R v Irving CA322/06

In the Court of Appeal of New Zealand, the appellant, Maurice Irving, was convicted of one count of indecent assault and one count of sexual violation by unlawful sexual connection. Irving appealed against his conviction, arguing that the trial judge’s refusal to allow him to call a particular witness, A, resulted in a miscarriage of justice. Irving’s counsel argued that the proposed evidence went so substantially to the complainant’s credibility that denying the defence the opportunity to present it meant that her credibility could not be tested, in circumstances where credibility was the only issue in the trial. The court considered whether the proposed evidence was relevant to the issues in the case or whether it was collateral. The court found that the evidence was collateral and therefore inadmissible, and dismissed the appeal. The court held that the proposed evidence was not only collateral but also outside any exception to the rule of admissibility. Allowing the proposed evidence from A would have required the jury to reach a view about his credibility, which would have distracted the jury from its proper task, which was to determine whether the Crown had established beyond a reasonable doubt that the offences alleged had occurred. The effect of allowing the proposed evidence from A was that the complainant’s prior sexual conduct would be put before the jury, in circumstances where the defence had not obtained the necessary leave under s 23A of the Evidence Act. The court held that had A given evidence to the effect that the complainant had performed oral sex on him, but that he had not discussed that with the appellant, that would have risked damaging rather than advancing the appellant’s case. The court held that it did not accept that there had been a miscarriage of justice. The appeal was dismissed.