R v Jones

[2023] NZHC 3689

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-029-519

[2023] NZHC 3689

THE KING

v

JAMES MICHAEL JONES

Hearing:

13 December 2023

Appearances:

G Kelly for the Crown

O Hintze on instructions M Hislop for the Defendant

Minute:

13 December 2023

ORAL JUDGMENT OF BECROFT J

Solicitors/Counsel:

Marsden Woods Inskip Smith, Whangarei M Hislop, Barrister, Auckland

R v JONES [2023] NZHC 3689 [13 December 2023]

The application

[1]                 This is a Crown application under s 44 of the Evidence Act 2006. Specifically, it seeks permission to lead evidence from the complainant as to her sexual experience with a person other than the defendant. In this case, that other person is her now- deceased husband.

[2]This trial will be a retrial.

[3]                 The evidence sought to be led by the Crown in this case was led without opposition at the first trial. However, Ms Kelly responsibly informs the Court that no formal order was ever made by the Court to do so.

[4]                 Mr Hintze appears for the defendant on instructions. He does not oppose the application. In my view that is both responsible and realistic.

The charges

[5]By way of background, the defendant faces trial on the following charges:

(a)Sexual violation by unlawful sexual connection in respect of charges 1, 2, 6, 8 and 11.1

(b)Sexual violation by rape in respect of charges 3, 4, 5, 7, 9 and 10.2

(c)Indecent act on a child under 12 in respect of charge 12.3

(d)Attempting to pervert the course of justice in respect of charge 13.4

[6]                 The Crown application is confined to charge 10. The allegation is that the defendant and the complainant’s husband sexually violated the complainant by rape in what might be called a “threesome-like scenario”. It is said that once the complainant

1      Crimes Act 1961, s 128(1)(b).

2      Section 128(1)(a).

3      Section 132(3).

4      Section 117(e).

married her husband, from that point on the defendant and her husband repetitively sexually violated her by rape and they did so together.

Analysis

[7]                 In my view the application, even if there were no responsible concessions by the defendant, must succeed. This is evidence which the complainant wishes to give, and it is of such direct relevance to the facts in issue in the proceeding that it would be contrary to the interests of justice to exclude it.

[8]                 Also, it would be impossible for the complainant in her evidence to separate the behaviour alleged against the defendant from the behaviour alleged to have been carried out by her husband. It is all part of a whole. In my view, the evidence the Crown wishes to lead is properly and inextricably part of the overall narrative.

[9]                 I understand that were it not for the fact that the complainant’s husband died in January 2018 he, too, would have been charged – with spousal rape.

[10]              If further justification were needed for the order, the same evidence was led without opposition at the first trial.

Conclusion

[11]My conclusion, therefore, is that the application must be granted.

[12]There is an order accordingly.

Becroft J