King v The Queen
[2005] NZCA 184
•18 July 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA162/05
THE QUEEN
v
BRENDAN PAUL KING
Hearing:29 June 2005
Court:Anderson P, Williams and Doogue JJ
Counsel:J R Rapley for Appellant
J A Farish for Crown
Judgment:18 July 2005
JUDGMENT OF THE COURT
AThe appeal is allowed against the pre-trial ruling of 12 May 2005 that the similar fact evidence of B was admissible in the appellant’s intended retrial concerning M.
BThe appeal is dismissed in relation to the pre-trial ruling of 20 May 2005 that the evidence of admissions made by the appellant to a probation officer, a psychiatrist and a psychologist were admissible in the appellant’s intended retrial concerning J and B.
____________________________________________________________________
REASONS
(Given by Williams J)
Background
[1] On 28 May 2004 the appellant, Mr King, was convicted in the High Court at Christchurch on one count of sexual violation by rape, five counts of sexual violation by unlawful sexual connection with children, three counts of indecent assault on a boy under 12 and one count of inducing an indecent act by a boy under 12.
[2] On 15 July 2004 he was sentenced to Preventive Detention.
[3] On 13 December 2004 this Court quashed the convictions and sentence and ordered a re-trial.
[4] In an oral ruling delivered on 12 May 2005, and in a reserved judgment delivered on 20 May 2005, on applications brought under the Crimes Act 1961 s 344A Panckhurst J held that at the re-trial :
(a) Evidence of recent complaint could be adduced.
(b) The female complainant, M, and her mother could be cross-examined under the Evidence Act 1908 s 23A on a limited basis.
(c) An application to sever the charges relating to the two male complainants, J and B, from those relating to M was granted on the basis that the Crown may adduce similar fact evidence from B at the trial of the allegations concerning M.
(d) Admissions concerning abuse of J and B by Mr King made to a probation officer, a psychiatrist and a psychologist as part of their preparation of reports for Mr King’s sentencing were admissible.
[5] Mr King appealed to this Court against the Judge’s rulings, first, that the evidence of B was admissible in the trial relating to the allegations by M as similar fact evidence and, secondly, holding evidence of his admissions admissible.
[6] In respect of B and J, the charges were one representative count of indecent assault on J between January-October 1999, one representative and one specific count of indecent assault on B, first between January and October 1999 and latterly between December 1999 and December 2001, plus a count of sexually violating B by unlawful sexual connection on or about 25 December 2000 and inducing B to do an indecent act between December 1999 and December 2001.
[7] As regards M, the charges were of unlawful sexual connection by digital penetration on 27 December 2000, a further, representative, count of unlawful sexual connection by digital penetration between December 1999 and December 2001, two counts of sexual violation by unlawful sexual connection between December 1999 and December 2001 first by penetration by a screwdriver and second by a piece of hose, and a final count of sexual violation by rape over the same period.
[8] After this appeal was heard and whilst the reasons for judgment were in draft, Mr King pleaded guilty to counts 1-5 and 9 described in the next paragraph, and he has been discharged pursuant to s 347 Crimes Act on the remaining counts. Accordingly this judgment can have no special efficacy in the particular case, but we have considered it appropriate to deliver full reasons both for the sake of completeness and because of the general importance of our reasons and conclusions in respect of the admissibility of the statements made by Mr King to the probation officer, psychiatrist and psychologist.
Facts
[9] Adapted from the summary provided by Ms Farish for the Crown, the facts relating to the alleged offending are :
Count 1:Offending is alleged to have taken place at the address of B and J. Both brothers are said to be together in their room playing on the play station. The appellant is alleged to have come in, sat down between them and placed his hands down the front of their pants and began to rub their penises.
Count 2: Identical to above, involving the complainant B.
Count 3:It is alleged that the appellant, whilst at the complainant’s address, took the complainant B behind the garage during the course of a barbecue. There were other adults and children present. Once behind the garage, the appellant has pulled the complainant’s pants down and has performed fellatio on him. The act was seen by a child witness.
Count 4:It is alleged that whilst the complainant B was staying with his brother and the complainant M and J, the appellant was babysitting. In the course of the evening, the boy was called out from the bedroom into the lounge by the appellant, as the children would not stop talking. He was placed on the couch. The appellant proceeded to simulate intercourse on top of him, to the point of ejaculation.
Count 5:Again it is alleged that the appellant was visiting for a social occasion. He approached the complainant B whilst he was alone in the bedroom. He offered the complainant B a sip of beer. He then reached down and placed the complainant’s hand on his erect penis. The incident was interrupted by J coming into the room. …
Count 9:This is an allegation of rape said to have occurred when the appellant and M were visiting some friends of the complainant’s mother. M was in a bedroom at the address when the appellant entered. The door was locked from the inside and the appellant proceeded to have sexual intercourse with M on the bed. M left the room by way of a window.
Both B and J give evidence as to the appellant making threats in terms of not telling. In terms of the complainant B, the threats were that he would be punished, or his brother would be punished if he told. In relation to the complainant M, there was an alleged threat was that she would be taken away from her foster mother.
[10] There is an overlap in time with respect to the alleged offending. The accused moved to South Canterbury at the end of October 1999. He remained there until 14 November 2001. The offending with respect to B and J spans a period of time from 1 January 1999 through to 14 November 2001, being the date of his arrest for earlier offending.
[11] The offending in relation to the complainant M commenced in December 1999 when her foster mother formed a relationship with the appellant. It continued to 14 November 2001.
Similar fact and severance ruling
[12] That portion of the 12 May ruling dealing with severance and similar fact commenced with a résumé of factual allegations underlying the groups of charges relating to J and B on the one hand and M on the other leading the Judge to conclude that the allegation relating to J had no similarity to those relating to M.
[13] The Judge then turned to what the Crown described as its “fallback” position, namely that B’s allegation be given in evidence in the trial relating to M. The similar features for which the Crown contended were escalation in the actions asserted, beginning as touching and progressing to more serious acts of simulated intercourse with B and rape with M. In both cases the actions had “overtones of punishment” in relation to the simulated intercourse with B for disobedience and a hose incident with M. The third claimed similarity between the two was that both were children in a relational connection to Mr King and his actions had the “hallmark of audacity or confidence”.
[14] Those similarities led the Judge to rule B’s evidence admissible as similar fact in the trial relating to M. “It would”, said the Judge, “be an affront to commonsense and therefore to justice to deny the jury access to this evidence”.
[15] There was, it seems, no suggestion that M’s evidence might be admissible as similar fact in the trial involving J and B’s allegations despite the fact that, logically, he converse would appear to be true, at least in relation to B.
[16] Mr Rapley was dismissive of the Crown’s suggestion of similarity in the allegations by B and M. Escalation in offending is, he submitted, commonplace in such matters. The simulated intercourse and rape charges were similar only in that they occurred in the same house and on the same couch. Whilst punishment may have been an element in relation to a hose incident concerning M, he submitted the evidence showed no punishment component in the simulated intercourse incident concerning B. All that was suggested as the cause was that the boys would not stop talking. He pointed to the trial management difficulties acknowledged by the Judge in the trial relating to M’s allegations where the jury would hear of offending by the accused against B but would not be required to deal with charges arising out of those actions. He submitted collusion between B and J could not be put in those circumstances. The audacity or confidence aspect was, again, he submitted, of insufficient similarity. Overall, he suggested, the prejudicial effect of permitting the Judge’s ruling to stand greatly outweighed the probative value of B’s evidence in the trial concerning M’s allegations.
[17] Ms Farish submitted the similarities as between B and M were that all incidents took place when the appellant was in a caregiving role, there was escalation in offending, threats to produce silence, similarity in terms of time and place – particularly the house and the couch – an element of punishment, a high risk of witnesses seeing the action and opportunistic offending. She relied on authority to the effect that similar fact evidence is admissible to rebut a defence of collusion: R v Sanders [2001] 1 NZLR 257, 260 [18]. On occasions, no more than two similarities have resulted in such evidence being admissible: R v E (CA369/03) 2 March 2004 at [18], [21].
Discussion
[18] Having carefully considered the Judge’s ruling on severance and similar fact and reflected on counsel’s submissions, we find ourselves, with respect to the Judge, driven to a different conclusion.
[19] The authorities show that what must be demonstrated before such evidence may be admitted is that there is a similarity of facts which tend by their similarity logically to prove or disprove some matter in issue. In a case such as the present the matter in issue is the reliability of a complainant, here, M. And the probative quality must be such as to outweigh any prejudice inherent in the giving of evidence indicating a propensity for offending.
[20] In this case, we take the view, based on the material before us, that there was insufficient similarity shown. In the first place, as the Judge accepted, a number of the matters alleged by B have no similarity whatever to the actions alleged by M. Secondly, it is difficult to see an act of simulated intercourse by a man on a boy as sufficiently similar to an allegation of rape by a man on a girl for the former to be admissible at the trial of the matter. Thirdly, there is force in Mr Rapley’s submission that it would be impossible to cross-examine B at the trial relating to M on the possibility of collusion without revealing details of the trial involving J and B. That, in its turn, would lead to a complicated and difficult summing-up on the topic with consequent risk of confusion by the jury. Then there is the fact that B would be giving evidence at the trial concerning M of unlawful conduct in relation to him without any counts concerning that conduct being before the jury for deliberation. This is not an unknown circumstance but, again, can require complex and possibly confusing directions. In addition, there is the difficulty that if B’s allegations are sufficiently similar to be admitted in evidence in the trial concerning M, logically M’s allegations should be sufficiently similar to at least some of the matters raised by B to be admissible in the trial relating to J and B. Given that there were two complainants in that case and a number of the counts are dissimilar, it is understandable no such application was made but nonetheless putting the contrary case rather starkly outlines the problems likely to arise by permitting B’s allegations to be given in a trial relating to M.
[21] Further, when the factual similarities are analysed it is difficult to discern sufficiently similar assertions justifying admissibility going beyond what is inherent in the elements of the charges themselves. Escalation in offending is commonplace in sexual trials involving children and is virtually inherent in a trial involving counts both of indecent assault and sexual violation. As we have said, simulated intercourse on a boy is different in character from rape of a girl. Identity of the house in which some of the offending occurs does not seem to warrant admission of the evidence nor does use of a couch. Offending for punishment purposes may be similar but Mr Rapley submits the evidence of punishment of B by simulated intercourse is insufficient. True it is that the children had a connection with the appellant through his relationship with their families but that, too, does no more than create the opportunity for offending rather than proving it. The alleged offending may have been opportunistic, liable to discovery and audacious, but we do not see those conclusions as being demonstrated by the suggested similarities.
[22] In the end, some of the allegations by B and some of the allegations by M are of different actions by the accused towards children of different genders where the dissimilarities outweigh the similarities. Those, coupled with the difficulties in trial management, lead us to a different view from that of the Judge.
[23] We would allow the appeal to the extent of reversing the ruling concerning B’s evidence in a trial relating to the complainant M’s allegations.
Admissions ruling
[24] Following conviction on 10 of the 15 counts in the earlier indictment and with Preventive Detention being a sentencing option, the trial Judge ordered a pre-sentence report and reports from two health assessors as required by the Sentencing Act 2002 s 88.
[25] The pre-sentence report noted that the appellant “acknowledged his guilt with regard to four of the charges in respect of the two boys” but continued to deny guilt on the remaining count relating to B and all the counts relating to M. The report went on to detail the incident behind the garage. The probation officer’s brief of evidence prepared for the re-trial confirmed that detail and in evidence before Panckhurst J on the s 344A application, she confirmed that at the commencement of the interview she told the appellant that disclosures giving rise to concerns about his safety or the safety of someone else or of further offending would all be passed on to appropriate authorities and that the only assurance of confidentiality was that his personal details would not go to people outside the Corrections Department, appropriate external agencies or the Court. She did not tell the appellant that any confessions he made to her might be given in evidence on re-trial.
[26] He denied to the psychologist any offending concerning M although acknowledging offending against the boys but “did not want to go into too much detail because he was going to appeal some of the convictions”. The psychologist’s brief at re-trial was in very similar terms. His evidence was that it was standard practice in such situations to advise interviewees that the usual patient/doctor relationship was inapplicable and confidentiality was limited in the sense that the report would be furnished to the Court, the prosecution and the defence. He said he normally advised interviewees of their right to instruct a lawyer beforehand and to terminate the interview at any stage. Like the probation officer, he gave the appellant no warning that confessions made to him might be used subsequently in evidence.
[27] Then, to the psychiatrist, the appellant denied all offending in relation to M and said he intended to appeal, but he acknowledged his offending in relation to J and B. Those comments were carried forward into the psychiatrist’s proposed brief. In evidence he, too, related his standard opening remarks at interview including advising that confidentiality did not apply in the sense the report would be made available to the Court and both counsel. He made interviewees aware that “material contained in the report may not be in their best interests” and inquired whether they wish to seek further legal advice.
[28] Panckhurst J advised the psychiatrist of the right of a witness to seek to be excused from giving evidence of matters discussed in confidence under the Evidence Amendment Act (No.2) 1980 s 35. The psychiatrist said his inclination would be to seek to be excused because “using material gathered for one purpose for a different purpose … would conflict with some of our ethical, professional guidelines”.
[29] To us, Mr Rapley largely repeated the submissions made to Panckhurst J. Were the ruling to stand, he submitted, prisoners would be advised by counsel not to co-operate where an appeal was in contemplation. The “accident of re-trial” as Panckhurst J described it was not so small, he submitted, as to outweigh the point. Prisoners eligible for Preventive Detention would be at a disadvantage if unable to speak freely to report writers lest any admissions be given on re-trial or if the admissions related to offending other than that with which they had been charged. Acceptance of responsibility with consequent remorse was, he submitted, a potent factor in the sentencing exercise, particularly for those facing possible Preventive Detention. He made the point that admissions to probation officers and their potential as witnesses would be a much more widespread cause for concern. He drew attention to the absence from the Sentencing Act 2002 ss 28 and 29, of provisions dealing with the adducing of evidence from report writers. This, he suggested, contrasts with the Canadian Criminal Code s 672.21(2) which makes statements made to persons such as the report writers in this instance inadmissible in evidence before any Court or tribunal.
[30] With reference to the Evidence Amendment Act (No.2) 1980 s 35, Mr Rapley noted the Judge’s finding that the relationship between the report writers and the appellant was one of confidence. He submitted the Judge should have exercised his discretion in favour of exclusion having regard to decisions such as R v Secord [1992] 3 NZLR 570, 575 and R v Rapana [1995] 2 NZLR 381, 384. In the latter an admission to a psychiatric nurse of a wish to kill somebody was ruled inadmissible in a later trial for attempted murder on the basis that the public interest in preserving the confidences of persons in the accused’s position outweighed the public interest of the evidence being given.
[31] On this aspect of the appeal Ms Farish conceded that it was only in highly unusual circumstances such as the present that the Crown would have evidence of admissions available and seek to call it at trial. She submitted that Secord remained good authority despite the sentencing statutes having been re-enacted. There was, she submitted, no absolute bar on use of the admissions at the re-trial. Section 35 required a case by case assessment. Whilst she accepted that admissions and expressions of remorse are helpful to prisoners and the court on sentencing, it is always the prisoner’s choice whether to adopt that stance. One who has had legal advice throughout the proceeding and can take advice as to the stance to follow with the report writer must be taken to have elected to speak as they do. She firmly submitted that it would be contrary to the interests of justice for a prisoner to be able to benefit from admissions made for the purpose of sentencing but then be immune from the use of such admissions should the matter again come before a Court or new charges be laid. It was in the public interest, she submitted, that evidence of admissions be given at trial because of the public interest in the prosecution of offences and in the administration of justice. There was also the likely impact on the pleas at trial if evidence on admissions were proposed to be given, including the possibility the complainants may not be required to give evidence again. Overseas authority, she submitted, was primarily focused on the pre-trial stage. In R v R.A.N (2001) ABCA 312 at [11] the Court of Appeal of Alberta noted that s 672.21 of the Canadian Criminal Code protected disclosure during psychological assessment “because they occur before the trial”. (See also R v O’Neill (2002) BCSC 254 at 11).
[32] After recounting the evidence earlier discussed, the Judge noted Mr Rapley’s acceptance that the Evidence Amendment Act (No.2) 1980 s 33 was inapplicable. While that section protects communications to doctors and psychologists for particular purposes, it excludes communications to such persons who have been required by Court order to submit themselves for examination. In the appellant’s case, the Sentencing Act 2002 s 88, though containing no provision empowering the Court to direct a person liable to a sentence of Preventive Detention to submit to psychological or psychiatric examination, imports the powers in the Criminal Justice Act 1985 s 121(2). That empowers the Court to order such an examination.
[33] The Judge turned to s 35 which relevantly reads :
35Discretion of Court to excuse witness from giving any particular evidence:
(1)In any proceeding before any Court, the Court may, in its discretion, excuse any witness (including a party) from answering any question or producing any document that he would otherwise be compellable to answer or produce, on the ground that to supply the information or produce the document would be a breach by the witness of a confidence that, having regard to the special relationship existing between him and the person from whom he obtained the information or document and to the matters specified in subsection (2), the witness should not be compelled to breach.
(2)In deciding any application for the exercise of its discretion under subsection (1), the Court shall consider whether or not the public interest in having the evidence disclosed to the Court is outweighed, in the particular case, by the public interest in the preservation of confidences between persons in the relative positions of the confidant and the witness and the encouragement of free communication between such persons, having regard to the following matters:
(a) the likely significance of the evidence to the resolution of the issues to be decided in the proceeding:
(b) the nature of the confidence and of the special relationship between the confidant and the witness:
(c) the likely effect of the disclosure on the confidant or any other person.
(3)An application to the Court for the exercise of its discretion under subsection (1) may be made by any party to the proceeding, or by the witness concerned, at any time before the commencement of the hearing of the proceeding or at the hearing.
(4)Nothing in subsection (1) shall derogate from any other privilege or from any discretion vested in the Court by any other provision of this Act or of any other enactment or rule of law.
(5)In this section Court includes ‑
(a) Any tribunal or authority constituted by or under any Act and having power to compel the attendance of witnesses; and
(b) Any other person acting judicially.
[34] The Judge then discussed the substance of the application, noting the three statutory conditions and public interest in their disclosure in evidence. That needed to be balanced, he said, against public interest in free communication between prisoners and sentence report writers.
[35] After recording the two stage test mandated by this Court in Secord the Judge turned first to whether the relationships with which he was concerned were based on confidence and then the public interest balancing assessment.
[36] In relation to the former, he held that all three report writers interviewed Mr King pursuant to a statutory duty with the extent of disclosure of their reports being governed by the Sentencing Act 2002 ss 28and 29. Pursuant to those sections, a report prepared for sentencing must be given to the Court and, in general, to the offender and his or her counsel but access to such reports may also be given to persons in charge of the offender’s penal institution either at the time or in accordance with the sentence imposed and to the director of the area mental health services if the offender is remanded in hospital or detained as a special patient. Officers or employees of the Department of Corrections, the Ministry of Justice or staff members of the penal institution requiring access to the reports for official duties are also included as are members of the Parole Board and the prosecutor. Disclosure beyond those limits is not sanctioned by statute. The Judge held that reports prepared for s 88 purposes are subject to the disclosure and access régime prescribed by the Criminal Justice Act 1985 ss 122 and 123. After noting the careful caveats given by all three proposed witnesses to Mr King and the psychiatrist’s uneasiness at using information for a different purpose than that for which it was given, the Judge said he was “not prepared to conclude that there was no sufficient relationship of confidence for s 35 to apply”.
[37] He regarded the evidence as highly significant in terms of s 35(2)(a) given the defence that nothing sexually inappropriate ever occurred between the complainants and the appellant.
[38] The Judge regarded as “much overstated” the submission that “were the witnesses permitted to give evidence of the admission, that would inhibit persons in Mr King’s position from being frank and candid with the report writer”. That stance, in its turn, may redound to their disadvantage when sentence came to be imposed and was a factor which plainly weighed with the Judge. He termed it the “accident of re-trial” and something which occurs only in a small number of cases. He thereby reached the view that it was not in the public interest to excuse the witnesses from giving evidence.
[39] The Judge then turned to consider whether his conclusion was affected by the New Zealand Bill of Rights Act 1990 s 23 (1)(4) (NZBORA). Since that aspect of his ruling was not canvassed in detail by counsel, it is sufficient for present purposes to record the Judge’s tentative view that the report writers were acting pursuant to s 3(b) of NZBORA as the prospective witnesses were performing a public function or duty pursuant to law. Noting the lack of information given Mr King of his rights under s 23 and assuming causation was required to be demonstrated between the breaches and the admissions, the Judge held it was inappropriate to exclude the evidence on the basis it was, on the assumptions on which he proceeded, obtained in breach of NZBORA either because there was insufficient causation on the evidence or exclusion would be disproportionate. He regarded any breach as not greatly significant. Mr King knew his rights, he was told disclosures would not be kept confidential and the disclosures were limited. Accordingly Mr King was well aware of his rights under s 23(4) to refrain from making a statement and proceeded to make the admissions nonetheless.
[40] It is convenient to commence our consideration of this aspect of the appeal by referring to Secord which concerned whether a probation officer could give evidence about an accused's admissions when the officer sought excusal under s 35. In that case, after discussing the protection given to confidential communications generally and citing s 35, the judgment noted (at 573) :
Communications to a probation officer exercising his or her statutory duties under the Criminal Justice Act, be it in preparing a report or supervising a sentence or a release on parole plainly do not fall within the protection of privilege in either of the respects in which that word is correctly used. And while by virtue of subs (4) of s 35 it might be possible to claim confidentiality independently of the section, for all practical purposes the grounds for doing so are subsumed in it, and there is no advantage in looking beyond it, either for the claim or for adjudication upon it.
[41] The judgment then noted, of the phrase “special relationship”, that (at 574) “what appears to be contemplated is a relationship of a kind that will encourage the imparting of confidences, and that has a public interest element in it”. This Court then observed (at 575) :
It therefore cannot be said that a probation officer is unable to lay claim to confidentiality under s 35. There is nothing in the nature of his or her office or duties to preclude the application of the section. In each case it will be a question of determining whether there was a confidence and a special relationship; and then of making the public interest assessment called for by subs (2) of s 35. …
… Section 35 is concerned with Court proceedings. If the evidence is important to the determination of the issue, then it is likely that the public interest will favour disclosure; the more serious or important the issue, the more likely that is. Probation officers are here in no different position from other persons. But when it comes to the preparation of a report, the probation officer has a particular duty to the Court to disclose in the report all that is relevant to sentencing. Section 35 does not apply, and in any event there can be no expectation of confidentiality. In what Mr Pike acknowledged would be the unusual case of the officer being called to give evidence about what was said in the course of preparing a report s 35 does apply and, as he suggested, factors the Court will wish to take into account will include the manner and circumstances in which the information was given, the purpose for which it was given, the seriousness of the reasons for seeking disclosure, and whether there are other means of obtaining the evidence.
[42] It is next of assistance to refer to a very recent decision of this Court which touches on the topic: R v G (CA51/05) 9 June 2005. In that case an appeal was dismissed against an order admitting evidence of disclosures by G to a counsellor on a programme designed to treat sexual offenders. The disclosures were essentially the only evidence against G on charges brought as a result of them alleging attempted murder, abduction and two counts of sexual violation by unlawful sexual connection. The events which led to those charges occurred some five years before the disclosures were made and eight years before they came to notice. This Court held G’s disclosures to the counsellor were not protected under s 33 and accordingly the counsellor was compellable unless the Court decided in its discretion to excuse him from giving evidence of the disclosures. This Court concluded that the Judge in the High Court had correctly approached the two-stage task required by Secord and the competing factors listed in s 35(2) and upheld the ruling.
[43] Of other authority on which counsel relied, it is necessary only to refer to R v Lory(Ruling 8) [1997] 1 NZLR 44 where what was in contention was whether a confession to a social worker by the accused in the course of counselling was admissible at trial. Hammond J, following a voir dire, permitted the evidence to be given. He dealt with an argument, also advanced before us, in the following way (at 50) :
In the context of health professionals, the argument against being required to disclose confidentiality, … is that a requirement for disclosure will deter both patients and therapists from undertaking treatment. And, or so it is said, this will thereby further increase the risk of violence or harm to which society is exposed.
Since this argument is so often voiced, it may be as well to point out the substantial deficiencies in the argument. The first is empirical. It is far from clear that there is evidence that therapy or counselling will be imperilled if patients know that therapists have the duty to reveal, for instance, their plans of violence. And even if therapy were thereby imperilled, is it clear that more violence would result? Further, a certain scepticism is required with respect to the trust patients place in confidentiality regarding their most extreme statements.
[44] It is pertinent to add by way of general observations on the issue in this part of the appeal :
(a) The possibility of a person making a false confession after conviction in order to obtain a benefit from that at sentencing is slight. This means such a confession is likely to be true.
(b)There is no statutory prohibition against the admission of evidence of such a confession in a trial in which the confession is relevant.
(c)Evidence which is relevant is presumptively admissible.
(d)Why, in principle, ought such evidence not be admitted? i.e. why should the law regard such admissions as privileged in Court proceedings? And why, in any particular case, ought such evidence be excluded?
(e)As to (d), the contrary argument in principle is that the possibility of such a confession being made to the confessor’s disadvantage may constrain open discussion by a prisoner of information relevant to the purpose of the interview/examination. Such disadvantage may be perceived where there is a possibility that an appeal against conviction will succeed and a new trial would then normally ensue.
(f)Since we should assume that a prisoner is guilty, having been convicted, the proposition must then be that a true confession might be withheld in circumstances when the making of it would have the public benefit of informing the sentencing process, and assisting closure for any victims.
(g)However, these objectives would not be met in cases where a prisoner appeals against conviction because any effect on the sentence of a confession will be negatived by the retraction implied by disputing the conviction; and, of course, finality will have been previously offered or wrongly perceived.
(h)Therefore, the policy of encouraging candour will be undermined only in respect of those who might offer it on a conditional and expedient basis, seeking to “blow hot or cold” as may seem best to suit their cause. That is not an adequate justification for a privilege.
(i)Whether in a particular case such evidence might be excluded will depend on the circumstances of the case and orthodox principles of exclusion, such as unfairness, NZBORA considerations and involuntariness. There is no value in suggesting hypothetical cases, it being sufficient to remark that features which are idiosyncratic rather than general will need to be considered.
[45] As to the first question of whether there was a confidence and a special relationship in relation to the proposed witnesses and Mr King in this case, since Panckhurst J’s findings in that regard were not strongly challenged by Mr Rapley before us, we are content to indicate our agreement with the Judge that there was a special relationship in which these confidences were given.
[46] We agree, too, with the Judge that such evidence would be highly significant on a re-trial. Though the Crown would not be entirely dependent on that evidence it would nevertheless be admissible to rebut a defence of fabrication and collusion such as that raised at the earlier trial.
[47] We also agree with the Judge in his views about the effect of disclosure on the confidences and the relationship between Mr King and the proposed witnesses. He took the view that the admissions were voluntary and thus any effect on Mr King by disclosure was one of his own making. It is to be remembered that limited disclosure of matters in such reports is required by the relevant statutes and there is no fetter on counsel using the material in those reports in open court thus putting it in the public domain. We would add that that is particularly pertinent in the present case where the material was before the sentencing Judge following the first trial and to that extent there has already been limited public disclosure of the appellant’s admissions. It is only an accident of chance that there has not already been full public disclosure. To permit public disclosure for one purpose but not another infringes against common sense.
[48] We also agree with him that the suggested future inhibiting effect for persons in Mr King’s situation in the future is over-stated. The remarks in Lory and Panckhurst J’s views are persuasive. In addition to the “accident of re-trial” comment, however, must be the risk of disclosure in other proceedings, particularly criminal charges brought in respect of admissions of offending not formerly charged as in G.
[49] In all those circumstances, we are unpersuaded that the Judge was wrong in holding the admissions made by Mr King to the probation officer, the psychiatrist and the psychologist admissible at his intended re-trial.
[50] The appeal is dismissed on that aspect of the matter.
Result
[51] In the result :
(a) The appeal is allowed against the pre-trial ruling given on 12 May 2005 that the similar fact evidence of B was admissible in the intended re-trial concerning M.
(b) The appeal is dismissed in relation to the ruling of 20 May 2005 that the evidence of admissions made by the appellant to a probation officer, a psychiatrist and a psychologist was admissible in the intended re-trial concerning J and B.
(c) Usually suppression orders are made in cases where the interests of justice require that in respect of pre-trial rulings. However, the disposition of all the counts by way of entry of conviction or discharge means there will be no trial. The judgment can be published immediately because of that final disposition.
Solicitors:
Crown Law Office, Wellington
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