DH v R

• Jurisdiction: New Zealand
• Judge: McGrath,William Young,Glazebrook,Arnold,O'Regan JJ
• Judgment Date: 16 April 2015
• Neutral Citation: [2015] NZSC 35
• Docket Number: SC 9/2014
• Court: Supreme Court
• Date: 16 April 2015

Between

DH (SC 9/2014)

Appellant

and

The Queen

Respondent

[2015] NZSC 35

Court:

McGrath, William Young, Glazebrook, Arnold and O'Regan JJ

SC 9/2014

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against the dismissal of an appeal against conviction on 16 counts of sexual offending — the Crown said that the appellant had indecently assaulted or sexually violated his daughter on multiple occasions over a five-year period up to 2007 — the complainant made her first complaint in 2010 — her family then made her retract the allegation — she later disavowed this retraction — the first jury failed to agree and a second trial took place — an expert (who had not been a witness at the first trial) gave evidence on counter-intuitive behaviour in sexual abuse cases to correct erroneous beliefs about how children who had been sexually abused behaved — included evidence on delays in disclosure of sexual abuse, dead-end disclosures, continuing contact with the abuser, and the impact of sex education classes on disclosure of abuse — whether parts of the evidence had been irrelevant and not addressed to live issues — appellant argued that the psychologist's evidence was excessive and that parts of it were inadmissible — appellant also appealed against a remark made by the trial Judge in his summing up about how the appellant's family dealt with its “dirty laundry” as being prejudicial — whether parts of the evidence had been irrelevant and not addressed to live issues — whether the term “grooming” should be used in cases of this kind — whether there should be a model direction addressing late reporting and also one dealing with memory of events.

Counsel:

W C Pyke and S K Green for Appellant

A Markham for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

1 The appellant appeals against a decision of the Court of Appeal dismissing his appeal against conviction on 16 counts of sexual offending against his daughter. 1

2 Counter-intuitive evidence is evidence admitted in cases involving allegations of sexual abuse of young persons for the purpose of correcting erroneous beliefs or assumptions that a judge or jury may intuitively hold and which, if uncorrected, may lead to illegitimate reasoning. The Law Commission said the purpose of such evidence is “to restore a complainant's credibility from a debit balance because of

jury misapprehension, back to a zero or neutral balance”. 2 The major focus of the present appeal is on counter-intuitive evidence given at the appellant's trial by a clinical psychologist, Dr Suzanne Blackwell

3 We heard this appeal immediately before the hearing of another appeal in which Dr Blackwell's evidence was also challenged, Kohai v R. 3 Judgment in that appeal is being delivered at the same time as the delivery of this judgment.

4 Counsel for the appellant, Mr Pyke, did not mount a general challenge to the admissibility of counter-intuitive evidence in all cases. But he argued that the scope of Dr Blackwell's evidence in the present case was excessive and that parts of her evidence were inadmissible. He said it dealt with matters which were not relevant and the admission of the irrelevant material had been prejudicial to the defence at trial. He said the Court of Appeal had failed to appreciate the prejudicial effect of the potential misuse of Dr Blackwell's evidence by the jury.

5 The other grounds of appeal that were pursued in this Court related to the directions given to the jury by the trial Judge, Judge D J McDonald, in relation to the counter-intuitive evidence, on the subject of memory and in relation to the good character evidence that was adduced at the trial. Mr Pyke also raised a concern about a comment made by the Judge in his summing up about the appellant's family doing their “dirty laundry”.

6 The case for the appellant is that the combined effect of these matters ought to have been assessed by the Court of Appeal. It was argued that the Court of Appeal should have found that there was a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act 1961. 4

7 The focus of this judgment will be on the principal appeal point, dealing with the scope and impact of the counter-intuitive evidence. We will deal with that point first, before returning to the remaining issues identified above.

Background

The Crown and defence cases

8 The Crown case at trial was that the appellant had indecently assaulted or sexually violated the complainant, his daughter, on multiple occasions over a five-year period from late 2002 to the middle of 2007. In all, there were 16 counts in the indictment, ten of which were representative counts. Ten counts alleged sexual violation by the introduction of the appellant's fingers into the genitalia of the complainant, three counts involved sexual violation by connection between his mouth and her genitalia and there were single counts of indecent assault, inducing the complainant to do an indecent act upon the appellant and the appellant performing an indecent act upon the complainant.

9 The complainant said the offending began when she was 11 years old and continued until she was 15. She said the first incident, when she was 11, involved the appellant putting her hand on his penis when both of them were in the appellant's bed. The conduct progressed to the appellant groping the complainant's breasts, putting his hand on her crotch and rubbing her genital area through her clothing. It then progressed to touching her breasts underneath her top and putting his hand down her pants and digitally penetrating her.

10 The conduct giving rise to the charges occurred in a variety of locations. Some of it occurred while other people were present in a room in the family home. One incident occurred in a tent when the family were away camping. Others were present in the tent at the time. Another incident took place when the complainant and the appellant were in a boat but in the view of others. There were also incidents in a shed and in a car when the complainant and the appellant were on their own together. The complainant told of one incident when she said her mother (who was a defence witness at trial) walked in when the appellant was kneeling between the complainant's legs. The complainant said she did not think her mother realised what was happening, and the mother denied having ever seen the event occur. One incident occurred in the living room of the family home while the appellant and the complainant were on the couch and the complainant's mother was in the same room working on the computer.

11 The complainant said that she grew up thinking the sexual conduct by her father towards her was “normal in a way”. She said she did not know what was going on and was powerless to stop it. She said she let the appellant do what he wanted and “sort of enjoy[ed] it in a way but it also did hurt”. She said she only came to realise that the offending was wrong when she was about 15 years old and attended a sex education course at school which involved discussion of parental sexual abuse. She said that after this she resisted her father's advances and he discontinued the more invasive abuse, although he continued to grope her breasts and bottom.

12 The complainant gave evidence that she was 15 years old when she realised the offending was wrong. However, at one point in her evidential video interview, she said she realised when she was in year 12 at school (when she would have been 17 years old). Mr Pyke suggested we should find the complainant was 17 when she realised the offending was wrong. We think it is clear that 15 years old (year 10 at school) was the actual age. She said a number of times that she was 15 years old at the time and the single reference to year 12 seems to have been an aberration. It was not put to the complainant in cross-examination that she was 17 at the time. Mr Pyke accepted in oral submissions that the precise date on which the complainant realised the conduct was wrong is not a matter of great significance in relation to the matters at issue in the present appeal.

13 The defence case at trial was a denial that any of the alleged incidents occurred. The defence case was that the complainant's allegations were lies and that her complaint was a false complaint.

Complaints and retractions

14 The complainant said that she first disclosed the offending to her boyfriend when she was about 17 years old, but she did not think he believed her. 5

15 The complainant first disclosed the offending to her mother and aunt 6 in January 2010, but was disbelieved. Shortly after this she left home and went to live in Auckland and made her complaint to the police in April 2010. An evidential video interview was conducted. The complaint to the police was, therefore, about eight years after the complainant said the offending began and about three years after she said it stopped.

16 The appellant was arrested on 29 July 2010 and charged with the offences against the complainant. On 4 August 2010, the complainant's mother, the aunt to whom she had made the disclosure and the complainant's uncle arranged for the complainant to go with them to a family lawyer and sign a handwritten retraction of her allegations against the appellant. The complainant's mother and aunt had talked to the complainant until late in the previous night about withdrawing her allegations. On 5 August 2010, the lawyer arranged for the complainant to sign a typewritten version of the retraction in which she stated that the allegations were not true.

17 On 12 August 2010, the complainant contacted the officer in charge of the investigation and told him about the retraction. She was upset and disavowed the retraction. She repeated her disavowal of the retraction at the trial.

18 A further evidential video interview was conducted on 29 June 2011, and during this interview the complainant mentioned for...