Lindsay v The Queen

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.