R v G (CA515/07)
[2007] NZCA 546
•29 November 2007
NOTE: INTERIM ORDER IN THE DISTRICT COURT SUPPRESSING APPELLANT'S NAME AND IDENTIFYING DETAILS. PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF JUDGMENT AND REASONS IN NEWS MEDIA OR ON INTERNET OR IN ANY 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
CA515/07 [2007] NZCA 546
THE QUEEN
v
G (CA515/07)
Hearing: 1 November 2007
Court: O'Regan, Arnold and Ellen France JJ
Counsel: J Ablett-Kerr QC and M J Phelps for Appellant
M E Ball for Crown
Judgment: 29 November 2007 at 10 am
JUDGMENT OF THE COURT
A Leave to appeal is granted.
R V G (CA515/07) CA CA515/07 29 November 2007
B The appeal is allowed in part.
CThe evidence identified in [36] of the reasons for judgment is admissible at trial.
DThe judgment and reasons are not to be published in the news media or on the Internet or in any other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1] The appellant faces one charge of sexual violation by rape and one charge of burglary. Both charges relate to one incident involving the complainant, “N”.
[2] The appellant accepts sexual intercourse with N took place at her home but says she invited him to her house and that intercourse was consensual.
[3] Prior to trial, the appellant sought leave under s 44 of the Evidence Act 2006 to cross-examine the complainant as to her previous sexual experience. That application was largely unsuccessful and the appellant now seeks leave to appeal against the decision of Judge O’Driscoll on the s 44 application: DC DUN T06/2589
18 September 2007.
Factual background
[4] The charges arise out of events occurring over the evening of 24 March 2006 and the early hours of the following morning. At that time, the appellant was a barman in a hotel in the area in which N worked. On the evening of 24 March, N was a customer at the hotel. She became intoxicated and was taken home by a friend
at about 10 pm after she had fallen asleep and vomited in the hotel toilet. The appellant remained at the hotel and then went with some others to another hotel in the area.
[5] At some time between 1.30 am and approximately 3 am the following morning, the appellant was driven to the complainant’s address and went inside where sexual intercourse took place. How the appellant got in the house is not apparent on the evidence as it stands. There is some evidence that a door was unlocked when the complainant and her friend had arrived home earlier that evening. It is the Crown case that he was uninvited.
[6] The accounts of what happened at the complainant’s address diverge. The complainant says that after getting home she passed out on top of her bed in her street clothes. She says she remembers nothing until she woke up naked in her bed the following morning with the appellant naked beside her.
[7] The defence case is that N had been flirting with the appellant during the evening at the hotel and had invited him to her home. The defence says intercourse took place on two occasions, first, shortly after the appellant arrived and second, later in the morning before he left.
The application under s 44
[8] Leave was sought to cross-examine the complainant and if necessary to lead evidence on four matters, namely:
(a)A conversation that allegedly took place between the complainant and the appellant during the time that the appellant was at the complainant’s house relating to her interaction with a man called “KH”. That conversation included what Judge O’Driscoll described at [11(i)] as “her delight in picking up” this young man “and taking him to her home for sex”;
(b) The complainant’s favoured contraception practice;
(c) The complainant’s previous association with a man called “PG” with whom she had engaged in consensual sexual activity and whom subsequently, as the Judge put it at [11(iv)], she “accused of pursuing her against her will”; and
(d)ESR evidence as to DNA analysis of semen found on the complainant’s bedding belonging to a man other than the appellant.
The decision in the District Court
[9] Judge O’Driscoll began by observing that the admission of evidence of the appellant of conversations that took place between him and N about their sexual activity did not require the Court’s leave. The Judge was referring here to the appellant’s evidence that, on their first occasion of intercourse, he asked N if she had a condom and she told him not to bother and that, on the second occasion, she told him to “pull out” before ejaculating. The Judge said the defence could put this to N and the appellant could give that evidence because it relates to the sexual experience of the complainant with the appellant.
[10] Judge O’Driscoll turned then to the conversation that the appellant says occurred about KH. The Judge decided that evidence of the content of this conversation related to N’s sexual experience with another person and so could only be admissible in terms of s 44(3) of the Evidence Act, i.e. if it was of such direct relevance to the facts in issue that exclusion would be contrary to the interests of justice.
[11] The Judge said at [16] that the appellant should be permitted to cross-examine the complainant to the effect that, first, she was awake and conscious at the time the sexual activity took place and, second, that a conversation between N and the appellant took place about various matters. But, Judge O’Driscoll decided, it was not necessary to allow cross-examination or to call evidence about the specific sexual experience of N relating to KH given that N could be asked about the fact a conversation occurred and about the other matters discussed that were not related to the complainant’s sexual experience.
[12] Having said the complainant could be cross-examined about what she said about use of a condom and not ejaculating, the Judge also said it could be put to N that the withdrawal method is her usual contraceptive method. But the defence could not go further, nor could they call another woman, “DM”, to give evidence about other matters as to contraception discussed with N. The Judge was concerned that the jury may focus on the complainant’s contraceptive practices and be “deflected” from the real issues (at [22]).
[13] Judge O’Driscoll then dealt with the application to cross-examine and call evidence about N’s previous association with “PG”. It is alleged N had consensual sexual activity with PG but then accused him of pursuing her against her will. Paragraph [14] of PG’s proposed brief states:
I was concerned to learn later that the Complainant had been making up stories about me. I understood that she had been telling people that I would never leave her alone and was persistently trying to get her to come out with me. This was simply untrue and the picture she painted of our relationship was mischievous.
[14] The Judge did not accept that this evidence was relevant but, in any event, he said it was evidence relating to the sexual reputation of N and so excluded under s 44(2) of the Evidence Act.
[15] Finally, the Judge excluded reference in the ESR evidence to the DNA from the third party. The Judge said:
[25] The presence of semen on the complainant’s bed belonging to a person other than the accused is, in my view, contrary to s 44(1) of the Evidence Act 2006. The presence of semen from a third party on the complainant’s bed could have come about in a variety of ways. While it may be consistent with a third party withdrawing from the complainant prior to ejaculation there are a number of other ways in which semen could have been deposited on her bed. I am not satisfied that the presence of DNA on the complainant’s bed from a person other than the accused is of such direct relevance to the facts in issue that it would be contrary to the interests of justice to exclude it. Accordingly, I will require the ESR evidence to be edited to delete reference to the DNA from the third party.
Discussion
[16] Section 44(1) of the Evidence Act provides that in a sexual case, no evidence can be given and no question put to a witness:
[R]elating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
[17] There is an express bar on the giving of evidence or examination of a witness relating directly or indirectly to the reputation of the complainant in sexual matters. Section 44(2) states:
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.
[18] Section 44 relevantly continues:
(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.
(4)The permission of the Judge is not required to rebut or contradict evidence given under subsection (1).
Conversations relating to KH
[19] The conversation about KH is said by the appellant to have occurred in the morning, that is after the first act of sexual intercourse and before the second. The appellant’s evidence is that in the course of their conversation the complainant asked him if he had “scored” in relation to a friend of hers on an earlier occasion. The appellant said he had.
[20] The appellant said the complainant then told him she had gone home that night with KH. In his proposed brief the appellant explained:
She told me that he was 22 years of age and that she was “stoked” that she had “bagged” such a young guy and that he found her attractive. She was boasting about this conquest.
[21] The appellant said that he has since found out the name of this man and that the complainant had picked him up at a hotel. His brief of evidence continues:
I understand that [KH] has confirmed this to a Private Detective engaged on my behalf. It was after these conversations that the complainant and I, we started to fool around again and have sex once more.
[22] Mrs Ablett-Kerr’s submission is that the Judge was wrong not to allow cross-examination of the complainant and evidence to be led from the appellant of this conversation. It is submitted that this evidence is highly relevant to the appellant’s defence as the conversation, which included the complainant boasting about her sexual success with a younger man:
(a) shows that the complainant was not comatose at the time sexual intercourse took place as the prosecution posits;
(b) was entirely inconsistent with that of a rape victim;
(c) was vital to the issue of the complainant’s credibility; and
(d) supports the appellant’s position as to reasonable belief in consent.
[23] As to the first matter, in oral argument, Mrs Ablett-Kerr accepted that the timing of this conversation means that it can only be relevant to the complainant’s consciousness at the time of the second act of intercourse. The thrust of the argument in relation to the other three matters is that here was a woman who woke up in bed with a strange man, they were both naked and they then engaged in a conversation about sexual activity in which the complainant is said to have taken some pride. It must be, the appellant argues, evidence that is directly relevant to the issue of consent and to his reasonable belief in consent.
[24] We disagree. The position is that the appellant will be able to put to the complainant that they had a conversation that ranged over matters such as, as we understand it, her child and her estrangement from her family. At trial, the appellant will be able to point to the personal nature of these topics of conversation. Discussion of such matters equally lends itself to the submission that they are
inconsistent with the occurrence of rape. The appellant does not need the evidence relating to sexual experience to make these points.
[25] If the appellant gives evidence he can give evidence about those aspects of the conversation as well. He could also say that they talked about N’s friend with whom he had had sexual intercourse.
[26] Direct relevance in terms of s 44(3) must be considered against the evidence overall. In this case, there is ample other evidence which indicates, first, that the complainant was conscious and second, that the circumstances were friendly and consensual. In those circumstances, the Judge was right that evidence about KH does not add enough to outweigh the sorts of concerns to which s 44(2) is directed (see, for example, New Zealand Law Commission Evidence Law Character and Credibility (NZLC PP27 1997) at [350] and McDonald “Complainant’s reputation in sexual matters” [2007] NZLJ 251). It is not of such direct relevance that it would be contrary to the interests of justice to exclude it.
The evidence relating to PG
[27] The appellant also challenged the Judge’s conclusion that evidence in relation to PG was not admissible on the basis that it was contrary to s 44(2), that is, as evidence of sexual reputation. In the appellant’s written submissions, it is argued that this evidence goes to her credibility and her propensity for misrepresenting the nature of her personal relationships. However, Mrs Ablett-Kerr did not press this point in oral argument. We consider the Judge was right not to have allowed cross-examination on this aspect. Even if this evidence is not reputation evidence (and therefore automatically excluded), leave to admit the evidence should be declined because it is of peripheral relevance at best.
[28] Mrs Ablett-Kerr raised a more general point about the interpretation of s 44(2). In particular, she questioned whether an incident with one person could amount to evidence of sexual reputation. In that respect, she argued that all evidence of sexual reputation is drawn from evidence of sexual experience. Her submission is that sexual reputation is really a subset of sexual experience.
[29] As the appeal developed, it is not necessary for us to decide this point and we leave that issue for a case in which the question needs to be determined.
Contraceptive methods
[30] The submission is that, having allowed the appellant to ask the complainant whether withdrawal was her usual contraceptive method, the effect of s 44(4) was that the Court could not then prevent evidence by way of contradiction or rebuttal. In particular, it should be permissible for the complainant to be asked, first, whether she had had discussions about her usual method of contraception with DM and, second, whether she had told DM that withdrawal before ejaculation was her usual method. The defence would then wish to call DM to give evidence that this is what the complainant had told her.
[31] Ms Ball conceded that s 44(4) applies. The Crown argues that the District Court Judge did not intend to allow this further evidence to be called. But Ms Ball accepts that the consequence of the Judge’s decision is that DM’s evidence in this form is admissible subject to the court’s overriding ability to exclude irrelevant evidence or evidence which unnecessarily extends the trial (ss 7 and 8 of the Evidence Act).
[32] Given the Crown concession, we deal with the matter in the following way. First, the Judge’s finding has to be premised on the basis that the question of contraceptive method was directly relevant. Second, having reached that conclusion, the Judge did not then have the power to exclude evidence rebutting or contradicting that evidence. The further cross-examination and the evidence Mrs Ablett-Kerr said she wishes to lead (described in [30] above) would come within s 44(4) on this analysis and the appeal is allowed to this extent.
[33] We emphasise that in reaching this conclusion we are not making any comment on the Judge’s finding of direct relevance and nor are we dealing with any evidence other than that which Mrs Ablett-Kerr has said it is intended to lead.
[34] If at the trial it was sought to lead additional evidence via s 44(4) that would be a matter for the trial Judge to consider in the light of ss 7 and 8 of the Evidence Act.
ESR evidence
[35] The appellant’s argument is that this evidence similarly should have been admitted under s 44(4). Mrs Ablett-Kerr is correct that it is not necessary that evidence in rebuttal or contradiction in terms of s 44(4) must prove the contrary proposition. However, we consider the section requires the evidence to have some force. The Judge was right when he said that the presence of semen from a third party on the complainant’s bed could have come about in a variety of ways. At best, as Mrs Ablett-Kerr submitted, it is consistent with a third party withdrawing from the complainant prior to ejaculation but there are numerous other ways in which semen could have been deposited on her bed. This evidence is of questionable relevance and is just so equivocal as not to amount to anything. It cannot be said to be evidence in rebuttal or contradiction as required by s 44(4).
Result
[36] For these reasons, if the complainant denies in her evidence at trial that withdrawal is her usual method of contraception, she may be asked whether she has had discussions with DM about that subject and whether she has told DM that withdrawal is her usual method. DM may give evidence of these two matters.
[37] Because the appeal has some merit leave to appeal is granted and the appeal is granted in part.
[38] Finally, we note that the District Court made an order granting the appellant interim name suppression which is currently in force.
Solicitors:
Crown Law Office, Wellington
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