R v H(CA541/07)

In the Court of Appeal of New Zealand, the case R v H(CA541/07) concerns the appellant, H, who is facing two charges of sexual offending involving his six-year-old stepdaughter, referred to as X. H seeks to appeal the District Court's decision to deny his application under section 44 of the Evidence Act 2006, which sought permission to cross-examine X’s mother about a statement made by X in June 2004 when she was three years old, alleging that her natural father, W, had "tickled her fanny". The primary legal issue before the Court of Appeal was whether the 2004 statement and subsequent events provided a tenable evidential basis for the proposed cross-examination and, if so, whether such cross-examination should be permitted under section 44(3) of the Evidence Act 2006.

The Court of Appeal found that the 2004 statement did not provide a tenable evidential basis for the proposed cross-examination. The statement was made in circumstances where there was doubt as to whether X was referring to her genitalia when she used the term "fanny", and she did so in a context where she was laughing and not distressed. The involvement of the Department of Child, Youth and Family Services following the 2004 statement was due to concerns about X’s half-brother’s situation rather than about X herself. The evidential video following the 2004 complaint did not reveal any disclosure of sexual abuse of X by W or anyone else. The present allegations against H were made in a context where the interviewer was careful to distinguish between H and W, and X’s answers indicated a clear understanding of the difference between the two. The Court of Appeal concluded that the District Court Judge was correct to decline permission for the cross-examination, and the appeal was dismissed. The Court also made an order prohibiting publication of the reasons for judgment in news media or on the internet until the final disposition of the trial, with publication in Law Reports or Law Digests permitted.