Rongonui v R

• Jurisdiction: New Zealand
• Judge: Elias CJ,Blanchard,Tipping,McGrath,Wilson JJ,Tipping J
• Judgment Date: 23 July 2010
• Neutral Citation: [2010] NZSC 92
• Docket Number: SC 66/2009
• Court: Supreme Court
• Date: 23 July 2010

Maia Rongonui

and

The Queen

[2010] NZSC 92

Court:

Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ

SC 66/2009

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction for sexual violation — whether a statement made by the complainant after the incident to friends amounted to a previous consistent statement that should have been excluded under s35(1) Evidence Act 2006 (previous consistent statements rule) — whether the prosecutor should have been allowed to lead evidence from a prosecution witness of what the complainant had said in a previous statement about remarks made to her by the accused, in breach of s89 (leading questions in examination in chief and re-examination) and s90(5) (use of documents in questioning witness or refreshing memory) Evidence Act 2006.

Counsel:

N Levy for Appellant

M D Downs and T Epati for Crown

REASONS OF THE COURT

	Para No
Elias CJ	[1]
Blanchard, Tipping, McGrath and Wilson JJ	[17]

Elias CJ

1 The appellant appeals his conviction on two counts of sexual violation in respect of the same complainant. He advances two principal grounds in support of the appeal. The first is that evidence was wrongly admitted that the complainant spoke to her friends immediately after the claimed violation and “told them what had happened”. It is argued that this evidence was a previous consistent statement which should have been excluded under's 35(1) of the Evidence Act 2006. The second ground is that the prosecutor was permitted to lead evidence from a prosecution witness of what she had said in a previous statement about inculpatory remarks made to her by the appellant, in breach of ss 89 and 90(5) of the Evidence Act.

2 All members of the Court were in agreement at the hearing of the appeal that the appeal should be allowed on the second ground. The reasons for that conclusion are now given by Tipping J, with whom on this point I am in complete agreement. I write separately on the first ground of the appeal only.

3 For the reasons that follow, I consider that the evidence that the complainant told her friends “what had happened” was properly admitted. It fell outside the rule of exclusion contained in s 35(1) because it was direct evidence of the facts in issue rather than merely repetitive of the evidence given by the complainant. Although in the circumstances it was overwhelmed by its direct relevance to the facts in issue, what was said was also properly admissible in its testimonial character (and therefore within the scope of s 35(1)) in order to meet a challenge to the complainant's veracity on the grounds of recent invention. It was within the exception provided by s 35(2).

4 The purpose, interpretation and application of s 35 are the subject of consideration in the judgment of the Court in Hart v R, 1 delivered contemporaneously with the reasons in this appeal. I do not repeat the views I expressed in Hart, which I apply here. Two considerations are of particular importance to the conclusions I reach on application of s 35 in the present appeal. First, the policy of s 35(1) in excluding superfluous repetition of evidence does not apply to speech which is relevant to prove directly a fact in issue (here, non—consensual sexual assault). Secondly, as indicated in Hart, I consider that a defence

challenge to a complainant's evidence, particularly on the question of consent, will generally amount to a claim of recent invention and therefore come within the exception provided by s 35(2). In some cases, the challenge to veracity on the grounds of recent invention may not emerge until the complainant is cross-examined. In the present case, however, the challenge to be made to the complainant's veracity was acknowledged through pre-trial confirmation that the defence was consent before the judge ruled on the admissibility of the evidence. The evidence as led went no further than was necessary to answer the claim of recent invention. On the view I take, it is not necessary to consider the application of the proviso to s 385(1) of the Crimes Act 1961, the basis on which the other members of the Court would dismiss the appeal on this ground

Background

5 The case for the prosecution was that the complainant, an Australian visitor to Christchurch, became separated from her friends when walking back to their backpackers' lodge at night and was sexually assaulted by the appellant, who had offered to show her the way to her accommodation. The Crown alleged that the appellant led the complainant into a secluded place where he sexually assaulted her after first knocking her to the ground and kicking her in the head. Defence counsel confirmed before the trial got underway that the defence was that the complainant consented to having sexual connection with the appellant. By agreement, the jury was advised of this defence by the Judge before the prosecution opened.

6 The trial Judge had been asked before the trial began to rule on the admissibility of the evidence of complaint to be led from the complainant and her friends. The prosecution case was that the complainant managed to get away from the appellant and immediately called her friends, using her mobile phone. They came to meet her. Two friends had given statements saying that the complainant was distressed. She was crying and struggled to breathe and talk. They said that the group then went back to their accommodation where one of the friends called the police. The Judge ruled that evidence could be led from the complainant of the fact that she had made a complaint to her friends shortly after the incident, but that the details of the conversation were not to be led either from the complainant herself or the friend called to give evidence on this point. By agreement, the prosecutor then asked leading questions both of the complainant and of the friend which established only the fact that the complainant had said “what had happened”.

The exclusion of previous consistent statements under's 35(1)

7 Section 35 provides:

35 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.

8 The policy behind s 35 was identified by the Law Commission as being to prevent proliferation of superfluous evidence. 2 Although the rule of exclusion of previous consistent statements at common law was sometimes justified on the view that such evidence is easily fabricated, the better view was that such consideration went only to weight. 3 Under the Evidence Act 2006 any such concerns may be more directly addressed through application of s 8. But the purpose of s 35(1), as is clear from the legislative history discussed in Hart, was to prevent mere repetition of the account given in testimony.

9 “Statement” is defined by s 4 of the Evidence Act as “a spoken or written assertion by a person of any matter”. I am of the view that Simon France J in R v Holtham 4 was right to treat this definition as important to the interpretation of s 35. The language of “assertion” is reminiscent of the distinction drawn by Wigmore between testimony and events themselves for the purposes of the hearsay rule. He described the “essence of the hearsay rule” as: 5

[T]he distinction between the testimonial (or assertive) use of human utterances and their nontestimonial use.

Consistently with this, and also speaking of hearsay, Lord Wilberforce for the Privy Council said in Ratten v The Queen: 6

If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on “testimonially,” i.e., as establishing some fact narrated by the words.

10 I consider that the distinction suggested between “testimony” as to facts, and the facts themselves is valid in considering whether the words spoken are “consistent” with testimony (and therefore to be excluded as needlessly repetitious unless within the exceptions in ss 35(2) and (3)) or whether they are part of the events in issue and not subject to s 35(1) at all. Mr Downs, counsel for the Crown in the appeal, was in my view on sound ground when he emphasised that “consistency” in the context of s 35 is consistency with the testimony given in court. It is repetition of testimonial assertions that s 35(1) excludes, for the purpose of preventing surplus evidence which is irrelevant and of no probative value if simply repetitive. If however the fact of complaint is relevant because it tends to prove matters in issue, it is not merely testimonial and simply repetitive of the evidence given in court. That was the view taken by the Court of Appeal in R v Turner 7 and, in dismissing leave to appeal in the same case, by this Court. 8 As I discussed in Hart (disagreeing on this point with the decision of the Court of Appeal in R v Barlien 9), speech itself relevant

as tending to prove matters in issue is not within the policy of exclusion of repetitive evidence

11 The fact the complainant spoke to her friends in the circumstances described and the account given of it (that she told them “what had happened”) was not “testimonial” (in the language of Wigmore), or an...