R v Healy
[2007] NZCA 451
•18 October 2007
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND REASONS 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.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA414/07 [2007] NZCA 451
THE QUEEN
v
HAROLD JOHN HEALY
Hearing: 17 October 2007
Court: Glazebrook, Hammond and Ellen France JJ Counsel: S Lance for Appellant
B J Horsley and T Smith for Crown
Judgment: 18 October 2007
Reasons: 18 December 2007 at 10 am
JUDGMENT OF THE COURT
A Leave to appeal is granted but the appeal is dismissed.
R V HEALY CA CA414/07 18 October 2007
BOrder prohibiting the publication of the judgment and reasons 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)
Table of Contents
Para No.
Introduction [1] Background [3] Counts one to three [4] Counts four to six [9]
The High Court judgment [17] The appeal [23] Leave to appeal [26] Severance [28] Propensity evidence [33] The balance in this case [55] Result [71]
Introduction
[1] The appellant is charged with sexual offending in relation to two separate incidents each involving a girl, one of whom was aged between 13 and 14 years at the time and the other 16 years. Prior to the trial, the appellant sought severance of the counts involving the first complainant, “P”, from those relating to the second complainant, “F”.
[2] In a decision delivered on 1 August 2007, Asher J declined to order severance on the basis that the evidence of each complainant was admissible as propensity evidence in relation to the charges concerning the other complaint against the appellant: HC AK CRI 2006-044-6242. The appellant sought leave to appeal against that decision under s 379A of the Crimes Act 1961. He argued that
severance should have been ordered because the prejudicial effect of the evidence outweighs any probative value. In a judgment given on 18 October 2007, we granted leave to appeal but dismissed the appeal. We now give our reasons.
Background
[3] We turn first to the factual background as it appears from the evidence as at depositions.
Counts one to three
[4] Counts one to three in the indictment relate to the complainant, P. Count one is a charge of sexual violation by unlawful sexual connection (licking the complainant’s genitalia). Count two is also an allegation of sexual violation of P, this time by digital penetration. Count three is a charge of sexual violation by rape.
[5] All three charges relate to one incident. The context was that P was living at the Centrepoint Community in Albany at the time (October 1988 to April 1989) with her mother although, by the time of the alleged offending, she says she did not see much of her mother. The appellant was aged about 39 to 41 years at the time and was a senior member of the Centrepoint Community. The appellant was involved in teenage counselling sessions at Centrepoint and both P and the second complainant, F, attended these sessions.
[6] P alleges that she was approached by the appellant on a Saturday afternoon and that he took her by the hand and said to her: “Come on, we both know we want this. You’ve been looking at me in that way haven’t you”. She says she did not reply to this as she did not know what he meant. He held on to her hand and walked her to one of the long-houses (adult sleeping quarters). The complainant says she thought it must have been okay to go with him because nobody was stopping them.
[7] There were no other people in the long-house and the appellant took her to one of the beds. She says that when they got to the bed, the appellant started taking her clothes off. The appellant removed his clothes and climbed onto the bed fully
naked. He pulled the complainant onto the bed so that she was lying beside him. The appellant then removed her underwear. The complainant says she tried to cross her legs and cover herself because she was embarrassed and felt vulnerable. She says she told the appellant, “I can’t do this because I have got my period”, and that he responded, “it’s much better with your period.” The complainant says she was rigid, stiff and nervous and it was very obvious that she did not want to have sex with the appellant. She says the appellant removed her tampon and performed oral sex on her. While he was doing this, she says she was tensing up and closing her legs and that she remembered saying, “nah”, but that he kept saying, “it’s okay”. The complainant says she remembers him licking her vagina and putting his tongue inside her vagina.
[8] The complainant alleges that the appellant also digitally penetrated her while he was performing oral sex on her and then he lay down beside her and digitally penetrated her again. After that the complainant says that the appellant climbed on top of her and began having sexual intercourse with her. The complainant says he was moaning in her left ear throughout and that he was shaking and trembling. She also says that when he ejaculated he moaned and shuddered. He lay beside her for a short period before standing up and getting dressed, at which point she also stood up to get dressed. As she was doing so, the appellant said to her, “I’m sorry”. She then left to return to her room.
Counts four to six
[9] There are three charges in relation to F. The first, count four, is a charge that the appellant gave her LSD, a Class A controlled drug. Count five, the second charge concerning F, is an allegation of sexual violation by digital penetration. The final charge, count six, is an allegation of sexual violation by rape.
[10] Again, these charges relate to one incident. The context was that F was living at Centrepoint at the relevant time (April 1989 to December 1990) although her parents lived elsewhere.
[11] The complainant F says that drugs were administered at the teenage counselling sessions and that the appellant was involved in the distribution of drugs throughout Centrepoint, as well as being involved in the counselling sessions.
[12] The complainant says she remembers an occasion where the appellant came up to her and asked her to have sex with him. She explains that this was an accepted part of the lifestyle at Centrepoint: “We all had the right to say no, but you knew that you would be considered ‘not open’, ‘not free’ by others.” She made an excuse. The appellant approached her on another occasion and he asked her if she wanted to go with him for a session at Bert’s (a reference to Bert Potter, the leader of the Centrepoint Community). She says she presumed it was going to be a group session like the ones she had attended at Bert’s previously. She knew it would involve drugs.
[13] F says the appellant saw her the next afternoon. He put an “acid” tab in her mouth. She says that he told her they were going to another teenage therapy session at Bert’s and they would need to take the drugs before going to his house so that they took effect by the time they got there. She says this was unusual because they normally took drugs when they got there. The complainant’s memory is a little vague and she next recalls being in Bert’s house. No one else was there. She says she remembers that on the kitchen bench there were grapes, nice cheese, crackers, orange juice and a bottle of whisky – “it was like it had been set up for something”.
[14] The complainant says she felt the effect of the drug a lot stronger and then the next thing she remembered was being in bed with the appellant under the covers. She says she felt sick and scared. The complainant says that the appellant was cuddling her, he was rubbing her breasts and kissing them. She says that he seemed “really hesitant and shaky”. She can remember him putting his finger inside her vagina.
[15] Although the complainant says she said “no” several times the appellant had sexual intercourse with her. The complainant says he was grunting at the time. She also described him as “very oral”. By that she says, she meant he was licking and
kissing her body a lot. She remembers him licking her stomach and breasts but cannot remember if he performed oral sex on her.
[16] After he had ejaculated, he got off her and then said: “I shouldn’t have done that should I?” She said, “no”. The next day she checked her mail and there was an apologetic letter from the appellant. The letter acknowledges that sexual intercourse took place and included comments such as, “I think you must be judging me to be callous and uncaring, a brute that forces himself on young women”.
The High Court judgment
[17] Asher J approached the severance application on the statutory basis observing that the test was whether severance would be “conducive to the ends of justice” (s 340(3) of the Crimes Act). In this case the Judge saw the inquiry into the admissibility of propensity evidence as central to determining whether severance would meet that test.
[18] In terms of that inquiry, Asher J said that the Crown must satisfy the Court that the probative value of the evidence outweighs the prejudicial effect, applying the approach set out in s 43 of the Evidence Act 2006.
[19] The Judge then turned to consider s 43(2), identifying the issue in relation to P as being whether the events she alleges actually occurred and in terms of F whether there was consent.
[20] Asher J then dealt with the matters in s 43(3). Essentially, the Judge saw the relevant factors as being s 43(3)(c), which focuses on similarity, and s 43(3)(f) dealing with unusual features.
[21] The similarities and unusual features of the alleged offending identified were the appellant’s alleged exploitation of his position in Centrepoint, the vulnerability and age of the complainants, the leading off of the complainants, licking and digital penetration, shaking and making noises during sexual intercourse, and apologies after intercourse.
[22] Having assessed the specific features of similarity and those which were unusual, the Judge then turned to what he described as “an overall assessment and balancing” (at [47]). Asher J said he took into account the fact that there were only two complainants and the likelihood of different defences in respect of each complainant. Asher J’s conclusion was as follows:
[53] Overall it can be said that the two acts of alleged offending appear to be similar and have distinctive features. There is a discernible pattern of details which gives the complainants’ individual accounts a distinctive similarity, so as to reinforce what each complainant says, despite the different defences. The similarities of the [P] complaint to the [F] complaint, if believed, will be relevant to a defence of consent by [F]. They may show that [the appellant] acted without consent in similar circumstances making it more likely that he would do so a second time. In relation to [P], the fact that a similar sexual exchange took place with another vulnerable teenager in a similar way makes it more likely that [P] is telling the truth. They are relevant to the central issue in dispute, namely whether [the appellant] sexually violated the complainants, using his position in the community and exploiting their vulnerability.
The appeal
[23] The appellant submits that this is an appropriate case for leave to appeal to be granted given the potentially crucial effect of the outcome of the application on the course of the trial and the novelty of the issues involved.
[24] On the merits of the appeal, the appellant says that the matters relied on by Asher J in terms of s 43(3) of the Evidence Act are not matters of similarity or unusual features but are, rather, part of the background. The appellant argues that when those matters are weighed against the fact that the other factors identified in s 43(3) are not present, the Judge was wrong not to sever especially given the prejudicial effect on the appellant. The appellant also disputes the probative value of the evidence especially where the issue in relation to P will be whether the events occurred at all and, in terms of F, where the appellant accepts there was intercourse, whether F consented.
[25] The Crown opposes the grant of leave primarily on the basis that the appeal has no merit. In terms of the merits, the Crown submits there has been no error in the approach taken.
Leave to appeal
[26] This application for leave to appeal was heard at the same time as R v Leonard [2007] NZCA 452. Prior to the hearing, the Court asked for submissions from counsel in both Leonard and this case and from other interested organisations on the approach to be taken to the hearing of leave applications. The Court suggested that one factor pointing towards a grant of leave was that the proposed appeal raises a novel point. This case was heard by the Permanent Court in part because it does raise questions about the new Evidence Act. On that basis, leave was granted.
[27] Mr Horsley suggested that the present application is one where the question of joinder might turn on how the evidence at trial develops. We think that any development is unlikely to have a dramatic effect on this aspect. But, in any event, the question of joinder or severance is so central in this case that it would not have been appropriate to decline leave on this basis.
Severance
[28] Section 340(1) of the Crimes Act allows any number of counts to be joined in the one indictment. This is subject to the discretion in s 340(3) to sever counts “[i]f the Court thinks it conducive to the ends of justice to do so”. In R v W [1995]
1 NZLR 548 at 555 this Court said:
The general principle is that 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 an extent that its probative value outweighs its prejudicial effect. That may be so in a variety of circumstances, of which similarity of the facts is one.
…
[W]here as here the allegations are interwoven or interconnected the desirability of presenting the case on a realistic rather than an artificial basis will usually point against severance.
[29] We consider that there is a strong argument for joinder on the basis that the charges relate to incidents that are related as to time and circumstance. Although the
incidents are said to have occurred a year to a year and a half apart, they both relate to a time when the Centrepoint community was operating. Both are said to have occurred in very similar circumstances.
[30] Mr Lance resisted this argument on the basis that the prejudice to the appellant in having the two incidents heard together was too great. Mr Lance pointed to the observation of Eichelbaum J (as he then was) in R v Simon (1986)
2 CRNZ 304 at 305 – 306 (HC) that the prejudicial effect of a single trial in that case was “accentuated by the fact that the case involved sexual offending where any evidence of a predeliction of the accused in that direction [was] especially likely to prejudice the accused’s prospects of a fair trial”. Mr Lance also relied on this Court’s decision in R v Owen CA147/06 21 June 2006 where severance was ordered in relation to two incidents of alleged sexual offending occurring within a five to six month period in Gisborne.
[31] The incidents giving rise to the alleged sexual offending in Simon were very close in time (over a one week period). The Judge however saw them as unrelated in terms of their circumstances. The observations as to prejudice have to be read in light of that conclusion.
[32] Similarly, in Owen, the Court was not satisfied there was any consistent pattern of offending and did not consider the issue of joinder on any basis other than similar fact. That said, we acknowledge that the question of prejudice is relevant. In any event, we do not need to decide the matter on this basis because we agree with Asher J that the evidence of the two complainants is admissible as propensity evidence. We turn then to consider s 43.
Propensity evidence
[33] The relevant provisions in the Evidence Act are as set out below.
[34] Sections 7 and 8 of the Act set out the basic principles for the admission of evidence. In terms of s 7, relevant evidence is admissible except as set out in s 7(1). Section 8(1) states that evidence must be excluded if its probative value is
outweighed by the risk that the evidence will have an “unfairly prejudicial effect” or needlessly prolong the proceeding. In determining whether the probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect in a criminal proceeding, “the Judge must take into account the right of the defendant to offer an effective defence” (s 8(2)).
[35] Where the evidence in issue is propensity evidence, and the prosecution wants to rely on that evidence, there are specific rules for assessing relevance in ss 40 and 43. Accordingly, if the evidence in issue is not propensity evidence its admissibility would be determined under the general principles in ss 7 and 8.
[36] “Propensity” evidence is defined in s 40 of the Evidence Act as evidence:
(a)… that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is –
(i)1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.
[37] In terms of s 40(2), a party may offer propensity evidence in civil or criminal proceedings about any person. But s 40(3)(a) makes it plain that propensity evidence about a defendant may be offered by the prosecution only in accordance with s 43.
[38] The basic structure of s 43 reflects the Law Commission’s proposal in an early discussion paper on the reform of the law of evidence that a code rule based on the test for similar fact evidence in Director of Public Prosecutions v Boardman [1975] AC 421 (HL) be enacted. The rule proposed therefore provided that similar fact evidence was admissible only if its probative value sufficiently outweighed its prejudicial effect (New Zealand Law Commission Evidence Law: Character and Credibility (NZLC PP27 1997) at [21] – [22]). The Commission suggested the rule should provide a list of factors which a court may consider in deciding on the admissibility of similar fact evidence and set out two factors relevant to the assessment of prejudicial effect as now seen in s 43(4) (at [22] – [23]).
[39] The rationale behind this approach was the Commission’s view that, because of the potential dangers of similar fact evidence (erosion of the presumption of innocence, the danger of propensity reasoning, and circularity of reasoning), evidence of other behaviour of the defendant was frequently unfairly prejudicial and so should “in general” be excluded. But the Commission acknowledged that in certain circumstances such evidence should be available to the fact-finder “if it has sufficient probative value” (Evidence Law: Character and Credibility at [249]). The appropriate balance in the Commission’s view was reflected in the draft code provision which provided that the probative value of the propensity evidence had to “substantially” outweigh the danger that the evidence may have an unfairly prejudicial effect on the defendant (New Zealand Law Commission Evidence: Evidence Code and Commentary (NZLC R55 Vol 2 1999) s 42). The Evidence Bill as introduced, however, simply required the probative value of the evidence to outweigh its prejudicial effect.
[40] Section 43(1) accordingly provides that the Crown may offer propensity evidence:
[O]nly if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
[41] When assessing the probative value of propensity evidence the Judge must take into account the nature of the issue in dispute (s 43(2)).
[42] Section 43(3) then sets out a number of matters the Judge may consider when assessing the probative value, namely:
(a)the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b)the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c)the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d)the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
[43] Finally, s 43(4) provides that when assessing the prejudicial effect on the defendant, the Judge must consider, among other matters:
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[44] In the parties’ submissions there was some discussion about the extent to which the propensity provisions involved an endorsement of the common law position with respect to similar fact evidence. That focus is reflected to some extent in the Judge’s summary of the approach to the Evidence Act. Asher J said at [23] that s 43 was not to be read:
[A]s a departure from the common law as it stood in 2007. Caution in admitting propensity evidence is still dictated by the use of the phrase “only if” in s 43(1). It is also indicated by s 43(4), which requires that when considering prejudice it is necessary to consider whether the admission is likely to unfairly predispose the fact finder against the defendant, and whether the other acts or admissions will be given disproportionate weight. The observation made in R v Bull at [39] still applies, namely that the evidence of the propensity must be highly focused and specific before it can outweigh the heavy illegitimate prejudice inherent in propensity evidence. It is inherent in s 43, and in particular can be discerned from the emphasis on particular detailed circumstances set out in s 43(3) and (4), that a rigorous consideration and analysis of the evidence of probative value is required before propensity evidence is admitted. The combination of all these legislative requirements means that the Crown task to justify the admission of propensity evidence remains no more or less onerous than before.
[45] The Judge said at [29] that he agreed with the decision of Stevens J in R v Russell HC AK CRI 2006-092-11084 19 July 2007 at [85] and following where the Judge also approached the issue of severance “on the basis that the existing authorities on propensity apply” (see also R v Taea HC NAP CRI 2006-020-2796
20 August 2007 at [28]). There is also a suggestion in this Court’s decision in
R v Cooper [2007] NZCA 481 at [11] that earlier authorities such as R v Holtz [2003]
1 NZLR 667 (CA) will be relevant.
[46] In all of these decisions, the courts then moved to an assessment of the various factors in s 43. In our view, the words of the statute are the most helpful starting point in the propensity analysis and, to the extent that the decisions referred to above might be read as suggesting the starting point is a comparison with the common law or some judicial gloss on those words based on earlier authorities, we disagree. As an illustration of the approach we prefer, reference can be made to this Court’s decision on appeal in Taea where the Court did not find it necessary to refer back to the law in force before the advent of the Act: R v Taea [2007] NZCA 472 at [20]; and, see also R v Goodman HC WANG CRI 2006-034-440 12 June 2007 at [21]. To the extent that Cooper may be thought to suggest a different approach, it should not be followed.
[47] The Law Commission in its issues paper on the admissibility of previous convictions published after the hearing in this case observes that there are two possible approaches to s 43: New Zealand Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character (NZLC IP4 2007). The first is to see it as a codification of the previous law as to similar fact evidence and the second as reflecting a fresh start “allowing in all evidence as to ‘propensity’ provided its probative value outweighs unfairly prejudicial effect” (at 8). The Commission suggests that the former is consistent with the Commission’s intention and with the legislative history but sees the choice between the two approaches as a policy one.
[48] We consider that a focus on the relevant statutory provisions rather than the previous law is arguably consistent with the legislative history as we discuss below (at [50]). But, in any event, taking the statutory provisions as the starting point is correct as a matter of statutory interpretation and is consistent with the direction in s 10 of the Act to interpret the Act in a way that promotes its purpose and principles and with the further directions in s 10 that the Act:
(b)is not subject to any rule that statutes in derogation of the common law should be strictly construed; but
(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with—
(i) the provisions; and
(ii) the promotion of its purpose and its principles; and
(iii) the application of the rule in section 12. (Our emphasis.)
[49] Section 12 deals with the situation where there is a lacuna because matters are not provided for in the Evidence Act or in any other enactment.
[50] It is relevant in this context that the move away from the common law’s “similar fact” nomenclature to that of “propensity” was a deliberate one. The Law Commission saw the phrase “similar fact evidence” as “doubly misleading” citing from the then current looseleaf edition of Mathieson (ed) Cross on Evidence (1996). That was because it describes what was an exclusionary rule in terms “more apt” to describe one of the main exceptions to the rule and also because it suggests “a unifying factor between the situations in this area which they do not necessarily possess” (Evidence Law Character and Credibility at [237]).
[51] It is also of relevance that there were different approaches to similar fact evidence in the criminal context. In R v Taunoa CA494/04 13 April 2005
Chambers J observed that this Court had “expressed itself differently from time to time on the vexed issue of the test for the admissibility of so-called similar fact or discrete conduct evidence” and suggested there was a need for the test to be enunciated “more definitively” (at [4]). Finally, it is relevant that the definition of propensity evidence also applies to civil proceedings and it is not clear that the approach to similar fact evidence was previously the same in the civil jurisdiction: see Mathieson (ed) Cross on Evidence (looseleaf ed) at [EVA40.4].
[52] Where the balance will ultimately lie in terms of s 43 is a matter that will be developed over time. But, given the shift away from the similar fact terminology and the definition of “propensity” evidence, a danger in reliance on the old similar
fact cases is that those cases reflected an environment where the position of the law was that similar fact evidence was not to be used to support propensity reasoning: see Robertson (ed) Adams on Criminal Law – Evidence (looseleaf ed) at [EC8.06]. The Evidence Act rejects that approach: s 40.
[53] An analysis which takes as its starting point the wording of the propensity provisions is also consistent with more general principles of statutory interpretation. While the Evidence Act is not expressed as a complete code as was the Law Commission’s initial proposal (New Zealand Law Commission Evidence: Evidence Code and Commentary (NZLC R55 Vol 2 1999) at 36 and 38), the following excerpt from Lord Herschell’s speech in The Governor and Company of the Bank of England v Vagliano Brothers [1891] AC 107 at 144 – 145 (HL) is still helpful:
I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.
See also: Bennion Statutory Interpretation (4ed 2002) at 518 – 520 on codifying acts; Martin v Martin [1979] 1 NZLR 97 at 105 (CA) (per Cooke J); and Keith J in Foodstuffs (Auckland) Ltd v Commerce Commission [2002] 1 NZLR 353 at [39] (CA) and General Distributors Ltd v Casata Ltd [2006] 2 NZLR 721 at [32] (SC).
[54] In terms of the propensity provisions, having started with the Act it may occasionally be necessary in a particular case to refer back to the common law. But it has to be remembered that the Act is the product of a long and considerable history of reforms and that one of the objectives in terms of the law relating to propensity evidence was to reduce the previous uncertainty as to the likely approach to the admissibility of this sort of evidence (Evidence Law: Character and Credibility at [268] – [270]). The provisions relating to propensity evidence offer the opportunity of a clean slate in this area that should be grasped.
The balance in this case
[55] In terms of the probative value of the evidence, as we have said, the appellant first challenges the Judge’s conclusions that the incidents have similar or unusual features. In particular, the appellant says the exploitation of his position is a matter of setting and that neither complainant says in her brief of evidence that she went with him because of his position at Centrepoint. As to vulnerability, the appellant submits that while a number of those at Centrepoint may be described as coming from dysfunctional families, that was not unusual and there is nothing to suggest that the appellant was aware of the complainants’ circumstances. In a similar vein, it is suggested that there is nothing to indicate that he knew their ages.
[56] As to the other features identified by the Judge, the argument is that there are differences in the circumstances and so it is not correct to see “leading off” and the nature of conduct (licking) as similar. The submission is that shaking and grunting during sex is not distinctive. Finally, in this context, the appellant accepts that the prompt making of an apology is a similarity but argues that this is not enough on its own to give the evidence any probative value.
[57] The appellant also submits that Asher J was wrong to find that the evidence has any probative value given the issues in dispute. In particular, Mr Lance says that the question of whether F consented or whether the appellant believed on reasonable grounds she was consenting is not an issue on which the jury will be assisted by knowing that there is an allegation the appellant raped P on an earlier occasion, an incident that he denies.
[58] We consider the Judge’s approach to ss 43(3) and (4) was correct. Asher J has carefully analysed the relevant factors and has weighed the competing interests. There can be no criticism of the conclusion that the probative value outweighed the risk of prejudice.
[59] Taking first the complaint about the approach to the factors in s 43(3), in our view, there is considerable similarity in the acts and circumstances of the alleged offending. The Judge was correct also to describe the incidents as having unusual
features. While there are just the two incidents, both took place in the context of the life of Centrepoint where the appellant was in a position of some authority. It is not surprising that neither complainant said that this was why she accompanied the appellant but there is sufficient in the evidence of both complainants as to the way in which Centrepoint operated from which to draw that inference.
[60] Both girls on their evidence were largely without parental support and so alone in an openly sexual environment which, combined with their ages, did make them vulnerable. It is open to infer on the current state of the evidence that the appellant would have been well aware of that.
[61] The Judge was right to determine that the evidence had probative value because of the combination of similarities and unusual features in terms of s 43(3). Those features are apparent in the nature of the approaches to both complainants in the context of opportunistic offending with an invitation to the complainants to go along with him at which point he then engaged in similar activity for which he was immediately apologetic.
[62] The appellant sought to make something of the absence of any of the other features referred to in s 43(3). The ordinary principles applicable to this sort of discretionary exercise are such that the facts of a particular case may mean it is wrong for a court to simply ignore one or more of the listed factors. However, those cases aside, s 43(3) provides a non-exhaustive list of factors which a court may consider in assessing the probative value. There may be other factors and in some cases the probative value of the evidence may derive from the presence of one of the s 43(3) factors alone. Certainly, and nor did Mr Lance suggest as much, the section does not envisage a “checking off” of all of the s 43(3) factors followed by some sort of arithmetical “totting up” of what is present against what is not.
[63] We turn then to the second aspect of the appellant’s argument about the probative value of the evidence. This is directed to Asher J’s conclusion that the similarities of P’s complaint to that of F’s will be relevant to the defence of consent. In terms of the Evidence Act, it boils down to an argument that given the nature of the issues in dispute (s 43(2)), the evidence has no probative value.
[64] Mr Lance drew support for this submission from the decision of the High Court of Australia in Phillips v The Queen (2006) 225 CLR 303 at [46] – [47]. In the passage relied on by the appellant at [47] the judgment of the Court was as follows:
Neither the courts below nor counsel for the respondent cited any case in which similar fact evidence of complainants who said that they did not consent was led to show that another complainant had not consented. Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants’ evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused: it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her.
[65] The appellant in Phillips had been tried on eight counts of sexual offending involving six teenage female complainants. In relation to three of the girls, the defence was consent. The appellant admitted some earlier consensual sexual activity with respect to two of the girls but denied there was sexual intercourse. In terms of the final complainant, there was a denial any of the events took place at all.
[66] The trial Judge declined the appellant’s application for severance on the basis that the charges were admissible on a similar fact basis. The Judge’s conclusion on this point was explained by the High Court in these terms at [39]:
He said that while the evidence showed a “propensity in [the] accused person to commit … similar crime”, this “propensity theory” was “not the basis for its admissibility and that is not the basis upon which [the] jury may use it”. Rather the basis of admissibility was what he called “the probability theory”. On that theory:
“[T]he strength of [the] probative value [of the evidence] lies in its ability to demonstrate the improbability of similar lies. That is, one girl might deliberately make up a lie that [the appellant] dealt with her sexually without her consent; two might possibly make up a lie to that effect; but the chances or the probability that all six have made up such a lie, in my view, becomes remote in the extreme in the absence of any real risk of concoction.
[67] It follows from what we have said about the general approach to the propensity provisions that this matter falls to be determined in light of the Evidence Act and not earlier decisions such as Phillips. In any event, we agree with
Mr Horsley that the key concern expressed by the High Court of Australia was not the admissibility of the evidence of similar fact per se. Rather, it was that the trial Judge had directed that the evidence went only to the mental element of whether the girls consented and that was wrong. The Court put it this way at [46]:
To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.
[68] Further, we consider Asher J was right that, given the context (two young girls in the Centrepoint environment), the evidence of each of the complainants adds some credibility to the account of the other. The admission of evidence of other allegedly non-consensual offending could be propensity evidence. Contrary to the position recounted by the High Court as to the Australian experience, there are a number of cases in this Court where similar fact evidence was admitted in a sexual offending case where consent or reasonable belief in consent was an issue at trial albeit without a great deal of analysis as to the basis for this: R v Yum CA54/016
May 2001, R v Absolum CA396/01 20 March 2002, R v Maru CA130/03
10 July 2003, R v Spencer CA228/04 22 July 2004, R v Chubb CA134/05
1 December 2005, R v Maru [2007] NZCA 275, and R v Brown [2007] NZCA 585; see the approach of the House of Lords in R v Z [2000] 2 AC 483 at 487 per Lord Hope of Craighead, and at 508 and 509 per Lord Hobhouse of Woodborough; and see also the approach of the Supreme Court of Canada in R v Handy [2002] 2 SCR
908 at [120]; contrast R v Holloway [1980] 1 NZLR 315 (HC), R v Kuru CA155/96
17 October 1996, R v P (CA465/97) CA465/97 2 April 1998 and R v Sturm (2005)
21 CRNZ 627 (CA); see generally Robertson (ed) Adams on Criminal Law – Evidence (looseleaf ed) at [EC8.21(1)(b)].
[69] We do not consider Phillips should be adopted in New Zealand particularly given the criticisms of that decision see: Gans “Similar Facts after Phillips” (2006)
30 Criminal LJ 224 and Pincus “Phillips v The Queen” (2006) 80 ALJ 509 at 510.
[70] In conclusion, the Judge has considered all of the relevant factors and there can be no criticism of the way in which he has approached the assessment required.
Result
[71] For these reasons, leave to appeal was granted but the appeal dismissed.
Solicitors:
Swarbrick Beck, Auckland for the AppellantCrown Law Office, Wellington
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