R v H HC Wellington CRI 2004-032-2767

[2005] NZHC 483

ORDERPROHIBITING PUBLICATION OF THIS APPLICATION, THE ARGUMENT AND THE DECISION DURING THE TRIAL

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2004-032-2767

THE QUEEN

v

H

Hearing:         10-11 October 2005

Appearances: B A Gibson for the Crown

W M Johnson with I R Hard for the accused

Judgment:      11 October 2005

ORAL RULING OF MACKENZIE J

[1]      Mr Johnson for the accused has sought leave under s 23A of the Evidence Act to cross-examine the complainant JR and also her mother, LFe, on the issue of whether the complainant had been in the habit of sleeping in her father’s bedroom with her father.  He indicates that what is proposed is to ask the complainant whether she was in the habit of sleeping in her father’s bedroom with him.   The basis of putting that question, so far as its factual basis is concerned, is that there are reasonable grounds, based on his instructions from the accused and on the possible evidence of the accused’s wife, that they had seen the complainant, on at least one

occasion when they were at the complainant’s house, retire with her father to the

R V H HC WN CRI-2004-032-2767  11 October 2005

father’s bedroom some time before others in the house went to bed, and that they had not come out of the room before the accused and his wife had left.

[2]      That question would be put, Mr Johnson says, on the basis that, if the answer was  in  the  negative,  cross-examination  on  the  topic  would  go  no  further.    If, however, the answer was in the affirmative, he would seek to ask the further question or questions as to whether any sexual activity took place.  The relevance of that is said to be that, if the answer to that is in the affirmative, further questions may be asked to deal with the possibility that the complainant is transferring memories from that to the evidence which she has given in relation to the accused.    Again  he indicates that, on a yes or no answer to that question, that would be the extent of the cross-examination.

[3]      The first question about the complainant going into  her father’s bedroom might not on its own be one for which leave is required.   The inference, however, and the follow up question which is proposed in the event of an affirmative answer that some sexual activity may have taken place, is a matter which falls quite squarely within s 23A.

[4]      The question which I must consider is that which is set out in subsection (3). I may not grant leave unless I am satisfied that the questions to be put are of such direct relevance to  facts in  issue  in the proceeding that  to  exclude  it  would be contrary to the interests of justice.

[5]      The relevance could go only to the possibility of a transference of memories from one occasion to another.  That could of itself be sufficient to make the matter relevant.  However, there are a number of other issues which arise.  In the first place, the evidence which Mr Johnson indicates that on his  could possibly, if necessary, be called does not go so far as to give rise to an inference of the type which might be sought to be drawn.  A suggestion that some sexual activity may have taken place could be no  more than speculation  from the potential evidence which has been indicated.  I do not consider that it is proper under s 23A to grant leave to enable an allegation to be explored in cross-examination unless there is, on the potential available evidence, a sufficient  basis to  make the question a proper one having

regard to the obligations on counsel to have a proper factual basis in the instructions before making allegations against a witness.

[6]      Accordingly, I do not consider that it could be said that to exclude questions as to whether any sexual activity took place between the complainant and her father would be contrary to the interests of justice.  It would, in my view, be in the nature of a “fishing expedition” to that extent.

[7]      That  leaves the question of whether  the question about  which there  is a potential evidential foundation, that is whether the complainant was in the habit of sleeping  in  her  father’s  bedroom with  her  father,  or  at  least  of  going  into  the bedroom with  the  father,  is  appropriate  or  not.    That  question,  apart  from  the inference  which  it  contains,  would  not  require  leave.     However,  without  the inference which it contains it would not be relevant.  Accordingly, I consider that it does fall within the scope of s 23A and that, because the inference to which it gives rise is not one that can properly be explored in the light of my refusal of leave for the follow on questions, that question too should not be permitted.

[8]      Accordingly, leave under s 23A is refused.

“A D MacKenzie J”

Solicitors

Crown Solicitor, Wellington, for the Crown