or whether Police madeinitial contact with her following AW's complaint to Police; and(b) insufficiently explaining to the jury during his summing up that he hadincorrectly stated in the summing up that AW's mother, LW, andstepfather, CL, had given evidence that they noticed a significantchange in AW's behaviour towards her stepfather prior to her disclosureof the appellant's offending against her.The Crown case[3] The appellant is the father of the two victims, TW and AW.[4] At the time of reporting, TW was 21 years old. When she was aged betweensix and 11 years old, the appellant sexually violated her and assaulted her on numerousoccasions. At the time of reporting, AW was 15 years old. When she was agedbetween six and seven years old, the appellant sexually violated her and assaulted heron numerous occasions.1 The 18 charges were comprised of the following: sexual violation by unlawful connection (x 7);indecent act to a girl under 12 (x 2); sexual conduct with a child under 12 (x 4); sexual conductwith a young person under 16; assault with intent to injure; assault with a weapon; and assault ona child (x 2). Following his conviction, on 21 June 2022 the appellant was sentenced to 12 years'imprisonment.[5] The offending against TW occurred between 2003 and 2008, when TW wasaged between six and 11.[6] On one occasion when TW was around six years old, she was put into abedroom closet as a form of punishment. Some time later, the appellant came andopened the door to the closet, exposed his penis and made her perform oral sex on himto the point he ejaculated in her mouth.[7] On another occasion, when TW was aged six or seven, the appellant told herto take off her clothes, then removed his own clothing from the waist down. He puther on a bed and inserted his finger into her vagina. He then got on top of her andrubbed his erect penis against her genitalia.[8] When TW was around eight or nine years old, she came into the bathroom towash her hands while the appellant was having a bath. He had a facecloth over hispenis. He took her hand and forced her to touch his penis.[9] On another occasion, the appellant placed his penis in TW's mouth for a shortperiod of time, but was interrupted by someone moving about in the house.[10] On one occasion, the appellant was in bed, naked, with both TW and AW. AWsaw him kissing TW with an open mouth.[11] There were multiple other occasions when the appellant put his hands insideTW's trousers and touched her genital area over her underwear.[12] The appellant's violence towards TW included dragging her down the hallway,putting his hand on her neck and choking her and throwing a knife at her. He hit heron multiple occasions and would throw objects such as wooden spoons and belts.[13] The offending against AW occurred on various occasions between 2008 and2010, when she was six to seven years of age.[14] On one occasion, the appellant was sharing a bed with AW and her youngerbrother. The appellant told the brother to face the wall, then grabbed AW's hand, putit into his pants to touch his penis and testicles and moved her hand up and down.[15] One night, while TW was in the same room asleep on the floor, the appellantwas on a bed with AW. He put his hand inside AW's clothing and rubbed her genitaliawith his fingers. He also kissed AW on the lips. He then got off the bed and lay downwith TW on the floor because she complained that she was cold. When he returned tothe bed, he rubbed AW's genitalia over clothing and told her not to tell anybody.[16] One night AW woke up having wet her bed. The appellant told her to take offher pants and get into bed with him. When she did so, he rubbed her genitalia with hisfingers, skin to skin. The appellant took what AW thought was a cough lolly out ofhis mouth and inserted it into her genitalia with his fingers. He inserted and removedthe object several times, putting it back in his mouth in between. As he was doing this,he made AW rub his penis and testicles.[17] On the same night that AW saw the appellant kissing TW with an open mouth,he also pulled AW's head towards his penis and made her suck it, ejaculating into hermouth.[18] The appellant was repeatedly abusive to and frequently hit AW throughout herchildhood.DiscussionFirst ground – allowing the Crown to call evidence from Detective Webber[19] The defence case at trial was that TW and AW had fabricated the allegations.As part of advancing the defence case, the defence contended that TW had initiatedcontact with the Police regarding her complaints against the appellant of his offendingtowards her.[20] The original job sheet recorded that Detective Webber had received a telephonecall from TW who told him she had returned to live in the area permanently and wasready to tell the Police about physical and sexual abuse suffered at the hands of theappellant. The job sheet did not give any background to the call and counsel'ssubmission was that it could be inferred that the call from TW to the Police wasunsolicited.[21] Defence counsel cross-examined TW on the basis that she had initiated the callto Detective Webber. This point was relevant to the defence theory that there had beencollusion between TW and her mother and that they had concocted the events thatwere the basis for the charges in an attempt to get back at him. TW was cross-examined firmly on this point but maintained that she had not instigated the contactwith Detective Webber.[22] Before the conclusion of the Crown case, an application was made to permitthe Crown to file a brief from Detective Webber which confirmed that it was in facthim who had contacted TW and her call detailed in his original job sheet was inresponse to his initial contact.[23] The application was contested and the trial Judge ruled that the evidence wasadmissible, and that any prejudice could be cured by cross-examination ofDetective Webber and some comment in the closing address.2 No application wasmade by defence counsel for TW to be recalled for cross-examination on this point.[24] Mr Walsh's submission was that the defence was unfairly prejudiced by thelate admission of the evidence because his cross-examination would have beendifferent. The issue of who contacted whom first was a major feature of his attack onthe credibility of the complainant. Accordingly, when this was undermined by the lateevidence, there was unfair prejudice to the extent that the trial was derailed and shouldhave been aborted.[25] In reaching his conclusion that the additional evidence from Detective Webberwas admissible, the Judge noted:32 R v [W] [2022] NZDC 7672 at [10]—[11].3 R v [W], above n 2.[6] [Defence counsel], reliant upon this short form of job sheet [the originaljob sheet], has put the alternative proposition that it was [TW] that contactedthe police first. That may be the first initial view taken of what the documentsays, but when you look at it more carefully it is in fact silent as to who madethe first contact, and the next paragraph tends to infer that they had hadprevious contact.[7] [Defence counsel] seems to have reached a conclusion based on thatdocument, not unreasonably, that [TW] instigated the contact with Police. Thereality has become clear today Our view[26] We are of the view the evidence was relevant and properly admitted. Theevidence bolstered TW's credibility to the extent it effectively prevented the defencefrom submitting she had lied about her contact with Police. As the Judge rightly noted,the original job sheet was "in fact silent" as to who made the initial contact. We agreethat the evidence of Detective Webber relevantly and reliably filled that gap.[27] The defence case was that the allegations were fabricated. The evidence ofDetective Webber did not undermine this fundamental proposition. The evidence wasadmitted in rebuttal to a proposition raised by the defence at trial. Its appearance anddisclosure only at this time is therefore understandable. We are satisfied there was nounfair prejudicial effect to the defence's case or to the proceeding more generally,particularly not one which outweighed the probative value of the evidence.Second ground – factual error in summing up[28] The appellant submits that the Judge's comments conveyed the impression hewas not partial, and that he preferred the Crown case.[29] The trial Judge had mistakenly referred to AW and two other witnesses (LWand CL) mentioning a change in behaviour on the part of AW. When the error waspointed out to him, the Judge addressed the jury saying:I mistakenly said that this was mentioned by all three. but we have checkedthe record and in fact it is only [AW] that talks about that. So [LW and CL]were not asked any questions about any change of behaviour.[30] The appellant says that the Judge should have stopped before the last sentenceand submits that the reference to the other witnesses not being asked any questions onthis point created a misleading impression that, had they been asked questions theywould have given responses consistent with the evidence of AW on this point. He saysthat this was unfairly prejudicial.[31] In the written submissions, the appellant submitted that the two errors incombination resulted in a miscarriage of justice in that the appellant did not receive afair trial. In his oral submissions, Mr Walsh seemed to change his position to beingthat either of the alleged errors was capable of amounting to a miscarriage of justice.[32] The appellant expressly conceded that there could be no criticism of theJudge's direction to the jury that he had made a mistake and that a review of thetranscript confirmed that it was only AW who had given the relevant evidence. Theonly issue is therefore whether, by adding the sentence that the two other witnesseswere not questioned about the matter, prejudice of the type claimed arises.Our view[33] We are satisfied that the Judge made no error here. The Judge addressed thefactual error promptly. He took care to rectify any misunderstanding that his statementearlier in the summing up might have created in the jury. The way in which he did sopresented the true situation accurately. He explicitly told the jury precisely what wasnecessary in order to correct the error, namely that it was "only [AW]" who gaveevidence about her behaviour towards CL.[34] We are also satisfied that in saying that CL and LW were not asked anyquestions about AW's change of behaviour, the Judge did not somehow implicitlyfavour the Crown case or implicitly criticise the defence case. This clarification servedonly to emphasise the point he had just made, that only AW had spoken to any changeof behaviour on her part towards her stepfather. In fact, the additional sentence wasnecessary, as the notes of evidence reveal that LW had in fact given evidence that shehad noticed a change of behaviour on AW's part, albeit not specifically towards CL.The additional sentence was therefore accurate, necessary, and we are satisfied wasnot an implicit endorsement of the Crown case or criticism of the defence.[35] The fairness of a summing up must also be assessed in its context as a whole.The Judge gave a very thorough summing up which included strong directions onprejudice, sympathy and the different functions of the Judge and the jury. The Judgeemphasised that it was the jury which was the finder of fact, and its job was "to decideon all matters of fact". The Judge expressly highlighted that Judges "have no role indeciding on the facts" and instructed them not to think that "anything I say is intendedto influence you on how to decide the case or the verdicts, it is not". The jury wastherefore well aware that it was the sole arbiter of factual matters, and that even if itdid gain an impression of the Judge's opinion towards one side or the other (which weare satisfied was not the case here) it was not to be influenced by any such impressions.[36] We are satisfied the Judge's correction here sufficiently remedied any risk ofmisapprehension on the part of the jury that either did arise, or may otherwise havearisen if not for the correction. The error was minor in the context of the summing upas a whole and we are satisfied did not affect the outcome of the trial or render the trialunfair.Conclusion[37] We are satisfied that neither of the errors alleged on the part of the Judge, eitherindividually or collectively, raise any risk of a miscarriage of justice having occurred.[38] The appeal is dismissed.Solicitors:Crown Law, Wellington for Respondent