Seekku Arachchige v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWilliams J
Judgment Date23 May 2016
Neutral Citation[2016] NZCA 218
Docket NumberCA613/2015
Date23 May 2016

[2016] NZCA 218

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

French, Asher and Williams JJ

CA613/2015

Between
Sameen Rananjaya De Silva Seekku Arachchige
Appellant
and
The Queen
Respondent
Counsel:

S J Zindel and A N Gulbransen for Appellant

P D Marshall for Respondent

Appeal against conviction in the District Court after jury trial on one count of male assaults female — appeal based on evidential grounds — the complainant said that the appellant had attempted to kiss her and pull her jersey up and had slapped her twice in the face when his advances were rejected — the jury found the appellant guilty on a male assaults female count but could not reach a verdict on the indecent assault charges — appellant said that the Judge had inappropriately described the case to the jury as a credibility contest between the complainant and the appellant — he further argued that evidence from the complainant's husband as to what she told him after the incident had wrongly been admitted — complainant had also given evidence of an earlier encounter that had taken place at her home — defence strategy was that the complainant was lying — whether the Judge had instructed the jury that the matter was a context of credibility and to choose between the narratives of the complainant and defendant — whether the complainant's evidence on the prior encounter was propensity evidence in terms of s40 Evidence Act 2006 (EA) (Propensity rule) — whether the complainant's husband's evidence transgressed the recent complaint rule in s35 EA (Previous consistent statements rule) — whether recent complaint statements were only admissible in sexual cases.

Held: It was not permissible to direct that a jury had to choose between the competing narratives of the complainant and the defendant in a straight contest of credibility ( R v Bensitel and R v McFarland). Such a direction risked upsetting the presumption of innocence and casting on the defendant a responsibility to prove his or her innocence in the event he or she chose to give an evidential interview or give evidence in court.

But that was not what the Judge did in this case. The Judge directed the jury that if they were sure the complainant was telling the truth about what happened, then they should convict. These comments supplemented his orthodox directions on onus and standard of proof, including in circumstances where the defendant called evidence, all of which was repeated and reflected in the terms of the question trail provided to the jury. There was no reference in the Judge's summing-up to a credibility contest between the appellant and the complainant. This ground had to fail.

Evidence of the appellant's prior sexual interest in the complainant was clearly propensity evidence in terms of the definition in s40(1)(a) EA. That interest was a “particular state of mind” in respect of the same complainant. It was probative evidence of a matter at issue in the trial in that such a state of mind made it more likely the appellant would make the sexual advances of which he was accused three months later. It went some way to explaining why the appellant tried to kiss the complainant and lift her jersey. And it explained why he became angry when his advances were rejected, causing him to slap her. On the other hand, its risk of unfair prejudice to the appellant was nil. It said nothing prejudicial about him that was not also directly relevant to the charges.

With or without trial counsel's concession, this evidence was admissible. This ground of appeal also failed.

The evidence given by the complainant's husband was caught by the terms of s35(1) in that it was evidence of a previous statement of the complainant that was consistent with the evidence she had given in Court. It was therefore inadmissible unless ss (2) or (3) applied. In this case, ss (2) was the operative gateway. It provided that a previous statement of a witness that was consistent with the witness's evidence was admissible to the extent that the statement was 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.

The defence position was that the complainant was lying throughout. This was made clear in the appellant's evidential video interview. The defence's cross-examination of the complainant immediately before her husband gave evidence followed a similar line, with trial counsel putting to the complainant that her account of events was “not true”. Subsection (2) was therefore engaged in relation to the husband's evidence.

However, there was a further hurdle. Admission of the statement had to still be “necessary” to meet the defence challenge. Necessary was a strong word. It meant, in the context of this subsection, that the evidence was reasonably required in the circumstances of the case. This imported an assessment both of any logical connection between the circumstances of the prior consistent statement and the veracity challenge, and of proportionality.

In this case, the complainant left work immediately following the incident even though she had yet to begin her shift. She travelled home and recounted her experience to her husband. The interval between the incident and the recounting would have been no more than a few minutes. The incident was obviously very fresh in the complainant's mind and, according to her husband, the complainant was emotional and upset throughout their discussion.

A near contemporaneous account by the complainant accompanied by evidence of obvious emotional distress was a powerful response to the recent invention challenge. The timing and circumstances of the statement to the husband tended to suggest the complainant was telling the truth in a spontaneous and uncontrived way.

Admission of the evidence was necessary in fairness to the complainant to meet the challenge to her veracity. It had its own independent probative value arising from the particular circumstances in which the statement was made.

The appellant's further argument that recent complaint evidence was admissible only in cases of sexual offending was wrong on two counts. First, s35 applied to all prior consistent statements, no matter what the charge; and secondly, this case was a sexual offending case.

This ground of appeal had to also fail.

Appeal dismissed.

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Williams J)

1

The appellant, Mr Seekku Arachchige, was convicted after trial before Judge Hobbs and a jury in the Nelson District Court on 18 December 2014 of one count of male assaults female. He was sentenced by Judge Ingram to 100 hours' community work and ordered to pay $1,000 in reparation to the victim. 1

2

He appeals against conviction.

Procedural and factual background
3

The appellant and the complainant worked together at a Nelson supermarket. The Crown case was that the appellant became sexually attracted to the complainant and one evening at work when they were both alone he followed her into the women's changing room. He pushed the complainant up against her locker and:

  • (a) attempted to kiss her face and mouth;

  • (b) attempted to pull up the jersey she was wearing; and

  • (c) slapped her twice in the face when his advances were rejected.

4

These allegations resulted in two charges of indecent assault and one of male assaults female. They were tried in December 2014 in the Nelson District Court before Judge Hobbs and a jury. The jury found the appellant guilty on the male assaults female count but could not reach a verdict on the indecent assault charges.

5

The appellant was then retried in October 2015 on the indecent assaults before Judge Ingram and a jury. Once again, the jury was unable to reach verdicts on either count. There being no prospect of a third trial, Judge Ingram discharged the appellant on those counts and sentenced him, as indicated, on the male assaults female count.

6

It is important to understand that the appellant's immigration status is precarious. This state of affairs is a primary driver in the appeal. He is liable for deportation for any criminal offending. 2 He was served with a deportation liability

notice following conviction. Immigration New Zealand has apparently indicated it will refrain from taking any action on the notice until disposal of this appeal.
7

Although not strictly relevant to this conviction appeal, we note by way of background that when the matter returned to Judge Ingram for sentencing, he declined to discharge the appellant without conviction under s 106 of the Sentencing Act 2002. 3 Following inquiry of Immigration officials, the Court was advised that the relevant statutory criterion for deportation was not whether a conviction had been entered but whether a criminal offence had been committed. A discharge under s 106 would not therefore, the Judge reasoned, achieve the objective sought by the appellant. 4 Such reasoning cannot be faulted.

Grounds of appeal
8

Three grounds of appeal are advanced:

  • (a) in his summing-up, Judge Hobbs inappropriately described the case to the jury as a credibility contest between the complainant and the appellant;

  • (b) the Judge wrongly admitted evidence of a previous incident between the complainant and the appellant; and

  • (c) the Judge wrongly admitted evidence of the complainant's recent...

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