R v R
| Jurisdiction | New Zealand |
| Judge | Ellen France J |
| Judgment Date | 16 August 2019 |
| Neutral Citation | [2019] NZSC 87 |
| Court | Supreme Court |
| Docket Number | SC 1/2019 |
| Date | 16 August 2019 |
[2019] NZSC 87
Winkelmann CJ, O'Regan, Ellen France, Williams and Arnold JJ
SC 1/2019
IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI
Criminal — appeal against conviction for sexual offending on basis of admissibility of complaints evidence of behaviour of self-harm and the trial judge's summing up — whether the absence of a direction that the jury should not jump to the conclusion that the challenged evidence boosted the complainant's credibility should have been given and resulted ina miscarriage of justice.
N P Chisnall and N J Manning for Appellant
B J Horsley and J E L Carruthers for Respondent
The appeal is dismissed.
(Given by Ellen France J)
| Para No. | |
| Introduction | [1] |
| Background | [4] |
| The offending | [5] |
| The trial | [9] |
| The Court of Appeal judgment | [23] |
| Was the evidence admissible? | [27] |
| The case on appeal | [28] |
| The applicable principles | [30] |
| Summary of the position | [45] |
| Application of the principles to this case | [48] |
| The directions to the jury | [55] |
| Result | [66] |
Following a trial by jury the appellant was found guilty of six charges of sexual offending against the daughter of his former partner. 1 He was sentenced to a term of imprisonment of three years and six months. 2 His appeal against conviction was dismissed by the Court of Appeal. 3 He now appeals to this Court. 4
The appeal turns on:
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(a) the admissibility of evidence given at trial by the complainant and her mother about the complainant's behaviour, including evidence that she self-harmed and that she attempted to commit suicide; and
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(b) the way in which the trial Judge dealt with this evidence in summing up.
To explain how these issues arise we need to first set out the background.
The appellant had been in a long-term relationship with the complainant's mother although they were not living together by the time of the incidents giving rise to the charges. The complainant, who was 14 years old at the time of those incidents, regarded the appellant as a father figure.
The charges arose out of two separate incidents. The first of these occurred on 27 December 2016. There was no issue that the appellant and the complainant spent some time together that day. However, the appellant contested the complainant's account that, after they had been out for a drive, they were together at the complainant's home. Her mother was at work at the time.
The complainant said the appellant brought their conversation towards sexual topics and then made sexual advances. He rubbed himself against her genitalia and kissed and touched her neck and chest area. She said she became distressed and attempted, without success, to free herself. Eventually the appellant let her go and he left. The complainant told a friend, S, about the incident.
The other charges related to an incident, again at the complainant's home, on 25 January 2017. On this occasion the complainant said the appellant gave her alcohol and she became intoxicated. The appellant began to talk about sexual matters and then, whilst they were on the couch, he kissed and touched her neck and breasts. After removing her tights, her evidence was that he digitally penetrated her and rubbed himself against her genitalia. She also said she tried to scream and he held his hand over her mouth. After he had gone she said she “drunk called” S.
About two weeks later, the complainant told a school counsellor about what had occurred. The police became involved. The appellant declined to be interviewed by police. The matter went to trial.
The bulk of the complainant's evidence in chief was comprised of her evidential video interview. In the course of that interview she was asked about the “first adult” to whom she had talked about what happened. The following exchange took place:
[A] Um [T] probably.
[Q] So tell me more about telling [T].
[A] Um, I was just in a counselling session and she said what happened over the holidays cause um we were talking about things that triggered cutting and she said what happened and it just came out yeah.
[Q] Tell me the stuff that you told her.
[A] Um I said that he came over and tried to do things and she kind of got what I mean and she said if I had told anyone and yeah I can't remember what else I talked about.
The complainant said in the interview that she had been seeing a counsellor for about two months before the first incident. She talked also of having nightmares and flashbacks and the association she made between the smell of the appellant's cologne and the offending. There was no attempt by the defence prior to trial to have the evidential video interview edited.
At trial the prosecutor asked the complainant some supplementary questions after her evidential video interview was played. Relevantly, the complainant was asked how she felt between the first and second incidents. The answers and follow-up questions were as follows:
A Ah, kind of like trapped. Like I couldn't do anything about it. I was always scared.
Q Why did you feel trapped? …
A Because he was like a dad to me and I didn't understand.
Q And after that second occasion, how have you been feeling?
A Um … Gone downhill. Um … I've … Stopped going to school, um, have tried to kill myself, self-harm.
Q Before everything happened, how was school?
A It was like my happy place. I just loved going to school. Always there, always in meetings, always leadership, always getting everything done, best grades. But now it's just … Gone down I guess.
The complainant was cross-examined by defence counsel at some length about matters such as her flashbacks, nightmares and self-harming. To illustrate, in the context of questioning about her nightmares, she was asked whether she would “describe [herself] as a person who reacts emotionally and perhaps irrationally”. She said “no”. The cross-examination continued:
Q — when serious events happen?
A No.
Q You talked before about since this event you've been self-harming by cutting yourself?
A Yes.
Q In your [evidential video] interview you mentioned, towards the end there, that you were discussing with somebody events that could, “Trigger cutting.” I presume you were talking about self-harm then?
A I can't remember.
Counsel also put to the complainant that she had been seeing the school counsellor “well before” the incident for “exactly the same thing”. The complainant denied it was “about exactly the same thing”. The exchange continued:
Q About cutting yourself?
A It was about cutting but it had nothing to do with this.
Q And you wouldn't call that an emotional and irrational reaction?
A No.
…
Q Would you agree that you're a troubled young woman?
A No. I have problems but I don't make things up.
The complainant's mother also gave evidence of the complainant's behaviour. She was asked in her evidence in chief about what she had known of the incidents before being told about the disclosure by the complainant's school counsellor. She said she had “no idea” about what happened to her daughter “But her behaviour was very challenging, too, so I was not sure what's going on”. The prosecutor asked about when the complainant's behaviour was challenging. She replied:
It was from, ah, December. Her behaviour was … she was very quiet, she was locked in the room, she will always stay in the room, she will not come out, she will not talk to me, she will not engage with me as … we had a good relationship together, but she was withdrawing herself from everyone and she was not going to school anymore and all that. And one time she did mention, because it was school holidays, she did say, “I can't wait to go to school and see my counsellor.”
Defence counsel put to the complainant's mother that the complainant was “a troubled young lady”, a theme of both defence opening and closing addresses. The complainant's mother denied this. She was asked about “this cutting thing”. The complainant's mother said she was aware “that the cutting thing” began after the December incident. Defence counsel suggested the cutting “was going on a long time before that”, to which the witness responded: “No, I'm not aware of that.” When asked about the complainant having seen a counsellor “about this as early as October last year”, she responded: “I don't know and I can't remember. I don't know”.
The complainant's friend gave evidence about the calls from the complainant. In addition, the jury heard evidence from a police officer about location data relating to the appellant's movements on the days in question that had been obtained from the appellant's phone. The officer also referred to a brief conversation with the appellant when the appellant was arrested.
The appellant gave evidence. He denied any sexual conduct with the complainant. His counsel asked him about his knowledge of the complainant self-harming. He said the complainant's mother told him about the cutting. From what she told him, he had known...
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