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Unsuccessful appeal against conviction for historical sexual offences

9 Feb 2024

| Author: Fiona Wu

Unsuccessful appeal against conviction – Criminal Procedure Act 2011 – historical sexual offending – admissibility of evidence of complainant behavioural changes – cross-examination – direction to jury – unfair questioning – covert recordings by complainant’s family – alibi evidence

B v R [2023] NZCA 655 per Miller J.

 

The appellant was convicted after a jury trial on six charges of indecent assault and one of doing an indecent act against his stepdaughter, who was aged 13 and 18 when the offences happened between 2009 and 2014.  The appeal against conviction was brought on four grounds:

  • Evidence of changes in the complainant’s behaviour (she became depressed, did not attend school, and drank and hung out with the wrong crowd) was led and used by the Crown as evidence that the offending had happened;
  • a secret recording of a family meeting, in which the appellant appeared to accept some of the allegations, was led in evidence. It was submitted the appellant would have been pressured to attend the meeting, did so without preparation, and felt ambushed;
  • the complainant associated the first offence with a certain car race being on television at the time and the appellant had an alibi for when the race occurred. The Crown is said to have met this evidence by asserting, without an evidential foundation, that the complainant must have been watching a replay of the race; and
  • the complainant was not cross-examined about claiming she had a job at the time of the first offence.

The appellant contended that evidence of behavioural changes should not have been led at all, let alone relied on as circumstantial evidence of the offending as there may have been alternative explanations for her behaviour. Expert evidence may have also been necessary when the behaviour was outside the normal experience of a jury.

This first ground was rejected: such evidence of behaviour changes is admissible as part of the context. In any event, it did not assume prominence in the trial. The alternative explanation – that the complainant was a teenager – was squarely before the jury.

The second ground of appeal failed as the appellant would have known ahead of the meeting of the allegations, and chose to participate regardless. While he did not know that he was being recorded, the recording (by the complainant’s father, a non-state actor) was not unlawful or unfair as the appellant knew that others were witnesses to what he was saying and knew a complaint might be made to police.

Giving rise to the third ground of appeal was the prosecutor’s suggestion in cross-examination that the car race may have been replayed. The appellant contended the Crown led evidence about screenings of the race and therefore the questioning was unfair. In rejecting the contention, the Court of Appeal determined there was nothing unfair about the Crown inquiring whether the race might have been replayed. The trial judge presumably would have directed the jury that counsel’s question was not evidence.

Finally, the appellant contended that trial counsel failed to cross-examine the complainant on her evidence that she was working as a dishwasher aged 13 in 2009. The appellant said counsel was specifically instructed to put it to her that she did not commence employment until she was aged 16.  The Court of Appeal accepted the point should have been put to her, although it was not in itself enough to amount to a miscarriage of justice – it was a collateral detail that had no significant impact on the jury’s ability to assess the conflict of evidence.

 

Applicable principles: whether miscarriage of justice arising – whether evidence of complainant’s behavioural changes admissible – whether covert recording of defendant unfair – whether questioning unfair – whether obligation to put detail in cross-examination.

 

Held: Appeal dismissed. None of the grounds of appeal was made out. Court of appeal not persuaded that jury verdicts were unsafe.

 

B v R [2023] NZCA 655.

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