Brooks v The Queen
[2019] NZCA 280
•3 July 2019
For a Court ready (fee required) version please follow this link
Brooks v R
Court of Appeal CA395/2018; [2019] NZCA 280 12 February; 3 July 2019
Miller, Simon France and Peters JJ
Evidence – Propensity – Evidence in previous case where defendant acquitted –
15 Record of previous trial missing – Relevance of acquittal – Whether mere absence of record prejudicial.
In 1991, 1995 and in 2015 Mr Brooks was tried on charges of sexually assaulting three separate complainants, R, S and M. On each occasion he was acquitted. In 2018, he faced trial again on charges of sexually assaulting and
20 sexually violating complainant J. The Crown proposed to call R, S and M to give propensity evidence. The evidence of R and S was ruled inadmissible on the ground that its probative value was outweighed by the risk of unfairly prejudicial effect. This was because the notes of evidence at the previous trials had been lost. The Crown appealed to the Court of Appeal which reversed that
25 decision partly because it was understood that the entire police file relating to S’s complaints would be available. In the event, only minimal information was available in S’s file. Mr Brooks appealed again and the Court of Appeal decided that it would revisit the earlier appeal in relation to S as there had been a material change in circumstance.
30 Held: 1 (per Miller and Simon France JJ) The Court was required to balance the probative value and prejudicial effect of the propensity evidence. That rendered the previous acquittal prima facie irrelevant. The evidence had been adduced at the second trial for a different purpose and the acquittal was merely evidence of the opinion of the jury in the earlier trial (see [25]).
Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298 applied.
R v Degnan [2001] 1 NZLR 280 (CA) referred to.
R v K (SC10/2019) [2019] NZSC 46 discussed.
2 (per Miller and Simon France JJ, Peters J dissenting) The propensity evidence of S was admissible at the 2018 trial notwithstanding the absence of
40 investigative and trial records from the 1995 trial. The defendant was unable to point to any additional prejudice resulting from the fact that the records were missing and the Court would not assume that the mere absence of a file was prejudicial (see [35], [43], [47], [49], [75]).
Result: Appeal dismissed.
45 Observations: 1 (per Miller and Simon France JJ) The acquittal dimension which might make it unfair to permit otherwise admissible propensity evidence extends to the reasons for the acquittal, the nature of the evidence and any circumstances making it unfair to respond again to the evidence (see [28]).
Court of Appeal
[2020]
Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298 discussed.
R v Z [2000] 2 AC 483 (HL) referred to.
2 There is a distinction between unfair prejudice attaching to particular evidence and unfair prejudice to the proceeding more generally. The Court in Fenemor did not locate the discretion to exclude in s 8 of the Evidence Act 5 2006, which is concerned with unfairness to the proceeding as a whole. Nor did
the Court invoke s 24(d) of the New Zealand Bill of Rights Act 1990, which arguably might apply when prejudice, such as that resulting from the loss of a file, is attributable to the actions of an agent of the state. The Court did not hear
argument on these questions and were sitting as a Divisional Court. Another 10 Divisional Court already held that S’s evidence was admissible propensity evidence, following Fenemor, and the issue before the Court turns on a change
of circumstances. The Court accordingly rested its decision on s 43, under which the discretion to exclude depends on the prejudicial effect of the evidence (see [29]). 15
Other cases mentioned in judgment
Blackburn v R [2011] NZCA 365.
CT v R [2014] NZSC 155, [2015] 1 NZLR 465.
Hui Chi-ming v R [1992] 1 AC 34 (PC).
Mead v R [2013] NZCA 59. 20
Morton v R [2016] NZSC 51, [2017] 1 NZLR 1.
R v Degnan [2001] 1 NZLR 280 (CA).
R v Edwards [1991] 1 WLR 207 (Crim App).
R v Harmer CA324/02, 26 June 2003.
R v Holtz [2003] 1 NZLR 667 (CA). 25
R v Howse [2003] 3 NZLR 767 (CA).
Rompa v R [2010] NZCA 277.
RPG v R [2015] NZCA 275.
Appeal
This was an appeal by Peter James Brooks from conviction before judge and 30
jury.
IM Brookie and CG Farquhar for the appellant.
JEJ Carruthers for the respondent.
Cur adv vult
Reasons
35
Para no
Miller and Simon France JJ [1]
Peters J (dissenting) [52]
The judgment of Miller and Simon France JJ was delivered by
MILLER J. [1] The appellant, Peter Brooks, appeals against conviction 40 on two charges of sexual violation of the complainant, J, by unlawful sexual connection. He was convicted following a jury trial before Judge Dawson in the District Court at Auckland in 2018.
The allegations against Mr Brooks were that he had performed oral sex
on J and had inserted J’s penis into his anus, both without J’s consent. 45 Mr Brooks admitted that oral sex occurred but contended it was consensual.
He denied the allegation of penile-anal penetration.
[3] Three other men – R, S and M – had previously accused Mr Brooks of sexually assaulting them: R in 1990, S in 1995, and M in 2012. Each complaint went to trial, in 1991, 1995 and 2015 respectively, and each time Mr Brooks was acquitted.
5 [4] In his 2018 trial Mr Brooks confronted not only J but also his three previous accusers, who were called to give propensity evidence.
[5] Before the trial the propensity evidence of the complaints by R and S was ruled inadmissible,1 but this Court overturned that ruling on appeal.2
[6] Mr Brooks appeals his convictions on grounds which invite us to revisit
10 that decision.3 As we go on to discuss, it is appropriate to do so in one respect, which concerns the loss of material from the investigation and trial of S’s 1995 complaint.
Background
The nature of the evidence
[7] At the time of the alleged assaults on them, R was aged 16 and S was 18, and Mr Brooks was 25 and 30 respectively. Each of R and S alleged they had been drinking and that they awoke to find Mr Brooks assaulting them. In each case, Mr Brooks denied that the events alleged had ever occurred.
[8] M was 19 at the time of the alleged assault on him, and Mr Brooks was
20 in his late 40s. M worked with Mr Brooks and went to Mr Brooks’ house for some drinks as he had done on previous occasions. M alleged that he went to sleep (on his own) in Mr Brooks’ bed and woke to find Mr Brooks assaulting him. Mr Brooks defended the charge of sexual violation on the basis of consent.4
25 [9] J also worked with Mr Brooks. J was 21 at the time of the alleged offending in July 2016 and Mr Brooks was by now in his early 50s. As with M, the offending was said to have occurred at Mr Brooks’s house. J went to the house having been drinking, smoked cannabis with Mr Brooks, tried to go to sleep on a couch and was persuaded to get into Mr Brooks’s bed. J alleged that
30 Mr Brooks assaulted him in the manner referred to in [2] above, and that he, J, was too intoxicated to resist.
Pre-trial matters
[10] The Crown made a pre-trial application to adduce the prior acquittals as propensity evidence. Judge D Sharp was satisfied that the evidence was
35 propensity evidence of probative value to the issues at trial, that is whether J had consented to oral sex as alleged, and whether the alleged penetration had taken place.
[11] However, the Judge excluded R and S’s evidence on the ground that its probative value was outweighed by the risk of an unfairly prejudicial effect.5
40 This was because the notes of evidence in R and S’s trials could not be found, although the police file and original witness statements to the police were said
1 R v Brooks [2017] NZDC 18026 [DC ruling].
2 R v Brooks [2017] NZCA 503 [CA decision].
3 The Court is permitted to revisit its decision where there is a “material change in circumstances”: see R v Howse [2003] 3 NZLR 767 (CA) at [15].
4 The Judge in the M case rejected an application by the Crown to adduce R and S’s evidence as propensity evidence on the ground that its probative value would be outweighed by its unfairly prejudicial effect: R v Brooks DC Manukau CRI-2013-092-012521, 22 January 2015.
5 DC ruling, above n 1, at [64].
to be available. The Judge considered that the absence of the notes of evidence meant the defence would not be able to test the evidence of R and S at trial, particularly given the lapse in time.
The Crown appealed to this Court, which allowed the appeal.6 This Court accepted that R and S’s evidence was of probative value.7 It allowed the 5 appeal because it considered the risk of unfair prejudice to be low, as the notes
of evidence from R’s trial had been found, and it was understood the entire police file in respect of S’s complaints would be available.8
At trial, this latter expectation as to the completeness of S’s police file turned out to be incorrect, a matter central to this appeal. 10
The Supreme Court declined Mr Brooks’ application for leave to appeal, but left open the possibility that Mr Brooks might make a further application after the trial.9
The trial
R, S and M all gave evidence at the trial of J’s allegations before Judge 15
Dawson. The Crown also led recent complaint evidence from third parties associated with each of them. Using the notes of evidence, defence counsel cross-examined R, M and associated witnesses on differences between their evidence at the trial and previously.
The available information from the police file on S’s complaint 20
comprised statements to the police by S and by D, the latter being in the nature of recent complaint evidence, and a scene diagram which was not of the house in which S said the offending occurred. Other information was no longer available. It was apparent from contemporaneous correspondence between the
Crown solicitor and the police that the police had interviewed Mr Brooks, and 25
that the interview had been videoed and quite possibly transcribed. Neither the video nor any transcript was available. No police notebook entries or job sheets made at the time were available. Nor were any other statements given to the police. It is likely that the police had a statement from another person, H, who seems to have been associated with S, D and Mr Brooks at the time of the 30
alleged offending in 1995. Such material is available suggesting that S went to
the police after speaking to H, a business competitor of the Brooks family. There was a suggestion in the 2018 trial that H had put S up to complaining to the police, although S and D denied this when Mr Brookie questioned them
about it. There is no evidence that H was called as a witness at the trial on J’s 35
charges and we do not know what he would say.
At the conclusion of the Crown case, Mr Brookie applied to Judge Dawson to abort the trial, on the ground that there had been a material change in circumstance. The Judge dismissed the application.10
Scope of the appeal 40
Mr Brookie invited us to reconsider this Court’s earlier decision in its entirety, that is, including R’s evidence. We decline to do so, there having been no material change in fact or law affecting the admissibility of R’s evidence. The remedy lies in a further appeal from this judgment. However, we accept
CA decision, above n 2. 7 At [33].
At [36].
Brooks v R [2017] NZSC 188.
R v Brooks [2018] NZDC 27296; and R v Brooks [2018] NZDC 6631.
Mr Brookie’s submission that this Court proceeded previously on the basis that the entire police file for S would be available at trial. The fact that it was not justifies reconsidering this Court’s earlier decision so far as it concerns S.11
Submissions
5[19] Mr Brookie submitted that the combination of the lapse in time (23 years), and the absence of the notes of evidence of the 1995 trial, of the video of Mr Brooks’ interview, of the transcript of that interview, and any notebook entries and similar rendered the admission of S’s evidence at trial unfairly prejudicial. This was because the jury who acquitted Mr Brooks on the charges
10 relating to S would have seen the video and it was likely to be of assistance to the defence at the trial of J’s charges, and it was also likely to have raised matters to be pursued in cross-examination of S at trial. The job sheets and any other statements might well have raised other lines of inquiry.
[20] For these propositions counsel cited Mead v R, in which this Court held
15 that the defendant’s ability to conduct an effective cross-examination on the complainant’s earlier allegations was an important aspect of his fair trial rights and the unavailability of her evidence at the first trial risked unfair prejudice:12
[18] In the case of previous acquittal, it will generally be necessary for the complainant to give evidence again at a later trial, since the fact of the
previous trial and its outcome will by itself have little probative value. Accordingly, the ability to conduct an effective cross-examination of MH [the complainant] on the earlier allegations is an important aspect of the appellant’s fair trial rights in the present trial. We consider that the unavailability of the evidence at the previous trial and of the statements
made by MH prior to that trial, and the consequent inability of the appellant to cross-examine MH on the statements which she made at the time of her original complaint, does create a risk of unfair prejudice to the appellant. (Citations omitted).
[21] For the Crown, Mr Carruthers submitted that, given the strength of the
30 probative value of the propensity evidence – three other men, not known to each other, all alleging an uninvited sexual assault – S’s evidence would have been admissible even if this Court had been fully informed as to the state of the information available from the trial of S’s allegations. Nothing had changed to justify revisiting this Court’s earlier decision. He also submitted it was
35 speculative to suggest that Mr Brooks was prejudiced because the contents of the missing information were unknown. Put another way, Mr Brooks had to do more than point to a possibility that the missing records would assist him.
The authorities on prior acquittal evidence
[22] Mr Brookie’s argument requires that we rehearse the authorities on prior
acquittal evidence.
[23] The leading authority is Fenemor v R, in which the Supreme Court affirmed that no rule precludes the admission of propensity evidence that previously formed the basis of charges resulting in an acquittal at an earlier trial.13 The same approach had been taken by this Court in R v Degnan, which
11 Crown counsel submitted to us that this Court knew that Mr Brooks’ interview, video or transcript, was unavailable. This is not apparent on the face of this Court’s earlier decision.
12 Mead v R [2013] NZCA 59.
13 Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298.
was decided in 2001.14 The Supreme Court followed Degnan, holding that in the Evidence Act 2006 Parliament had effectively endorsed the approach taken there, on condition that s 43(1) was satisfied.
Section 43 provides:
43 Propensity evidence offered by prosecution about defendants 5
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the
defendant. 10
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)the frequency with which the acts, omissions, events, or 15
circumstances that are the subject of the evidence have occurred:
(b)the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence
for which the defendant is being tried: 20
(c)the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d)the number of persons making allegations against the defendant 25
that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f)the extent to which the acts, omissions, events, or circumstances 30
that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,— 35
(a)whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
We observe that s 43(1) requires that the court balance the probative 40
value and prejudicial effect of “the evidence”, being the propensity evidence. That focus on the value and effect of the propensity evidence might be thought to render a previous acquittal prima facie irrelevant notwithstanding that the probative value of the evidence may rest on its tendency to show the defendant
committed the earlier offence. The evidence is adduced in the second trial for 45
a different purpose, and the acquittal is merely evidence of the opinion of the jury in the earlier trial.15 So the first question is why the acquittal is relevant.
R v Degnan [2001] 1 NZLR 280 (CA).
Hui Chi-ming v R [1992] 1 AC 34 (PC) at 43.
[26] The Supreme Court did not approach s 43 in that way, presumably because its attention was focused on the prior question whether previous acquittal evidence was inadmissible in law. As noted, the Court held the Legislature had effectively endorsed Degnan when it enacted s 43.16 The
5 Supreme Court observed, this Court had held by reference to English authority17 that prior acquittal evidence was admissible in law “subject to the discretion of the trial judge to exclude it if its admission would, in the
circumstances of the particular case, be unfair or would amount to an abuse of process”.18 In England that discretion is located in s 78(1) of the Police and
10 Criminal Evidence Act 1984 (UK), which creates a general jurisdiction to exclude evidence for unfairness to the proceeding.19 Its nearest equivalent in the Evidence Act 2006 is s 8.
[27] The Supreme Court located a discretion to exclude in s 43. It recognised that when considering probative value the court is to consider “among other
15 matters” those characteristics of the evidence listed in s 43(3). When considering prejudicial effect it may consider “among other matters” the two listed in s 43 (4).20 The listed effects are not characteristics of the evidence but estimates of its effect on the fact-finder, and as noted they are not exclusive.
[28] The Court accordingly reasoned that s 43 allows a court to consider “the
20acquittal dimension”, inquiring whether that gives rise to any, or any additional, prejudice from the admission of the evidence.21 The acquittal dimension is not confined to the bare fact that the evidence was previously the subject of charges
that resulted in an acquittal. The Supreme Court reasoned that the inquiry into prejudicial effect will focus on “whether it is unfair to expect the defendant to
25 respond again to the evidence in question in light of the fact that it was not regarded as sufficient to result in a conviction on the earlier occasion”.22 The Court declined to elaborate in the abstract on when such unfairness might arise,
but it did refer to the example of an acquittal following a successful alibi defence given by Lord Hobhouse in R v Z,23 relied upon in Degnan.24 In
30 Degnan the Court had reasoned that the basis of the previous acquittal might make it unfair to permit otherwise admissible propensity evidence.25 So the acquittal dimension extends to the reasons for the acquittal, the nature of the
evidence and any circumstances making it unfair to respond again to the evidence.26
35 [29] There is a distinction between unfair prejudice attaching to particular evidence and unfair prejudice to the proceeding more generally. We observe that the Fenemor Court did not locate the discretion to exclude in s 8, which is
16 Fenemor v R, above n 13, at [5]. 17 R v Z [2000] 2 AC 483 (HL).
18 Fenemor v R, above n 13, at [5].
19 R v Z, above n 17, at 506. Section 78(1) provides: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
20 Fenemor v R, above n 13, at [7]. 21 At [8].
22 At [9].
23 At [9], citing R v Z, above n 17, at 509.
24 R v Degnan, above n 14, at [33]. 25 At [37].
26 Fenemor v R, above n 13, at [10].
concerned with unfairness to the proceeding as a whole.27 Nor did the Court invoke s 24(d) of the New Zealand Bill of Rights Act 1990, which arguably might apply when prejudice, such as that resulting from the loss of a file, is attributable to the actions of an agent of the state.28 We did not hear argument
on these questions and we are sitting as a Divisional Court. Another Divisional 5 Court has already held that S’s evidence is admissible propensity evidence, following Fenemor, and the issue before us turns on a change of circumstances.
We accordingly rest our decision on s 43, under which the discretion to exclude depends on the prejudicial effect of the evidence.
On the facts of Fenemor, the Supreme Court found that no additional 10 prejudice arose from the status of the evidence as prior acquittal evidence. Notably, it reasoned that:
(a) No additional prejudice arose from the fact that a video interview for the propensity witness, B, was no longer available, reasoning that the
problem did not arise from the acquittal dimension and any unfair 15 prejudice was a matter of speculation. The Court added that as it happened a written transcript of B’s evidence was available.29
(b) The lapse of time between the events the subject of B’s propensity evidence and the current trial was not a function of the acquittal.30 B
was then a young girl and now a young woman, but that would be the 20 same had there been a conviction or had no charge been laid.
(c) It would be speculative to conclude that prejudice resulted from the fact that that no record of the judgment in the trial at which Mr Fenemor was acquitted was now available.31
It will be seen that neither loss of trial records nor passage of time was 25 sufficient to exclude the evidence. The arguments failed for want of a causal connection between the acquittal dimension and the alleged prejudice, or because it was speculative to conclude that the absence of trial evidence or records actually caused any prejudice.
The Court’s speculation rationale assumes that the absence of material 30 from the previous investigation or trial could be relevant if it could be shown
that the material had contained something advantageous to the defence.
This Court took that point up in Mead v R.32 The propensity evidence concerned a complaint of attempted rape that was made in 1989 and resulted in
an acquittal at trial in 1990. The instant charges included allegations that the 35 appellant had offended against the same complainant, MH, in 1976−1983, when she was a child. Neither the court file nor the police file from the 1990
trial was available. The Court reasoned that the propensity evidence was admissible, if considered apart from the acquittal dimension. But:
We observe that it is doubtful whether s 8 of the Act could be invoked. In Morton v R, William Young and O’Regan JJ stated, obiter, that s 8 cannot be used to exclude evidence that is admissible under another provision: Morton v R [2016] NZSC 51, [2017] 1 NZLR 1 at [14].
We observe that in R v Harmer this Court held that in order to show that lost evidence occasioned a miscarriage of justice it would be necessary to show that it is probable that the lost evidence would have been of real assistance to the defence: R v Harmer CA324/02, 26 June 2003 at [91].
Fenemor v R, above n 13, at [19]. 30 At [15]−[16].
At [20].
Mead v R, above n 12.
[11] There is however another dimension to be considered. That is possible unfair prejudice arising from the loss of the files. In this case, the evidence to be adduced is the oral evidence of MH. Ordinarily, in a case where an incident which has been the subject of a previous acquittal is relied on as
propensity evidence, the evidence given at the trial which led to the acquittal will be available. The witness’s evidence at the later trial can be tested by reference to the witness’s previous statements. That will not be possible in this case.
[34] The Court sought to distinguish Fenemor on the ground that the decision
10 was confined to the issue for which leave was given.33 We do not take that approach. But it also emphasised that unfair prejudice is a case-specific issue and stated that:
[15] We do not regard Fenemor as authority for the proposition that, where there has been a previous trial on the incident the subject of the proposed
propensity evidence, the unavailability of the entire record of that earlier trial is not capable of constituting unfair prejudice. A factual assessment must be made on a case specific basis. As the Supreme Court said, “[i]t is always open to individual defendants to contend that in their particular case admission of prior acquittal evidence would be unfair” and “[t]he
necessary assessment will inevitably be very case-specific.” (Citations omitted).
[35] We agree that the unavailability of the prior record may lead to unfair prejudice, but it is not sufficient in itself. We make three points:
(a)The jury’s reasons for acquitting the defendant will frequently not be
discernible from the record;
(b)In a simple “she-said, he-said” case, the inference may be drawn that the jury did not find the complainant’s account sufficiently persuasive to prove the charge beyond reasonable doubt. But that need not mean that the complainant lacked credibility, and the inference is not
sufficient in itself to make the prior acquittal relevant, since it is merely the opinion of the previous jury;34
(c)For these reasons, a defendant seeking to exclude prior acquittal evidence must point to something more than the absence of a record. The court will not assume that the missing record must have been
advantageous for the defendant at the new trial. To the extent that
Mead held otherwise, we respectfully disagree.
[36] After this appeal was argued the Supreme Court delivered judgment in R v K, overruling this Court’s decision that acquittal propensity evidence was inadmissible at K’s trial for sexual offending against his daughter.35 The
40 propensity evidence alleged the rape of his half-sister. The Supreme Court differed from this Court on the probative value of the evidence, holding that the familial connection and other features of the evidence gave it significant value.36 It also differed from this Court on the prejudicial effect of the
33 At [14].
34 Hui Chi-ming v R, above n 15, at 43. 35 R v K (SC10/2019) [2019] NZSC 46. 36 At [35].
evidence.37 This Court had noted its aged nature (about 10 years) and the fact that the propensity witness was now a mature person, and had expressed concern that the jury might take it upon itself to convict K in order to rectify any perceived injustice in the prior acquittal. The Supreme Court found the last
of these propositions inconsistent with Degnan and Fenemor.38 Its decision 5 casts doubt on the correctness of Mead, in which this Court also considered that
the missing records might help the defendant explain why he was acquitted and so address the “real risk” that the jury would illegitimately conclude he was guilty of the earlier offence.
The principal relevance of R v K to this case lies in one of the Supreme 10 Court’s reasons regarding the passage of time between the propensity witness’s allegations and the trial of the current allegations against K. The Court held that:
[39] The Court of Appeal saw this as prejudicial. But in reaching that view,
it appears to have overlooked the fact that W’s contemporaneous EVI 15 recording is available, as is a transcript of the evidence she and the respondent gave at the 2010 trial. At the 2010 trial, the evidence given by
W (including cross-examination) took approximately 90 minutes (excluding breaks) and the respondent’s own evidence was completed in
40 minutes. The respondent will have access to all this material to refresh 20 his memory if necessary. This is quite unlike a case where an accused person is required to answer allegations made years after the events are
said to have occurred and has to address those events for the first time after that delay. In the present case we do not see any significant prejudice to the
respondent in having to respond to the proposed propensity evidence to be 25 given by W.
It will be seen that the Court characterised the existence of the previous trial record as an advantage for K, reasoning that the record was available to refresh his memory. It must follow, of course that that advantage would be lost
to him if the trial record no longer existed to mitigate the effects of delay; in 30 that case, he might be said to have suffered prejudice from the loss of material
that he might have used to refresh memory. To that limited extent, R v K is consistent with Mead.
We recognise that in the passage just quoted the Supreme Court was not addressing the previous acquittal. It was addressing an argument about the 35 effects of delay. It was not required to consider any causal connection between
the acquittal dimension and the record of the previous trial.
We refer for completeness to Blackburn v R, in which this Court allowed an appeal on a number of grounds, one of which was that the original file of
defence counsel was no longer available.39 The Court noted that re-litigation of 40 the earlier allegations could overwhelm the present trial and that a witness who gave evidence for the defendant at the earlier trial was now estranged from him.
What amounts to unfair prejudice in circumstances such as this?
Following Fenemor, a defendant may be able to point to something about a previous acquittal which makes the admission of evidence tending to 45
At [51].
At [48]−[49].
Blackburn v R [2011] NZCA 365.
prove the same allegation unfairly prejudicial for the purposes of s 43. That may arise where admission of the evidence forces the defendant to adduce evidence showing how the acquittal came about.
[42] By way of illustration, the defendant may have offered a successful alibi,
5 as noted above, and will need to re-establish it. Defence witnesses may now be unavailable. The record of the first trial may establish that the evidence was seriously deficient in some way,40 or a key witness lacked credibility.41 (If that witness is to give the propensity evidence, the evidence may also be of low probative value for s 43 purposes.) The defendant may also show that the need
10 to call evidence bearing on the acquittal contributes to a risk that the propensity evidence will overwhelm the trial, unduly influencing the fact-finder.
[43] We accept that in such a case unfair prejudice may result where a police or trial file is unavailable and the relevant evidence cannot be established in another way. That conclusion is consistent with the authorities.42 However,
15 following Fenemor, the court will not assume that the mere absence of a file is prejudicial. The defendant must both point to something about the acquittal that is relevant and show that the absence of the file is prejudicial.
Application to this case
[44] Mr Brookie sought to distinguish Fenemor, noting that the Supreme
20 Court had recorded that a written transcript of the witness’s evidence was available. He pointed to the passage of time since 1995 and emphasised that very little information and evidence from S’s trial is available. There is no transcript of evidence. On learning that he was to be called as a witness, S himself asked the police for the notes of evidence given at the trial on his
25 charges in 1995. In cross-examination S said that he could not recall the detail of his evidence in 1995 and, in response to several of Mr Brookie’s questions, S answered that he could not recall the event being put to him. He stressed that Mr Brooks’s own interview is unavailable. Any statement made by H, who it was suggested put J up to complaining, had been lost.
[45] We do not accept these submissions.
[46] The starting point is that this Court has already held that S’s evidence is admissible propensity evidence. As noted earlier, we are reconsidering the Court’s earlier judgment because the missing record is said to bear on the acquittal dimension, introducing additional prejudice.
35 [47] Mr Brookie was unable to point to any additional prejudice. The first trial appears to have turned on whether S’s evidence established that the incidents happened. His evidence at the 2018 trial established that his memory was affected by the passage of time, but that is not attributable to the acquittal dimension. The record of the 1995 trial doubtless contained details that S could
40 not remember at the 2018 trial, introducing the possibility of prejudice attributable to the absence of the record. But we do not know what those details might have been and it is speculative to suggest that they explained the acquittal. They might equally have been adverse to Mr Brooks. The verdict itself may indicate only that S’s evidence did not prove the offences beyond
reasonable doubt.
[48] It might have been different were it possible to show, for example, that evidence of or about H had a material bearing on the acquittal and is not now
40 RPG v R [2015] NZCA 275.
41 Blackburn v R, above n 39; and R v Edwards [1991] 1 WLR 207 (Crim App).
42 Notably, Mead v R, above n 12; and Blackburn, above n 39.
available. That is not the position. We do not know what, if anything, was said by or about H at the trial. There is no reason to suppose, for example, that he gave evidence and admitted putting S up to complaining about Mr Brooks.
That being so, we consider that Fenemor is not distinguishable. We hold that under s 43 the propensity evidence of S was admissible at the 2018 trial 5 notwithstanding the absence of investigative and trial records from the 1995 trial.
Result
The appeal is dismissed.
To preserve the original complainant suppressions in place in respect of 10 the prior complaints of sexual offending, we make an order prohibiting publication of names, addresses, occupations or identifying particulars of propensity witnesses R, S, and M pursuant to s 202 of the Criminal Procedure
Act 2011.
PETERS J. [52] I would allow Mr Brooks’ appeal against conviction and 15 order a retrial. This is because, in the circumstances prevailing at trial, the risk
that S’s evidence might have had an unfairly prejudicial effect on Mr Brooks outweighed the probative value of that evidence in relation to the issue(s) in dispute.43
When this Court considered the admissibility of S’s evidence prior to 20 trial, it knew the notes of evidence of what I shall refer to as the “S trial” were unavailable but it understood that much other contemporaneous information
was available.44 On my reading of this Court’s earlier decision, it concluded that the probative value of S’s evidence outweighed the risk that it might have
an unfairly prejudicial effect on Mr Brooks, at least in part because of the 25 availability of that other information:45
[36] We consider the risk of an unfair prejudicial effect on Mr Brooks is small. First, unlike the Judge we do not consider the absence of one transcript in the present case is a significant factor. The full police file, including S’s statements, will be available to the defence. Conversely, we 30 think it is speculative to suggest the missing transcript might contain information not included in the police file that may have a material effect
on the outcome of the present trial.
...
[38] Similarly [to Fenemor], in Mr Brooks’ case there is no evidence to 35 suggest the trial transcript will assist in any material way; in fact he cannot recall details of his earlier trial. In reality, the prejudice arising from the acquittal evidence is largely the same as prejudice ordinarily arising from prior complaint evidence. In fact, Mr Brooks is better placed than other defendants who are confronted for the first time with historic complaints. 40 He also has the benefit of contemporaneous information within the police files.
[39] Second, we disagree with the submission that Mead is apposite: Mead
was a case where the complete absence of the police file and notes of evidence combined to establish a risk of unfair prejudice. Here, the full 45
Evidence Act 2006, s 43(1).
CA decision, above n 2. 45 At [36], [38] and [39].
police files, including the original complaints, are available for cross- examination purposes. Only the transcript from the trial of S’s complaint remains unavailable. Moreover, we prefer the reasoning in Fenemor that, in cases of the present kind, it is speculative to assume unfair prejudice in
the absence of any evidence from Mr Brooks as to why it might be prejudicial.
[54] It is necessary to reconsider this Court’s earlier decision as regards S because of a change in circumstances, namely the absence of much of the contemporaneous information that the Court was informed would be available
to the defence. This means revisiting the s 43(1) assessment.
[55] I agree that the overall probative value of the propensity evidence, including S’s, was, say, moderate to strong for all the reasons this Court expressed and as the majority have said.
[56] The next issue in this case is whether there was a risk that S’s evidence
15 might have an unfairly prejudicial effect on Mr Brooks and, if so, whether that risk outweighed the probative value of that evidence.
[57] I consider the answer to both of those questions is yes for the following reasons.
[58] First, there is the matter of delay and its adverse effects on the accuracy
20 of memory.46 The fact that this Court noted Mr Brooks’ inability to recall details of his earlier trial is significant to me.
[59] Secondly, almost all relevant contemporaneous information was unavailable, that is, the information from the police investigation and trial. Of course, this could occur in respect of any documents relevant to propensity
25 evidence, but in this case it comprised the notes of evidence, police job sheets, notebook entries and (subject to what is said below) witness statements and/or briefs of evidence. Detective Watson, the officer in charge of J’s trial, gave evidence that these documents would have existed, but could not now be found or that (former) Detective Boddington, the officer in charge of the S trial, had
30 advised that the documents had been destroyed. Also, the video of Mr Brooks’ own police interview was unavailable and a transcript of it which appeared to have been prepared was also unavailable. In fact, the only available contemporaneous information of consequence comprised the witness statements and briefs of evidence of S and a related witness, D. The Crown
35 provided these documents to S and D prior to trial to refresh their memory. Even then, each was unable to recall matters of detail when giving evidence.
[60] I do not read Fenemor as ruling out the possibility that the loss of contemporaneous material may give rise to a risk of unfair prejudice in the sense of s 43(1). The issue before the Court was whether prior acquittal
40 evidence is inadmissible as propensity evidence per se. This Court has previously accepted that the loss of contemporaneous material may give rise to a risk of an unfairly prejudicial effect on the defendant.47 Whether the risk arises in fact and, if so, whether it outweighs the probative value is to be assessed on a case by case basis.48
46 CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [14] and [26]; and Rompa v R [2010]
NZCA 277 at [11].
47 Mead v R, above n 12, at [11] and [18]. I also consider this implicit in R v K, above n 35, at [39].
48 R v Holtz [2003] 1 NZLR 667 (CA) at [35]; and Fenemor v R, above n 13, at [8].
Court of Appeal (Peters J)
[2020]
Defence counsel will seek to rebut propensity evidence of the nature led in this case. For myself, I am not persuaded that defence counsel for Mr Brooks, Mr Brookie, could mount an effective response to S’s evidence, or cross-examine S or D effectively, when virtually all of the relevant information
was unavailable and Mr Brooks could not recall details of the earlier trial. This 5 would put the defence at a significant disadvantage.
Crown counsel submitted that it is “speculative” to suggest that this missing material would have benefitted Mr Brooks. I do not think this stands scrutiny. First, Mr Brooks gave his police interview close in time to the alleged events. It would surely be helpful for counsel to know what Mr Brooks, and 10 others, said at the time particularly when Mr Brooks could not recall the detail.
Secondly, the submission is not borne out by the evidence of the other propensity complainants, R and M, at trial. Mr Brookie made extensive use of the contemporaneous records of the police investigations and the notes of
evidence from their trials when he cross-examined these witnesses. 15
R gave evidence of a sexual assault by Mr Brooks in 1990. A few days before the alleged assault R, then aged 16 or thereabouts, had joined a shearing gang of which Mr Brooks was a member. R had become intoxicated on his day off. There had been an incident earlier in the evening, involving
Mr Brooks, which embarrassed R and some of the group were laughing at 20
him. R went to bed. His evidence was that he woke later as a result of the assault. He identified Mr Brooks as his assailant. He fled and told everyone in the gang the next day. Mr Brooks denied it.
Mr Brookie cross-examined R on matters arising from the notes of evidence, R’s two contemporaneous written statements to the police, and 25
photographs. The topics covered in cross-examination included R’s failure in his first statement to refer to the incident earlier in the evening, with the implication being R had complained as a retaliatory measure for being made to look something of a fool; that R could not have identified Mr Brooks as his
assailant using the light he said was available (R relied on voice identification 30
also); and whether R had delayed complaining to the police in the hope that Mr Brooks’ senior would “buy him off”.
M gave evidence that Mr Brooks had performed oral sex on him, without his consent, when he was asleep at Mr Brooks’ house in the early hours of 8 March 2012. M’s complaint went to trial in 2015. Mr Brooks did 35
not deny that he had performed oral sex on M but said M had consented. The jury found Mr Brooks not guilty. The following evidence emerged regarding M at the J trial, largely in the course of Mr Brookie’s cross-examination. The following evidence emerged regarding M at the J trial, largely in the course of
Mr Brookie’s cross-examination. 40
In the early hours of 17 March 2012, M was stopped by police and found to be driving with excess breath alcohol. M told the police that he had just been sexually assaulted by another male, the implication being that he was driving to get away. This account was untrue because the (alleged) assault had
been a week earlier. 45
M persisted in this account, including before the Court when he appeared on the (March) drink driving charge.
M was picked up again for drink driving in July 2012. He had not yet been sentenced on the March charge, he already had one conviction for drink driving, and three convictions would mean a lengthy if not indefinite 50
suspension. This was serious because M was a truck driver.
[70] M sought a discharge without conviction. The police said they would be “neutral” on a discharge without conviction if M made a formal complaint in respect of the assault he said had occurred on 16 or 17 March, and undertook an evidential video interview. M did both on 16 July 2012. He appeared the
5next day, was discharged on the March charge, and convicted and disqualified on the July charge.
[71] M’s formal complaint against Mr Brooks launched the police investigation. In the course of this the police discovered M’s lie regarding the date of the alleged assault. M was charged with, and pleaded guilty to,
perverting the course of justice.
[72] As to the alleged assault, M acknowledged that he had stayed overnight at Mr Brooks’ house half a dozen or more times before 7 March 2012, and always slept on the couch. On the evening in question M asked if he could stay the night. Mr Brooks said he could. M went to Mr Brooks’ bedroom.
15 Mr Brooks stayed up. On M’s account, he woke to Mr Brooks’ assault. Mr Brooks’ account was that when he wanted to go to bed, he told M to sleep on the couch. M declined. Mr Brooks got into bed with his back to M. M initiated sexual contact and events took their course, consensually. M slept the night there afterwards.
20 [73] This information largely emerged as a result of Mr Brookie’s use of the notes of evidence and exhibits (texts, transcripts of interviews, photographs) from M’s trial. By my count Mr Brookie referred M to the notes approximately 25 times and to the exhibits 40 times, whether to impeach evidence M had just given or to remind him of events. Mr Brookie referred R to the notes from his
trial, and other documents, about 30 times.
[74] What occurred at the J trial illustrates the use that defence counsel might make of contemporaneous material to challenge propensity evidence. There is no reason to think that defence counsel in this case would have made less use of the police file for S. As it was, the cross-examination of S was limited to
30 pointing out inconsistencies between his statement and brief and his evidence at the J trial.
[75] To conclude, in my view the combination of delay and the loss of relevant contemporaneous information gave rise to a risk of the nature referred to in s 43(1) and one which outweighed the probative value of the evidence.
35 Nor am I able to say admission of the evidence could not have affected the outcome of the trial.
Orders
(A)The appeal is dismissed.
(B)Order prohibiting publication of name, address, occupation or
identifying particulars of propensity witnesses R, S, and M pursuant to s 202 of the Criminal Procedure Act 2011.
Solicitors for the respondent: Crown Law Offıce (Wellington).
Reported by: Bernard Robertson, Barrister