Davis v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgePotter J
Judgment Date18 February 2011
Neutral Citation[2011] NZCA 24
Docket NumberCA776/2009
Date18 February 2011

[2011] NZCA 24



Ellen France, Potter and Miller JJ


Michael Keith Davis
The Queen

L A Andersen for Appellant

D R La Hood for Respondent

Appeal against convictions for rape and sexual violation — admissibility of statements made by complainant after the event — appellant and complainant worked together in shearing gang — statements made to friend 4 days after the event and complaint made to Police 2 months later — whether statements were admissible under s35 Evidence Act 2006 (previous consistent statements rule) — appellant gave inconsistent statements in Police interview in relation to kissing — whether trial Judge's reference to appellant's contradictory statements to the police caused a miscarriage of justice.

Held: It had been open to the defence at trial to cross-examine C on the details of the complaint but counsel had not done so. The complaint evidence had been led in the least intrusive way without any detail that could have disadvantaged D. The evidence received no emphasis or mention in the Crown's closing address and was not referred to by the Judge in her summing up. The evidence had simply contributed to the chronology of events as they had unfolded: the alleged rape, a complaint about four days later to a friend, a complaint about two months later by C to her mother followed by the complaint to the Police. No unfairness had arisen; the course taken had meant that D had been in the best position he could, given the nature of the available further evidence.

The topic of kissing had arisen several times in D's police interviews and he had given inconsistent responses when asked if there had been kissing. Those exchanges supported a reasonable interpretation that D was inconsistent at least as to when kissing had occurred or possibly whether kissing had occurred at all. The Judge's comment to the jury in her summing up had reflected her interpretation of the relevant exchanges in D's police interview, which had been open to her. She had prefaced the comment by making it clear to the jury it was a matter for them alone, whether they accepted what D had said was consistent and accurate. The Judge had also given the standard direction to the jury that they were the judges of fact. The jury had viewed the video of the interview and had the transcript of all the evidence and had been well placed to have made their own assessment. There had been no unfairness to D in the Judge's comment.

Appeal dismissed.


The appeal is dismissed.


(Given by Potter J)


Michael Davis appeals against convictions for rape and sexual violation by unlawful sexual connection following trial in the District Court at Dunedin in October 2009 before Judge Farish and a jury. At trial the appellant faced three charges of indecent assault of three separate complainants and charges of rape and sexual violation by unlawful sexual connection (digital penetration) in respect of a fourth complainant, C. He was found not guilty of indecent assault of the first complainant and guilty on the remaining charges.


The appellant claims there has been a miscarriage of justice on the two charges relating to C because:

  • (a) Complaint evidence given by C was wrongly admitted; and

  • (b) The trial Judge erroneously asserted in her summing up that the appellant contradicted himself in a Police interview which had the effect of diminishing the appellant's credibility before the jury.


Relevant factual matters which were not in dispute may be summarised as follows. The appellant and C worked together in a shearing gang in Alexandra between February and May 2008. C was a friend of the appellant's girlfriend who worked in the same shearing gang. The appellant visited the caravan occupied by C at about 9.30 pm on 30 April 2008. He asked her if she had a condom to which she replied “No”. There was sexual intercourse between the appellant and C. C did not physically resist during sexual intercourse.


Disputed factual issues included:

  • (a) Whether there was mouth to mouth kissing between the appellant and C (C accepted in evidence that the appellant had kissed her on the neck);

  • (b) Whether C said “No” to the appellant or otherwise indicated that she did not consent to sexual activity; and

  • (c) Who took off C's clothes.

Issues at trial

The issues at trial in relation to the rape charges were:

  • (a) Whether C consented to the sexual intercourse; and

  • (b) Whether the appellant had an honest belief that she was consenting.

Complaint evidence

The Crown led the following evidence from C:

Q. Am I right about four days later you confided in some friends about what you say occurred?

A. Yep.

Q. And that you later confided in your mum about what you say occurred? Is that right?

A. Yes.

Q. And you kept in touch with her by phone and text and you went back home to Ohakune about the 19th of May?

A. Yes.


It is common ground that the admissibility of this evidence is to be determined under s 35 of the Evidence Act 2006 (“the Act”) which provides:

Previous consistent statements rule

  • (1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

  • (2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

  • (3) A previous statement of a witness that is consistent with the witness's evidence is admissible if –

    • (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

    • (b) the statement provides the court with information that the witness is unable to recall.


We were advised that at trial there was a discussion between counsel and the Judge before the Crown opened about the proposed complaint evidence, and it was agreed that the appropriate course was for the evidence to be led by the Crown in the manner that occurred at trial. The Crown suggested that this was undoubtedly due to the state of the law at the time as set out in this Court's decision in R v Rongonui. 1 This Court determined in that case that evidence by the complainant that she had told her friends “what had happened”, was not recent complaint evidence but “direct evidence of something that happened that was relevant to the narrative of events”. 2 The Court held that because the evidence given was not of anything actually said, it did not fall within s 35. Subsequent to the appellant's trial the Supreme Court clarified the effect of s 35 in Hart v R3 and Rongonui v R. 4


In Hart the majority of the Court 5 held that a party seeking to adduce the previous statement under s 35(2) must show:

  • (a) There has been a challenge to the witness's veracity or accuracy on one of the qualifying bases in the section, i.e. either a claim of recent invention or use of a previous inconsistent statement; and

  • (b) The admission of the statement is necessary to respond to the challenge. “The touchstone is necessary extent of the response, with relevance being implicit in the concept of necessity.” 6


Mr Andersen for the appellant properly accepted that in this case there was a challenge by the appellant to the veracity of the complainant on the basis of recent invention which satisfied the requirement in s 35(2). The challenge arose in the

appellant's Police interview when he disputed several critical aspects of the complainant's evidence including that she told the appellant “No” on at least three occasions. 7 In cross-examination of C there was a challenge to her veracity based on a delay of about two months in her complaining to the Police, and it was put to her that she only went to the Police when she was pressured by her mother. Further, it was suggested in cross-examination of one of the other complainants who gave evidence before C, that she was only complaining to support C, because no-one believed C. 8 We do not need to consider this aspect further.

Mr Andersen did not contest that the limited evidence given by the complainant of her complaints as set out at [6] above was “necessary” to respond to the appellant's challenge to her veracity in terms of s 35(2). Rather, he argued that if the trial had followed the decisions of the Supreme Court in Rongonui and Hart then:

  • (a) The complainant would have been required to give evidence of what she actually said to her friends and her mother to establish “whether evidence of such statements would respond to the part of the evidence that was challenged”, i.e. whether there was mouth to mouth kissing, whether C made it clear she did not consent to intercourse and who took off her clothes; and

  • (b) The persons who received the complaints (in this case the complainant's friend and her mother) would be required to give evidence of what the complainant told them.


In Rongonui the majority in the Supreme Court held that evidence by the complainant that she told others “what had happened” amounted to evidence of a previous consistent statement within the meaning of s 35(1). This was because it conveyed “the inference which the jury was bound to draw … that she had made

statements in terms substantially the same as her evidence to the Court”. 9 The Court considered this approach was supported by the judgment of the Privy Council in White v The Queen. 10

In B v R11 this Court considered a situation analogous to this case in that the trial had taken place before the judgments of the Supreme Court in Hart and Rongonui, but the appeal was heard after...

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1 cases
  • Te Whaiti v Police
    • New Zealand
    • High Court
    • 17 March 2017
    ...statement was reliable, and that given her history and initial lies to the Police, there was an insufficient basis 12 Davis v R [2011] NZCA 24 at upon which the Judge could have been satisfied that the statement was reliable. The respondent submits that there was a sufficient basis for the ......

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