T v R
| Jurisdiction | New Zealand |
| Judge | Ellis J |
| Judgment Date | 09 December 2020 |
| Neutral Citation | [2020] NZCA 626 |
| Court | Court of Appeal |
| Docket Number | CA26/2020 |
| Date | 09 December 2020 |
[2020] NZCA 626
French, Mallon and Ellis JJ
CA26/2020
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Bill of Rights, Criminal — appeal against a conviction for indecent assault against children — a communication assistant was appointed by the Court as two of the complainants had intellectual disabilities — the defence counsel did not put the defence case to the complainants on account of their disabilities — whether the appellant's right to a fair trial were breached because he could not put his defence and had not obtained a fair trial — Criminal Procedure Act 2011 — Evidence Act 2006
S G Vidal for Appellant
B C L Charmley and J M Irwin for Respondent
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A The appeal is allowed.
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B The convictions entered in the District Court are set aside.
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C A retrial is ordered.
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D The record of first warning given to the appellant by the District Court at Invercargill on 23 August 2019 is set aside.
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E The appellant is to be removed from the Child Sex Offender Register.
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F Bail is to be determined in the District Court.
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G Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of retrial. Publication in law report or law digest permitted.
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H Order prohibiting publication of the name, address, occupation or identifying particulars of the connected person “J” pursuant to s 202 of the Criminal Procedure Act 2011.
(Given by Ellis J)
After a trial before Judge M J Callaghan and a jury, T was convicted on three charges of indecent assault against a child, one charge of indecent assault against a young person and one charge of indecent assault on a girl under 12. 1 The complainants were his daughter (K), his son (M), and his niece by marriage (B). 2 The offending against K and M was said to have occurred in the summer of 2016–2017. The offending against B was said to have occurred in 2003, when B was four years' old.
T's defence at trial was that:
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(a) The alleged offending against K and M did not happen. The two had been encouraged to lie by their mother, J, so that she could get full-time custody of them.
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(b) B had made up the alleged offending after hearing her mother and J talking about the abuse of K and M. This may have distorted her recollection of events when she was younger. Any contact that T may have had with her was accidental.
K and M both have intellectual disabilities. A communication assistant was appointed by the District Court at an early stage to help them give evidence. But before the trial, defence counsel indicated that she would not be putting the defence case to them on account of their disabilities. The Judge and the prosecutor both endorsed that decision. 3
In broad terms, T now appeals his convictions on the basis that he could not put his defence and did not obtain a fair trial. This is because he was unable to challenge the credibility and/or reliability of K and M due to their intellectual disabilities or the credibility and/or reliability of B due to the historic nature of her complaint and her age at the time.
Although we address the evidence (of K and M in particular) in more detail later in this judgment, it is useful by way of general context to set out an overview of the complainants' allegations.
As we have said, the allegations made by B related to a period between 1 January 2003 and 28 July 2003, when B was four years' old. B's mother is the sister of T's wife, J.
B stayed overnight at T's house. J was also there. B said T got into her bed and removed his trousers. He then took B's hand and put it on his penis. He moved B's hand up and down on his penis for about five minutes, telling her it was “okay” and “normal”. B told her mother about it afterwards but did not make a complaint until 18 January 2017. 4
The offending against K occurred between 1 December 2016 and 7 January 2017, when K was 13 years' old. K and M were staying with their father (T) at the time. 5
K said she was asleep in her bed when T came in and pulled off most of her clothes. He then touched her breasts and vagina. K said M was sleeping in his bedroom at the time. 6
The offending against M also occurred between 1 December 2016 and 7 January 2017, while K and M were staying with T. M was 11 years' old at the time.
M said T touched his penis over and underneath his clothes, “up and down”. M said this happened twice — once in the living room, and once in his bedroom. M also said T took M's hand and put it onto T's groin, over the clothes. 7
J (K's and M's mother) said M told her about the offending shortly after they returned from staying with their father in January 2017. A subsequent discussion between J and her sister about it prompted B to come forward with her allegations. J went to the police.
Police officers with specialist training in interviewing children interviewed K and M on 17 and 19 January respectively. B was interviewed on 18 January. The interviews were recorded in the usual way.
In his minute recording the first call of T's case on 21 July 2017, the District Court Judge noted that K's and M's EVIs would be played as their evidence in chief at trial; they would give the rest of their evidence by CCTV with the help of a communication assistant (CA). 8 The Judge also recorded that the “[c]hildren's intellectual impediments are a matter that the defence wish to investigate” and directed that if defence counsel wished to instruct an expert for that purpose then the Court was to be notified within a month. 9
No defence expert was instructed. But the Crown disclosed two psychological reports from 2014 and 2015 in which K's and M's disabilities had been respectively assessed. As well, in October 2017 reports on the two children were prepared by Dr Caralyn Purvis, the CA who was initially engaged for the trial. As we understand it, Dr Purvis did not view the children's EVIs or comment on them.
K has been assessed as having an IQ of 46. 10 Her ability to understand language is lower than expected for her age; she struggles with more complex or abstract vocabulary. She can follow simple one or two-part directions, but she struggles with sequencing or questions about time. She cannot describe how long common events take — for example, she said a recent movie she watched lasted “3 minutes”. K can identify and name body parts on a mannequin but struggles with more detailed parts like the knee or elbow; she can identify where the vagina is on a woman and where the penis is on a man.
K will not provide many details about an event without prompting. K uses eye contact to check the appropriateness of her answer; she will “fact check” her answer based on how the other person reacts, sometimes changing her answer in response. K may be able to correct someone who says something she knows is wrong, but she
M has been assessed as having an IQ of about 58. He has a level of expressive language that is less than would be expected for his age; he struggles with more abstract vocabulary. He can follow simple one or two-part directions but struggles beyond this. His understanding of prepositions is good, but they must be used in simple, concrete statements without ambiguity. M can give appropriate responses for the length of movies, songs, or a school day, and he can talk about time in a relative sense. He can tell the time to the hour.
M will not volunteer details about an event or question, even when prompted and asked to expand. He is reluctant to say, “I don't know”, and will often guess instead. Suggestive questions would generally go unchallenged even if inaccurate. M sometimes struggles to retrieve words or compose thoughts. M can concentrate for up to an hour without showing signs of fatigue, but to manage his anxiety it is important he is prompted for breaks.
In her October 2017 reports, Dr Purvis made a number of recommendations as to how the children could be helped to give evidence at trial. For K, the principal recommendations were to:
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(a) have a scheduled break of 5–10 minutes every 45 minutes;
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(b) allow “mini” breaks of around three minutes when needed;
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(c) use calming objects or toys to increase attention and reduce anxiety;
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(d) use visual aids to help K ask for a break;
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(e) permit the CA to intervene if K displayed need for a break but did not ask;
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(f) allow K to meet both counsel and the presiding Judge, face-to-face;
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(g) confirm K's understanding of truth and lies with a brief video used in the courts in the United Kingdom; 11
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(h) permit the CA to intervene if a question was too complex for K to understand;
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(i) permit the CA to support K to point to a mannequin to identify body parts if necessary; and
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(j) require counsel to:
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(i) maintain eye contact, a neutral tone and a calm demeanour;
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(ii) speak slowly, giving time for K to process a question before moving on;
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(iii) use verbal signposts to indicate the context of the next questions and ask questions in sequential order; 12
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(iv) ensure questions are in one or two parts only and,...
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