R v C (CA391/07)
[2007] NZCA 439
•12 October 2007
NOTE: NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT (BUT NOT THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE
DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA391/07 [2007] NZCA 439
THE QUEEN
v
C (CA391/07)
Hearing: 19 September 2007
Court: O’Regan, Potter and Keane JJ
Counsel: W Lawson and P A Brook for Appellant
A F Pilditch and C H Macklin for Crown
Judgment: 12 October 2007 at 4pm
JUDGMENT OF THE COURT
A Leave to appeal is granted but the appeal is dismissed.
B We make an order prohibiting publication of the reasons for judgment
(but not the result) in news media or on internet or other publicly
R V C (CA391/07) CA CA391/07 12 October 2007
accessible database until final disposition of trial. Publication in Law
Report or Law Digest permitted.
REASONS OF THE COURT
(Given by O’Regan J)
Allegations of historical sex offending
[1] The appellant faces six charges of historical sex offending against his sister, to whom we will refer as A. There are three charges of indecent assault of a girl aged under 12 years, and three charges of rape. The period during which the offending is said to have occurred is 4 September 1968 – 3 September 1974 for all but one of the rape counts, for which the relevant period is 4 September 1973 –
3 September 1975. A was aged between 10 and 17 years during the period of the offending, and is now aged 49 years.
[2] The appellant has also been tried for two sexual offences involving A’s daughter. We will refer to the daughter as B. Initially the charges against both A and B were contained in a single indictment, but Wild J ordered severance of the counts involving B. The Crown did not oppose severance provided that, in the trial for the offending against A, A was permitted to give evidence that the catalyst for her complaint to the police in relation to the offending against her was the fact that B had disclosed to her the previous day that the appellant had sexually abused B. Severance was granted on that basis.
Issues for determination
[3] The appellant seeks leave to appeal against a decision of Wild J which dealt with an application by the appellant for leave under s 23A of the Evidence Act 1908 (the 1908 Act) to cross-examine A about complaints and allegations she has made in the past of sexual abuse by other men. The point of this cross-examination would be to provide a basis for a submission that the past complaints were false and that the jury should see the present complaint as another instance of false complaint on A’s part. By the time the matter came to be determined, it was obvious that the trial would take place after the coming into force of the Evidence Act 2006 (the 2006
Act). Because of that, Wild J treated the matter as an application under s 44 of the
2006 Act.
[4] In this Court, counsel for the appellant, Mr Lawson, argued that the proposed cross-examination, although going at least tangentially to A’s previous sexual experience, was focused on the truthfulness or veracity of A’s evidence and should therefore be considered under s 37 of the 2006 Act, not s 44. The first issue for determination is therefore whether the case should be determined under s 37 or s 44. This issue was not argued in the High Court, because the argument had initially been focused on s 23A, on the assumption that the 1908 Act would still be in force at the time of the trial. Mr Lawson argued that, if s 37 is applicable, the evidence of the previous allegations ought to be admitted on the basis that it would be substantially helpful to the jury in assessing the veracity of A.
[5] If, as the Crown contends, the Judge was right to deal with the case in terms of s 44, the issue is whether leave to cross-examine A on the previous allegations ought to be given either in respect of all or some of the complaints and allegations.
Should the case be determined under s 37 or s 44?
[6] As Wild J noted, s 44 of the 2006 Act is the successor to s 23A of the 1908
Act. The relevant provisions of s 44 are s 44(1) – (3), which provide as follows:
44 Evidence of sexual experience of complainants in sexual cases
(1)In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the
sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
(2)In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
(3)In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
[7] It is notable that s 44(2) prohibits evidence of cross-examination relating to the reputation of a complainant, whereas under s 23A, such evidence could be admitted with leave. The test for the admission of evidence or granting of permission to cross-examine a complainant about her sexual experience with any person other than the defendant (now provided in s 44(3)) is essentially the same as that which previously applied under s 23A(3) of the 1908 Act: such direct relevance to the facts in issue (or appropriate sentence) that it would be contrary to the interests of justice to exclude it.
[8] Crown counsel, Mr Pilditch, contended that the evidence of previous allegations of sexual abuse clearly engage s 44, because, by definition, they refer to the “sexual experience” of A. Mr Lawson’s contention is that evidence of past allegations, which he says the defence will contend are false allegations, is evidence which is relevant to the jury’s assessment of the credibility of A, and is therefore properly dealt with under s 37 of the 2006 Act, which sets out the veracity rules. The relevant provisions of s 37 are s 37(1), (3) and (5), which provide:
37 Veracity rules
(1) A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.
…
(3)In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a)lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b)that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c)any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful.
…
(5)For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.
Authorities under s 23A
[9] The question as to whether s 23A of the 1908 Act applied to evidence of allegedly false allegations of sexual abuse has been the subject of a number of cases in this Court.
[10] In R v Duncan [1992] 1 NZLR 528 at 535 this Court said that s 23A was enacted in “very wide terms indeed”, even though it existed to limit the practice at common law under which complainants were freely cross-examined as to their sexual histories in a character-blackening exercise of little relevance. However, this Court noted:
It can be very relevant, particularly in child abuse cases, to explore the possibility of fabrication to gain attention or through malice, or transferred attribution from actual offender to present accused. Habitual or false previous complaints can be an indicator. There can be occasions when questioning along these lines far from being a character-blackening exercise of little relevance, is well justified in the overall interests of justice. In such situations, Courts will not be unduly reticent over granting leave for examinations which are beyond mere fishing expeditions. [Emphasis added.]
[11] The Court therefore held that questions as to the making of false sexual complaints relate, indirectly, to the sexual experience of the complainant and are thus within s 23A.
[12] The English Court of Appeal took a different approach in R v T [2002] 1 All
ER 683, where Keene LJ for the Court said at [33]:
It seems to this court that normally questions or evidence about false statements in the past by a complainant about sexual assaults or such questions or evidence about a failure to complain about the alleged assault which is the subject matter of the charge, while complaining about other sexual assaults, are not ones ‘about’ any sexual behaviour of the complainant. They relate not to her sexual behaviour but to her statements in the past or to her failure to complain.
[13] Robertson J adverted to this reasoning in T v R (T82/93) (1993) 11 CRNZ
185 at 187 (HC) where, faced with an application under s 23A to cross-examine the complainant on inconsistencies between previous allegations of rape to the police, he said:
Although the threshold is high and the gate narrow, I am of the view that in this case where the application is directed to credibility and reliability (and the fact that it happens to relate to sexual offending is almost tangential) the interests of justice require that the questions be asked and leave is accordingly granted. [Emphasis added.]
[14] The contrasting approaches in Duncan and R v T were reviewed by William
Young J, delivering the judgment of this Court in R v MacDonald CA166/04 8 April
2005 at [36] – [37]:
[36] … Section 23A was designed to protect a complainant’s moral character or sexual reputation from being illegitimately challenged by the defence. The legislation prohibits, unless leave is granted, evidence or questions which impugn the victim’s character by exploring his or her sexual experience with others. As a matter of strict logic, that might be thought to be quite distinct from barring questions about false allegations that the complainant has made previously against others. So, at least in what might be regarded as a “clean case” where it is clear that the complainant has previously made false complaints, there is obviously substantial scope for argument that questions addressed to this topic are not subject to s 23A. The reality, however, is that such “clean cases” are likely to be rare as a complainant who is cross-examined along such lines will probably maintain that any prior complaints made were true and thus regard the cross-examination as engaging s 23A.
[37] We doubt whether there is a significant practical significance in the differing approaches taken in Duncan and [R v T]. The English Court of Appeal in R v T at [41] made clear that “in any case the defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue.” In this way, the Court sought to balance the conflicting considerations we have referred to. In Duncan the Court sought
to achieve the necessary balance in another way; by treating s 23A as applying but adopting a liberal approach to the granting of leave on the basis that questions addressed to false complaints are not within the mischief addressed by s 23A. In most cases the apparently different approaches will produce the same outcome.
[15] In R v Kaa CA7/05 24 May 2005 at [20] this Court emphasised that “clean cases” were those where “there is clear evidence that a complainant has previously made false complaints”. Although in such cases s 23A may not apply, the general approach is to treat questions as to the making of false sexual complaints as relating indirectly to the sexual experience of the complainant.
[16] The requirement of a proper evidential foundation for the previous complaint to be false was reiterated more recently in R v Tereva CA82/06 16 June 2006. In that case, Arnold J for the Court also drew a distinction between cases in which the defendant claims that no sexual intercourse took place, and those in which the defendant concedes that intercourse took place, but claims that it was consensual. In the latter category, Arnold J said at [15] that the existence of the underlying sexual conduct
… creates the risk that the cross-examination will become little more than a general challenge to the complainant’s moral character or prior sexual history, which is the mischief that s 23A was intended to prevent.
Does s 37 trump s44?
[17] Mr Lawson drew support for his argument that s 37 applied to this case, rather than s 44, from the Law Commission Report which led to the enactment of the
2006 Act. In New Zealand Law Commission Evidence Code and Commentry (NZLC R55, Vol 2 1999), cl 46 was the provision of the Commission’s draft evidence code corresponding with s 44.
[18] Clause 46(3) was the provision corresponding with s 44(2) but it differed from s 44(2) in an important respect. Clause 46(3) provided that evidence and questions relating directly or indirectly to the reputation of the complainant in sexual matters were not permitted either to support or challenge the complainant’s truthfulness, or to establish the complainant’s consent. However, such evidence or
questions could be permitted by a Judge for any other purpose. That contrasts with the complete prohibition in s 44(2).
[19] In the commentary on its draft code (at C212), the Commission noted that cl 46(3) did not preclude evidence of the complainant’s reputation to lie about sexual matters; for example, a reputation for making false allegations of sexual assault. The Commission said that such evidence “is about reputation for truthfulness (or lack of it), not about reputation in sexual matters, and is admissible provided that it complies with the truthfulness rules”.
[20] The truthfulness rules in the Commission’s draft code appeared in cl 39. Clause 39(4) of the Commission’s draft code provided that evidence as to reputation for being untruthful was not barred on account of being hearsay or opinion evidence. This demonstrated a permissive approach to allowing evidence of reputation for being untruthful. The truthfulness rules featured at cl 33 in the version of the Evidence Bill that was referred to the Select Committee. They broadly corresponded to the veracity rules in s 37 of the 2006 Act. However, there was a significant difference between cl 33 of the Bill and s 37 of the 2006 Act. Clause 33(3)(f) allowed for the admission of evidence tending to show that a person “has a reputation for being untruthful”. This reflected the thrust of the Commission’s draft code, which implicitly contemplated a defendant’s reputation for being untruthful being raised by the prosecution. The Commission’s comment about cl 46(3) of its draft code appears to be directed at the type of evidence permitted by cl 33(3)(f). However, the Select Committee which considered the Evidence Bill deleted from cl 33 of the Bill (which became s 37 of the 2006 Act) the reference to a person’s reputation for being untruthful. It said in its report that it considered a person’s reputation was irrelevant and should not be considered when considering the veracity of his or her evidence.
[21] This means the Commission’s comment on cl 46 can now have little or no relevance to the position under the 2006 Act. The 2006 Act prohibits the admission of evidence of reputation in sexual matters (s 44(2)) and does not allow for the admission of evidence of reputation for untruthfulness (s 37). If the evidence which
the appellant seeks to adduce at trial is evidence of reputation, it will be inadmissible whether the case falls under s 37 or s 44.
[22] At a more general level, we do not see the comment by the Commission as heralding a change of approach in the 2006 Act. Section 37 does not trump s 44.
[23] If an accused person wishes to offer evidence of past complaints or allegations of sexual offending against the complainant, s 44 will be engaged. Where the evidence which an accused wishes to offer is clear evidence that a complainant has previously made a false complaint (a “clean case” to use the words of MacDonald at [36]), and the falsity goes to whether any sexual activity took place between the complainant and the defendant, leave to offer the evidence is likely to be granted under s 44 if it would otherwise be admissible under s 37. The sexual context in such cases will be seen as tangential to the issue of the veracity of the complainant and the focus will therefore be on s 37.
[24] In other cases, where the truthfulness or falseness of the past complaints is in issue, the matter will fall to be determined (under s 44) in essentially the same way as it was under s 23A (though bearing in mind that s 44 now prohibits absolutely evidence of reputation in sexual matters).
[25] This is not a “clean case”. It is not manifestly clear that the complainant’s earlier complaints were false: in fact, they are far from demonstrably false. The sexual context of the proposed evidence is not merely tangential. Wild J was right to focus his analysis on s 44.
Should leave be given under s 44?
The allegations by A
[26] The allegations in respect of which cross-examination is sought are recorded in Accident Compensation Corporation (ACC) case files, which were discovered to counsel for the appellant in the High Court. The ACC file demonstrated that A has
made complaints of, or references to, sexual abuse by six men other than the appellant. In summary:
(a) A made a claim to ACC in 1987 based on sexual abuse by her father
15 – 20 years before. She received compensation. In 2005, she made a formal complaint to the police;
(b)A was approached in 1998 by police investigating allegations of sexual offending by a tae kwon do instructor. She told police the instructor had, in an interview to assess suitability for undertaking tae kwon do instruction which took place in 1990, carried out an internal examination of A’s vagina. She gave evidence of this in court, though it appears this was in relation to a charge involving another complainant of which the instructor was acquitted. A then made an ACC claim;
(c) A told an ACC assessor in 1996 that an unnamed child psychiatrist examined her vagina without gloves when A was 17;
(d)A told the same assessor that a man named “Tony”, whose children A used to look after, forcibly had sex with her. The time of this alleged incident was not stated. The allegation is that he came to see her on the pretext of discussing the children, and then forced her to have sex with him;
(e) A told the same assessor of a gang rape by her then current boyfriend and several of his friends. A complaint was made to police, but was shortly thereafter withdrawn;
(f) A social worker noted in a report to ACC in 1990 that A had told her in 1989 that she had been raped by an unnamed boyfriend, “X”. A told the social worker that she intended to have a sexual relationship with X, notwithstanding that she was in a relationship with another woman, F. A was concerned as to how F would react if A became
pregnant. Later, the social worker visited A’s home in response to a call to find A undressed. A said X had just raped her. A became pregnant subsequently, but was unaware as to whether that followed the rape by X or consensual sex with X. A terminated the pregnancy.
[27] A also complained to ACC as a result of the alleged offending by the appellant. ACC paid A compensation for that claim as well.
[28] In the course of giving an interview with police in October 2005, after she formally complained of the sexual abuse by the appellant, A told police that her father, the appellant and a cousin of hers had all sexually abused her. She also said that none of her uncles had ever abused her.
The appellant’s case
[29] The written submissions filed on behalf of the appellant set out the basis for the appellant’s case for the granting of leave as follows:
… Counsel’s application was not directed at questioning the complainant about her reputation in sexual matters. No one is suggesting that the complainant is of loose moral character. What is suggested is that her eight previous complaints are inherently suspicious which raises issues as to the complainant’s reputation for telling the truth.
[30] As we have noted earlier, evidence of reputation for not telling the truth is not a factor which is mentioned in s 37: such a provision appeared in the Bill, but was omitted from the 2006 Act.
[31] In the oral submissions presented to the Court by Mr Lawson, the basis of the application was that the evidence of past complaints showed that the complainant “piggy backed” on situations and made complaints in order to make money (in particular, compensation payments from ACC) and to seek attention.
[32] The argument was that these illustrated the motive which A had to lie (s 37(3)(e)). The difficulty with that argument in the context of the present complaint is that A complained of sexual abuse by the appellant to ACC in 1987,
and obtained a lump sum compensation payment at that time. The payment was not dependent on a complaint being made to the police, and the fact that a complaint has now been made to the police does not seem to lead to any financial benefit to A. As Mr Pilditch reminded us, Wild J allowed severance on the basis that the Crown will be allowed to lead evidence from A that the motivation for her complaining to the police when she did was because of the disclosure to her by B of the offending against B by the appellant. The timing of A’s complaint to the police, made immediately after the disclosure by B, appears to lend some support to the proposition that it was B’s disclosure that motivated A to make the complaint.
[33] Mr Lawson argued that the sheer number of allegations by A meant that they were inherently suspect. He said the present case is analogous with R v Young (1990) 6 CRNZ 520 (HC). In that case, Fisher J gave leave under s 23A(2) of the
1908 Act to counsel for the accused in a case of alleged rape to cross-examine A about previous complaints of sexual offending against her. In Young, it was common ground that the complainant had made statements that she had been raped on three separate occasions while living in Scotland and on two separate occasions while living in Switzerland and that, in addition, her grandfather had committed incest with her. All of these allegations had been made before the complainant came to New Zealand at the age of 18 years: she was 22 years of age at the time of the trial. The complainant had not made formal complaints to the police or other authorities in respect of any of the alleged incidents.
[34] Fisher J adopted the approach set out by this Court in R v McClintock [1986]
2 NZLR 99, that where it was possible that cross-examination on such matters could have such a major impact on a complainant’s credit the matter could be said to be “directly relevant” to facts in issue for the purposes of s 23A(2). He noted that the prior allegations of rape made by the complainant could be of no consequence unless they were “inherently suspect”. He said this incredibility must flow from the allegations themselves. He considered that the case was a peculiar one, because of the very number of unrelated sexual violations alleged by the complainant over a short period, in circumstances where none of these allegations was followed up by a formal complaint to a person in authority. He considered that the defence was justified in regarding the allegations as inherently suspect.
[35] Fisher J concluded that the evidence of the prior allegations bore so strongly on the complainant’s credibility that it had such direct relevance to the facts in issue in the proceeding that to exclude it would be contrary to the interests of justice, and therefore granted leave. He did, however note, that the case was “an extreme case which is unlikely to be repeated for many a long day”.
Our assessment
[36] The difficulty which the appellant faces is that his case largely turns on the number of allegations as providing the basis for the inherent suspicion. Counsel sought to argue that, because a complaint to ACC could yield a compensation payment, this itself made it inherently suspicious. We do not accept the logic of that submission. While it is true that the making of a complaint to ACC can yield a compensation payment, that does not necessarily lead to a conclusion that complaints made to the ACC are false. It is at least as likely that a complaint is made because it is true, and the complainant wishes to receive counselling and compensation.
[37] There is nothing before us to indicate that A will, if challenged in cross- examination, accept that any of the complaints, claims or references to alleged sexual abuse were false. If she holds her ground, the appellant will effectively seek to embark on a series of collateral challenges. The jury will be invited to discount all of A’s complaints as relating either to occasions when she consented to sex and later repented or to events which never happened. The jury will then be asked to deduce that the falsity of the past complaints calls into question the reliability of the complainant’s evidence of the allegation against the appellant.
[38] It was a telling factor in the assessment made by Fisher J in Young that the complainant in that case made allegations of six previous instances of sexual offending against her, but had never complained to anyone in authority about any of those incidents. In the present case A has now complained to the police against the appellant and her father, the tae kwon do instructor (after being approached by the police) and in respect of the alleged gang rape. The last complaint was withdrawn.
[39] Wild J did not accept that the allegations in this case were inherently suspect. He set out a number of factors at [18] in his judgment which informed that assessment. In this Court some issue was taken with at least some of those factors, and we heard argument on them. Having considered what the Judge said, and having heard the arguments raised by both parties about what he said, we have come to the same conclusion that he did.
[40] The factors which informed Wild J’s assessment were as follows. We have added our comments and evaluation of them where appropriate:
(a) A has made complaints to the police against the appellant and her father. She co-operated with the police investigation relating to the tae kwon do instructor. She complained about the gang rape allegation but withdrew the complaint;
(b)A claimed compensation from ACC in relation to sexual abuse by the appellant, her father and the tae kwon do instructor. In addition, she referred to the allegations against the child psychiatrist and Tony, and the gang rape allegation, during the course of an interview for an assessment for an independence allowance to be paid to her by ACC. Therefore these were at least indirectly relevant to an ACC claim on her part. Mr Lawson argues that A has a motive to make these claims to ACC: both money and the attention which she obtained as a result of making them. She would get both, however, whether the complaints were true or false and, as Mr Pilditch pointed out, it is at least as likely that they are true as that they are false. They appear to have been sufficiently convincing to ACC to accept them, though that process does not involve a police investigation or the testing of evidence as a court process does. Nevertheless, we see this as distinguishing the present case from Young, where no complaint was made to anyone in authority at all;
(c) A told the officer conducting the investigation of the present case, Detective Hatton, that her family claimed that she had complained of
sexual abuse by one of her many uncles, R. Her father wrote a letter to ACC in 1989 in which reference was made to this alleged complaint. A told the police that none of her uncles had abused her, and said that she did not remember having said that any of them had done so. There is, for that reason, real doubt that she did, in fact, ever make the complaint which her father (himself the subject of a complaint) alleged she did. She did allude to a cousin having abused her, but Detective Hatton did not follow this matter up in questioning and nothing more was said about it in the interview;
(d)The appellant’s father wrote to ACC alleging false allegations against him by A and questioning the payment of compensation to her. ACC decided, after investigation, not to act upon those letters. The decision to pay compensation was made notwithstanding ACC’s awareness of the allegation of false complaints made against A by her father;
(e) Wild J said that A’s father’s departure for Australia before police could interview him in relation to the complaint against him by A was difficult to reconcile with his assertion that the complaint against him was false. Counsel for the appellant said that there was no evidence linking the departure to Australia with the time of the complaint, and that the father’s correspondence with ACC indicated he had no fears of investigation of the complaint. In the absence of concrete evidence, we put this factor to one side;
(f) The complaint against the tae kwon do instructor was made only after the police approached A, following complaints by others against him. Wild J considered that the fact that the police prosecuted the tae kwon do instructor, and the fact that there were many complaints against him, did not suggest that A’s complaint about him was inherently suspect. We agree with that. Mr Lawson suggested that the fact that A made her complaint only after being encouraged to do so by the police, and then made a claim to ACC for compensation, made her
complaint inherently suspect. Wild J proceeded on the basis that A’s evidence was in a trial relating to another complaint (ie it was similar fact or propensity evidence), but this was disputed by Mr Lawson. There is no clear evidence either way. The tae kwon do instructor was acquitted. Mr Lawson said that this may suggest that the evidence of A and others was not accepted and could be viewed with some suspicion. That is one (speculative) possibility, but there are a number of others. We do not see this as being in the category of “inherently suspect”;
(g) The complaints are spread over a considerable period of time, and appear to complain of events dating back to A’s childhood. They are not all made in a compressed period as was the case in Young. The complaints to ACC in relation to the appellant and his father were made in 1987, the allegations made to the ACC assessor were made in
1996. A’s father alleged, in a letter written to ACC in 1989, that she had made a false allegation against her uncle. We do not think the time span of the complaints will provide support either for their being inherently suspect or against that proposition.
[41] We do not believe the number of complaints or allegations is enough on its own to determine that the allegations are inherently suspect, in the sense described in Young. We are concerned that the proposed cross-examination will lead to a challenge to the complainant’s version of those other events, which will stray into the type of questioning of A in relation to her sexual experience which s 44 is designed to avoid. Mr Lawson suggested that, if A denied any of the allegations put to her, the record of the allegation would be put to her and adduced in evidence. He accepted that, if A agreed that an allegation had been made but maintained the allegation was true, the matter could not be taken further. If that occurred, the defence would ask the jury to infer that A has lied in relation to some or all complaints because it is implausible that she could have been subjected to sexual abuse by so many different people. There will not be any evidence before the jury supporting the proposition that all or any of the complaints are false.
[42] We conclude that the Wild J was right to decline the appellant’s application.
Result
[43] We grant leave to appeal but dismiss the appeal, and uphold the decision of
Wild J to decline leave under s 44.
Solicitors:
Lance & Lawson, Rotorua for Appellant
Crown Law Office, Wellington