Lindsay v The Queen

[2011] NZCA 500

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ORDER PERMANENTLY SUPPRESSING IDENTIFYING DETAILS OF COMPLAINANTS, INCLUDING THE COMPLAINANT MENTIONED IN [3] AND IN SUBSEQUENT PARAGRAPHS.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA832/2010 [2011] NZCA 500

BETWEEN  JOHN ALEXANDER LINDSAY Appellant

ANDTHE QUEEN Respondent

Hearing:         29 June 2011

Court:            Wild, Rodney Hansen and MacKenzie JJ Counsel:     D N Bunce for Appellant

K A L Bicknell for Respondent

Judgment:      29 September 2011 at 2.30 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The convictions are quashed and a retrial is ordered.

CThe  propensity  evidence  is  admissible  against  the  appellant  on  his retrial.

REASONS

MacKenzie J (dissenting in part)  [1]

LINDSAY V R COA CA832/2010 [29 September 2011]

Wild and Rodney Hansen JJ  [32]

MacKENZIE J Introduction

[1]      The appellant faced trial in the District Court at Christchurch before Judge Neave and a jury on 12 counts of sexual offending against three complainants, all of whom were, at the time of the offending, girls living in the appellant‟s household as foster child placements.  He was acquitted on three counts, discharged under s 347 of the Crimes Act 1961 of another, and convicted on the remaining eight counts.  He appeals against those convictions.

[2]      The alleged offending spanned a period of about 23 years.   There was one allegation in respect of the first complainant.   That was a representative count of sexual intercourse with a girl under care or protection.  The appellant was acquitted on that count.  The alleged offending against the second complainant (AM) extended from 1991 to 1996 and comprised six counts.  One count was the subject of a s 347 discharge at trial.  The appellant was convicted on one count of sexual violation by unlawful sexual connection and two counts of attempted sexual violation.  Two of those counts were representative counts.   He was acquitted on two further counts involving AM.  The offending against the third complainant (VL) occurred between

2000 and 2003 and comprised five counts of sexual violation by unlawful sexual connection, two of them representative counts.  The appellant was convicted on all of those counts.

The grounds of appeal

[3]      The appeal is based on two grounds.  The first is that propensity evidence of

an  offence  against  the  appellant‟s [suppressed]  (RR)  should  not  have  been admitted.         The  second  ground  is  that  defence  counsel  was  wrongly  denied permission  pursuant  to  s 44(1) of the  Evidence Act  2006  to  cross-examine the complainant AM.  Counsel wanted to cross-examine AM about disclosures she had made to a social worker, a specialist interviewer, and to a police officer about sexual

abuse she alleged had been perpetrated against her by her father and grandfather at an earlier time.  Those disclosures occurred during the period of the abuse of AM by the appellant.  I deal first with the second ground of appeal, as the appellant succeeds on it.

Refusal to grant leave under s 44 Evidence Act

(a)      The background, and the ruling

[4]      This ground of appeal challenges the refusal of permission under s 44 of the Evidence Act to cross-examine the complainant AM about complaints which she had made of sexual offending against her by others.  Counsel for the appellant submits that  it  was  a  particular  characteristic  of  the  brief  of  evidence  and  statements disclosed from AM that she, far from being reluctant or backward in disclosing the abuse that she said had occurred while residing with the appellant, had most vocally and persistently complained about it to a variety of people, including her social worker, who either disregarded her complaints or actively discouraged her from making such disclosures.  Counsel had as a result of this sought disclosure of AM‟s complete CYFS file, and that was one of the matters which Judge Crosbie addressed in his pre-trial ruling of 23 September.  As a result of that ruling, part of the file was disclosed about ten days before the trial.  Counsel describes that file as containing information that AM, at the same time as she was complaining of being abused by the appellant on an almost nightly basis, was making other disclosures to her social worker about abuse suffered at the hands of both her father and possibly also her paternal grandfather.  The notes disclose that she regularly discussed this matter with her social worker and was not only listened to, but was taken to Dunedin for an evidential interview with a specialist interviewer in the presence of a police officer.

[5]      That information caused counsel to request the remainder of the file and to indicate to the trial Judge that a s 44 application to cross-examine AM about this other complaint would be forthcoming.   He said that there was an inconsistency between what AM had said in her interview about the way her complaints about the appellant were received by the social worker (which was that the complaints were

not taken seriously) and the evidence in the file that the social worker took other complaints by AM very seriously.

[6]      In a minute issued on the Friday before the trial commenced the trial Judge indicated that the issue could not be assessed until AM had begun  to give her evidence.  Counsel sought a ruling towards the end of his cross-examination of AM, which was given by Judge Neave on 19 October.  The Judge said:1

Leave can be granted under s 44 of the Evidence Act if the issue is of such direct relevance to the facts in issue in the proceedings that it would be contrary to the interests of justice to exclude.

The fact that the complainant may have talked to people around about this time of other instances of abuse is, technically speaking, given the trend of the authorities over many years, evidence of previous sexual experience notwithstanding that it is in fact only evidence of the making of a complaint. In this case the fact that she may have talked about other people at a time when she was living with the Lindsays, to my mind has no real relevance on whether or not she is telling the truth about Mr Lindsay.   Evidence has shown over the years and if necessary, I am sure could be given from the psychiatrists whom the Crown has been considering calling, that there can be all sorts of reasons why those who have been sexually abused do not make complaints.   In part that is the underlying philosophy behind s 127 of the Evidence Act which carries over s 23AC of the old Evidence Act.

Furthermore the complainant has already given in evidence testimony that she  made  complaints  to  people  roundabout  this  time  which  were  not believed.  As I understand it, Mr Bunce is in the position to call evidence from one or more of the people who may have received such complaints to say in fact they received no such complaints and that is a factor which the jury will have to assess in determining [AM‟s] credibility.

Given the fact that she was still resident in the family home and given the fact she has already testified that she had made unsuccessful complaints and given the fact that she said the reason she did not take matters further was because of fear as a result of alleged threats from the accused, if the jury accepted those, there could be all sorts of reasons why she would not make a complaint and the fact that she had talked about other instances of abuse does not to my mind undermine credibility in respect of those matters.

I am not satisfied that this issue is of such direct relevance to the proceeding that it would be contrary to the interests of justice to exclude it.  To my mind it adds little if anything to the defence case given the matters that Mr Bunce has already explored and the evidence he had indicated he is in a position to call.   I also note that one of the factors that would have influenced this decision  would  be  if  the  Crown  had  sought  to  call  from  Dr Earthrowl evidence in relation to reasons why complainants do not make complaints. Ms Toohey has indicated that she was not proposing to call any evidence from the doctor in relation to this complaint.  Indeed were she to do so, she

1      R v Lindsay (Ruling No 2) DC Christchurch CRI-2009-009-1238, 19 October 2010 at [4]-[8].

would open up the very line of enquiry which I have just said does not advance  the  case  further.    So  in  the  absence  of  there  being  any  such evidence, to my mind, leave should be refused to raise with this complainant evidence of complaints she made in January and February about other instances of alleged sexual abuse.

(b)      Submissions

[7]      Counsel for the appellant submits the trial Judge erred in not allowing AM to be cross-examined about her disclosure about sexual abuse at the hands of her father at the relevant time.  Counsel submits that this was not a situation, as the Judge saw it, of a failure to complain, for which a direction under s 127 of the Evidence Act might be required.  Counsel submits that the important issue was not whether there were reasons why no complaint would be made.  Rather, the issue was whether the complainant was credible when she said she had complained to others, including her social worker, and been disregarded, when there was evidence that other similar allegations made by the complainant were taken seriously.  He submits that it must have struck the jury that it would be extremely unlikely that the social worker would be pursuing the allegation of sexual assault by AM‟s father vigorously and conscientiously on the one hand while at the same time treating another allegation in the dismissive terms  described  by AM.   He submits  that  would  have  impacted seriously on AM‟s credibility and was crucial to the social worker‟s evidence which was artificially and unfairly constrained as a result of the ruling.

[8]      Counsel for the respondent submits:2

The complaints about AM‟s father and grandfather had the backing of her mother, and her brother had also made similar complaints.  In contrast, the appellant worked with the social workers, he was an approved foster parent and family home caregiver.   He was an authority figure with whom the social workers would have some sympathy.   Complaints against him were sufficiently different in kind from AM‟s complaints against family members to potentially warrant different treatment by the social workers.

The evidence the appellant claims the social worker could have given about the  nature  of  the  discussions  she  had  with AM,  about AM‟s  confident preparation for the evidential interview, and about asking her about abuse by others would not have had the relevance at trial for which the appellant contends.    It  is  relevant  in  this  regard  that  the  complainant  was  cross-

examined about her failure to make a [complaint] about the appellant at a family group conference.

In the circumstances there was no likelihood that the evidence could assist a jury considering whether the complainant‟s evidence was possibly fabricated or mistaken.  There is no indication that the absence of that evidence at trial may have contributed to a miscarriage of justice, as the availability of the proposed defence that it never occurred was unaffected.

(footnotes omitted)

(c)      Discussion

[9]      Section 44, as relevant, provides:

(1)       In a sexual case, no evidence can be given and no question can be put  to  a  witness  relating  directly  or  indirectly  to  the  sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

(2)       In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.

(3)       In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

…

[10]     One rationale for the restrictions on cross-examination and evidence imposed by s 44 was described by this Court in R v Clode in these terms.3

Section  44  of  the  Evidence Act  (and  its  predecessors)  were  enacted  to prevent the entirely reprehensible and inappropriate blackening of the characters of particularly women complainants by directly or indirectly “tarring” them in the eyes of the jury. It was not, in terms, intended to preclude or somehow truncate the advancement of a full defence which is otherwise open to an accused.  …

[11]     Another rationale, which may apply in cases where the evidence is of sexual abuse or sexual offending where no question of blackening the character of the complainant would arise, is that cross-examination may re-traumatise the victim.

[12]     Those rationales need to be taken into account, to the extent that they are relevant in the particular case, when weighing up fairness to the complainant against fairness to the defendant in being able to mount an effective defence.

[13]     An important plank in the appellant‟s defence in this case was that AM had made inconsistent statements about whether she had complained of the alleged abuse by the appellant, and that this inconsistency reflected on her credibility.  The essence of the inconsistent statements was put to her in cross-examination in these terms:

Q.        You‟ve said, during the course of your evidence-in-chief that you did what you were told because John Lindsay threatened that if you didn‟t  he  would  go  round  and  harm  your  mother,  that‟s  your evidence isn‟t it?

A.       Yes.

Q.        For the record I put to you that that‟s just complete nonsense but that‟s your evidence?

A.       It is not nonsense.  He did threaten me with my mother.

Q.       Now are you saying that that is also the reason why you didn‟t yell

the house down about this, what was going on?

A.       Yes.

Q.       Is that what you‟re saying?

A.        Yes „cos I was really close with my mother and my mother was sick and she didn‟t need anything, any other stress than what she was already going through.

Q.        So you didn‟t disclose what was going on, you say, because you were frightened that if you did John Lindsay would hurt your mother

–

A.       I wasn‟t –

Q.       Is that your evidence?

A.       I wasn‟t frightened I was petrified.

Q.        You were petrified.  Now, during the course of your video interview, however, you gave numerous instances didn‟t you of attempts that you made at the time when you were in the family home to draw attention to what was going on, correct?

A.       Yes I did.

Q.        Now I just want to go over some of those with you. This is at page 8 in the transcript of the video interview – “I tried telling my CYFS

social worker at the time and she just basically swept it under the carpet and said “No that‟s not happening” so we didn‟t get listened to. We just thought we‟d better be quiet.”?
A.	Mhm.
Q.	Okay now you‟re not saying there that you weren‟t making any disclosure because you were frightened of John Lindsay what you‟re saying is that you did tell the social worker at that time but she said that‟s not happening?
A.	Mhm.
Q.	And swept it under the carpet?
A.	I don‟t know if I said it the right way how I was meant to say it or not „cos I was only a child at the time but I did go to her and ask her to help me.
[14]	That	passage   indicates   that   there   was   an    inconsistency   within	the

complainant‟s own  evidence  –  on  the  one  hand,  an  assertion  that  she  did  not complain because she was too frightened, and on the other hand, an assertion that she did complain but was not listened to.  That inconsistency was a proper subject for exploration by the defence.  The defence might have been materially assisted if evidence of the making of complaints of alleged sexual abuse by others, and of the way in which those complaints were dealt with, could have been adduced.

[15]     The two social workers who would have been the likely recipients of any complaint AM had made about the appellant were called by the defence.  They gave evidence that no complaint had been made to them.  One of the social workers could also have given evidence that AM had, at about the time of the alleged offending, made a number of complaints to her about alleged sexual offending against AM by both her paternal grandfather and her father.  Evidence available to the defence from the CYFS files indicated that those complaints had been the subject of an evidential interview, and a complaint to the police.  Before it could adduce evidence of those complaints, through the social worker, the defence needed to put to AM the proposition that she had made those complaints to the social worker.  The refusal of leave to cross-examine meant that the defence was unable to adduce that further evidence from the social worker.

[16]     The Judge in his ruling held that evidence that AM may have talked to people around about the relevant time of other instances of abuse is, technically speaking, within the scope of s 44.  This is correct, since cross-examination of a complainant about complaints of sexual abuse by other persons does relate indirectly to the sexual experience of the complainant.  So, leave was required under s 44(1).  The further evidence of the social workers would also have required leave, under s 44(2).  It is important in this case that the evidence related not to the fact or detail of sexual abuse by others, but to the existence of a complaint of sexual abuse by others.  That distinction does not take the evidence outside the scope of s 44, but it is relevant to the two rationales for s 44 to which we have referred.  The nature of the evidence, and the way in which that evidence relates to the sexual experience of the complainant, are relevant considerations in the evaluation which is required by s 44.

[17]     Neither cross-examination of AM to establish that she had made complaints of sexual abuse by her father and grandfather, nor the further evidence of the social workers, had the potential for blackening the character of the complainant.  Nor did the very limited cross-examination which would have been necessary, to enable more detailed evidence to be given by the social worker, carry a risk of re-traumatising AM. Any cross-examination of AM on the matter could have been limited to putting to her the proposition that the complaints of abuse by her grandfather and father had been made to the social worker, the content of the complaints, and what was done about them.  It would not have been necessary to cross-examine on the nature of the alleged abuse. Accordingly, there was no significant element of a need to protect the complainant  from  having to  relive  earlier  events  of sexual  abuse.   When  these considerations are weighed in the evaluation required by s 44, the case for refusal of leave was not strong.

[18]     On the other hand, the relevance of the evidence to facts in issue was high. The  credibility  of AM  was  very  important  to  the  Crown  case,  and  any  matter properly bearing upon that credibility was important to the advancement of a full defence.  The evidence of the other complaints was relevant to the credibility of the complainant‟s evidence about a complaint in respect of the alleged abuse by the appellant.  That was a proper subject for the defence to pursue, and necessary for the presentation of an effective defence.

[19]     The Judge appears to have regarded the evidence as having no real relevance because of the proposition, reflected in s 127 of the Evidence Act, that there can be all  sorts  of  reasons  why  those  who  had  been  sexually  abused  do  not  make complaints.   That, however, was not the point.   It was an important plank in the defence case that AM had not made a complaint about the alleged offending by the appellant.   Section 127 was relevant to that aspect of the defence.   The defence sought, in addition, to challenge the credibility of AM‟s evidence based on an earlier statement by her that she had made a complaint, but had not been listened to.  The fact that she had made other complaints of sexual abuse, and that those had been taken seriously, was highly relevant to that challenge.  The possible need for a s 127 direction did not arise on that aspect of the defence case.

[20]     We are of the view that the issue of whether or not complaints of sexual abuse by the father and grandfather had been made was of such direct relevance to the credibility of AM‟s evidence on the facts in issue in the present proceedings, that it was contrary to the interests of justice to exclude it.

Propensity evidence

(a)      The ruling on the propensity evidence

[21]     The  relevant  propensity  evidence  was  of  an  offence  of  sexual  grooming against RR, to which the appellant had recently pleaded guilty.   [Suppressed]. She did so on 30 July.      The following morning, prior to RR going home, the

appellant asked her to pose while he took photographs of her.  He took one of RR

standing by her bed naked and then several of her wearing her [suppressed].

He had her pose in various positions.  He then had her change into a black negligee with lacy panels up the side.  He then asked if he could take another photo of her naked but she refused.

[22]     Several items of propensity evidence (including that relating to RR) were the subject of a pre-trial ruling by Judge Crosbie given on 23 September 2010.   In his ruling he said:4

In my view, the evidence is properly classified as propensity evidence in that it has a tendency to show a propensity to act in a particular way or to have a particular state of mind.   In this case, the evidence is consistent with the accused having a sexual interest in young girls, aged between 8 and 14 who were placed in his care at his home.   I find that the following evidence is admissible   as   propensity  evidence  which   will   not   have   an  unfairly prejudicial effect on the accused:

a)RR.  The evidence regarding admitted offending of a sexual nature I rule is admissible.  RR was 9 years of age and, although no charges alleging sexual touching arose from this incident, it demonstrates that the accused was sexually interested in a young girl aged 9 who was in his care whilst the accused‟s wife was out of the house.

…

[23]     The introductory part of that paragraph referred not only to the evidence relating to RR, but also to other propensity evidence considered by the Judge at the same time.  There is no challenge to the decision in respect of that other propensity evidence.

(b)      Submissions

[24]     Counsel for the appellant submits, in relation to the propensity evidence, that the issue of admissibility needs to be assessed in a nuanced and contextual way which focuses closely on what is truly in issue in the case, as noted by this Court in Freeman v R.5   Counsel submits:

24.It is conceded that, by 2007 at least, the appellant seems to have had a sexualised interest in images of young girls in a state of undress and provocatively posed.  But this was an offence of a very different

kind, [suppressed], not involving any physical assault

or sexual violation, on a visit to him.  She was not in his care as a foster child as all other complainants were, [suppressed].

The offending was not temporally related, and indeed was

used at trial as evidence of propensity to commit serious sexual assaults up to 27 years previously.

4      R  v  Lindsay  (Ruling  on  pre-trial  applications)  DC  Christchurch  CRI-2009-009-1238,  23

September 2010 at [47].

5      Freeman v R [2010] NZCA 230.

…

27.      What the RR conviction could be fairly said to illustrate was that by

June 2007 John Lindsay displayed a sexually inappropriate interest in [suppressed] and acted upon it to the extent that he took indecently posed photographs of her.  It is submitted that it would be

stretching the evidence much further than it should bear to reason

that  that  could  cast  much  light  on  the  issue  of  whether,  up  to

27 years previously, he sexually violated young girls of a similar age in his care as a foster parent.  In every respect other than that set out above, the incidents were totally dissimilar. They involved no “coincidence” of the kind set out in paragraph 20 of Freeman v R. The propensity value was slim.

28.The same cannot be said of the prejudicial effect of the admission of this material.   It would not be an exaggeration to say that this propensity evidence hung over the whole trial and was self evidently a very difficult burden for the defendant, already engaged on several fronts in his defence, to carry.   It is likely to have had a decisive influence on the outcome of the trial and for precisely the kind of reasons which makes propensity evidence of this kind potentially dangerous – giving rise to the kind of reasoning that “if he‟s capable

of that with [suppressed] then he‟s capable of anything”.

The  prejudicial  effect  was,  it  is  submitted,  uncontrollable  and outweighed the probative effect of the evidence by a wide margin.

[25]     Counsel for the respondent submits that Judge Crosbie noted the differences between the RR propensity evidence and the charges, but was also clear about the links between them.  She submits that no error in approach has been demonstrated, and that the Judge carefully weighed the unfair prejudicial effect of the propensity evidence, and the use of a jury direction to guard against unfair prejudice.   She submits that the potential unfair prejudice was slight, and that there is no basis to criticise  Judge Crosbie‟s  conclusion  that  the  probative  value  of  the  evidence outweighed the risk of unfair prejudice.

(c)      Discussion

[26]     Propensity evidence is evidence that tends to show a person‟s propensity to act in a particular way or to have a particular state of mind.  The defence in this case was a denial that the alleged events had occurred.  That is the only issue in dispute on which the propensity evidence might have a probative value.   It must tend to show a propensity to act in the way the appellant is alleged to have acted in the offending.  A sexual interest in young girls is a state of mind, not a way of acting.

The existence of that state of mind is not, of itself, a relevant issue in this case.  A description of the propensity as a sexual interest in young girls does not sufficiently focus on what is truly in issue.  The acts in the alleged offending involved sexual violation.   The acts in the offending against RR involved taking photographs in sexually  suggestive  clothing  and  poses.     These  acts  are  not,  in  themselves, sufficiently similar to show a tendency to act in the way alleged at trial.   Any similarity arises only because of the sex and age of the victims.  That similarity of the victims is a factor, but it is only one factor, in determining whether the evidence has probative value.

[27]     I consider that the probative value of the evidence, in relation to whether the appellant has a propensity to commit the acts alleged, was limited.   The time at which the sexual interest in young girls was demonstrated (2007) was very much later than the alleged offending against AM (1991 to 1996), and several years later than the alleged offending against VL (2000 to 2003).  The way in which the sexual interest had been acted upon in the offending against RR was quite different from the way in which it was alleged to have been acted upon in relation to AM and VL.  The fact that the offending against RR was limited to a single occasion further reduced its probative value.

[28]     Those comments address each of the matters in paras (a) to (d) of s 43(3), which are the matters particularly relevant to the assessment of probative value in this case.   None of these matters provides a basis for a finding that the probative value of this evidence is high.

[29]     As to its prejudicial effect, the propensity evidence in respect of the offending against RR enabled trial counsel for the Crown to put the following questions in her cross-examination to the appellant:

Q.       These  photographs  that  you  took,  you  admit  don‟t  [you]  that

[they‟re] of a sexual nature?

A.       Yes

Q        You have a sexual interest in nine year old girls don‟t you?

Q.       Mr Lindsay I asked you do you accept that you have a sexual interest in young girls?

A.       Yes

Q.       And I take it this interest hasn‟t just developed in 2007?

A.       No.

[30]     That line of questioning demonstrates that the risk of an unfairly prejudicial effect was considerable.  It required the appellant to acknowledge a sexual interest in young girls, which might on its own have had a considerable impact on the jury.  It is not legitimate propensity reasoning to reason that solely because a person has a sexual interest in young girls, he is likely to act upon that sexual interest in a way which is significantly different from and much more serious than the way in which he has acted upon that sexual interest on another occasion.  As I have discussed in relation to probative value, the reference to a sexual interest in young girls did not sufficiently focus the jury‟s inquiry, and was unfairly prejudicial for that reason.  The

jury might well feel revulsion at the conduct against [suppressed].  That also

had the potential to increase the prejudicial effect, despite the usual warning to put aside prejudice.   I consider that, in terms of s 43(4)(a), the evidence was likely to unfairly predispose the jury against the appellant.

WILD AND RODNEY HANSEN JJ

(Given by Wild J)

[31]     We  differ  on  the  propensity  evidence,  which  we  rule  admissible  against

Mr Lindsay upon his retrial.

[32]     Upon his re-trial, the issues will be whether Mr Lindsay:

sexually violated or attempted sexually to violate AM between 1991 and

1996 and/or

sexually violated VL between 2000 and 2003.

[33]     Giving evidence at his trial in October 2010, Mr Lindsay flatly denied any sexual misconduct toward AM or VL.  He characterised AM‟s allegations as “pure

fantasy”6 and deposed that they were “totally untrue”7   Similarly, he asserted that the conduct alleged by VL had “never happened”8  and stated that her allegations were “unfounded, untrue”.9

[34]     We  consider  the  propensity  evidence  and  Mr  Lindsay‟s  admissions  are relevant to the issues at the re-trial and that their probative value in relation to those issues  outweighs  any  risk  that  they  may  have  an  unfairly  prejudicial  effect  on Mr Lindsay.  It goes to the credibility of AM and VL, making it more likely the jury will believe that Mr Lindsay did to them while they were in his care the things they allege, things Mr Lindsay flatly denies.

[35]     That   is   because   the   propensity   evidence   and   admissions   prove   that Mr Lindsay had a sexual interest in young girls and that he was prepared to act upon that interest in respect of a young girl in his care, albeit by committing a crime different from and less serious than those alleged in the charges he will face when he is tried again.  In short, the evidence establishes Mr Lindsay‟s propensity to act upon his sexual interest in young girls in his care.

[36]     In  assessing  the  probative  value  of  the  propensity  evidence  in  terms  of s 43(3), we consider the factors are these:

(a)      Frequency of offending:   the alleged offending against each of AM and VL was repeat offending.   Some of the live counts relating to each of them are representative counts.   By contrast, the offending against RR by Mr Lindsay was a single incident.  Where, as here, that single incident involves unusual behavior such as sexual abuse of a young girl in the accused‟s care, it can qualify as propensity evidence:

Solicitor-General v IPR,10  citing the English Court of Appeal in R v

Hanson.11

6      Transcript of evidence at trial 335/29.

7      At 337/27.

8      At 342/3.

9      At 357/28.

10     Solicitor-General v IPR [2009] NZCA 401 at [34].

11     R v Hanson [2005] 1 WLR 3169 (CA) at [9].

(b)Connection in time:  the alleged offending against AM ended in 1996, that against VL in 2003.  The incident against RR was in July 2007. So there is a time lapse of 11 years from the end of the alleged offending against AM, and four years from the end of the alleged offending against VL.  Although arguably weakened by that 11 year time lapse, there remains available the inference that Mr Lindsay‟s sexual interest in young girls had not just developed in 2007.   It is therefore not surprising that Mr Lindsay admitted during his trial that he  had  a  sexual  interest  in  young  girls  and  that  it  had  not  just

developed in 2007.  Given that both AM and VL were young girls12 at

the time Mr Lindsay allegedly sexually violated them, the available inference is of considerable significance.  Although the maximum 11 years time lapse here is lengthy, we note that the admissibility of propensity evidence of similar sexual offending committed 16 years earlier was upheld by this Court in Smith v R.13   On the other hand, in

Lowe  v  R,14   delivered  on  22  August  2011,  this  Court  excluded

propensity evidence of similar sexual offending committed some 33 years earlier.  In both Smith and Lowe, as here, the appellant had been convicted of the propensity offending.15      In Lowe the Court commented:16

As the gap between the historical offending and the event giving rise to a new charge grows, the probative value of the earlier evidence generally diminishes.   In a case where reliability of recall of events that occurred some time ago is not in issue, it is all the more important to analyse carefully the balance between probative value and prejudicial effect.17

12     AM was aged between 7 and 12, and VL between about 9 or 10 and 13 at the time of the alleged offending against each.

13     Smith v R [2010] NZCA 361.

14     Lowe v R [2011] NZCA 400.

15     We make this point because the s 43(1) balancing exercise will be different where the proposed

propensity evidence is of offending in respect of which the accused was acquitted.  This Court‟s

decision in Blackburn v R [2011] NZCA 365 is an example.

16 At [24].

17     If reliability of evidence of earlier conduct was in issue, it is likely that some form of reliability warning favourable to the accused would be given as a result of the application of s 122(2)(e) of the Evidence Act 2006, on the basis that the events had occurred more than ten years previously.

(c)      Extent of similarity:   the offending against AM and VL was sexual violation, actual or attempted.   That against RR involved taking photographs of RR naked or in revealing negligee.  Clearly the former offending was different from and much more serious than the latter. But all the offending was sexual in nature.   AM and VL were in Mr Lindsay‟s  care as  a  foster  parent.    As  this  Court  observed  in

Solicitor-General v IPR18 “the key similarity is the sexual misconduct

between an adult man and a young girl”. RR was in his care as

a [suppressed]  visiting.  A distinction without a difference.  All were young girls in Mr Lindsay‟s care as a trusted caregiver.

We note that evidence of conduct of a different and less serious kind has been admitted as propensity evidence in a number of cases.  Four examples suffice.   In Hague v R19  the appellant was charged with sexually violating an 11 year old complainant.  Propensity evidence was admitted from three witnesses, two of them young girls similar in age  to  the  complainant.    The  evidence  of  one  was  that  she  had received text messages from the appellant suggesting a wish to have sexual contact.   One text stated “hopefully id end up in u”.   The

propensity evidence of the other young girl was that the appellant had

laid down on a couch beside her and “humped her leg”.

In Paku v R20 Mr Paku faced four counts of indecently assaulting the complainant, who was 13 at the time.  The propensity evidence was video footage taken by Mr Paku, while hidden in a cupboard, of the complainant while she was showering.   He had zoomed in on her breasts, bottom and pubic area.   This Court said of the filming evidence:21

…  It goes to show not only sexual attraction but that Mr Paku was

prepared to act on that sexual attraction.

18 At [34].

19     Hague v R [2010] NZCA 79.

20     R v Paku [2010] NZCA 16.

21 At [9].

In Blake v R22  the appellant was charged with indecently assaulting, raping and doing an indecent act on two young girls he had met via an internet chat room.  This Court upheld the admissibility of propensity evidence of pornographic material found on Mr Blake‟s computer, including stories describing sexual acts very similar to those alleged by the complainant.  The Court of Appeal said:23

…  The appellant denied any sexual contact with the complainants.   He made it clear he would not be sexually involved with young girls.  The evidence therefore directly responded to that assertion.   The probative value was therefore very high.

In R v Stewart24 the charges were indecency, sodomy and rape of the complainant.   This Court upheld the admissibility of propensity evidence from A, who had stayed on the Stewart farm with the complainant during summer holidays, when the two were young primary school girls.   A‟s evidence was that Mr Stewart had often touched her between the legs while she was sitting on the front bench seat of his jeep being driven around the farm, or when he was lifting her in and out of the jeep.  She also gave evidence that he had touched her indecently once when they were together in a swimming pool, and had commented to her several times that she needed a bra.

(d)      Number of ‘propensity’ witnesses:  One. (e)     Collusion?  No suggestion of this.

(f)       Unusual  behavior?     A  number  of  decisions  of  this  Court  have categorised the interest of a mature man in sexual activity with young

girls as unusual.  Examples are Solicitor-General v IPR25 and Smith v

22     Blake v R [2010] NZCA 61.

23 At [49].

24     R v Stewart [2008] NZCA 429.

25     SG v IPR [2009] NZCA 401 at [38](f).

R26.   Sexual activity with young girls in the man‟s trusted care is

perhaps still more unusual.

Factors (b), (c), (e) and (f) favour the admission of the propensity evidence.  Factor

(a) and possibly (d) could be viewed as arguing against its admission.

[37]     In assessing the prejudicial effect of the propensity evidence on Mr Lindsay in terms of s 43(4), our views are:

(a)      Likely unfairly to predispose?  As almost always, the risk here is that the jury will reason „because Mr Lindsay did that to RR, he must have done those things to AM and VL‟.  That risk is minimised by proper direction to the jury by the Judge at the retrial.  The Judge will need to direct the jury that they must not reason like that, explaining that such reasoning is illogical and therefore unfair to Mr Lindsay.   But most importantly, the Judge needs to explain to the jury how they can use the propensity evidence.  The leading guidance on how a Judge should direct a jury about propensity evidence is now that in the

judgment of McGrath and William Young JJ in Mahomed.27     We

respectfully endorse this, in particular the importance that guidance places on the Judge explaining to the jury why they have heard the propensity evidence, its relevance, and how the jury may take it into account.  In our experience, while trial Judges almost always caution juries about what they should not do with propensity evidence, they sometimes overlook directing the jury as to what they can do with the evidence, and explaining why, in terms jurors can comprehend.

(b)Tendency to give disproportionate weight:  What we have said in (a) applies equally.   In relation to both (a) and (b), we do not underestimate the concerns expressed by MacKenzie J in [30] above.

But   the   fact   that   MacKenzie   J   assesses   the   risks   of   unfair

26     At [11] and [17].

27     Mahomed v R [2011] NZSC 52 at [95].

predisposition and disproportionate weight as significant reflects the high probative value of the propensity evidence and Mr Lindsay‟s admissions.  Probative value and prejudice to the accused are the two sides of the same evidentiary coin.   We do not accept that there is

here an unfair prejudicial effect on Mr Lindsay.

Result

[38]     For the reasons given in paragraphs [1] to [20], the appeal must be allowed. The convictions are quashed, in respect of all counts, involving both complainants. A retrial is ordered.  For the reasons given in [31]–[36], the propensity evidence is ruled admissible against the appellant on his retrial.

Solicitors:

Crown Law Office, Wellington for Respondent