R v Brown CA394/05
[2005] NZCA 395
•22 November 2005
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139
CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA394/05
THE QUEEN
v
GRAEME JOHN BROWN
Hearing: 17 November 2005
Court: O’Regan, Baragwanath and Doogue JJ Counsel: W G C Templeton for Applicant
K B F Hastie for Respondent
Judgment: 22 November 2005
JUDGMENT OF THE COURT
A Application for leave to appeal is granted.
BThe appeal is allowed and the order of the District Court that certain evidence was inadmissible is set aside. No order is made in substitution
for that order.
R V G J BROWN CA CA394/05 22 November 2005
COrder prohibiting publication in news media or on internet or publicly accessible database until completion of trial. Publication in Law Report or Law Digest permitted.
REASONS
(Given by Doogue J)
Introduction
[1] This is an application for leave to appeal against a pre-trial decision by Judge A J Johns in the District Court at Manukau refusing leave to the applicant to cross- examine certain witnesses as to a complainant’s prior sexual experience.
Background
[2] The applicant faces three charges of indecent assault on a boy under the age of 12 years. At the time of the alleged offending he was 54 years of age and the boy nearly 10 years of age. The three charges that the applicant faces relate to alleged events occurring on 12 May 2001 at his home. Three different forms of indecent assault are alleged to have occurred upon the day, namely the kissing of the boy’s cheek, the touching of his genital area and the drying of his genital area after swimming. The boy admittedly visited the applicant’s home on that day. The applicant denies entirely the boy’s allegations, which were not made until some 20 months later.
[3] In 1996 when the boy was five, there was a complaint to the Police that a 30 year old man had sexually and physically abused him. The man was a frequent visitor to the complainant’s house. The boy’s evidential videos did not meet the requisite requirements for any complaint to be pursued. The boy disclosed that the man had hurt his “bottom hole”, played with his “diddle” and had given him “yucky” kisses. The complainant’s mother did not believe the boy.
[4] In the period August to November 1999 the boy was seen by the Children, Young Persons and their Families Service because of concerns about his inappropriate need for physical contact, limited sense of personal boundaries and other behavioural problems.
[5] In November 2001 and January 2004 the boy committed minor indecent acts on two young girls and the Police investigated these.
[6] The applicant sought leave under s 23A of the Evidence Act 1908 to cross- examine the complainant, his mother, his maternal grandmother and the officer in charge of the case about other alleged earlier sexual complaints by the boy and in respect of alleged earlier and later sexual behavioural problems.
[7] The Judge refused the application in its entirety.
The present application
[8] Leave is sought to appeal the decision in so far as it relates to the complainant and his mother and the officer in charge of the case. In addition, the applicant seeks leave to cross-examine two other witnesses, who were not the subject matter of the application to the District Court.
[9] In brief the application for leave to appeal is pursued upon the basis that the Judge made legal and factual errors. However, the substance of the application for leave is on a basis never clearly presented to the District Court Judge. It is that the cross-examination as to the complainant’s earlier sexual complaints and conduct is necessary to establish a factual basis for the defence of possible transference of abuse from the alleged earlier complaint to the incidents involving the applicant. Alternatively it may show that the mother’s conduct contributed, through suggestibility, to the complaint. In so far as the application relates to subsequent incidents, it is said that the cross-examination may be relevant to challenge the credibility of the mother if she gives evidence that contradicts her prior statements.
[10] In support of the application for leave to appeal the applicant relies upon an amended report from a psychiatrist. This is materially different from a report tendered to the District Court at the end of the argument but not addressed by counsel in that Court. The Crown does not oppose the Court referring to that amended report or a subsequent letter from the psychiatrist.
[11] The Crown initially opposed the application for leave to appeal and said that the District Court Judge was correct in her findings. However, once counsel had had an opportunity to consider the amended basis upon which the application was being pursued the Crown properly changed its position. Counsel accepted that if the cross- examination of any relevant witness was limited to sexual complaints or conduct prior to the alleged offending that could be relevant to the possible defences now identified more clearly by the applicant. However, the Crown challenges the psychiatrist’s qualifications and says that no basis is established at this time for any of the proposed cross-examination. In addition the Crown does not accept that it is proper for there to be any reference to later events as they could only go to blacken the character of the complainant. On the information before the Court later events are not relevant to the possible defences of transference or suggestion.
Comment
[12] We deprecate the way in which the time of the District Court and this Court has been wasted in this matter. Given the nature of the proposed defences there was a clear need for the applicant to have all issues relating to the admissibility of the evidence relevant to those defences determined in a single hearing before the District Court. Instead the matter has been and still is being dealt with in a piecemeal way.
[13] This Court must in the circumstances before us allow the application and the consequential appeal to a limited extent. Otherwise the judgment of the District Court would have to stand and that would be wrong. The applicant must be entitled, to the extent that he is in a position to call appropriate expert evidence to establish that it is possible the complaint is the result of transference or suggestibility, to adduce evidence as to prior sexual complaints or behaviour by the complainant. Whether the expert evidence is admissible is not something that has come before the
District Court thus far. It is clearly essential that issue, along with the proper extent of any necessary factual matrix for any relevant expert opinion, be dealt with together and not separately. It is also essential that the right of the trial Judge to be the ultimate controller of the evidence in this trial be retained.
[14] So far as later events after the complaint is concerned there is at present nothing before this Court to indicate they would be properly admissible. They would blacken the character of the complainant without being relevant to the complaint or the defences. If that position changes there would need to be a further application to the District Court.
[15] It is enough for present purposes if we allow the application and the appeal to the extent of setting aside the decision under appeal for the reasons already identified. We make no orders as to the admissibility of any evidence as we have no jurisdiction to determine the admissibility of the psychiatrist’s evidence and the factual evidence sought to be led is dependent on that admissibility. Hopefully, however, we have said enough to make the task of the District Court simpler when the matter next comes before it.
Decision
[16] The application for leave to appeal is allowed. The appeal is allowed to the extent the order of the Judge is set aside. No order is made in substitution for that order.
Solicitors:
Crown Law Office, Wellington
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