BJ v The Queen

[2012] NZHC 116

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-092-9763 [2012] NZHC 116

IN THE MATTER OF     an application for orders relating to admissibility of evidence

BETWEEN  BJ Applicant

ANDTHE QUEEN Respondent

Hearing:         10 February 2012

Counsel:         M F Tuilotolava for Applicant

S N B Wimsett for Respondent

Judgment:      10 February 2012

JUDGMENT OF BREWER J

SOLICITORS

Mele F Tuilotolava (Manukau) for Applicant

Meredith Connell (Auckland) for Respondent

BJ V R HC AK CRI-2009-092-9763 10 February 2012

[1]      By application dated 8 February 2012, Ms Tuilotolava for the accused seeks orders that evidence be admitted in the trial.  The trial is scheduled to commence on

13 February 2012 so I have treated the application with urgency.

[2]      There are two aspects to the application.  The first seeks the admissibility of parts of a signed statement by NN.   This statement, which is annexed to the application, was signed by NN on 6 September 2006.  It was a statement prepared by the accused’s Defence team in a criminal case heard in Australia in which he was the accused.

[3]      By way of background, NN as a child lived in the accused’s family.   The accused in the trial in which I will be presiding is charged with sexually abusing NN’s sister.  Similar allegations were made against him in Australia but in respect of a different complainant and NN was a witness for the Defence in that trial.   The accused was acquitted, as I understand it.

[4]      Ms Tuilotolava submits that NN is unavailable and the circumstances relating to the statement provide reasonable assurance that it is reliable.  Accordingly, she submits that I should allow the extracts to be put to the jury pursuant to s 18 of the Evidence Act 2006.

[5]      Ms Tuilotolava in her memorandum in support of her application says, and I accept, that she herself spoke by telephone to NN as recently as this month and that NN recalled having made the statement in question and confirmed that what she had said was true.  However, NN stated that she did not want to take part in this trial and refused to hear any suggestions as to how she might participate.

[6]      However,  since  the  filing  of  the  application  the  Police  have  also  made inquiries.  Detective Hudson gave evidence before me this morning of conversations he has had by telephone with NN.  The essence of what NN told the Detective is that the statement  she made  on  6 September 2006  is  materially incorrect.    NN told Detective  Hudson  that  she  had  witnessed  the  accused  sexually  and  physically abusing the complainant in the case with which I am concerned.   She told the Detective additionally that the accused had sexually abused her and that she had lied

in her statement about those matters.  She also told the Detective that she was more than happy to assist in any way and was prepared to give evidence in this case via video link.

[7]      Under    those    circumstances,    I    cannot    admit    the    evidence    which Ms Tuilotolava  seeks  to  be  admitted.     It  patently  does  not  comply  with  the requirements  of  s 18  of  the  Evidence  Act  2006.    It  cannot  be  said  that  the circumstances  relating  to  the  statement  provide  reasonable  assurance  that  it  is reliable.  To the contrary, this was a statement taken by a Defence team in relation to allegations of sexual abuse made against a stepfather and now recanted.  Neither can it be said that NN is unavailable as a witness given her very recent conversation with Detective Hudson.  I should note that Detective Hudson’s conversation with NN was subsequent to Ms Tuilotolava’s conversation.

[8]      Standing back, it seems to me that NN is no longer a witness who might be called by the Defence in order to rebut the allegations of the complainant.  She might be a witness who would be valuable to the Crown.   However, those are merely observations and it will be up to counsel to make their own decisions.

[9]      If Ms Tuilotolava were to persist in wanting to call NN’s evidence, and on what I have heard this morning that would be an extremely bold step for her to take, then in the interests of preserving the trial I would request the Crown to make every effort to assist in the establishment of a video link.

[10]     The second aspect of the application for admissibility of evidence concerns extracts from the file compiled and kept at the Department of Child, Youth and Family Services in relation to the complainant.   This file and its contents were referred to in my judgment on earlier pre-trial applications delivered on 9 November

2011.[1]     Ms Tuilotolava has only just now provided the Crown with the extracts

which she wishes to put to the jury, again pursuant to s 18 of the Evidence Act.  The Crown is not in a position to make submissions, not just on the extracts proffered by Ms Tuilotolava but on whether there are any countervailing extracts which should

also be put.

[1] R v BJ HC Auckland CRI-2009-092-9763, 9 November 2011.

[11]     Accordingly, I adjourn this part of the application.  Counsel are to confer and

if there is disagreement I will have to make a ruling during the course of the trial.

Brewer J