R v Brown
[2015] NZHC 1189
•29 May 2015
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.
THE NAMES OF THE PARTIES HAVE BEEN ANONYMISED. THIS JUDGMENT MAY BE CITED AND REPORTED UTILISING THESE NAMES.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-009-6904 [2015] NZHC 1189
THE QUEEN
v
BROWN
Hearing: 22 April 2015 Appearances:
K B Bell for the Crown
S J Shamy for the DefendantJudgment:
29 May 2015
JUDGMENT 2 OF NATION J
[1] Pursuant to s 101 Criminal Procedure Act 2011, the prosecutor has applied to the Court for a pre-trial order that certain evidence of the complainant is admissible. The application is opposed by the defendant.
[2] The defendant faces the following charges:
(a) two representative charges of doing an indecent act on a child;1
1 Crimes Act 1961, s 132(3).
R v BROWN [2015] NZHC 1189 [29 May 2015]
(b) three charges of sexual violation by unlawful sexual connection;2 and
(c) three charges of sexual connection with a child.3
[3] The proceedings are set down for trial on 13 July 2015.
[4] The complainant is the defendant’s cousin. The alleged conduct is alleged to have occurred when the defendant and his cousin were staying at their grandparents’ farm property.
[5] The first sexual conduct is alleged to have occurred in December 2005 when the defendant was aged 12 and the complainant was aged 6½. Because the defendant could not be criminally liable for the alleged offending until he reached the age of
14, the initial conduct is not the subject of criminal charges.
[6] The defendant turned 14 on 16 November 2007. This is the start date of the representative charges of sexual connection with a child under 12 and sexual violation. At this time the complainant was aged 8½. In early 2010, the alleged offending apparently ceased.
[7] On 24 October 2013 the complainant was evidentially interviewed by a specialist child interviewer. The evidence from the complainant obtained in that interview relates to all the alleged conduct between the time it started in about December 2005 and when it is alleged to have finished in early 2010. The evidence which is in dispute relates to the defendant’s alleged conduct from the time it started through to November 2007 when the defendant turned 14 and became criminally liable for the alleged offending.
[8] The prosecutor says it would be artificial and unfair to the complainant to
remove any reference to offending that occurred prior to the defendant’s 14th
birthday and that it will be relevant for the jury, in considering the particular charges,
2 Sections 128(1)(b) and 128B. Two of these are representative charges.
3 Section 132(1). These are alternative charges to the s 128(1)(b) charges, above. Again, two are representative charges.
in explaining the background to what occurred and determining what happened after the defendant turned 14.
[9] The defendant says it would be unfair for the Crown to be able to lead this evidence “in order to buttress its case against him” for offending at a later date, that admitting the evidence would require him to deny the behaviour even though it is not behaviour for which he could be criminally liable and that it would be unfair to force him to defend actions which took place over approximately eight years ago.
[10] The disputed evidence is “propensity evidence” in terms of s 40 Evidence Act
2006. It tends to show the defendant had a propensity to act in a particular way with the complainant in a manner which brought the defendant sexual gratification. The disputed evidence tends to show the defendant, on occasions, put his mouth over the complainant’s penis, put his penis in the complainant’s mouth and thrust his penis into the complainant’s anus to the extent there was penetration.
[11] The conduct in the disputed evidence is also alleged to have occurred generally in situations which were identical to the circumstances where the offending is alleged to have occurred after the defendant was 14; when they were at particular places on the grandparents farm including a play hut in a disused pig pen, a garage or shed where vehicles were stored and a hayshed, or in the grandparents home on the farm when the boys were sharing a bedroom.
[12] In the disputed evidence, the complainant also gives evidence of the first occasion on which such conduct is alleged to have occurred, when he was about 6½ years old, and he and the defendant were sharing a bath at the grandparents home.
[13] In the disputed evidence the complainant also refers to the defendant saying to him that he must not tell anyone else about what was happening and that he would be in trouble if he did.
[14] Because the evidence is propensity evidence, it can be admitted only if permitted on an application of s 43 Evidence Act 2006.
[15] S 43 Evidence Act 2006 states:
43 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the
Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the
Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[16] The defendant has pleaded not guilty, so all elements of the charges are essentially at issue. The defendant has however participated in video-taped
interviews. On the basis of what he said in those interviews, the issues at trial are likely to include:
(i) Whether any of the sexual acts which the complainant described, between when the defendant turned 14 and when the conduct is alleged to have ceased when the defendant was 16, did actually occur.
(ii) Whether the defendant took the complainant out on the farm and, in particular, whether he was ever alone with him in a hut which had been made in a disused pig pen, in the hayshed or sheds where vehicles were stored.
(iii) Whether the defendant did initiate contact with the complainant on occasions in circumstances where they would be on their own away from other adults and thus able to participate in the sort of conduct which is alleged without others in the family knowing.
(iv) Whether the defendant did threaten the complainant and make it clear that he must not tell anyone about what had happened.
[17] The offending for which the defendant could be criminally liable is alleged to have occurred between 16 November 2007 and early 2010. The propensity evidence relates to conduct which is alleged to have occurred between December 2005 and 16
November 2007.
[18] The disputed evidence has considerable probative value in relation to the issue which will be in dispute in these proceedings. Indeed, it is difficult to see how there could be propensity evidence of greater probative value. The disputed evidence relates to the same acts as are the subject of the charges. Those same acts are alleged to have occurred between the defendant and the complainant. The sexual conduct alleged in the disputed evidence is said to have occurred in the same general circumstances as the conduct which the defendant is charged with. The disputed evidence relates to incidents which allegedly occurred in the period immediately preceding the alleged offending. The evidence is also of probative value in that it
explains how the alleged conduct began, how the complainant became conditioned to it occurring and why it could have occurred without anyone else knowing.
[19] Because the propensity evidence does not relate to conduct with any party other than the complainant, the matters referred to in s 43(3)(d) and (e) are of no relevance.
[20] For the reasons already mentioned, the probative value of the propensity evidence is significant, taking into consideration the matters referred to in s 43(3)(a), (b), (c) and (f).
[21] Given that the disputed evidence is propensity evidence, it can be admitted only if the probative value of the evidence “outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant”.
[22] In assessing the prejudicial effect of the evidence, I must consider the matters referred to in s 43(4)(a) and (b), along with any other matter that may be relevant.
[23] The disputed evidence will be prejudicial because of its probative value. I
must consider the extent to which it is unfairly prejudicial.
[24] The most significant such prejudice arises from the fact that the defendant will have to test the complainant’s credibility in relation to conduct which he alleges happened some 9½ years to 7½ years before trial.
[25] In assessing the unfairly prejudicial effect of the disputed evidence, I have regard to the fact that the defendant has, at this stage, denied any sexual offending at any time with the complainant. Admitting the disputed evidence is unlikely to create any new or additional issues or difficulties for the defendant other than those which he will face in relation to the complainant’s evidence in connection with conduct which is alleged to have occurred after the defendant was aged 14.
[26] The prejudice to the defendant in relation to this dispute evidence is little different from the prejudice which he faces in having to deal with the complainant’s evidence in respect of the charges which he faces. Admission of the disputed
evidence is thus unlikely to cause him any significant prejudice over and above the prejudice he will face in having to deal with the charges that are now to proceed to trial.
[27] The evidence of the complainant, in connection with the disputed evidence, relates to events which are alleged to have occurred when the complainant was aged only 6½ to 8½. The complainant has given evidence in his evidential interview as to those events some 8-6 years after the alleged events. It is not unusual for a defendant to have to deal with a complainant’s allegations where the complainant, at the time of the offending, was of a similar age and the trial was taking place with the same or even significantly greater delay in between the alleged events and trial.
[28] For the reasons which led me to dismiss the application for the dismissal of charges, I consider the prejudice associated with delay will not be of a nature or degree to justify the exclusion of the evidence.
[29] The defendant also says there is unfair prejudice in that, if this disputed evidence is put before the jury, the defendant would effectively have to respond to allegations of criminal offending in circumstances where, because of his age, the legislation says there should be no criminal liability.
[30] I do not accept that this is a proper basis for finding unfair prejudice. In the context of these proceedings, the defendant will need to test the credibility of the complainant, in relation to his allegations of what occurred before the defendant was
14, to reduce or destroy any probative value of the evidence in relation to the charges which he faces. Nevertheless, the defendant will not be criminally liable in respect of any of his conduct before he was 14.
[31] I also consider that the disputed evidence is so closely associated with the defendant’s alleged conduct, in relation to the charges which are to proceed to trial, that attempts to exclude it are unlikely to be completely effective. If the complainant’s evidence in relation to the alleged criminal offending is to be tested, there would be a high likelihood that the complainant would have to respond by explaining how the conduct started and of events that he says occurred before the
defendant was 14. In fairness to the complainant, it is likely such responses would have to be permitted. If aspects of the disputed evidence were to come before the jury in this way, there could be more prejudice to the defendant than will occur with him knowing from the outset that the disputed evidence is going to be before the jury, will be presented in a particular way and can thus be dealt with in whatever way he and his counsel consider is most likely to be effective.
[32] For all these reasons, I find the probative value of the disputed evidence, in relation to the issues which are likely to be in dispute in the proceeding, outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
[33] Pursuant to s 101 Criminal Procedure Act 2011, I accordingly make an order that the complainant’s evidence, as to the conduct alleged against the defendant which occurred before the defendant was aged 14, is admissible in the proceedings.
[34] Due to fair trial considerations, I make an order prohibiting publication of this Judgment in news media or on the internet or other publicly available database until final disposition of the trial. Publication in a law report or law digest is permitted.
Solicitors:
Bridgeside Chambers, Christchurch
Raymond Donnelly Co, Christchurch
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