E (Ca366/2010) v R
| Jurisdiction | New Zealand |
| Judge | Venning J |
| Judgment Date | 06 September 2011 |
| Neutral Citation | [2011] NZCA 440 |
| Docket Number | CA366/2010 |
| Court | Court of Appeal |
| Date | 06 September 2011 |
[2011] NZCA 440
Stevens, Ronald Young and Venning JJ
CA366/2010
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against conviction for six counts of sexual violation by rape — defence challenged veracity of claim at trial and suggested that victim's evidence was recent invention — evidence given that complainant had told someone about the events at the time — whether s35(2) Evidence Act 2006 (a previous consistent statement admissible to respond to challenge to veracity on a claim of recent invention on the part of the witness) was engaged — whether trial judge correct to permit evidence of the victim's prior consistent statement to be led in re-examination.
E R Fairbrother for Appellant
M D Downs for Respondent
The appeal is dismissed.
REASONS OF THE COURT
(Given by Venning J)
Following trial in the District Court at Napier the appellant was convicted on six counts of sexual violation by rape. Two of the counts were representative. The victim in each case was the same. Judge Rea sentenced the appellant to 15 years' imprisonment. Mr E appeals against conviction.
At the time of the trial, the victim was 27 years old. The offending occurred when she was aged between 10 and 15. The victim had a difficult relationship with her mother during this time. As a consequence, she spent considerable periods of time in the care of others, including, from time to time, in a home where the appellant lived. She knew him as Uncle P.
The victim gave evidence that, after initially encouraging her to massage him, the appellant began touching her in a sexual manner. That progressed to the first act of rape which occurred when she was just 10 years old. The appellant raped her for the first time while her mother was at work. The victim had just had her first period and was scared her mother would be angry. She ripped up the sheets and put them in the rubbish.
The victim said the next rape occurred a number of months later at a relative's home where the appellant lived from time to time. The victim said she was coming up 11 or 12 at the time. Before the appellant raped her on this occasion he encouraged her to have a puff of a cannabis joint. The victim was left feeling lazy and floppy. She described another rape in the appellant's car at a local park. The appellant made her spot cannabis oil before that offence. At the time she was approximately 12 or 13 years old.
The victim said that after the incident in the park the rapes were ongoing. They happened once a week over the next two years while she was living with her mother. When she went to live at her relative's home it was about two or three times over the next two year period. The last occasion of rape was when the victim was turning 15. The appellant took her back to her mother's home and locked her in a room. He again raped her. Shortly after that incident the victim ran away from home.
The victim's mother, V, said that the victim told her (about a year before trial) that she was contemplating telling the police about the appellant's actions. V confronted the appellant. She said he just looked at her and cried. He then asked her not to tell his partner.
The defence at trial was that the incidents described by the victim had not happened. The victim had made the complaints up and had been encouraged by her mother to do so.
The Crown were to call two witnesses, the victim and her mother. In accordance with Crown protocol, 1 the victim was briefed on the morning of the trial by the prosecutor. At that time she disclosed, apparently for the first time, that when she was about 13 or 14 she had told another relative, N, about the appellant doing things to her.
After speaking to the victim, Crown counsel told defence counsel, Mr Forster, that he would need to be careful. By the conclusion of the first day the victim's evidence-in-chief had been completed and she was under cross-examination. In accordance with the defence strategy, counsel had challenged the victim's veracity and had suggested to her that she had made up the allegations and had been encouraged to do so by her mother.
After the jury were released for the night Crown counsel sought leave to re-examine the victim about whether she had previously complained of the accused's conduct. The Crown also asked the police to interview N. N was spoken to overnight. The job sheet of the interview recorded that N confirmed the victim had made a complaint to her some years earlier, when the victim was about 13 years old. The next morning the Crown sought leave to call N as a further witness to give evidence of that complaint.
Judge Rea ruled the proposed evidence admissible under s 35(2) of the Evidence Act 2006. The Judge ruled that, to defeat the defence suggestion that the
victim's evidence was recent invention, the victim could be re-examined about what she had previously said and also that N's evidence could be led:[4] … Section 35(2) of the Evidence Act 2006 clearly envisages the calling of such witnesses in circumstances such as this. Mr Forster, by his cross-examination, conducted, he advises me very much under instructions, has removed any veil of protection that existed for the admissibility of this sort of evidence and he is now faced with a situation where the Crown are entitled to call it and are entitled to re-examine the complainant about who she earlier made complaints of the accused's conduct to.
The victim was re-examined and the witness N called to give evidence in accordance with that ruling. N's evidence about the victim's complaint to her was that when the victim was 13 probably going on 14:
[She] came to us she was a bit upset and I asked her what was wrong and, um, she broke down crying even more and then she told me about [the appellant] doing all – touching her and stuff and, um, —
…
… I was – I was like shocked. I was – yeah. And, um, I wasn't too sure how to take it, really, and I just said to her, “Have you said anything to anyone?” And she said I was the first one she had told and I just told her that she should tell someone in her family and like her brother mainly …
The focus of the Mr Fairbrother's submissions for the appellant was that the trial Judge had erred in allowing the Crown to lead evidence from the victim in re-examination of her prior consistent statement and, more significantly, in permitting the Crown to lead the evidence of N as further evidence of the victim's prior consistent statement.
In his written submissions Mr Fairbrother also argued that the Judge had erred by failing to direct the jury on the relevance of N's evidence. But at the conclusion of his submissions he accepted that, even if that submission was made out, of itself it would not be sufficient for the appeal to succeed. That was a realistic concession.
The issue for this appeal is whether s 35(2) was engaged so that, in the circumstances of this case, the Judge was correct to permit evidence of the victim's prior consistent statement to be led, in re-examination of the victim and from N.
The first consideration is whether s 35(2) was engaged at all. Was there a challenge to the victim's veracity based on a claim of recent invention on her part?
Mr Fairbrother submitted that the threshold required to engage s 35(2) had not been reached in this case. He noted it was for the Crown to satisfy the Court that it was necessary to admit the witness's previous statement in order to respond to the challenge to the witness's veracity. 2 He submitted that the stage the cross-examination had reached at the time that the Judge ruled the evidence admissible was not sufficient to have engaged s 35(2).
While Mr Fairbrother accepted that questions had been put to the victim suggesting that she made up the complaints and that her mother encouraged her to do so, he submitted that, because the victim had denied those questions, there was no need to allow rebuttal evidence as there was no evidence to rebut. As he put it, a rejected question is not evidence of anything.
The submission is misconceived. Taken to its logical conclusion it would mean that s 35(2) could only ever be engaged if the witness accepted the claim of recent invention, and thus accepted that his or her evidence was made up.
The short answer to Mr Fairbrother's submission lies in the wording of s 35(2) itself. The question is whether there has been “a challenge to the witness's veracity or accuracy, based on … a claim of recent invention on the part of the witness”. What is required is a challenge to the witness's veracity on that basis. The challenge to the veracity can be by way of the questions put in cross-examination to
the victim: R v GKB (SC88/2010) 3 and Rongonui v R. 4 There is no need for the victim to accept the...To continue reading
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