E (Ca799/2012) v R

• Jurisdiction: New Zealand
• Judge: Randerson
• Judgment Date: 19 December 2013
• Neutral Citation: [2013] NZCA 678
• Docket Number: CA799/2012 CA177/2013
• Court: Court of Appeal
• Date: 19 December 2013

Between

E (CA799/2012)

Appellant

and

The Queen

Respondent

Between

Krishna Gubbala

Appellant

and

The Queen

Respondent

Between

Frank Petrum Ngaropo

Appellant

and

The Queen

Respondent

[2013] NZCA 678

Court:

O'Regan P, Randerson and Harrison JJ

CA799/2012

CA451/2012

CA177/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Three appeals against conviction for sexual offending — appeals were heard together because they raised issues of general importance in criminal trials — whether juries should be warned about the risks of relying on the demeanour of a witness in assessing credibility — what form should a demeanour warning take — what factors were relevant to the exercise of the discretion to allow the videotaped evidence of a complainant in sexual cases to be replayed during the jury's retirement — whether directions should always be given concerning expert evidence.

Counsel:

P H B Hall QC and K H Cook for E

J H M Eaton QC and K H Cook for Gubbala and Ngaropo

A Markham and A Van Echten for Respondent

JUDGMENT OF THE COURT

• A All three conviction appeals (CA799/2012; CA451/2012; and CA177/2013) are dismissed.

• B Mr Gubbala's sentence appeal in CA451/2012 is also dismissed.

• C Counsel are to confer urgently and file a memorandum no later than 20 December 2013 as to the date from which E's sentence of home detention is to resume.

REASONS OF THE COURT

(Given by Randerson)

Table of Contents

	Para No
Introduction	[1]
The facts in outline	[3]
E	[3]
Mr Gubbala	[8]
Mr Ngaropo	[15]
The demeanour issue — submissions	[19]
Demeanour directions — discussion	[23]
Relevant authorities	[30]
Is a warning about reliance on demeanour invariably required and, if so, what form should it take?	[35]
Demeanour directions — summary	[51]
The replaying of the complainant's videotaped evidence after the jury's retirement	[52]
Discussion	[56]
The decision in S v R	[59]
Replaying of the complainant's video — summary	[67]
E's appeal	[68]
Mr Gubbala's appeal	[89]
Appeal against conviction	[89]
The demeanour issue	[93]
Expert evidence direction	[98]
Motive to lie	[101]
Sentence appeal	[105]
Mr Ngaropo's appeal against conviction	[110]
Discussion	[115]
Formal result	[124]

Introduction

1 These appeals were heard together because they raise two issues of general importance in criminal trials:

• • Should juries be warned about the risks of relying on the demeanour of a witness in assessing credibility?

• • What factors are relevant to the exercise of the discretion to allow the videotaped evidence of a complainant in sexual cases to be replayed during the jury's retirement?

2 These issues are the principal grounds of appeal against conviction in all three appeals. The appellant E and Mr Ngaropo have formally abandoned their appeals against sentence. Mr Gubbala maintains his appeal against sentence.

The facts in outline

E

3 E was convicted following a District Court jury trial on three counts of indecent assault of a girl under 16. The complainant was E's stepdaughter, then aged 13 years.

4 The Crown case was that on the evening of 30 December 2009, E was watching television with the complainant and her younger brother. After the younger child had gone to bed, E put his arm around the complainant and fondled her breast. After the complainant went to bed, E entered her bedroom where he rubbed her leg and then fondled her genitalia. She rolled over and faced the wall, whereupon E pulled up her t-shirt and kissed her on the back. The complainant told her mother about what had happened on the following morning.

5 The defence was that none of these things happened.

6 During the jury's retirement, they requested the replaying of a videotape of the complainant's evidence (which had been presented as her evidence-in-chief). After discussion with counsel, the Judge agreed to this and also read to the jury the entire transcript of the complainant's oral evidence. The Judge also gave the jury a further brief summary of E's defence. He did not give any direction to the jury about the assessment of the complainant's demeanour or how the demeanour of the witness might be used to assess her credibility.

7 E challenges his convictions on the grounds that:

• (a) There was no warning by the Judge about the risks of the jury relying on demeanour when assessing the complainant's credibility.

• (b) The risks were such that the video should not have been replayed.

• (c) There was no proper balancing of the prejudicial effects of repeating the complainant's evidence.

Mr Gubbala

8 Mr Gubbala was found guilty following a District Court jury trial on one count of sexual violation by rape and two of indecent assault. He was acquitted of a further count of doing an indecent act. He was sentenced by the trial Judge, Judge Treston, to an effective term of eight years imprisonment. 1

9 Mr Gubbala was employed as a caregiver at a community home for people with intellectual disabilities and mental health issues. The complainant, Ms P, lived at the home in full-time care. She has intellectual deficits and also suffers from bi-polar disorder and incontinence.

10 On the morning of 3 November 2009 Ms P was in her bathroom when Mr Gubbala entered the room. According to Ms P, Mr Gubbala pulled his penis out of his pants and rubbed it on her leg. He then pressed his hand inside her pyjama pants and rubbed her genitalia. When she returned to her bedroom, Mr Gubbala followed her inside and pulled down the blinds. He then pulled her pyjama pants down and raped her on the bed. He told her to have a shower and she did so.

11 Later the same day, Ms P complained to another caregiver and she was medically examined that evening. Swabs were taken from Ms P's genitalia and subsequent forensic testing revealed the presence of semen. DNA testing revealed a partial male profile that corresponded with Mr Gubbala's DNA, with a statistical probability of one million million. These results strongly suggested that the DNA on the vaginal swabs originated from Mr Gubbala.

12 Mr Gubbala denied the offending alleged. Expert witnesses called by the Crown were challenged as to the swabbing process and the risk of contamination of samples. The defence also pointed to the possibility of the complainant having access to Mr Gubbala's underwear and to a tissue or towel as possible sources of his semen.

13 In his summing-up, the trial Judge directed the jury, inter alia, that the demeanour of a witness could be a valuable aid in judging his or her reliability and credibility. No specific direction was given as to how to treat the expert evidence or on the question whether the complainant had a motive to lie.

14 Mr Gubbala challenges his convictions on three grounds:

• (a) The failure by the Judge to direct on the risks of considering demeanour as part of an assessment of the complainant's demeanour.

• (b) The failure to give a direction on the expert evidence called by the Crown.

• (c) The failure to give a direction in relation to motive to lie.

Mr Ngaropo

15 After a jury trial in the District Court, Mr Ngaropo was found guilty of one count of injuring with intent to injure, one count of threatening to kill, one count of kidnapping, and one of sexual violation by unlawful sexual connection (anal intercourse). He was acquitted of a further count of sexual violation by rape.

16 Mr Ngaropo and the complainant, Ms W, had been in a relationship for over a year. Their relationship was characterised by extreme but consensual sexual practices. In July 2010, the relationship ended. Ms W said she was concerned by increasing violence on Mr Ngaropo's part. On 15 July 2010, Mr Ngaropo arrived at Ms W's address despite her objections. That night and over the following two days, Ms W engaged in rough sexual activity, to which she said she had reluctantly consented. However, at the end of this period, Ms W's account was that Mr Ngaropo forcibly subjected her to anal intercourse to which she did not consent. In the course of this, she said Mr Ngaropo put her into a martial arts hold and subjected her to considerable physical violence. At one point, Ms W convinced Mr Ngaropo to let her go. She ran outside to get help but was dragged back inside again by Mr Ngaropo who threw her on the ground and subjected her to further serious physical violence.

17 Mr Ngaropo gave evidence at trial. He denied any violence on this or any other occasion and said that the sexual activity had been consensual.

18 In his summing-up, the trial Judge, Judge Doherty, gave directions to the jury on the issue of demeanour. The correctness of those directions is the sole ground relied upon by Mr Ngaropo to support his appeal against conviction.

The demeanour issue — submissions

19 We will deal with the two main issues raised at a level of general principle before addressing the individual cases.

20 The first issue relating to the demeanour of witnesses is common to all three appeals. This topic was addressed by Mr Eaton QC on behalf of Mr Gubbala and Mr Ngaropo. His submissions were adopted by Mr Hall QC on behalf of E.

21 The essence of the submission made on behalf of the appellants is that it is now well recognised by researchers and the courts that the demeanour of a witness can be an unreliable guide to the credibility of that witness. 2 While acknowledging that demeanour may have some relevance in assessing credibility, it is submitted that this should not...