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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…
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- Brooks v The Queen [2019] NZCA 280
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- [2019] NZCA 280
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