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R v LR CA572/95 [1996] NZCA 287 (12 September 1996)

Last Updated: 13 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 572/95

_{THE QUEEN}

V

_LR

Coram: Henry J Heron J Anderson J

Hearing: 2 September 1996 (at Auckland)

Counsel: J Haigh QC and G Hollister-Jones for the Appellant

K Raftery and M Treleaven for the Crown

_{Judgment: 12 September 1996}

_{JUDGMENT OF THE COURT DELIVERED BY HENRY J}

This is an appeal against conviction following trial in the High Court at Hamilton on two counts of sexual violation, five of indecent assault and one of attempted rape. An appeal against the effective sentence of 5 years imprisonment is not pursued. The offences, which covered the period May 1992 to December 1992, all concern the same complainant who turned 14 years of age in August 1992.

The complainant and her parents lived in the rural community of

[P], where the appellant also resided. He was then aged about 32 years. The

most serious offending was one of attempted rape. Four counts alleged licking of the complainant’s genitalia, two of unlawful sexual contact between her mouth and the appellant’s penis, and one of indecent touching of her genitalia. The appellant, who gave evidence at trial and also called other witnesses, including alibi witnesses in respect of some of the offending, denied any sexual activity had taken place. It is also relevant to note that for the purposes of the appeal it is common ground that the complainant stated that she had a relationship with a Mr IS which involved consensual sexual intercourse between them on a number of occasions between mid December 1992 and February 1994. In July 1994 Mr IS, who denied any sexual relationship with the complainant, was acquitted on a charge of sexual intercourse with a girl under the age of 16 years. The initial complaint against Mr IS was made on 8 March 1993, and that against the appellant on 19 March 1993. At the relevant times Mr IS was employed by the appellant and lived in [P] with his own wife and children.

Three grounds of appeal are now propounded.

Refusal to allow cross-examination of complainant on her sexual experience with

Mr IS

Towards the end of the second day of the trial when the complaint was still under cross-examination, counsel for the appellant applied for leave under s.23A of the Evidence Act 1908 to question her on her sexual relationship with Mr IS. The relevant provisions of the section read:

“(2) In any case of a sexual nature, no evidence shall be given, and no question shall be put to a witness, relating directly or indirectly to -

(a) The sexual experience of the complainant with any person

other than the accused; or

(b) The reputation of the complainant in sexual matters, - except by leave of the Judge.

(3) The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevant to -

(a) Facts in issue in the proceeding; or

(b) The issue of the appropriate proceeding, -

as the case may require, that to exclude it would be contrary to the interests of justice:

Provided that any such evidence or question shall not be regarded as being of such direct relevant by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.”

This application was dismissed. The principles applied are now well established, and are exemplified in R v McClintock [1986] 2 NZLR 99.

The first enquiry is whether the complainant’s consensual sexual relationship with Mr IS was of direct relevance to facts in issue. At trial, and again in this Court, it was contended that the complainant’s allegations were false, and were made in retaliation for the appellant’s attempts to interfere with her relationship with Mr IS. It would appear that the defence was also intending to suggest that the allegations against him were untrue, presumably as a basis for the contention that the complainant was prone to making unfounded allegations of being subjected to sexual misconduct. In the course of the hearing of the s.23A application it was clearly signalled to the Judge that Mr IS was to be a defence witness, and reference was made in that context to his earlier acquittal on the charge of unlawful sexual intercourse. There is an obvious inherent inconsistency between the two contentions, one of which is dependent upon the truth of the complainant’s allegations, and the other upon their falsity. Inconsistency of approach, whatever the practical problems which may result for the defence, is however not the test.

A fact in issue was whether the complainant had reasons for making a false allegation against the appellant. It was intended to adduce evidence that in February

1993 the complainant told her parents that Mr IS was going to leave his wife and children and also his employment with the appellant, and then to live on a neighbouring property with the complainant acting as his housekeeper. It was further suggested that the appellant spoke to the complainant later that same month, and said to her “What’s these rumours you’re spreading about [IS] leaving me and going to work for the [B’s], and leaving [C] and the kids to live in [B’s] cottage with you as his housekeeper. This has to stop, and you’ve got to stop going to [IS’s].” The complainant is said to have responded “I’m going to get you”. The threat about “getting” the appellant was allegedly later repeated to Mr IS.

The effect of the Judge’s ruling was that although the complainant could be asked in general terms whether she was a close friend of Mr IS’s, the sexual nature of that relationship could not be elicited. It seems to us that when interference with the continuation of a relationship is put forward as the reason for making a false allegation its true extent is of direct relevance to that issue. Unless there is full disclosure, a tribunal will be working on incomplete information. The possible relevance of other incidents of alleged sexual activity was recognised in such cases as R v Duncan [1992] 1 NZLR 528,535 and R v Accused (CA 92/92) [1993] 1 NZLR

553,556-7. The present appeal is not an instance of what is sometimes described as transferred liability, nor is the basic allegation simply that the complainant has a propensity to make false complaints of sexual molestation. For that reason similarity or dissimilarity of conduct alleged respectively against the appellant and Mr IS has no real significance, and accordingly does not affect the relevance earlier identified. Probably as a result of the way in which argument proceeded in the High Court in his ruling the Judge placed considerable weight on the absence of similarity.

Once direct relevance is established, the next enquiry is whether exclusion would be contrary to the interests of justice. We do not think the proposed questioning could be classed as mere character-blackening, or of a kind which the section is primarily aimed at preventing. The sexual nature of the relationship here is not being used for the purpose of demonstrating that the complainant is therefore not a credible witness, but to demonstrate the existence of a reason for making a false allegation. It concerns conduct, freely admitted by the complainant, which occurred at a time and in circumstances which are relevant to the charges now in question. In that situation we are of the view that exclusion would be unjust, and would deprive the defence from having the opportunity of placing the full picture before the jury. Any possible adverse consequences for the complainant in allowing such disclosure is outweighed by that factor. Although of lesser importance, the sexual nature of the relationship could have relevance to a consideration of the cause of behavioural problems noticed in the complainant. These commenced prior to the IS relationship, but appear to have intensified in late 1992 and early 1993. For these reasons we conclude that there was a wrong decision on a question of law, and leave to cross-examine should have been permitted.

It remains to consider whether the proviso to s.385(1) should be applied, for which purpose we have examined the relevant trial evidence. It shows that defence counsel was able to obtain confirmation that the complainant developed a close relationship with Mr IS, and that she discussed her own family problems with him. The complainant also agreed that she blamed the appellant for starting rumours about her, for being responsible for her parents restricting her visits to the IS home, and that she resented the appellant interfering in her friendship with Mr IS. The cross-examination was therefore able to proceed some distance in establishing a foundation for the claim of malicious fabrication. However the nature, extent and

intensity of the relationship necessarily remained undisclosed as a result of the ruling. After careful consideration, we cannot say with confidence that disclosure of the sexual nature of the relationship would have resulted in the same outcome. Disclosure may have influenced the jury’s deliberations, and in particular the assessment of whether there was a tenable basis for the defence explanation for making a false complaint and possibly another explanation for the behavioural problems.

_{Accordingly we are of the view that the appeal should be allowed.}

_appeal.

For the sake of completeness we deal briefly with the other two grounds of

Crown counsel comment on the failure of appellant’s wife to give evidence

We take the view that there was a breach of s.366(2) of the Crimes Act 1961. In the course of what was apparently a full and detailed final address and when referring to the defence alibi evidence in respect of incidents which occurred on Christmas Day 1992, Crown counsel said “not surprisingly we don’t hear from his wife [W]”. A little later in his address there was reference to the car in which the appellant travelled, and the presence in it of the wife and children “who haven’t given evidence”. It is arguable whether the second comment could be said to be “adverse” within the meaning of s.366(2). The first comment we think can properly be so described. But its possible effect must have been minimal, and in the overall circumstances we do not think any harm resulted. Significantly, although the matter was raised at the time by defence counsel with Crown counsel, no objection or reference was made to the trial Judge, and in particular there was no application to discharge the jury. It is a matter which could have been raised with the Judge timeously, and a failure to do so makes it difficult now to contend there was a

miscarriage of justice. If the matter was of real significance, there was ample opportunity for appropriate steps then to have been taken. In our view it is too late now to rely on this point.

Disallowing cross-examination of the complainant on her previous statement to a psychologist

The complainant was seen by Dr Calvert, a psychologist, on 11 November

1994. Although possibly protected by privilege, the psychologist’s notes of interview were made available to the defence. Those record a remark by the complainant when asked about going to Court - “I know I have to”. She is also recorded as saying that her parents would be mad at her if she did not. It appears that at an earlier trial (which resulted in a disagreement) cross-examination on this statement was permitted. The Crown took no objection at either trial. The Judge was properly concerned over possible unfairness resulting from disclosure of the psychologist’s file note, and also referred to possible resulting difficulties in putting the remarks in full and appropriate context. Having regard to the fact of disclosure, we doubt whether there were proper grounds for prohibiting proper use of the knowledge obtained by the defence from the file note. What is doubtful however is the possible significance of any such statements made by the complainant. The file note itself could not be put in evidence, nor could its contents be adduced through any witness except possibly Dr Calvert, and then only for very limited purposes. Even assuming confirmation from the complainant that she had made those two comments, they would seem to add little of relevance to any of the critical issues. Moreover possible reasons for the complainant going to Court could be pursued independently of the file note. We do not think there is any substance in this ground of appeal and we are satisfied no injustice resulted from the ruling.

Conclusion

As earlier expressed we are of the view that leave should have been granted to cross-examine the complainant on her sexual experience with Mr IS. Any such cross-examination would of course have to be conducted fairly and in accordance with the purpose for which leave is given. We have also found that it is not a case for the operation of the proviso.

The appeal is therefore allowed, the convictions quashed, and a new trial is directed on those counts.

Solicitors

Crown Solicitors, Auckland, for the Crown