Brooks v The Queen - [2019] NZCA 280

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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…

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.

Continue reading Brooks v The Queen

Details

AGLC: Brooks v The Queen [2019] NZCA 280
Case: [2019] NZCA 280
Decision Date: 3 July 2019

CaseChat Overview and Summary

In Brooks v The Queen, the appellant Peter Brooks appealed his conviction on charges of sexual violation. Brooks had previously been acquitted on similar charges involving three other complainants, R, S, and M. The Crown proposed to call R, S, and M to give propensity evidence at the trial of the current charges involving complainant J. The trial judge ruled that the evidence of R and S was inadmissible on the ground that its probative value was outweighed by the risk of unfairly prejudicial effect due to the loss of notes of evidence from the previous trials. The Crown appealed this decision to the Court of Appeal, which reversed the decision partly because it was understood that the entire police file relating to S's complaints would be available. However, in the event, only minimal information was available in S's file. Brooks appealed again and the Court of Appeal decided to revisit the earlier appeal in relation to S as there had been a material change in circumstance. The Court of Appeal held that the propensity evidence of S was admissible at the 2018 trial notwithstanding the absence of investigative and trial records from the 1995 trial. The Court held that 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. The appeal was dismissed.

Orders