Havalunga Pahulu v R Coa

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 16 December 2010
• Neutral Citation: [2010] NZCA 617
• Docket Number: CA178/2010
• Court: Court of Appeal
• Date: 16 December 2010

Between

Havalunga Pahulu

Appellant

and

The Queen

Respondent

[2010] NZCA 617

Court:

Randerson, Potter and Cooper JJ

CA178/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction where appellant had pleaded guilty to two counts, was discharged on one and found not guilty of three out of 27 counts of sexual offending. Complainant had a number of convictions for dishonesty. The potential unreliability of the complainant was conceded by the Crown, emphasised by the defence and explicitly dealt with in the Judge's summing up — whether a warning to the jury should have been given in all the circumstances under s122 Evidence Act 2006 (judicial directions about evidence which may be unreliable).

Counsel:

C B Cato and H Craven-McLeay for Appellant

M D Downs for Respondent

• A The application to adduce fresh evidence is declined.

• B The appeal against conviction is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper J)

Introduction

1 The appellant was tried before Judge Hubble and a jury in the Auckland District Court on an indictment containing 27 counts alleging sexual offending against one complainant over a period from 1 January 1981 to 31 December 2002. All counts in the indictment were advanced as representative charges.

2 The appellant was convicted on all but three of the charges and was sentenced to 11 years imprisonment. He now appeals against conviction.

3 At the outset of the trial he pleaded guilty to two counts of having sexual intercourse with a girl under the age of 20 years, not being his wife, who was at the time of the intercourse living with him as a member of his family. 1

4 The appellant was discharged after the evidence was completed on one count of rape, and the jury found him not guilty on two counts, one alleging sexual violation by unlawful sexual connection when the complainant was 16 years of age, and the other alleging that he had raped her when she was aged between 25 and 32.

5 The offending of which the appellant was convicted occurred between 1 January 1981 and 4 May 1994, when the complainant was aged from 11 to 24 years.

The appeal

6 The principal issue raised on the appeal relates to the fact that the Judge did not give a warning pursuant to s 122 of the Evidence Act 2006 concerning the reliability of the complainant.

7 The appellant contends that such a warning should have been given in the circumstances that:

• (a) The complainant had a serious history of dishonesty, including criminal convictions for offences involving dishonesty.

• (b) On the defence case she may have had a motive to give false evidence implicating the appellant, so as to evoke the sympathy of the Court in respect of charges which were outstanding against her under the Tax Administration Act 1994, and also because of resentment that the

  appellant had deprived her of an interest in the former family home.

• (c) The complainant's evidence was the only evidence implicating the accused in serious sexual offending.

• (d) The offending related to matters that occurred more than ten years previously. 2

8 There is also an application to adduce fresh evidence about the complainant's conviction on the charges that were outstanding under the Tax Administration Act at the time of the appellant's trial.

Background facts

9 The complainant was orphaned as a young child, and at the age of ten went to live with her aunt, F. F commenced a relationship with the appellant, who moved into the family home when the complainant was 11 years old. The appellant's offending began shortly after that. The jury found the appellant guilty on counts that he had indecently assaulted her by kissing her and putting his tongue in her mouth, fondling her breasts and touching her genitalia before she attained the age of 12 years.

10 The appellant was found to have committed further indecent assaults on the complainant when she was 12 by kissing her on the mouth, touching her breasts, touching her genitalia, rubbing his penis between her thighs and licking her genitalia. There were convictions on further counts alleging that the appellant committed further indecent assaults by rubbing his penis between the complainant's thighs and licking her genitalia when she was 13, on four similar counts of indecent assault when she was 14 and four further counts of indecent assault committed when the complainant was 15. The jury found that he had raped her for the first time at that age.

11 The appellant was also convicted on the two counts under s 131 of the Crimes Act 1961 to which he pleaded guilty at the outset of the trial. He was convicted of a further rape, committed during the period when she was between 17 and 24 years of age.

12 The complainant did not make a formal complaint to the police until her birthday in May 2008. At the time she complained, she was facing outstanding charges of fraud as well as the charges under the Tax Administration Act to which we have already referred.

The trial

13 At the trial, the Crown accepted that the complainant's credibility would be a key issue for the jury. In her opening address, counsel for the Crown said:

… what's going to be crucial for you in this case is assessing her credibility and her reliability and she has had her ups and downs. You are going to hear a little bit about that too, hearing that she has got herself involved in some criminal offending, that life hasn't been always a box of chocolates.

14 The Crown led evidence from the complainant about lies that she had told both to F and the appellant. She had lied to them about her progress at university, stating that she had achieved high grades in papers that she had in fact failed. She also lied about her need to be away from home for purposes related to her studies. She had taken money out of their bank account without their knowledge and acknowledged that she had been prosecuted and convicted for offences involving dishonesty.

15 The defence case at the trial was, as Mr Cato put it in his submissions to this Court, that the complainant was a “serial fraudster, a thief, and a con-woman”. There was a sustained attack on her credibility, and the cross-examination about her dishonesty, criminal history and alleged motives to lie was extensive. During it, she made admissions, sometimes only reluctantly, that were potentially adverse to her credibility in a substantial way. Although she blamed the appellant for her propensity to offend, her dishonest conduct had continued after she left the family home. Cross-examination elicited evidence about her deceitfulness in relation to her university grades and graduation, and the numerous convictions that had been entered against her in respect of offences of dishonesty. She conceded that, at the time of the trial, she was serving a sentence of home detention. There was reference also to the pending tax charges. She admitted that there were outstanding charges before the Court, but declined to answer more detailed questions about them once advised by the Judge of her privilege against self-incrimination.

16 In re-examination by the Crown prosecutor, the complainant's criminal record was produced.

17 It was contended by the defence that the complainant had demonstrated affection for the appellant in correspondence after she left him, but that her attitude seemed to change once she learned that the appellant had resumed a relationship with V who was his first partner and the mother of three of the appellant's children. It was also noted that a formal complaint had not been made until she was facing serious charges of dishonesty and that his guilt depended on her.

18 In her closing address, the prosecutor again referred to the central importance of the complainant's evidence. It was acknowledged that the Crown case stood or fell on her evidence and counsel referred to her criminal history. The prosecutor submitted that the essential question was whether or not the jury believed her.

19 Naturally, the complainant's dishonesty was the guiding theme of Mr Cato's address to the jury at the conclusion of the trial. He emphasised that the jury was entirely reliant upon her word and submitted that it was “entirely necessary … that there be an exploring of all facets of her credibility, even though that may take some time”. He described her convictions as “serious criminal convictions, very serious criminal convictions” and continued:

You can't simply downplay criminal convictions. She says something about you're just playing with paper, making fraudulent representations with paper. There's getting credit cards in the name of somebody else, stealing money in 1994 from Mr Pahulu to apply it into somebody else's bank account, her landlord's. There's theft of a servant in relation to the place where she worked, quite reputable establishments, where apparently she was well regarded. And those matters, members of the jury, you can simply say, we put to one side” It's my submission you can't.

But whatever the situation, having done one lot of home detention and being sentenced to reparation, she now finds herself in trouble in 2008 where the law has again caught up with her. We can't put the blame on Mr Pahulu now, can we” Really we can't suggest that he was instrumental in her deciding to go out and keep on stealing money. All right, so she's eventually sentenced in October 2009 for home detention, this time the second time, second dose of home detention, it seems, eight months, $20,000 reparation and that kind of thing. That's not offending, members of the jury, that is not serious, that you can just simply gloss away. And we know, members of the jury, that she's facing other charges, and we know the nature of those charges, and they were substantial matters, members of the jury,...