R v De Villiers
[2007] NZCA 32
•1 March 2007
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT 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
CA428/06 [2007] NZCA 32
THE QUEEN
v
ALEXANDER DE VILLIERS
Hearing: 14 February 2007
Court: Arnold, Panckhurst and Priestley JJ Counsel: W T Nabney for the Appellant
K Raftery for Crown
Judgment: 1 March 2007 at 11 am
JUDGMENT OF THE COURT
A The appeal is dismissed.
BOrder prohibiting publication of the judgment in news media or on internet or other publicly accessible database until final disposition of
trial. Publication in Law Report or Law Digest permitted.
R V DE VILLIERS CA CA428/06 1 March 2007
REASONS OF THE COURT
(Given by Priestley J)
Introduction
[1] The appellant faces trial in the Tauranga District Court in the week beginning
12 March 2007. He faces eight counts essentially of a sexual nature.
[2] Two complainants are involved. In respect to the first complainant, J C, the
Crown alleges indecent assault under s 135 of the Crimes Act 1961.
[3] The other seven counts relate to the complainant M B. There are four counts under s 135, two counts of sexual violation, and one count under s 208(b) of unlawful detention with intent to have sexual connection.
[4] The appellant applied for severance of the first count relating to J C, relying on the broad discretion conferred by s 340. In the District Court the Crown opposed the application, submitting that the counts legitimately should be tried together because of the similar fact evidence involved. The appellant’s argument was that trying all counts together would be prejudicial, such prejudice in the circumstances outweighing the probative value of the evidence of each complainant.
[5] In a reserved decision delivered on 26 October 2006 Judge Rollo declined the severance application. He determined that the probative value of the evidence was sufficiently strong to outweigh any prejudicial effect. The appellant challenges that pre-trial ruling.
[6] A brief review of the relevant evidence is necessary.
[7] The deposition brief of the first complainant, J C, is to this effect. The appellant and the complainant were strangers. The complainant was 19 at the time. On 5 February 2006 around midnight the complainant and a friend were approached by the appellant when they were standing outside a Tauranga tavern. The appellant offered the complainant and his friend a place to stay and orchard jobs in Te Puke. The appellant then drove the two young men to Te Puke in his station wagon. During the journey the appellant told the complainant that he was a chiropractor and that his grandfather was the South African Chief of Defence.
[8] The trio arrived at a house in Te Puke adjacent to the squash club. The complainant and the appellant entered the house. The appellant gave the complainant’s friend a key to the squash club to where he walked.
[9] Shortly thereafter the appellant emerged from his bedroom completely naked, placed his hand on the complainant’s penis, then grabbed the complainant’s hand and placed it on his own penis. The complainant remonstrated.
[10] The appellant allegedly offered the complainant $1,000 for 15 minutes. The appellant then became angry. He and the complainant left the house and picked up the complainant’s friend from the squash club. The appellant then dropped the couple outside the Te Puke motor camp.
[11] The appellant was interviewed by the police in the Te Puke Police Station on
15 March 2006. The interview was videorecorded. As far as the complaint involving J C was concerned, the appellant in his interview stated that the complainant was a Tauranga escort to whom he paid $180 for a one hour session. The appellant stated he was sodomised by the complainant whilst the complainant’s friend waited outside at the squash club.
[12] The evidence of the second complainant M B, who was aged 18 at the time, was that on 23 February 2006 he was approached by the appellant in a Te Puke supermarket.
[13] Having inquired of the complainant where he was living, the appellant suggested that there might be difficulties at the backpackers accommodation where the complainant lived and offered to provide the complainant with cheap rental and a full time job.
[14] The appellant and the complainant were driven by a woman to a flat in Te Puke which the appellant seemed to occupy. The complainant inspected the premises. The appellant then drove the complainant back to the Te Puke backpackers hostel from where he picked him up later that evening.
[15] Arriving back at his flat the appellant asked the complainant whether he had any objection to sharing a bed that night. Later that evening the appellant told the complainant he was a professional masseur and suggested a massage. Sexual contact then followed which forms the basis of the seven counts.
[16] Outwardly it might have been the case that the complainant neither resisted or protested, but the Crown case is based on the absence of consent.
[17] On two occasions during the night the complainant tried to leave the premises but was allegedly physically restrained. Eventually the complainant left the house returning to the backpackers hostel at 1 am.
[18] In his interview with the police (supra [11]) the appellant denied any sexual activity. He agreed he had offered the complainant cheaper accommodation and that the couple had watched a DVD on the appellant’s computer that evening. He stated that at one stage the complainant asked him whether he was gay and that there was some subsequent discussion about virginity. The appellant stated that the complainant made sexual advances to him and that he (the appellant) had resisted
this because of perceived risks in having sex with people under the age of 20. He had conveyed this reservation to the complainant.
Discussion
[19] There is no challenge by counsel to the principles applied by the Judge. Nor is there any challenge to the Judge’s review of the alleged relevant facts.
[20] The Judge identified 14 common features of the complainants’ proposed evidence. These included the similarity in the complainants’ age; the unsolicited approaches made by the appellant in a public place; the offers of work and accommodation; allegedly false information from the appellant about a health-related occupation; and both complainants being taken to the appellant’s home.
[21] Mr Nabney submitted that the Judge had given these common features an incorrect emphasis. The alleged sexual activity was totally different. It was factual similarities between the alleged offending rather than extraneous or prior similarities which should guide a court. Factors such as the complainants’ age, employment, approaches in a public place, and assertions about the appellant’s occupation were not of any moment and had limited probative value.
[22] Mr Nabney further submitted that a trial involving all eight counts would be prejudicial to the appellant. Mr Nabney, who was not counsel in the pre-trial hearing before the judge had no instructions as to what defence might be run in respect of the M B complaints. The defence to the single J C complaint, however, would be that there was consensual sex between the two men as a result of a commercial agreement.
[23] A matter sometimes relevant to the exercise of the s 340 discretion is whether severance is necessary given the nature of an intimated defence. Mr Nabney pointed to a possible difficulty which might arise if the appellant’s defence was grounded solely on his police interview. His assertion to the police that he resisted sexual advances by M B because of perceived risks in having sex with people under 20
might possibly be seen as inconsistent with having paid sex with a 19 year old
18 days earlier. We shall return to the point shortly.
[24] The relevant principles are conveniently summarised in this Court’s decision R v Rickards & Anor CA491/05, CA502/05, 2 March 2006. The Judge both considered and applied those principles.
[27] The principles applicable to an application for severance are well established.
No issue was taken with the following summary at [101] of Randerson J’s judgment:
Section 340(3) Crimes Act provides that the Court may order the accused to be tried separately on any one or more counts in an indictment where it is conducive to the ends of justice to do so. The ends of justice require a balance between the interests of the accused and the public interest in the fair and efficient despatch of Court business: R v Wilson [1997] 2 NZLR 161, 164. In normal circumstances, counts arising from incidents unrelated in time or circumstance are not to be tried together unless evidence as to one is relevant to another to such an extent that its probative value outweighs its prejudicial effect: R v E (2004) 20 CRNZ 847 at [18]. In sexual cases, the severance issue often tends to focus on whether the evidence of each complainant is admissible as similar fact evidence. If it is, then in the absence of reasons to the contrary, the complaints are heard together: R v C (CA103/03, 28 May 2003). In R v E (above) the admissibility issue was stated at paragraph [18b]:
If two or more complainants give sufficiently similar accounts of what the accused has done, and there is no reason to suspect collusion between them, the evidence of each may be taken as supporting the evidence of the others. This is because the similarities may lead the jurors to the view that the complainant was giving truthful and reliable evidence about what had happened to her. If there were significant similarities, this might be thought to increase the probability that the complainant’s evidence was true. It is unlawful prejudice to use the evidence of one complainant to bolster the credibility of another complainant unless there are sufficient similarities between the two allegations. If there are not sufficient similarities, the prejudice outweighs the probative value …
[28] To similar effect is the following passage from R v Clark CA306/04
22 November 2004:
“… The essential question is whether the two complainants are speaking the truth. If collusion does not exist, the natural relevance of each complainant’s evidence to the other case lies in the unlikelihood of two non-colluding persons making allegations of similar types against the same man within a
short period of time if they are not true. The greater the similarity between the allegations, the less likely it is that they are both lying or mistaken.
[25] It was accepted by Mr Nabney there was no evidence to support the suggestion that the two complainants had colluded.
[26] In the light of the accused’s police interview the central issue at trial will be whether the two complainants are telling the truth. The policy justification for admitting similar fact evidence in trials involving sexual allegations is, broadly speaking, to assist the jury to grapple with credibility issues. The most common defences to sexual allegations, as Mr Raftery submitted, are either that the alleged offending never occurred or that sexual activity was consensual.
[27] Mr Nabney is correct when he submits that the focus for the jury will be on the alleged sexual activity which founds the specific charges. But the common features identified by the Judge are, in our judgment, relevant and probative. In both cases the complainants’ evidence has the common theme of the appellant approaching a male his late teens in a public place, with whom he had no prior acquaintance and to whom he offered a job and accommodation, which led to each complainant being taken by the appellant back to his home.
[28] That common theme is in our view quite distinctive. It is evidence which will legitimately help a jury assess the inevitable credibility issues which will arise at trial. That a joint trial of the allegations may present difficulty to the defence (given the seeming inconsistency in the appellant’s explanations to the police) provides no basis to exclude probative similar fact evidence.
[29] For these reasons this Court concludes that the decision of Judge Rollo was correct and the appeal should be dismissed.
Result
[30] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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