The Supreme Court strongly urges trial judges to give juries a warning where evidence may be unreliable because it pertains to conduct of the defendant which is alleged to have occurred more than 10 years ago.

R v R [2023] NZSC 132

 
Last year, in 2023, our Supreme Court in R v R gave a strong message to trial Judges when they found that justice had miscarried in a sexual offending trial. 


 
Under section 112 of the Evidence Act 2006, when a Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding— whether to accept the evidence and the weight to be given to the evidence. This case concerned evidence described under s 112(2)(2) - evidence about the defendant's conduct, alleged to have occurred more than ten years previously. 


 
Back in July 2017, a defendant was found guilty of 18 sexual offending charges against a young female complaint. However, the complainant reported her allegations in two trances — 14 years apart. The latter allegations were a lot more serious. The trial Judge was aware of s 122 warnings and the problems associated with a complainant's delayed disclosure. However, she decided not to warn the jury. After the jury retired for deliberation, defence counsel submitted a request for a reliability direction to be given on the basis that the long delay between disclosures could have affected the complainant's recall. The Judge declined this request. The defendant was found guilty after evidence was presented to the 12 jurors with no warning. 
On the first appeal, the Court of Appeal was satisfied that there was 'good reason' not to comply with the request, namely that the trial judge was of the opinion that a direction would "serve to focus unduly on the evidence and confuse the jury".


 
This decision was reevaluated for a second time in April of 2023, where the appellant argued the Judge was bound by the principles their own court established in the 2014 case of CT v R. In CT, 'reliability' of evidence related to the effect of delay on memory and the forensic disadvantage following a delayed complaint. 

Outcome 
In this case, the most significant indicator of potential confabulation was substantial differences between the 2001 and 2015 statements. As for forensic disadvantage, the majority found that the defendant's son was unable to provide what could have been useful assistance to the defence's case. On cross-examination, the son could not remember the exact living arrangements or whether he had discussed his fathers behaviour with the complainant at the relevant time. These two factors, combined with the lengthy 16-year delay between the alleged events and trial - surpassing the already high 10-year threshold- led the majority to find that a warning should have been given on request. There must be a 'good reason' to decline a reliability warning under s 122(3), and there wasn't one. 


 
Key takeaways

1. The Supreme Court certainly nudges judges not to whittle down potentially unreliable evidence presented to juries and to use warnings in such cases to prevent further miscarriages. The risk categories pay attention to potential complainant memory loss or distortion whilst acknowledging the risk of compromising the defendant’s ability to test or meet the prosecution’s case.
2. Judges must be prepared to engage with trial fairness difficulties associated with delayed complaints and take responsibility for assisting juries with them. 
3. Whilst s 122(4) affirms it is not necessary for a Judge to use a particular form of words when giving the warning, directions must be framed appropriately and tailored to the case at hand.