Elias CJ [1] McGrath, Glazebrook and Arnold JJ [33] William Young [110]
ELIAS CJ
The appellant was convicted after jury trial in the District Court of one count of sexual violation by rape. At the same time he was found not guilty of a charge of sexual violation by oral connection arising out of the same incident and concerning the same complainant. The appellant’s appeal to the Court of Appeal was dismissed.[1] He appeals further to this Court on two grounds. First, he says the trial Judge wrongly excluded evidence relevant to his defence of consent. Secondly, he says that the two verdicts were inconsistent, making his conviction on the rape charge unsafe.
The charges arose out of events after the appellant visited the complainant at her home at night. The complainant and the appellant and their respective partners were known to each other. Earlier in the evening both had been drinking at a pub in the small settlement where they both lived.
The complainant left the pub at about 9.30 pm and went home where she changed into her nightwear. She discovered a dead mouse in a trap in the kitchen. The complainant dislikes handling mice and usually asks someone else to do so. She telephoned the pub to try to persuade her daughter, who was there, to come to the house to remove the mouse. The daughter refused. The complainant said that the appellant had then turned up at the house, saying he had come to dispose of the mouse. The appellant said the phone had been passed to him at the pub (the daughter said it was possible, although she could not recall giving the phone to the appellant) and that the complainant had asked him to come to the house to deal with the mouse.
The evidence was that after the appellant had disposed of the mouse, he and the complainant sat outside smoking and then went back into the house and sat on a couch. The complainant said that the appellant pushed her down, took off her underpants and licked her vagina before raping her. The appellant, who had been drinking for some hours, when interviewed by the police said he could not recall the sexual activity. At trial however he acknowledged the sexual connection but said that it had been consensual. (He explained his statement to the police…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
B (SC12/2013) v R [2013] NZSC 151
Case
[2013] NZSC 151
Decision Date
CaseChat Overview and Summary
This appeal concerns the admissibility of evidence in a sexual offence case. The appellant was convicted of sexual penetration of a complainant without consent. The trial court had ruled that evidence of the complainant’s prior sexual experience was inadmissible, a ruling that was upheld on appeal. The High Court now considers whether the evidence was properly excluded. The legal issue is whether the evidence was properly excluded under the Evidence Act, specifically s 44, which governs the admissibility of evidence of the sexual experience or sexual reputation of a complainant in a sexual case. The High Court considered that the evidence was either about the complainant’s sexual reputation or her sexual experience with another person, both of which are excluded by s 44(2) and (3). The Court held that the trial Judge was correct to exclude the evidence, as it went to the complainant’s sexual reputation, and therefore did not need to consider whether it was of such direct relevance that it would be contrary to the interests of justice to exclude it.
The High Court dismissed the appeal, affirming that the evidence was properly excluded. The Court held that the evidence was either about the complainant’s sexual reputation or her sexual experience with another person, both of which are excluded by s 44 of the Evidence Act. The Court of Appeal had already considered that the evidence went to the reputation in sexual matters of the complainant, and so was excluded by s 44(2). The High Court found no error in this reasoning and held that the exclusion of the evidence was correct. The appellant’s argument that the evidence was relevant to show a pretext used by the complainant on another occasion was rejected as the evidence related to her sexual reputation or experience with another person, which are excluded categories under the Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Under s 40(3)(b), propensity evidence “about … a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44”. Section 44 provides:44 Evidence of sexual experience of complainants in sexual cases (1)In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.(2)In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.(3)In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.… The Judge ruled that the proposed evidence was inadmissible.[2] He doubted its relevance[3] but, in any event, considered that it was evidence that either went to the complainant’s sexual reputation or was evidence relating to the sexual experience of the complainant with someone other than the appellant.[4] In the end, the Judge seems to have treated it as evidence of the sexual experience of the complainant with someone other than the appellant. He decided, under s 44(3) of the Evidence Act, that it was not contrary to the interests of justice for it to be excluded.[5][2]R v B DC Kaikohe CRI-2010-029-285, 20 September 2011 at [14] [R v B evidentiary ruling].[3]At [12].[4]At [12]–[14].[5]At [14]. On appeal, the Court of Appeal considered that the evidence went to the reputation in sexual matters of the complainant, and so was excluded by s 44(2).[6] It had accordingly been unnecessary for the trial Judge to consider under s 44(3) whether the evidence should be admitted (as would have been necessary if it had been evidence of sexual experience of the complainant with a man other than the appellant).[7] [6]B v R (CA), above n 1, at [27].[7]At [29]. In this Court, Mr Lithgow QC for the appellant argues that the evidence did not engage s 44 on either basis because its relevance was simply to indicate that on another occasion the complainant had asked a man into her house to deal with mice. The evidence was said to be relevant to the complainant’s denial that she had invited the appellant to her house for the same purpose. On the basis of the explanation given by trial counsel, the proposed evidence was relevant to a pretext used on another occasion by the complainant to get another man to her house in circumstances indicating preparedness to engage in sexual activity. That seems the only purpose of seeking to call evidence from the witness as to the way the complainant was dressed and his discomfort and impression that she was signalling her willingness to engage in sexual activity.