Best v R

Case [2016] NZSC 122

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE SUPREME COURT OF NEW ZEALAND
SC 57/2015
[2016] NZSC 122
BETWEEN

TONY GORDON BEST
Appellant

AND

THE QUEEN
Respondent
Hearing:

11 February 2016

Court:

Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

Counsel:

A J Bailey and E Huda for Appellant
M D Downs and K A Courteney for Respondent

Judgment:

8 September 2016

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

Elias CJ, Glazebrook, Arnold and O’Regan JJ [1]
William Young J [111]

ELIAS CJ, GLAZEBROOK, ARNOLD AND O’REGAN JJ
(Given by Glazebrook J)

Para
Introduction [1]
Allegations against Mr Best [2]
Prior allegation [22]
  The complainant’s account [23]
  M’s account [26]
  Text messages [29]
  Decision not to prosecute [34]
Legislative provisions [36]
Decisions of the courts below [40]
  Ruling of Judge Neave [40]
  Trial ruling [41]
  Court of Appeal decision [43]
Submissions of the parties [46]
  Mr Best’s submissions [46]
  Crown’s submissions [49]
The issues [52]
The provisions that apply [54]
Section 44 [60]
Section 37 [68]
History [68]
  Analysis [71]
Summary of our approach [75]
Application to this case [79]
  Assuming the prior complaint was true [85]
  Assuming the prior complaint was false [93]
Knowledge of investigation processes [108]
Result [110]

Introduction

  1. Mr Best was found guilty of one count of sexual violation by rape and two counts of sexual violation by unlawful sexual connection after a jury trial in the District Court at Christchurch on 7 March 2014.  The main issue in this appeal[1] is whether Mr Best’s trial counsel should have been permitted:

    (a)to cross-examine the complainant on what Mr Best alleges may have been a false complaint made by her on another occasion against a different alleged perpetrator; and

    (b)to lead evidence in support of the contention that the earlier allegation was false.  

Allegations against Mr Best

[1]Leave to appeal to this Court was granted on 3 November 2015: Best v R [2015] NZSC 167 (William Young, Arnold and O’Regan JJ).

  1. On the evening of 10 May 2012 the complainant was with a group of her friends at Mr Best’s house.  She was at the time 18 and Mr Best was 43.  Mr Best was the stepfather of one of the complainant’s friends (A) but the complainant had not previously met him.  The complainant said that she and A were in a sexual relationship but were not “dating”.  

  2. At some stage during the evening, Mr Best and A’s mother went to visit a family member in hospital for a few hours.  When they returned, the pair spoke with the young people for a while before Mr Best went to work on his motorbike outside.  The complainant greeted Mr Best when they first met but claims that they did not have any further conversation or interaction.[2]  Between 10 and 10.30 pm the complainant was put to bed on…

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Details
AGLC
Best v R [2016] NZSC 122
Case
[2016] NZSC 122
Decision Date

CaseChat Overview and Summary

The appellant, Mr Best, appealed against his conviction for sexual offences against a complainant, M. The trial judge had excluded evidence of a prior complaint made by M in relation to another man, as well as the complainant's knowledge of the investigation of text messages as evidence. The central legal issue was whether the trial judge erred in excluding evidence of the prior complaint and the complainant's knowledge of investigatory techniques, specifically the review of text messages. The court had to determine the extent to which s 44 of the Evidence Act limited the admissibility of such evidence, and whether the exclusion of this evidence was in the interests of justice.

The court considered the pre-trial ruling by Judge Neave, which had been endorsed by the trial judge, Judge Garland. The court held that s 44 of the Evidence Act applied because the prior complaint involved sexual activity, and thus questioning about it engaged the provisions of the Act. The court noted that the exclusion of this evidence was not in the interests of justice, as it would not have unfairly prejudiced the proceedings or needlessly prolonged them. However, the court also held that the complainant could be questioned about her knowledge of investigatory techniques, such as the review of text messages, without reference to the prior complaint. The court concluded that the trial judge's decision to exclude the evidence of the prior complaint and limit the scope of questioning about investigatory techniques was correct, as it balanced the interests of justice with the provisions of the Evidence Act.

The appeal was dismissed, and the conviction upheld. The court ordered that the appeal be dismissed and the conviction and sentence of the appellant be upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 44 of the Act deals with evidence of sexual experience of complainants in sexual cases. In relevant part, it 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.…(6)This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section. Finally, s 8(1) of the Evidence Act provides:8 General exclusion(1)In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—(a) have an unfairly prejudicial effect on the proceedings; or(b) needlessly prolong the proceeding. Whether Mr Best could cross-examine the complainant and call evidence on the prior complaint was dealt with by Judge Neave in a pre-trial ruling.[27] He held that questioning the complainant about the previous complaint necessarily engaged s 44 of the Evidence Act because, even on M’s account, sexual activity did occur.[28] He considered that defence counsel should be able to question the complainant about her knowledge of the processes that are followed in the event of a rape complaint and in particular her knowledge of the investigation of text messages.[29] He held that it was not in the interests of justice to allow questioning of the complainant to any other extent.[30] The application was revisited in chambers on the morning of the trial. The trial Judge, Judge Garland, endorsed Judge Neave’s ruling. He ruled that counsel for Mr Best could question the complainant about her knowledge of investigatory techniques (including the review of text messages and certain medical procedures) but without reference to the prior complaint. Judge Garland directed the Crown prosecutor to advise the complainant that she would be asked questions about these topics.[31] [31]There is no formal record of Judge Garland’s ruling but the parties generally agreed on its content. At trial, the complainant was cross-examined on her knowledge of the police procedures that would take place upon making a complaint, such as the medical examination and the taking of swabs, and also her knowledge that the police would look at her text messages as part of their investigation. The complainant accepted that she knew both of these would occur. She was asked why in that case she had delayed until the afternoon to make her complaint to the police and also whether she gave any consideration as to whether she should have showered after the alleged rape. She answered that she was scared Mr Best would harm her if she went to the police. She denied that she had showered as she said she felt too unwell to get out of bed. In the defence’s closing address, it was suggested that the complainant’s texts were self-serving in light of the fact that she knew that the police would review her text messages.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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