R v G - [2014] NZHC 2658

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR PARTICULARS OF WITNESSES.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-004-1289 [2014] NZHC 2658

THE QUEEN

v

G

Hearing: 28 October 2014

Counsel:

G Hollister-Jones and S Christensen for Crown
T Cooper and G Burns for Defendant

Judgment:

29 October 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 29 October 2014 at 2.15 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Ronayne Hollister-Jones Lellman, Rotorua

R v G [2014] NZHC 2658 [29 October 2014]

Introduction

[1] There are two pre-trial applications for orders or directions as to admissibility of evidence in this case. One is by the Crown as to admission of evidence relating to physical violence on the part of the defendant in the context of a trial where the charges are predominantly of sexual violence.

[2] The second application is by the defendant for admission as to prior sexual experience of one of the complainants, in order to elicit evidence from the complainant that the defendant had physically assaulted the male with whom she had an involuntary sexual experience.

Summary of the Crown case

[3] The defendant faces 50 charges. One, male assaults female; two assaults on a child; 28 indecencies with a girl under 12 years; 10 indecencies with a girl 12 16 years; 2 assaults with intent to commit sexual violation; 3 rapes; and 4 sexual violation by unlawful sexual connection. There are nine complainants.

[4] The complainant A is the defendant’s sister-in-law as he had married her older sister. She was six or seven years old when the alleged sexual offending against her by the defendant started. The Crown case is that it continued until she was approximately 12 years old.

[5] Complainant B is the defendant’s first child, his biological daughter.

[6] The Crown applications to lead evidence of violence come from the witness statements of complainant A and complainant B.

[7] The evidence sought to be led by the Crown relate to allegations of violence in the household of both complainants, including allegations of violence by the defendant, and is sought to be admitted as evidence relevant under s 7 of the Crimes Act 1961 (the Act) and whose probative value is outweighed by the risk that the

evidence will have an unfairly prejudicial effect, by s 8 of the Act, and it being video recorded video evidence admissible by way of s 106 of the Act.

[8] It is a feature of the Crown case that there were no complaints by the victims at the time.

[9] Whether or not the witnesses are challenged at the trial as not having complained, the reasonable apprehension of the Crown is that the jury will want to know why there were no complaints.

[10] The Crown summary of facts records that complainant A, another complainant (her older sister,…

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 G

Details

AGLC: R v G [2014] NZHC 2658
Case: [2014] NZHC 2658
Decision Date: 29 October 2014

CaseChat Overview and Summary

In the case of R v G, the High Court was required to decide two pre-trial applications concerning the admissibility of certain evidence. The Crown sought to admit evidence of physical violence by the defendant, G, within the context of charges predominantly of sexual violence, to establish a general atmosphere of violence in the household. The defendant, on the other hand, sought to admit evidence of the prior sexual experience of one of the complainants to elicit evidence that G had physically assaulted the male with whom she had an involuntary sexual experience. The court needed to balance the probative value of the evidence against its potential prejudicial effect, under sections 7 and 8 of the Crimes Act 1961.

The Court found that evidence of violence by G towards complainant A, other than certain incidents that occurred after the alleged offending period, was relevant to provide context and a coherent account for her fear of G. However, evidence of G beating up S, complainant A's mother, when complainant A was 17 years old and living separately, was considered borderline relevant and prejudicial, and therefore excluded. Similarly, the court excluded evidence of G's attempted strangulation of S and threatening to shoot her, as there was ample evidence of a violent household without the need for such contestable evidence. The court allowed the Crown's application to admit evidence of violence by G towards complainant B, his daughter, as it provided context and a coherent account for her fear of her father.

Regarding the defendant's application, the court granted the application to admit evidence of the prior sexual experience of complainant B with another male, as it was deemed important to the defendant's defence. The court emphasised that section 44 of the Evidence Act 2006 was enacted to prevent the inappropriate blackening of the character of complainants and not to truncate the advancement of a full defence that is otherwise open to the accused.

The court's decision highlights the importance of balancing the probative value of evidence against its potential prejudicial effect, while ensuring that the accused has a fair trial and is not precluded from putting things that are necessary to their defence. The court's ruling in this case provides guidance on the admissibility of evidence in cases involving allegations of sexual and physical violence, and the importance of considering the context and narrative significance of such evidence.

Orders