Fenemor v R - [2011] NZSC 127

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IN THE SUPREME COURT OF NEW ZEALAND

SC 60/2011
[2011] NZSC 127

WARREN BRUCE FENEMOR

THE QUEEN

Hearing: 4 October 2011

Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

Counsel: G J King, B Paradza and L S Collins for Appellant
C L Mander and H R B Stallard for Crown

Judgment: 21 October 2011

JUDGMENT OF THE COURT

A The appeal is dismissed.
B Mr Fenemor is to report to the Community Probation Service no later than 2 pm on Friday 28 October 2011.

REASONS

(Given by Tipping J)

Introduction

The appellant, Mr Fenemor, was found guilty of indecently assaulting a seven‑year-old girl (A) during the course of giving her a guitar lesson at her home in 2008. His appeal against conviction was dismissed by the Court of Appeal.[1] He now appeals to this Court on issues concerning the admissibility of propensity evidence called by the Crown at his trial. The conduct which gave rise to the conviction was recorded by means of a concealed video camera set up by A’s parents. Her mother had become suspicious after she interrupted an earlier lesson and had seen Mr Fenemor quickly move his hand from between A’s legs. The video recording showed Mr Fenemor kneeling on the floor in front of A, supporting the guitar on her lap. At one point all four fingers of his right hand went underneath A’s skirt and rested for about four minutes on or near the top of her legs. A did not give evidence, but the recording was played to the jury.
[1]Fenemor v R [2011] NZCA 206.
The Crown also called two young women, M and B, who were former pupils of Mr Fenemor. They each independently said that he had touched their genitalia over their clothing during the course of lessons which took place in 1997 and 1998. Mr Fenemor was charged at that time in relation to B but not in relation to M. M, however, gave propensity evidence at the trial where B was the complainant. This was a summary trial before a Judge alone and Mr Fenemor was acquitted on the charge of indecently assaulting B. No record of the Judge’s reasons could be found some 12 years later in 2010 when Mr Fenemor was tried on the charge of indecently assaulting A.
The appeal to this Court raises two related questions. The first is whether relevant propensity evidence may be led by the Crown in spite of that evidence having previously been led at a trial which resulted, as here, in an acquittal. The appellant’s contention is that despite the decision of the Court of Appeal to the contrary in R v Degnan[2] there is or should be an exclusionary rule rendering evidence of the kind in question inadmissible in law. The second issue is whether, even if evidence of the kind in question is admissible in law, the particular evidence…

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 Fenemor v R

Details

AGLC: Fenemor v R [2011] NZSC 127
Case: [2011] NZSC 127
Decision Date: 21 October 2011

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an appeal from Warren Bruce Fenemor against his conviction for indecent assault of a seven-year-old girl during a guitar lesson in 2008. The conviction was based on a video recording made by the girl's parents after they suspected improper conduct by Mr. Fenemor. The central issue in this appeal was the admissibility of propensity evidence provided by two former pupils who testified that Mr. Fenemor had touched their genitalia over their clothing during guitar lessons in 1997 and 1998. The Court was required to decide whether such "prior acquittal evidence" is admissible under the Evidence Act 2006 and, if so, whether its admission in this case was unfair or unduly prejudicial.

The Court found that the Evidence Act 2006 does not exclude prior acquittal evidence outright and that Parliament intended for such evidence to be admissible if it satisfies the requirements of section 43(1), which balances probative value against the risk of unfair prejudice. The Court noted that the absence of a specific exclusionary rule for prior acquittal evidence suggests Parliament's endorsement of the approach taken in R v Degnan, which held that such evidence is admissible unless its admission would be unfair or an abuse of process. The Court concluded that the probative value of the evidence in this case outweighed any prejudicial effect, and no unfairness specific to the prior acquittal was demonstrated. The Court dismissed the appeal, noting that Mr. Fenemor was to report to the Community Probation Service by a specified date.

This case underscores the importance of balancing probative value and unfair prejudice in the admissibility of propensity evidence, including prior acquittal evidence, under New Zealand's Evidence Act 2006. The Court's decision reinforces that such evidence is admissible unless it meets the specific criteria of unfairness or abuse of process, thereby providing clarity on the continued application of the Degnan approach in the context of codified evidence law.

Orders