B v R
| Jurisdiction | New Zealand |
| Judge | French J |
| Judgment Date | 18 February 2020 |
| Neutral Citation | [2020] NZCA 18 |
| Date | 18 February 2020 |
| Docket Number | CA463/2018 |
| Court | Court of Appeal |
[2020] NZCA 18
French, Gilbert and Courtney JJ
CA463/2018
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal — appeal against conviction for historical sexual offending — need for expert evidence on memory due to delay — need for expert evidence to be cogent and neutral — evidence of sexual experience of complainants in sexual cases — Evidence Act 2006
E P Priest and S J Gray for Appellant
I R Murray and J A Eng for Respondent
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A The appellant's application for leave to adduce further evidence is declined.
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B The appeal against conviction is dismissed.
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C The continuation of the interim order made in the District Court suppressing publication of the appellant's name is to be addressed in the District Court.
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D The appellant is to surrender himself to the Registrar in the District Court at Whangarei (103/109 Bank Street, Whangarei 0110) no later than 10 am on 21 February 2020 to commence his sentence of imprisonment.
(Given by French J)
B was convicted of historic sex offending following a jury trial in the District Court presided over by Judge Barry. The complainants were his two sisters. 1 The offending was alleged to have taken place in the 1960s and early 1970s when B was aged 15 to 26 years and the complainants aged between nine and 17.
B now appeals his convictions.
The appeal was heard by the Permanent Court at the same time as another appeal involving historic sex offending Ieremia v R. 2 The two cases were heard together because the grounds of appeal in both included arguments regarding the need for expert evidence on memory. Both appellants also sought to call “fresh” evidence from the same memory expert, Professor Strange. The appeals were heard by the Permanent Court because it was thought they potentially raised significant issues regarding memory evidence and its admissibility, including its admissibility as counter-intuitive evidence. However, after hearing oral argument, it became clear to us that neither appeal did in fact raise significant memory issues. We have therefore decided to deliver separate judgments for each appeal.
The older of the two complainants S alleged the offending against her began when she was about seven years of age and continued until she was about 13. Her allegations gave rise to eight charges against B:
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(a) two charges of rape;
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(b) two charges of indecent act with a girl under 12 — placing his fingers inside her vagina;
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(c) one charge of indecent act with a girl under 12 — kissing her body and lips;
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(d) one charge of indecent assault on a female — placing his fingers inside her vagina;
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(e) one charge of indecent assault of a girl under 12 — touching breasts; and
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(f) one charge of indecent assault on a girl aged 12 to 16 — putting his arms around her in bed.
The offending against the younger complainant K was alleged to have commenced at about the same time as the last offence was committed against S. By then, B had married and was no longer living in the family home. K's allegations gave rise to four charges:
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(a) one charge of indecent act with a girl under 12 years — inducing her to touch his penis; and
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(b) three charges of rape, the first of which, according to K, occurred when she was 13 and the other two when she was 15 and 16.
The sisters gave evidence that they only found out each other had been abused at a family gathering in around 2003 but were not ready to make a formal complaint until 2016 because of their mother's health. They went to the police together for mutual support.
B gave evidence at trial. He admitted two acts of sexual intercourse with K which he described as mutually initiated and consensual. He claimed the first occurred when she was 15, not 13 as she claimed, and he was 24. B denied that any sexual activity had ever taken place between him and S.
The defence case — and the basis on which the complainants were cross-examined — was that K was in love with B but had come to hate herself for it. After all these years, her memory was confused, she had duplicated the incidents in her mind and wrongly thought they had occurred earlier in time. Her complaint was said to be motivated by a vindictive desire to prevent B from being able to return to North America to re-marry. As for S, the defence claimed she was deliberately lying in order to blackmail B into giving her some property and to support K.
The jury acquitted B of two of the charges, one of the indecent assault charges relating to S and one of the rape charges (the second in time) relating to K. The Crown says the acquittals reflect uncertainties in the evidence about the timing of the allegations. B was found guilty of all other charges.
In this Court, B raises two grounds of appeal. 3 We turn first to address the primary ground of appeal which concerns the absence of any expert evidence on memory at trial.
In evidence, S made several references to “blanking” or “burying” her memories of the abuse, stating that “blanking” was her coping mechanism. She said this had continued into adulthood and affected her ability to recall normal adult memories of childhood. At the same time, she was able to recall the events of the allegations in significant detail despite the passage of time. Some of the detail she said she hadn't recalled until undergoing the evidential police interview. At the end of that interview, she spoke of “new” memories.
Ms Priest representing B on appeal submitted that S's evidence could be characterised as a recovered memory and that similar memory issues regarding recovered and repressed memories were raised by K's evidence. K also spoke of blanking out the detail and said she had been seeing a counsellor.
In those circumstances and having regard to the “extraordinary” length of the delay in this case, Ms Priest contended that expert evidence on memory should
have been called at trial. In terms of the requirements of s 25 of the Evidence Act 2006, it would have been substantially helpful to the jury. It would have assisted them to determine the reliability of the complainants' evidence by correcting widely held misapprehensions regarding memory as well as educating them on more complex areas of memory such as repressed and recovered memories which are beyond common knowledge and experienceIn support of these arguments, Ms Priest sought leave to adduce evidence from Professor Strange. Professor Strange is a professor of psychology who is heavily involved in the study of human memory, both as a teacher and researcher.
Her proposed evidence tendered in the form of a report contains a general overview of how memory works and then goes on to traverse issues of traumatic event processing, memory distortion, erroneous beliefs about memory, and specific factors which impact on the accuracy of memories including memory construction, psychopathology and therapy, confirmation bias, confidence malleability, age, drug use, re-telling of the memory, expectancy and motivation. Professor Strange opines that several of these factors were at play in this case and concludes that there were “numerous suggestive influences and factors” which could have led the two complainants to develop and maintain distorted and false memories.
At the hearing, Professor Strange was asked to comment on an admission from B that he had on two occasions lain on top of S and ground his penis against her lower body. The admission was not before the jury. Professor Strange opined that S's experience of “dry humping” could have formed the basis for memory distortion later.
Ms Priest accepted Professor Strange's evidence was not fresh in the sense that it was available at the time of trial. She also accepted the failure to call it could not properly be characterised as trial counsel error. 4 However she contended that in a “finely balanced” case which turned on the reliability of the two complainants,
the absence of expert evidence had caused a miscarriage of justice warranting the quashing of the convictionsIn response to Professor Strange's evidence, the Crown called evidence from a clinical psychologist Professor Brewin. He too is an expert on memory particularly as regards the effects of trauma on memory, a subject on which he is recognised as a world authority. Professor Brewin was critical of several aspects of Professor Strange's report.
We acknowledge as submitted by Ms Priest that further evidence can in rare cases be admitted on appeal, notwithstanding a lack of freshness or the absence of counsel error. 5
However, the evidence must be cogent and in our view Professor Strange's evidence is not cogent.
We say that for several reasons. The first is that unfortunately significant aspects of Professor Strange's evidence are speculative and lack the neutrality one would ordinarily expect of an expert witness. The report focuses selectively on the negative aspects of memory without acknowledging the research on memory accuracy and the preservation of memory over long periods of time. It also ventures opinions that are not based on proven facts, for example suggesting that the complainants might be suffering from post-traumatic stress disorder, that they may have taken drugs that rendered them susceptible to false memories, 6 and that when S wrote a letter about her abuse this may have been...
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