R v John - [2017] NZHC 2417

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v John

Details

AGLC: R v John [2017] NZHC 2417
Case: [2017] NZHC 2417
Decision Date: 3 October 2017

CaseChat Overview and Summary

This application by Joseph John seeks leave to cross-examine a complainant about her previous sexual experience. The application falls under Section 44 of the Evidence Act 2006. The complainant was aged 16 at the time of the alleged sexual assault and has stated that she was highly intoxicated and approached by Mr. John who then digitally violated and raped her. Mr. John disputes the allegations, claiming that the sexual encounter was consensual. The application seeks to ask questions regarding the complainant's sexual experience with another man, X, prior to the alleged incident with Mr. John. The court must decide if the questions proposed by the defence are relevant and admissible under Section 44 of the Evidence Act 2006.

The court held that the complainant's sexual experience with X is irrelevant in this case. The court held that the suggestion that the complainant's willingness to engage in sexual activity with one person says something about her willingness to do so with a completely different person on another occasion is both fallacious and prohibited by Section 44. The court concluded that 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. The court held that this reasoning is both fallacious and prohibited by Section 44.

The application is declined. The court held that the complainant's sexual experience with X is irrelevant in this case. The court held that the suggested relevance engages the very concerns that led to the enactment of Section 44. The court held that 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. The court held that this reasoning is both fallacious and prohibited by Section 44. The application is declined.

No orders were made.

Orders