R v John
[2017] NZHC 2417
•3 October 2017
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI 2017-085-690
[2017] NZHC 2417
THE QUEEN v
JOSEPH JOHN
Hearing: 2 October 2017 Counsel:
S C Carter for Crown
I M Antunovic and C Parkin for Defendant
Judgment:
3 October 2017
JUDGMENT OF SIMON FRANCE J
[1] This is an application by Mr John for leave to cross-examine a complainant about previous sexual experience. The application therefore falls to be determined under s 44 of the Evidence Act 2006.
Allegation
[2] The complainant was aged 16 at the time the alleged sexual assault by Mr John occurred.
R v JOHN [2017] NZHC 2417 [3 October 2017]
[3] She says she was at a party until 3 am when she left in a highly intoxicated state. She called by the house of a person she knew but, unable to raise anyone, walked on. She says a person approached her on a bike coming from the opposite direction. She was at that point dragged by that person to the side of the path, digitally violated and then raped. The complainant made a complaint shortly after.
[4] Mr John accepts he was the person but otherwise disputes the allegations. In a pre-trial interview, Mr John accepted he came upon the complainant. He believed she was a prostitute. They talked, and then the complainant leant into him. They sat down on a fence or bench. After a short time, unprotected consensual sex occurred.
Section 44 material
[5] In her interview the complainant referred to an event that occurred a few days earlier with another man, X. X is a friend of the complainant’s brother. X and the complainant chatted via Facebook, and eventually they met up one evening and went for a walk by the river. It appears to have been in the same vicinity as where the incident with Mr John occurred. The complainant says in her interview, and X confirms, that they had unprotected sex by the river. In her interview the complainant describes it as “amazing”.
[6] It appears the two did not meet again in person, but communicated via Facebook. It was X’s house that the complainant visited prior to encountering Mr John.
[7] One final point to note for the purposes of the application is that in her interview the complainant described what she was wearing and assessed herself as being dressed like “a whore”.
[8]The application seeks leave to ask questions on the following issues:1
1 The wording is as set out in the written submissions.
(a)that even though she was only aged 16, she had previously engaged in unprotected sexual intercourse with a male who was not actually her boyfriend;
(b)her sexual experience with the male two or three days prior to the incident with the defendant involved sexual intercourse that she experienced “felt amazing at the time”;
(c)that sexual encounter occurred while the two of them had gone for a walk and presumably occurred in some public place;
(d)that prior to encountering the defendant sometime after 3 am on 21 February 2017, she had been to see the male called X and had endeavoured to wake him sometime after 3 am when she visited his house. She was not successful. The defence wish to cross-examine her to establish that the purpose of this visit to X’s house was for the purpose of a sexual encounter with him; and
(e)the defence seek to cross-examine the complainant that when she was unable to achieve her desire for a sexual encounter with X, she willingly engaged in a sexual encounter with another male who was not her boyfriend at the time, namely the defendant when she met him on the street a short time after leaving X’s house.
Although not developed in the submissions, it appears that the complainant’s clothing and her own assessment of that clothing, would form part of the narrative.
[9] It is said the trial will be unfair if the complainant’s sexual experience is not woven in. Issues the defendant must confront and on which (a) to (c) will assist include:
(a)Why would a 16 year old have unprotected sex in a public place with a man not her boyfriend?
(b)Is a 16 year old girl likely to be sexually active?
[10] The evidence about the visit to X’s home, (d) and (e) above, is said to be relevant to X’s credibility in that it would tend to suggest the complainant was eager to have sex that night.
Decision
[11] The last point must be rejected immediately. Supposing (it not being known) that the complainant was anticipating further sexual activity with X, that is irrelevant to whether she would consent to sex shortly after with a stranger. It is to be recalled that X was, by that stage, a previous sexual partner. If the complainant was interested in further sexual activity with him, it says nothing about her willingness to have sex with Mr John.
[12] More generally, the complainant’s sexual experience with X is irrelevant in this case. The event with X is being mischaracterised, but even if it were not, the suggested relevance engages the very concerns that led to the enactment of s 44. The mischaracterisation is that her meeting X was the same as her encountering Mr John. In fact, she knew of X and had been conversing with him on Facebook prior to going out to meet him. Mr John is a stranger to her.
[13] The mischaracterisation aside, the irrelevance is that what a person chooses to do with another person unconnected to the trial, some days prior to the incident that is the subject of charges, says nothing about the charged incident. The underlying false supposition is that a willingness to engage in sexual activity in broadly similar circumstances (if they were) with one person says something about that person’s willingness to so act with a completely different person on another occasion.2
[14] More generally the following passage from Singh v R seems apposite to the present case:3
As the Crown submits, properly analysed, the argument Mr Singh wished to be able to advance to the jury on the strength of this evidence was that the complainant was the sort of person who would consent to sex with a stranger;
2 See, for example, the comment of William Young J in B (SC12/2013) v R [2013] NZSC 151 at [122(c)].
3 Singh v R [2016] NZCA 552 at [22].
because she had sex with E, she was “keen for sex”. This proposed use of the evidence falls squarely within the policy behind s 44.
The applicant’s case, likewise, is that the complainant is the sort of person who will consent to sex with an unknown person in a public place; and that because she visited X shortly before the incident, she was “keen for sex”.
[15] This analysis is not changed by dint of the complainant’s age. The focus and purpose of the questioning would remain on the complainant’s sexual experience with another person. The reasoning process would remain that because the complainant enjoyed sex with a different person in allegedly similar circumstances, she is more likely to have sought to replicate the experience with a different person, in this case one she had never met. The reasoning is both fallacious and prohibited by s 44.
[16]The application is declined.
Simon France J
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