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…

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 Lindsay v The Queen

Details

AGLC: Lindsay v The Queen [2011] NZCA 500
Case: [2011] NZCA 500
Decision Date: 29 September 2011

CaseChat Overview and Summary

John Alexander Lindsay was convicted in the District Court of Christchurch on eight counts of sexual offending against three complainants who were, at the time of the alleged offending, girls living in his household as foster child placements. The appellant was acquitted on three counts, discharged under s 347 of the Crimes Act 1961 of another, and convicted on the remaining eight counts. The appeal was against those convictions. The appellant challenged the refusal of permission under s 44 of the Evidence Act to cross-examine one of the complainants about complaints of sexual abuse by her father and grandfather at the relevant time. The appellant also challenged the admission of propensity evidence of an offence against another complainant (RR) of sexual grooming, to which the appellant had recently pleaded guilty. The Court of Appeal allowed the appeal. The convictions were quashed, and a retrial was ordered. The propensity evidence was ruled admissible against the appellant on his retrial. The trial Judge erred in not allowing the cross-examination of AM about her disclosure about sexual abuse at the hands of her father at the relevant time. 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 case. 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. 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. The probative value of the propensity evidence in relation to whether the appellant has a propensity to commit the acts alleged was limited. However, in assessing the probative value of the propensity evidence in terms of s 43(3), the Court considered the factors are these: (a) frequency of offending; (b) connection in time; (c) extent of similarity; (d) number of ‘propensity’ witnesses; (e) collusion; and (f) unusual behaviour. 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. 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. 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.

Orders