Tuhaka v R
| Jurisdiction | New Zealand |
| Judge | Stevens J |
| Judgment Date | 13 November 2015 |
| Neutral Citation | [2015] NZCA 540 |
| Docket Number | CA516/2013 |
| Court | Court of Appeal |
| Date | 13 November 2015 |
Stevens, Fogarty and Mallon JJ
CA516/2013
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against conviction for six counts of sexual violation against two female complainants, aged between seven and 10 years at the time of the offending — the complainants' evidence had been similar — in their closing submissions, both the prosecutor and defence counsel addressed whether the complainants had a motive to lie — whether the Judge should have directed the jury to put the Crown submission on motive to lie “to one side” — whether the Judge's propensity direction had omitted to direct the jury that if it accepted one complainant's evidence, it should not jump to the conclusion that the other complainant's account was also true — whether the Judge should have given a warning to the jury as to the risk of relying on demeanour evidence — whether the question trail had been deficient because it had failed to set out the requisite guidance on the topics of motive to lie, propensity and demeanour.
N Levy for Appellant
P D Marshall for Respondent
The appeal is dismissed.
(Given by Stevens J)
Following a trial before Judge Barry and a jury in the Wellington District Court, Mr Tuhaka was found guilty of six counts of sexual violation against two female complainants, Z and X, aged between seven and 10 years at the time of the offending. In respect of Z, Mr Tuhaka was found guilty of rape and unlawful sexual connection. In respect of X, he was found guilty of two counts of unlawful sexual connection, and one count each of rape and doing an indecent act. Mr Tuhaka was sentenced to 13 years' imprisonment with a minimum period of imprisonment of six years. 1
Mr Tuhaka now appeals against his conviction on the basis that the Judge's directions:
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(a) as to the complainants' motive to lie about the offending were inadequate;
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(b) as to propensity evidence were inconsistent with recent authority; and
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(c) as to the complainants' demeanour needed to be specifically addressed and were not.
There is also a challenge to the adequacy of the question trail in that it failed to include written directions on the above topics. Mr Tuhaka contends these errors, either singularly or cumulatively, created a real risk of miscarriage of justice and therefore his appeal against conviction should be allowed.
The offending occurred on a number of occasions when it is said Mr Tuhaka opportunistically took advantage of being alone with the girls. The circumstances of the offending for which Mr Tuhaka was convicted comprised:
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(a) The occasion Mr Tuhaka came into the girls' room, climbed on to Z's bed, told her to pull her pants down, and raped her. She was seven years old.
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(b) A week later, in a game of hide and seek, Z was hiding under the girls' bunk beds, whereupon Mr Tuhaka entered the room and locked the
door. He told her to come out from under the bed and to pull her pants down, and he inserted his finger into her vagina. -
(c) On one occasion when X's mother and sisters had left the house to get pizza, X entered her mother's room where Mr Tuhaka was present. He told X to lie down and pushed her onto the bed, turned off the light and put his fingers into her vagina and then raped her.
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(d) On a further occasion, Mr Tuhaka came into the girls' room and whilst Z was sleeping, climbed onto X's bunk. He pulled her pyjama pants down and inserted his finger into her vagina and made her touch his penis.
Because of the importance of the trial context to the question whether directions on the motive to lie should be given, we briefly refer to the submissions of counsel and the Judge's directions. First, the prosecutor referred to the complainants' evidence and whether they had a motive to lie twice in his closing address to the jury as follows:
You have heard two young girls each give evidence that [Mr Tuhaka] sexually abused them in a variety of ways. Each of the complainants, I would suggest, was compelling in her own way. Each told the sad truth about those incidents. Clearly the fact that two girls have indicated this has occurred is significant in this trial. You might ask why two girls individually would make up and maintain allegations of this nature … if it were not true.
You have to be careful, I should say. It's not for Mr Tuhaka to prove that they had a motive to lie …. But the fact there is, I would suggest, no obvious or credible motive, explaining both of these girls inventing allegations of this nature against [the appellant], and then maintaining them for 18 months or so through the difficult process that you have seen play out in this courtroom, is a factor that you can take into account in assessing their credibility. Put another way, either Mr Tuhaka is guilty, or for some inexplicable reason, each of the two girls has invented and then maintained these various allegations.
Later in the Crown closing, the prosecutor said:
Again I would suggest that is what you would expect, similarly stories which are similar in theme but not so similar as to indicate the girls have got together to formulate a story in order to get [Mr Tuhaka] into trouble. I would suggest there's been no credible suggestion as to why each of these girls would gang up on [Mr Tuhaka] like this and make these allegations unless they were true.
Again I stress though that it is important you recognise that it is the Crown that does the proving in the criminal case. Mr Tuhaka doesn't have to prove anything but the lack of an apparent motive incredible motive, for making up these stories is something you can take into account in assessing their credibility. After all, I would suggest their credibility is the central issue in this case.
The truthfulness or otherwise of the complainants' evidence was also addressed by trial counsel for Mr Tuhaka, in the following terms:
Madam Foreman, ladies and gentleman of the jury, the Crown case against my client rests entirely and solely on the credibility and reliability of the two complainants in this case, that is, what do you make of their evidence? Do you think they're telling the truth, do you think they're reliable? And on that basis, of course, the Crown case must fail. Their evidence, I submit to you, was utter nonsense, it was absurd, it was inconsistent, it didn't make any sense whatsoever.
The one thing we can be sure of is that they've lied. Why they've lied, I wouldn't have a clue, would I? How could anyone know what goes on in the mind of any teenage girl, let alone these two. It's not part of the case really, we don't have to prove motive to lie, we don't have to prove anything, remember? All I've got to show you, in fact, is that there is doubt about what they say and their reliability and credibility.
Mr Tuhaka's counsel continued:
Why they've said these things I'll never know, and that's the truth. You'll never know, no one's ever going to know. They might know but we're never going to hear it now. These things have been said so often it's possible the girls believe them. And they're never going to change their story; it's been said so often. It's a stone that's kind of rolled and rolled and rolled.
Judge Barry, in his summing-up, gave the usual direction on burden and standard of proof. As to the defence case, he said:
[17] The defence case is that [Z] is unbelievable. This is a false complaint. The defence submit it is physically and logically impossible that he could have had sexual intercourse on a single, top bunk with two sisters top and tailing on it, there was no room. The other sister would have woken. The mother in the next room, on her computer, would have been alerted. She would surely have cried out or tried to wake her sister. The defence submit she would have complained at the time. There was nothing stopping her. And the defence submit the evidence is that prior complaining to her mother, she has talked to [X], and they, the defence submit, have made this all up.
In directing the jury how to deal with the no motive to lie submission, the Judge said:
[40] Now the Crown, in reference to both of these complainants, has made submissions that neither of them had a motive to lie about what the accused did to them. If you are to accept that submission, then that is something that you can weigh in the mix in deciding whether you accept the evidence of one or another but what is important to remember is, that just because no motive to lie has apparently emerged, that does not mean of itself that either complainant is to be believed. It is just one factor to be taken into account but you need to consider all of the issues and all of the evidence. The defence, of course, is submitting they both got together and made it all up.
[41] Underlying the approach about a submission of no motive to lie, is the presumption of innocence. The accused does not have to prove anything. He does not have to suggest to you or prove to you why the complainants may have got together to lie. If he had to, that would invert the onus of proof. So exercise caution in considering that submission and give what weight to it you consider appropriate.
Ms Levy for Mr Tuhaka submits Judge Barry's directions on motive to lie were inadequate. Citing a decision of this Court in Penman v R, Ms Levy contends the Judge should have directed the jury to put the Crown submission on motive to lie “to one side”. 2
The Court in Penman identified that the Crown's reference to a motive to lie in that case had created a risk the jury might assume the accused was required to prove a motive to lie. The...
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