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R v Bensitel CA133/06 [2006] NZCA 461 (5 October 2006)

Last Updated: 2 February 2014

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA133/06

THE QUEEN

v

ABDELGHAFOUR BENSITEL

Hearing: 27 July 2006

Court: Glazebrook, Arnold and Ellen France JJ Counsel: C J Tennet for Appellant

K B F Hastie for Crown

Judgment: 5 October 2006 at 10am

_{JUDGMENT OF THE COURT}

A The appeal is allowed and a retrial ordered.

2. Order prohibiting publication of the judgment and any part of the proceedings (except the result) in news media or on Internet or other

R V BENSITEL CA CA133/06 5 October 2006

publicly accessible database until final disposition of trial. Publication in

_{Law Report or Law Digest permitted.}

REASONS OF THE COURT

_{(Given by Glazebrook J)}

Table of Contents

_{Para No}

Introduction [1]

Should Mr Bensitel have been allowed to adduce evidence

that the complainant had accused another man of rape and

to cross-examine the complainant on that evidence? [3]

Should the trial Judge have allowed Mr Bensitel to call

evidence of the complainant’s reputation for untruthfulness? [10]

Did the Crown improperly close on the basis that the

complainant had no motive to lie? [19]

Were the directions on credibility and the lies directions confusing

and prejudicial to Mr Bensitel? [23]

Directions on credibility [24]

Lies directions [33]

Was there, despite any errors of law, nevertheless no substantial miscarriage of justice? [40]

Result [43]

Introduction

[1] Mr Bensitel was convicted, after a jury trial in Auckland, of four counts of sexual violation by rape and one count of threatening to kill. The offending allegedly took place while Mr Bensitel was staying with the complainant and her family as a boarder between June 1999 to June 2000. Mr Bensitel’s defence at trial was that these events never happened and that the complainant was lying.

[2] This appeal raises the following issues:

(a) whether Mr Bensitel should have been allowed to adduce evidence that the complainant had accused another man of rape and to cross-examine the complainant on that evidence;

(b) whether the trial Judge should have allowed Mr Bensitel to call evidence of the complainant’s reputation for untruthfulness;

(c) whether the Crown improperly closed on the basis that the complainant had no motive to lie;

(d) whether the lies direction and the directions on credibility were confusing and prejudicial to Mr Bensitel;

(e) whether, if there were errors of law, there was nevertheless no substantial miscarriage of justice.

Should Mr Bensitel have been allowed to adduce evidence that the complainant had accused another man of rape and to cross-examine the complainant on that evidence?

[3] Mr Tennet, for Mr Bensitel, submitted that the trial Judge, Judge Bouchier, should have allowed his counsel to cross-examine the complainant about an allegation of rape that she made against another man at the same time that she complained to the Police that Mr Bensitel had raped her. He submitted that he should also have been permitted to call the other man to deny the allegation and to attest that he had not been charged with that alleged rape. Mr Tennet contended that this evidence would show that the complainant lied about the rape by the other man and that this is a very relevant factor for the jury in assessing the complainant’s credibility in relation to the charges that Mr Bensitel faced.

[4] This Court has previously held that evidence of allegations of sexual misconduct against a complainant are subject to s 23A of the Evidence Act 1908, unless (perhaps) it is absolutely clear that the allegations were false. See R v Duncan [1992] 1 NZLR 528 at 535 (CA) and R v MacDonald CA166/04 8 April 2005.

[5] Section 23A provides that, without leave, no evidence can be called about the reputation of the complainant in sexual matters or relating to the prior sexual experience of the complainant with any person other than the accused. Leave will only be granted if the evidence is of such direct relevance to the facts in issue that its exclusion would be contrary to the interests of justice – see Cross on Evidence (Looseleaf) at para 9.65, R v McClintock [1986] 2 NZLR 99 (CA), R v Duncan and R v Accused (CA 92/92) [1993] 1 NZLR 553.

[6] In this case, if the complaint of rape by the other man was true, then the evidence can have no relevance at all to whether or not the complainant was also raped by Mr Bensitel. The evidence of the complaint can only have relevance if it was false. The only indications that the complaint may have been false are that the other man denies the allegation and that he has not been charged with the rape. We do not, however, know on what basis he denies the accusation and the fact of his denial does not necessarily mean that the complaint was false. We also do not know why he has not been charged and it would be speculation to infer that this is because the complaint was false.

[7] In addition, there is nothing to indicate that the complainant would say anything other than that the complaint against the other man was true. In the event that the complainant gave evidence to this effect, the defence could not call evidence from the alleged perpetrator to contradict her answer and attempt to prove that she did indeed make a false complaint. This is because evidence of a false complaint would, in the circumstances of this case, be regarded as collateral to the issues in the trial and (subject to exceptions which do not apply in this case) inadmissible on that basis. A propensity for making false complaints may well not be regarded as a collateral matter but the existence of one false complaint cannot be elevated into evidence showing such a propensity. See R v Accused (CA92/92) at 557 – 8 and Cross on Evidence at paras 9.64 - 65.

[8] Calling evidence from the other man in the case would also risk diverting the trial from its proper course. The trial of specific charges against Mr Bensitel cannot be allowed to escalate into an investigation of the allegation against the other man

where it does not appear that that allegation has any connection (apart from coincidence in the timing of the complaint) with those against Mr Bensitel.

[9] For all of the above reasons, the proposed evidence does not, in our view, meet the test for admissibility under s 23A.

Should the trial Judge have allowed Mr Bensitel to call evidence of the complainant’s reputation for untruthfulness?

[10] The Judge ruled that Mr Bensitel could not call a witness to give evidence about the complainant’s reputation for untruthfulness. Her view was that, while there is a general proposition that evidence can be given as to lack of veracity, the evidence in this case was irrelevant. Such evidence would result in there being “to-ing and fro-ing” on witnesses’ character. This was, in her view, a collateral matter. Mr Tennet, for Mr Bensitel, submitted that the Judge was wrong not to allow this witness to be called.

[11] The proposed witness was to give evidence that, from her knowledge of the general character of the complainant, she would not believe her on oath. She would have testified to having known the complainant for five years. She would have said that the complainant had talked to her a lot and that she was aware “of her contacts with her husband and others” and also “of what she does in her life”.

[12] Defence witnesses may give evidence that, from their personal knowledge of a prosecution witness or of that witness’ reputation, they believe such witness to be unworthy of being believed on oath. Defence witnesses cannot indicate, during their examination-in-chief, the particular facts, circumstances or incidents which formed the basis of their opinion but they can be cross-examined on these matters. See R v Brosnan [1951] NZLR 1030 (CA) and R v Accused (CA442/99) (2000)

17 CRNZ 577, which referred with approval to the restrictions outlined in

R v Richardson and Longman [1969] 1 QB 299 at 304 - 5.

[13] It is true that such evidence is not often led, but there is nothing in the caselaw to suggest that its admission is at the discretion of the Court if the restrictions set out in Richardson and Longman are met. The proposed evidence

conforms precisely to those restrictions. This means that Judge Bouchier should have allowed the witness to give the proposed evidence. Whether the proposed evidence could conceivably have made any difference to the outcome of the trial is, however, questionable.

[14] There was already plenty of evidence before the jury as to the complainant’s dishonesty. First, there was the evidence (admitted by the complainant) that she provided false details to the immigration authorities upon arriving in New Zealand, by making a false claim for refugee status, giving a false name and falsely claiming to have been born in Morocco. She also admitted having continued to use the false name while in New Zealand. Secondly, Mr Bensitel, in his evidence, alleged further lies on the part of the complainant. He said that the complainant had conspired with her husband to mislead the immigration authorities about her husband’s mental state. This was denied by the complainant. Mr Bensitel also claimed that the complainant’s motivation in fabricating the allegations against him was that he was a witness to her lies to the immigration authorities. He also alleged that her aim was to obtain compensation from ACC. The complainant admitted receiving counselling through ACC and that the family was experiencing financial difficulty but denied that she intended to seek compensation from ACC for the rapes.

[15] It is most unlikely that the Crown would have cross-examined the proposed witness on her evidence. This means that the jury would only have had a bare statement that the witness would not believe the complainant on oath to add to the already extensive evidence of the complainant’s dishonesty. It is unlikely that the jury would have found this extra evidence of much (if any) assistance. In addition, the proposed witness was also giving character evidence for Mr Bensitel and the jury could well have dismissed her evidence as being biased towards Mr Bensitel. Further, the ability to call such evidence is arguably archaic and its helpfulness to the jury in assessing credibility in modern times must be doubtful.

[16] On the other hand, there is no doubt that the Crown case depended almost entirely on the jury’s assessment of the complainant’s credibility. The lies to the immigration authorities were explained by the complainant, backed up strongly by Crown counsel in closing (see at [20] below) and even arguably by the Judge (see at

[38] below), in a manner that may well have minimised their impact on her credibility. In these circumstances, it is possible that evidence of the complainant’s general propensity to lie from a person who had known her for five years may have led at least some jurors to have a doubt about the complainant’s evidence. Whether any such doubt would be a reasonable one, if it was based on the excluded evidence alone, might be questionable but we cannot totally discount the possibility that, taken with all of the other evidence, it may legitimately have tipped the balance for some jurors.

[17] Before we leave this topic, we note that cl 33 of the Evidence Bill (which is currently before Parliament) provides that a party may offer evidence about a witness’ truthfulness only if the evidence is substantially helpful in assessing that person’s truthfulness. Clause 33(3) sets out some matters that the judge may consider when determining whether evidence is substantially helpful in assessing a witness’s truthfulness. Included in the list is whether the evidence tends to show that the person has a reputation for being untruthful.

[18] If the Evidence Bill is passed, the cases discussed above at [12] may have to be reconsidered in light of the new test. It does not seem to us that evidence of one person’s view of whether a witness is truthful or not (with no indication as to the grounds for belief) is, in most cases, likely to be substantially helpful in assessing a witness’ truthfulness. Evidence of general reputation among the relevant community for telling lies may, however, be of more assistance.

Did the Crown improperly close on the basis that the complainant had no motive to lie?

[19] Mr Tennet, for Mr Bensitel, argued that the Crown should not have closed its case on the basis that the complainant had no motive to lie about the rapes, when it was aware of the excluded evidence of her reputation for untruthfulness. In addition, he submitted that the prosecution acted improperly, in the light of the excluded evidence, in attempting to explain away the lies the complainant was shown to have told in relation to immigration matters.

[20] The Crown in closing submitted strongly that the complainant was a witness of truth. Among other things, Crown counsel submitted that there was no logical reason why this “quiet, unassuming, devoted, family woman, this Muslim woman would make these allegations up”. Crown counsel said that it was nonsense that the complainant was motivated by the prospect of compensation and that it was a “ridiculous suggestion” that the husband’s ill health was some sort of creation. As to the lies that she had told to immigration authorities, the Crown submitted that the complainant’s actions, while not acceptable, were understandable as her motive in lying was to reunite her family.

[21] In our view, some of the language used in the Crown closing was intemperate and thus inappropriate. However, the Crown was entitled to comment on the complainant’s credibility and on Mr Bensitel’s contention that the complainant had an ulterior motive to allege rape. The Crown was also entitled to highlight the complainant’s explanation of her lies to the immigration authorities. There is nothing in the excluded evidence to make this improper. The excluded evidence was after all just a bare statement of one woman’s opinion of the complainant’s truthfulness and did not bear directly on the question of ulterior motive for making the allegations against Mr Bensitel or the reason the complainant had lied to the immigration authorities.

[22] There was, however, in the Crown’s closing address, a strong concentration on the complainant’s lack of motive for lying and a strong rebuttal of the suggested motives put forward by Mr Bensitel. In these circumstances, we consider that the Judge should have directed the jury that it was not for Mr Bensitel to prove motive - see R v T [1998] 2 NZLR 257 at 265 – 6.

Were the directions on credibility and the lies directions confusing and prejudicial to Mr Bensitel?

[23] Although not one of the specific grounds of appeal, Mr Tennet, on behalf of Mr Bensitel, submitted that the Judge’s directions on the process for assessing Mr Bensitel’s evidence and the lies direction given by the Judge were confusing and prejudicial. The Crown submitted that the Judge gave the standard directions on

assessing the evidence and lies. It follows that these directions were not confusing and prejudicial.

Directions on credibility

[24] In her summing up, Judge Bouchier said that Mr Bensitel’s evidence may have three possible effects. First, if the jury concluded that his evidence was truthful and reliable, then that would be an answer to the Crown case. Secondly, if his evidence left the jury with a reasonable doubt as to the true position, then the Crown would have failed to prove its case beyond reasonable doubt. Thirdly, the jury might reject Mr Bensitel’s evidence as being unreliable and not credible. The Judge said that, in such a case, the jury would set his evidence completely aside and decide whether, on the rest of the available evidence, guilt has been established.

[25] It may have been better for the Judge to state explicitly that acquittal should follow the first and second effects but we accept the Crown submission that the direction was essentially the standard tripartite direction commonly given when an accused gives evidence.

[26] Earlier on in the summing up, however, Judge Bouchier had given some truncated directions on assessing Mr Bensitel’s evidence and it is these directions that Mr Tennet submitted would have caused confusion. The Judge said:

[12] The next general point is the effect of the accused giving evidence. He does not pick up any burden of proof because he has given evidence but you might accept his evidence – that none of these charges happened; he may have created a reasonable doubt. If so, you would find him not guilty.

[13] Or, you might reject his evidence on the essential ingredients, or be unsure whether to accept or reject his evidence and in either case you still examine all the evidence to decide whether the Crown has proved the essential ingredients of each charge beyond reasonable doubt.

[27] We accept Mr Tennet’s submission that there are problems with the Judge’s earlier directions regarding Mr Bensitel’s evidence. The Judge stated, at [12], that, if the jury accepted his evidence that none of these events happened, Mr Bensitel may have created a reasonable doubt. This is incorrect as it is clear that, in such a case, the evidence would create a reasonable doubt and the jury should acquit. This

possible semantic error is, however, inconsequential, as she immediately stated “[i]f so, you would find him not guilty”.

[28] The Judge was also in error when she told the jury, at [13], that, if they were unsure whether to accept or reject Mr Bensitel’s evidence, they should still examine all the evidence to decide whether the Crown has proved the essential ingredients of each charge beyond reasonable doubt. If the jury considered that Mr Bensitel’s evidence might be true, a reasonable doubt would have been created and acquittal should follow. The Judge did make this clear in her later tripartite directions and she also referred to both the onus and standard of proof being on the Crown in [13]. These directions would have dispelled, in our view, any confusion that may have been created and overall they sufficiently advised the jury of the correct approach. A similar conclusion was reached by this Court in relation to a similar direction in R v McI [1998] 1 NZLR 696 at 708 and in R v Payne [2004] NZCA 3; (2004) 20 CRNZ 790 at [20] - [24].

[29] There is, however, another issue. The Judge, after describing the elements of sexual violation by rape, summarised the issues as follows:

[36] So three matters to prove: penetration, no matter how brief or slight, of the woman’s genitalia by the penis of a man; that that occurred without the woman’s freely given consent; and it occurred without the man believing, on reasonable grounds, that she did consent. But – the key issue here is – did these five sexual violations by rape happen (as [the complainant] says) or not happen at all (as Mr Bensitel says).

[30] Outlining the key issue in the above manner, without reminding the jury of the standard of proof, ran the risk of the jury perceiving the case as a straight credibility contest between the complainant and Mr Bensitel with their task simply to choose between the evidence of the complainant and that of Mr Bensitel. While it is good practice to link the elements of the offence with the actual issues in the particular case, it is necessary to remind the jury in that context both that it is for the Crown to prove all elements of the offence and that it must do so beyond reasonable doubt: see R v Wanhalla CA321/05 and CA 324/05 24 August 2006 at [51] and [115]. This is particularly so where the case essentially turns on credibility. An inverted direction can often be of benefit. In this case, for example, the jury could

have been told that, if there was a reasonable possibility that the rapes did not happen, then they should acquit.

[31] The issue is whether there is a risk that the jury would have misconstrued its task, taking into account the summing up as a whole. In R v Boardman CA173/03

29 October 2003 it was held that the directions as a whole meant the jury would have understood the onus and standard of proof, despite a comment that might have suggested a straight credibility contest between the accused and the complainant. The opposite result was reached in R v Tanielu CA409/02 6 May 2003.

[32] While the Judge in this case undoubtedly gave the standard directions on the standard of proof and the standard tripartite direction, these were given earlier and not repeated at the critical time when the Judge identified the “key issue” for the jury or, indeed, at any later point in the summing up. We consider, therefore, that (in combination with the other matters discussed in this judgment) there is a risk that the jury could have been left with the erroneous impression that their task was simply to choose between Mr Bensitel’s and the complainant’s evidence.

Lies directions

[33] As indicated above, Mr Tennet also took issue with the lies direction given by the Judge. The lies direction was given after the tripartite direction and was directed to Mr Bensitel’s denial that he committed the offences. It was in the following terms:

[28] Now, also, the Crown has alleged that the accused has lied in this trial in denying the six counts. You must be satisfied that he did tell a deliberate lie in denying these offences. If you are satisfied that he did tell a deliberate lie then, again, you must be careful about the weight that you place on that because the mere fact that an accused person did tell a lie (if that is what you find) is not itself evidence of guilt. You must ask yourselves what may have prompted him to do so. Because people lie for different reasons – for example, to protect someone else, because they are embarrassed, panic, confusion, matters of that kind. If you are satisfied that there was a deliberate lie here you might regard it as a relevant factor in assessing his credibility – that is, whether you can rely on his evidence. But that is a matter for you.

[29] But it is important for you to guard against any tendency to think that, if the accused has told a lie (if you find that), that he must be guilty of the offences charged, for that reason alone.

[34] It is not appropriate to give a lies direction where the only alleged lie is a denial of the very offending with which the accused is charged. See R v Gutuama CA 275/01 13 December 2001, R v Atkinson CA546/99; CA553/99; CA69/00

19 April 2000 at [12] - [14], and R v Nazif [1987] 2 NZLR 122 at 127. Effectively, the jury were instructed in this case that, if they were satisfied Mr Bensitel was lying when he denied committing the offences, then they could take that into account when deciding if Mr Bensitel was lying when he denied committing the offences. This is totally circular and could only have served to confuse the jury. In addition, while the lies direction in this case emphasised that lying was not proof of guilt, it still suggested some weight could be placed on any lies (“you must be careful about the weight you place on that”).

[35] The correct position is as set out in the tripartite direction. If there was a reasonable possibility that Mr Bensitel was not lying, then the Crown would not have proved its case. Even if the jury thought that Mr Bensitel was lying they still had to be sure that the Crown had proved its case before they could convict. In this case that meant that they had to be sure that the complainant was telling the truth about the offences. The lies direction failed to remind the jury of this. It was thus incomplete and risked undermining the tripartite direction.

[36] We are conscious that this Court said in R v S CA104/04 8 September 2004 that the giving of a lies direction is not necessarily fatal, even where the alleged lies are a denial of the offence. In R v S, although the lies direction was held to be superfluous and apt to be confusing, it was seen as being, if anything, helpful to the accused. The lies direction in R v S was, however, different to the direction in this case.

[37] In R v S, the Judge integrated the relevance of “lies” into the tripartite direction and tied it into the facts of the case, making it clear that, unless the jury were sure that the accused’s denial was false and that the complainants were telling the truth, then they would find him not guilty. In Mr Bensitel’s case, the lies

direction was given after the tripartite direction and as a separate direction, with no mention of the need to be sure that the complainant was telling the truth. Further, in R v S the Judge did not, as the Judge did in this case, state that, if the jury was satisfied that the accused lied in his denial of the offence, then this is relevant to his credibility. As we said above, this was circular and therefore had the real potential of confusing the jury.

[38] There is a further point of concern. The lies direction with regard to Mr Bensitel’s evidence was preceded by a truncated “lies” direction in relation to the complainant’s evidence. The Judge said:

[27] Now you have heard allegations of lying here to-ing and fro-ing in this case and the defence cross-examined [the complainant] on the fact that she lied to Immigration officials, when she arrived in New Zealand, about her name and country of origin, and destroyed her Indonesian passport. She has agreed that she did so. And the defence have led, in evidence, the actual documents. You may regard this as a relevant factor in assessing her credibility – that is, whether you can rely on her evidence. However she has given an explanation as to why she did that but because a person has told a lie that does not necessarily mean that everything they say is untrue, but it is a matter for you to decide and assess.

[39] The giving of a lies direction with regard to the complainant’s evidence was unorthodox. The juxtaposition of that lies direction with the lies direction in relation to Mr Bensitel’s evidence exacerbated the risk of the jury considering wrongly that it was a straight contest between believing the complainant’s evidence and that of Mr Bensitel. Further, oddly, given the content of the lies direction in relation to Mr Bensitel, the complainant’s lies direction did not cover the most important aspect of the complainant’s alleged lies from the defence perspective – about the offences themselves. In addition, the jury were reminded of the complainant’s explanation of her lies. While the Judge made it clear that it was a matter for the jury to assess, this risked adding weight to that explanation and minimising the possible significance of those lies.

Was there, despite any errors of law, nevertheless no substantial miscarriage of justice?

[40] The Crown submitted that the Court should apply the proviso to s 385(1) of the Crimes Act 1961 and dismiss the appeal. The proviso allows the Court to

dismiss the appeal if it considers that, despite the fact that the point raised in the appeal might be decided in the appellant’s favour, no substantial miscarriage of justice actually occurred. In the Crown’s submission, the directions on assessing Mr Bensitel’s evidence and the lies directions would not have led the jury to misconstrue its task in the context of the summing up as a whole. Further, when considered alongside the evidence at trial, the evidence of the complainant’s reputation for untruthfulness would not have taken the jury any further. The Crown pointed out that the jury heard evidence that the complainant had told lies to persons of authority. By contrast, Mr Bensitel confirmed he has no previous convictions and called seven witnesses who attested to his good reputation for honesty in the community. Accordingly, in the Crown’s submission, the absence of the proposed evidence has not resulted in a substantial miscarriage of justice.

[41] There are two possible approaches to an appellate court’s task when applying the proviso to s 385(1). The traditional approach is for the Court to apply the proviso if it considers that the jury would without doubt have convicted had the error not occurred – see R v McI at 712. The alternative approach, based on the High Court of Australia’s recent decision in Weiss v R [2005] HCA 81; (2005) 223 ALR 662, is that the Court itself must determine whether the accused was proved beyond reasonable doubt to be guilty. This Court has recently considered the application of the proviso in R v Haddon CA311/05 9 May 2006 and R v Wilson CA433/05 3 July 2006 but did not find it necessary to come to a definitive view on whether the Australian approach to the proviso should be followed in New Zealand. There were, however, comments in R v Haig CA267/04 23 August 2006 at [60] favouring the traditional approach.

[42] In this case, the combination of the lack of a direction that Mr Bensitel did not need to prove motive, the possible impression given to the jury that the case was a straight credibility contest between the complainant and Mr Bensitel, the problems with the lies directions (particularly with regard to the complainant) and the exclusion of the evidence of the complainant’s reputation for untruthfulness means that it is impossible for us to conclude that there has been no substantial miscarriage of justice, whether the traditional or the Weiss approach is taken.

Result

[43] For the reasons given above, the appeal is allowed and a retrial ordered.

Solicitors:

Crown Law Office, Wellington