S v R

• Jurisdiction: New Zealand
• Judge: Arnold J
• Judgment Date: 03 March 2010
• Neutral Citation: [2009] NZCA 622
• Court: Court of Appeal
• Docket Number: CA514/2008
• Date: 03 March 2010

[2009] NZCA 622

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Arnold, Potter and Heath JJ

CA514/2008

Between

S (CA514/2008)

Appellant

and

The Queen

Respondent

Counsel:

P H B Hall for Appellant

K A L Bicknell for Respondent

JUDGMENT OF THE COURT

A We grant the appellant leave to adduce further affidavit evidence from Professor Garry.

B We allow the appeal. The appellant's conviction on count 3 is quashed and a retrial is ordered.

C The question of bail is to be dealt with by the District Court.

D Publication of the reasons for judgment in the news media or on the internet or other publicly available database is prohibited until final disposition of the retrial, although the result may be reported. Publication in a law report or law digest is permitted, however.

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

	Para No.
Introduction	[1]
Factual background	[4]
Basis of appeal	[11]
Discussion	[13]
Further evidence	[14]
Miscarriage of justice	[26]
(i) Trial Counsel error	[26]
(ii) Wrongful admission of expert evidence	[27]
(iii) Inappropriate directions on the expert evidence	[38]
Propensity evidence	[47]
(i) The Judge's ruling on propensity evidence	[49]
(ii) The Judge's instruction on propensity evidence	[57]
Warning under's 122 of Evidence Act	[62]
Inconsistent verdicts	[67]
Overall assessment	[69]
Decision	[70]

Introduction

1 The appellant faced trial by jury before Judge P A Moran on three counts of sexual violation by rape between 1 January and 31 December 1993 (counts 1 – 3) and one count of sexual violation by rape between 1 January and 31 December 1995 (count 4). In relation to the three 1993 counts, he was acquitted on count 1 and convicted on count 3. The jury could not agree on count 2, and a retrial was ordered. The appellant was acquitted on count 4.

2 Judge Moran sentenced the appellant to seven years imprisonment. 1 The appellant appealed against his conviction. He had also filed an appeal against his sentence, but the appellant's counsel, Mr Hall, advised us at the hearing that the sentence appeal would not be pursued. Accordingly, we treat it as abandoned.

3 In a results judgment delivered on 22 December 2009 we allowed the appeal. 2 We now give our reasons. There was no one ground of appeal that was determinative. Rather, it was a combination of matters that caused us concern. Taking an overall view, we considered that there were several unsatisfactory features about the trial, which meant that we must allow the appeal.

Factual background

4 The appellant is a physician. He suffers from depression and has a history of alcohol abuse. The complainant is his daughter, although the appellant had separated from her mother before the incidents complained of are said to have occurred. In 2005 the complainant told the police that her father had raped her on several occasions in 1993 or 1994 while she and her sister were staying with him on weekend visits at what had been the family home. She was eight or nine years old at the time. (By the time of trial she was 22 years of age.)

5 The complainant said that on each occasion the appellant had come into her bedroom when she was asleep and had sat on the edge of the bed. She said he was drunk – unsteady on his feet, smelling of alcohol and slurring his words. The complainant alleged that the appellant climbed onto her, pinned her down and had sexual intercourse with her. She said that, after one incident, she found a patch of blood towards the top of her sheets the following morning.

6 The complainant has had a history of psychological difficulties and has, from the age of 16, been treated by various mental health professionals. In the course of her treatment, she had been asked on numerous occasions if she had suffered sexual abuse, but denied that she had. It was not until October 2003 that the complainant

told her mother that she had been abused by her father. The complainant said that she did not tell anyone about what had happened at the time as she felt ashamed and thought that it might have something to do with her. Also, she did not think anyone would believe her. When explaining her subsequent denials that she had been subjected to abuse she said that she had concerns about telling health professionals what had happened because her father was a doctor and knew many people working in the mental health system. She was concerned that her father might have access to her medical records. She also said that her father's partner, Y, was a psychiatric nurse working in a forensic unit, which heightened her concerns. She said that she felt her father was attempting to control her.

7 At trial the Crown called evidence from Dr Earthrowl, a consultant forensic psychiatrist. In opening the case, Crown counsel, Mr Zarifeh, said that Dr Earthrowl's evidence would deal with the question whether the complainant was likely to have any memory impairment or distortion as a result of her psychological problems or medication. However, at the end of the first day of the trial, when the complainant was under cross-examination, Mr Zarifeh advised the Court that he proposed to lead further evidence from Dr Earthrowl to deal with the issue of the complainant's failure to complain at the time she alleged the incidents occurred, and her willingness to have further contact with her father despite what she said had happened.

8 Behaviour of this sort is often described as counter-intuitive because it is considered to be inconsistent with common beliefs about the conduct of child victims of sexual abuse at the hands of relatives or adult friends. Mr Zarifeh handed the Judge and defence counsel, Mr Davies, a copy of a brief of evidence from Dr Suzanne Blackwell, a clinical psychologist, in which she addressed counter—intuitive behaviour. Dr Blackwell had prepared this brief for another trial. She described its purpose as being “to provide the jury with educative information about the dynamics of child sexual abuse without drawing a specific nexus between that information and the actual case”. Mr Zarifeh also provided a copy of Stevens J's decision ruling Dr Blackwell's evidence admissible. 3 Crown counsel indicated that he had received the material earlier that day, and proposed to lead similar evidence from Dr Earthrowl. There was some discussion between the Judge and counsel, during which the Judge said that if Dr Earthrowl was qualified he could give the evidence but told counsel to “sort it out and if there's a problem about it then I'll deal with it”.

9 Dr Earthrowl gave evidence after the lunch adjournment the following day. His evidence on counter-intuitive behaviour covered several pages of the notes of evidence. Dr Earthrowl said that children often did not report sexual abuse when it occurred. Some never reported it at all, but others did, albeit some years after it occurred. Delay was most likely where the abuser was a close family member. Some children did not disclose sexual offending against them even when directly questioned and would continue to have friendly contact with a person who had abused them. Dr Earthrowl said that his opinions were based both on the literature and on his clinical experience.

10 The appellant did not give evidence at trial. However, he made a statement to the police in which he strongly denied that the incidents had occurred. He said that whenever the girls had stayed with him, there was another adult present, initially his then partner, X, with their young daughter, or later a subsequent partner, Y. He indicated that he believed the complainant's allegations were a result of her psychological difficulties and her being manipulated by his former wife.

Basis of appeal

11 Mr Hall, who was not trial counsel, advanced four grounds of appeal:

• (a) There was a miscarriage of justice under's 385(1)(c) of the Crimes Act 1961 as a result of:

  • • trial counsel error;

  • • wrongful admission of expert evidence; and

  • • failure to give appropriate direction to the jury about how to approach the expert evidence.

• (b) Propensity evidence should not have been admitted, and in any event the Judge's directions on propensity were inadequate.

• (c) A warning under's 122 of the Evidence Act 2006 should have been given.

• (d) The verdicts were inconsistent.

12 Mr Hall also sought leave to adduce further evidence, which we describe below. 4 The Crown opposed this application.

Discussion

13 Before dealing with each of the four grounds of appeal individually, we outline the further evidence that Mr Hall sought leave to adduce. The evidence consists of an affidavit from the appellant, an affidavit from Professor Maryanne Garry and two affidavits from Dr Yolande Lucire.

Further evidence

14 The appellant's affidavit relates to the conduct of the trial and the instructions which he gave Mr Davies. He said that he was not aware of Mr Zarifeh's advice to his counsel that he proposed to lead further evidence from Dr Earthrowl concerning counter-intuitive behaviour. He said that, had his counsel informed him of this, he would have instructed him to seek an adjournment so that he could seek expert advice on the proposed evidence. Mr Davies confirmed in a letter to Mr Hall that he had not sought instructions from the appellant as he was unclear of exactly what the proposed evidence was.

15 Professor Garry is a cognitive scientist who teaches and researches in the School of Psychology at Victoria University of Wellington....