R v B (SC88/2010) - [2010] NZSC 160

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 88/2010 [2010] NZSC 160

THE QUEEN

v

B (SC88/2010)

Hearing: 7 December 2010
Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ Counsel: M D Downs and T Epati for Crown
A J Bailey and S G Bailey for Respondent

Judgment: 17 December 2010

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe ruling of Judge Farish as to the complaint evidence is reinstated.

REASONS

(Given by William Young J)

R v B (SC88/2010) SC 88/2010 [17 December 2010]

[1] B faces six counts of committing an indecent act on K, a child under 12. At the time of the alleged offending he was in a relationship with K’s mother. The alleged offending came to light because of reports made to the Police by two people after they saw what they considered to be inappropriate conduct by B towards K in a park. They did not know either B or K but took a note of the car which B was driving. This led to the Police tracing K and, in mid-March 2009, she participated in an evidential video interview at which she made particular allegations against B. By this time the relationship between B and the complainant’s mother had finished.

[2] B was spoken to by the Police in mid-May 2009. During the resulting interview, B acknowledged that there had been some cuddling and dancing between him and K. He also acknowledged some physical interaction with K in the park in the course of the incident which resulted in the report to the Police already referred to. He denied, however, that there had been any indecency. And by way of explanation for K’s allegations (which went distinctly beyond what might be involved in innocent but misunderstood cuddling), he claimed that if the allegations had been true she should have said something to her mother or somebody else. He also suggested, at least by implication, that the allegations made by K were associated with the breakdown in the relationship between him and her mother.

[3] On the evidence available to the Crown, K had, in fact, told two of her friends about the offending before the breakdown in the relationship between her mother and B. The Crown accordingly wishes to lead evidence of what K told her friends ("the complaint evidence”).

[4] At issue in the case are s 35(1) and (2) of the Evidence Act 2006 which provide:

35 Previous consistent statements rule

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2) A previous statement of a witness that…

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 R v B (SC88/2010)

Details

AGLC: R v B (SC88/2010) [2010] NZSC 160
Case: [2010] NZSC 160
Decision Date: 17 December 2010

CaseChat Overview and Summary

B was facing six counts of committing an indecent act on K, a child under the age of 12. The alleged offending came to light after two individuals reported seeing B engage in inappropriate conduct with K in a park. The complainant subsequently made particular allegations against B during an evidential video interview. B, who was in a relationship with K’s mother at the time of the alleged offending, admitted to some physical interaction with K but denied any indecency. The primary legal issue was the admissibility of K’s complaint evidence under s 35(1) and (2) of the Evidence Act 2006. The Crown wished to lead evidence of what K told her friends about the offending before the breakdown in the relationship between her mother and B. The Court of Appeal had previously ruled that the admissibility of the complaint evidence was not triggered by s 35(2) as K was not a "witness" in the sense of s 4 of the Evidence Act when B made his statement to the Police. The Court of Appeal also considered that important rights under the New Zealand Bill of Rights Act 1990 would not be promoted if a statement to the Police by a suspect might trigger s 35(2) and thus render admissible what would otherwise be inadmissible evidence of previous consistent statements.

The Court allowed B’s appeal and reinstated the ruling of Judge Farish as to the complaint evidence. The Court held that the ruling given under s 344A of the Crimes Act 1961 is necessarily provisional in the sense that it can be revisited at trial. Once this point is recognised, the timing issue which was so critical in the Court of Appeal largely falls away. It does not matter that K is not presently a witness in the s 4 sense because she will be a witness when the ruling comes to be applied. And it likewise does not matter that the relevant challenge to her veracity has so far only been advanced at interview provided that challenge will be before the jury. The Court concluded that, based on the dynamics of the case as a whole, it is highly likely, to the point of being practically certain, that at trial the jury will have before it K’s evidence and, as well, the statement made by B to the Police in which he asserted recent invention associated with the break-up of his relationship with K’s mother. There will thus be, in evidence, a challenge to K’s veracity on the basis of recent invention on her part and s 35(2) will thus apply.

As a result of the Court's decision, the appeal is allowed, and the ruling of Judge Farish as to the complaint evidence is reinstated. The circumstances of this case fall within the category of cases contemplated in Rongonui, so it will be legitimate for K to give evidence of what she told her friends when she gives her evidence-in-chief. Whether it is necessary for the Crown to call K’s friends to give evidence will depend on the stance taken by the defence at trial.

Orders