CT v R

JurisdictionNew Zealand
JudgeElias CJ,McGrath,William Young JJ,William Young J,Glazebrook,Arnold JJ,Glazebrook J
Judgment Date30 October 2014
Neutral Citation[2014] NZSC 155
Docket NumberSC 88/2013
CourtSupreme Court
Date30 October 2014
Between
CT (SC 88/2013)
Appellant
and
The Queen
Respondent

[2014] NZSC 155

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

SC 88/2013

IN THE SUPREME COURT OF NEW ZEALAND

Appeal from a Court of Appeal decision which dismissed the appellant's appeal against his conviction in the District Court on one count of indecent assault and one representative count of inducing an indecent act — counts related to events in the early 1970s — the complainant complained to the police in 2007 and the appellant was charged in 2012, around 40 years after the alleged offending — appellant had sought a stay before the trial began and at the close of the prosecution's case after the complainant's evidence had changed significantly from her original statement — whether the appellant's trial was unfair by reason of delay and prejudice — whether a stay should have been granted — whether the directions given to the jury were sufficient to outweigh any risk of prejudice — consideration of principles when deciding whether to grant a stay.

Counsel:

W Lawson and T D Grimwood for Appellant

M J Lillico and A R van Echten for Respondent

The appeal is allowed and the convictions of the appellant are quashed.

JUDGMENT OF THE COURT

REASONS

Para No

Elias CJ, McGrath and William Young JJ

[1]

Glazebrook and Arnold JJ

[59]

Elias CJ, McGrath and William Young JJ

(Given by William Young J)

Table of Contents

Para No

The appeal

[1]

Background

[6]

Prosecutions for historical sexual abuse and the problem of delay

[13]

The stay decisions of the District Court Judge

[17]

The first decision refusing a stay

[17]

The refusal of the second stay application

[22]

The approach of the Court of Appeal to delay and prejudice

[24]

Was the appellant's trial necessarily unfair by reason of delay and prejudice?

[26]

The principles to be applied

[26]

Did delay and prejudice preclude a fair trial in this case?

[33]

Was the trial in fact fair?

[40]

More general comments

[50]

The warning given by the Judge

[52]

Was the warning adequate?

[54]

Disposition

[58]

The appeal
1

Following his trial before Judge McGuire and a jury in the District Court at Rotorua, the appellant was found guilty on two counts: one count of indecent assault and one representative count of inducing an indecent act. His subsequent appeal to the Court of Appeal was dismissed. 1

2

The case against the appellant related to events in the early 1970s. The complainant complained to the police in August 2007 and the appellant was charged in March 2012, around 40 years after the alleged offending.

3

In the District Court, the appellant twice sought a stay of proceedings on the basis of forensic prejudice caused by delay. These applications required the trial Judge to determine whether the appellant could receive a fair trial despite the delay. Even though the second of the applications was made during the trial, the issue for the Judge was still essentially forward looking in nature, that is, whether the appellant could receive a fair trial. There is no right of appeal against the refusal of a stay. Instead, in both the Court of Appeal and this Court, counsel for the appellant maintained that there was a miscarriage of justice within the meaning of s 385(1)(c) of the Crimes Act 1961. This argument requires an assessment whether the

appellant's trial, as it turned out, was unfair. Such assessment is thus backwards looking and must take into account the way the trial was conducted, including the directions that were given by the Judge to the jury
4

Although the question for the Judge on the pre-verdict stay applications was not precisely the same as the question we must determine for the purpose of the appeal, it is convenient, for ease of discussion, to refer to both of them as turning on delay and prejudice. Unless the context otherwise requires, we will use the expression “delay and prejudice” as applicable to both stay and post-conviction arguments.

5

The results of the stay applications can be regarded as subsumed in the verdicts of guilty and, for the reasons given in [3] above, the ultimate question for this Court is whether there was a miscarriage of justice. That said, we consider it will be helpful for trial judges if we confront directly the correctness of the stay decisions. For this reason, we will address the appeal broadly by reference to the questions whether:

  • (a) the delay between the alleged offending and prosecution, and any associated prejudice, meant that the appellant could not receive a fair trial; and

  • (b) the Judge summed up adequately in relation to that delay.

Background
6

In 1970, the complainant, then aged 10, was living with her family in a small North Island town. The appellant was 23 and was, as he still is, married to the complainant's oldest sister. During that year, the appellant, his wife and their two children came to New Zealand from Australia. They stayed in New Zealand for a number of years. For some of this time, they were based at the complainant's family home. They also lived in other places, including Rotorua and Taupo.

7

In August 2007, the complainant complained to the police that the appellant had sexually abused her at and near her family home and also in Rotorua and Taupo. She made a detailed statement to the police about what had happened. The police investigation took some years to complete. The appellant was interviewed by the New Zealand Police in Brisbane in August 2011 and was finally charged on 7 March 2012. The delay between the complaint and the charge appears to have been partly due to the appellant living in Australia at the time. In the arguments before us, no point was made as to this component of the delay between the alleged offending and prosecution.

8

The complainant's August 2007 statement to the police formed the basis of both her committal statement and, in turn, the indictment, which alleged:

  • (a) offending at or near the family home, involving an indecent assault (count one), a representative count of rape (count two) and a representative count of inducement of an indecent act (count three);

  • (b) offending at Taupo, involving a representative count of rape (count four); and

  • (c) offending at Rotorua, involving representative counts of rape (count five) and indecent assaults (counts six and seven). 2

9

The appellant applied for a stay of the proceedings before his trial commenced. He complained of the pre-charge delay and contended that it would be impossible for him to have a fair trial which met the requirements of s 25(a) of the New Zealand Bill of Rights Act 1990. This application was dismissed. 3 We will review later the basis upon which the application was advanced and the reasons given by the Judge for dismissing it.

10

When she gave her evidence at trial, the complainant did not mention the Rotorua allegations which formed the basis of counts five to seven. As well, when she came to the incident in Taupo – which was the basis of the count four allegation of rape – she described offending which was confined to the appellant inducing her

to do an indecent act. She did, however, say that the appellant had raped her near her family home at a location – the gravel bank – which she had not previously mentioned
11

The Judge permitted the Crown to amend the indictment by dropping counts four to seven and substituting, for the representative count alleging rape, two non-representative counts alleging rape, one “in the dredging pond” and the other “on the gravel bank”. The appellant renewed his application for stay, which was again dismissed. 4

12

The jury found the appellant guilty of indecent assault and inducing an indecent act. He was, however, acquitted on the two counts of rape.

Prosecutions for historical sexual abuse and the problem of delay
13

The present case has a number of features which are common to many prosecutions for historical sexual abuse: a complainant who at the time of the offending was comparatively young, an alleged offender who was older, a broader relationship between them (in this case familial) providing the context for the alleged offending and a delay of decades between the alleged offending and prosecution. Cases of this sort pose significant problems for the courts. The rules and procedures which have grown up around criminal trials, particularly as to reliance on oral evidence based on memory, were developed in the context of cases in which the delay between offending and trial is usually comparatively short and where at least some aspects of the narratives of prosecution witnesses can be checked by reference to independent evidence. Compared to that norm, prosecutions for historical sexual abuse give rise to particular forensic problems which were identified in an Australian case as involving: 5

As well, those facing prosecution may be well-advanced in years and sometimes subject to age-related cognitive impairment or other serious health issues.

  • • the reliability or the accuracy of the complainant's recollections … so many years after the events;

  • • the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have

    taken place and with the child's contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
  • • the difficulty confronting the [defendant in] having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and

  • • the difficulty confronting the [defendant] in endeavouring to obtain and...

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