R v M (CA292/05)

[2005] NZCA 382

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR PARTICULARS IDENTIFYING APPELLANT AND COMPLAINANT UNTIL TRIAL.  NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

CA292/05

THE QUEEN

v

M (CA292/05)

Hearing:         10 October 2005

Court:            Robertson, Baragwanath and Heath JJ Counsel:          A B Fairley for Appellant

A R Burns for Crown

Judgment:      13 October 2005 at 10am

JUDGMENT OF THE COURT

A        Leave to appeal is granted. B The appeal is allowed.

CThe defence are at liberty to cross-examine the complainant as to her having had sexual intercourse with her boyfriend at a wedding reception

at about 8.00pm on 21 April 2004.

R V M (CA292/05) CA CA292/05  13 October 2005

DOrder  prohibiting   publication   of   names,   addresses   or  particulars identifying appellant and complainant until trial.

ENot to  be published  in  news  media  or on  internet or other publicly accessible database until final disposition of trial.  Publication in law

report or law digest permitted.

REASONS

(Given by Baragwanath J)

[1]      The appellant has been indicted in the District Court at Whangarei on a count of  indecent  assault  on  a  female  (Crimes Act 1961  s 135(1)(a)).    At  a  trial  in April 2005  at  which  the  jury  disagreed  Judge Moore  dismissed  four successive applications by the defence for leave to cross-examine the complainant under s 23A of the Evidence Act 1908.

[2]      The section provides:

23A.     Evidence of complainant in rape cases

…

(2)       In any criminal proceeding in which a person is charged with a rape offence or is to be sentenced for a rape offence, no evidence shall be given, and no question shall be put to a witness, relating to---

…The sexual experience of the complainant with any person other than the accused;…

except by leave of the Judge.

(3)       The Judge shall not grant leave under subsection (2) of this section, unless he is satisfied that the evidence to be given or the question to be put is of such direct relevance to---

(a)       Facts in issue in the proceeding; or

(b)       The  issue  of  the  appropriate  sentence,---as  the  case  may require,  that  to  exclude  it  would  be  contrary  to  the  interests  of justice:

Provided that any such evidence or question shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.

[3]      On 8 August 2005 Judge Lance QC considered under s 344A and dismissed a further application.  The application for leave to appeal is against that decision.

The factual issue

[4]      The Crown case is that in the early hours of 22 April 2004 the complainant, who had consumed a good deal of alcohol at a wedding reception, was asleep in a car outside the hall where the function had taken place. The complainant’s boyfriend said that she had become very drunk and he had helped her to get into the car to sleep.   He later returned to the vehicle and described seeing the appellant leaning over the complainant  and  apparently in  contact  with  her.    When  the  boyfriend opened  the  door  the  appellant  jumped  very quickly out  of  the  car,  zipping  his trousers.   The boyfriend noticed that the complainant’s skirt was up around her waist. The complainant’s account was that she had woken up and found her dress pulled up and the crotch area of her underwear pulled to the side.

[5]      The Crown alleges that the appellant went to the vehicle knowing that the complainant was asleep, got into the back seat with her, forced her skirt up to her waist, pushed her underwear to the side and pulled down his trousers with a view to having sex with her.  The sole ingredient of indecent assault was that he lifted the complainant’s skirt to her waist and pushed her underwear to the side.

[6]      The defence case is that earlier in the evening there had been talking and sexual flirting between the accused and the complainant; that at the car the appellant invited the complainant to engage in sexual activity and he believed she consented; that although he intended to have sex with her he did not touch her; that she must have lifted her dress and adjusted her underwear to allow that to occur; but before that happened the boyfriend burst on to the scene.

[7]      At the aborted trial the appellant gave evidence in support of his contention. Importantly, another witness who arrived following the intervention of the boyfriend was told by the complainant she thought that the boyfriend was in the back of the car with her; that the person whom she thought to be her boyfriend had told her to put her leg up on the seat; and that she did so in that belief.

[8]      In a police statement the boyfriend acknowledged that he had had sex with the complainant at the function at about 8.00pm and did so again the following day at about 4.30 pm.  The s 23A application is founded on the submission that evidence of the complainant’s preparedness to engage in sexual intercourse with her boyfriend at the function is substantially supportive of the appellant’s account that it was the complainant rather than the appellant who had moved her clothing to prepare her for sexual intercourse with (as she believed) her boyfriend.

[9]      So  the  factual  issue  is  whether  the  Crown  can  establish  that  it  was  the appellant rather than the complainant who moved her clothing.

The judgments of the District Court

[10]     In his successive decisions Judge Moore considered that cross-examination of the complainant on her sexual relationship with her boyfriend could do no more than embarrass and demean her in breach of the policy underlying the rape shield provision.

[11]     In his judgment Judge Lance QC cited the reasoning of this Court in R v Pio CA25/01  24 May 2001  where  defence  counsel  had  sought  to  cross-examine  the complainant and another witness in relation to consensual activity occurring two to three hours after the alleged rape.  The defence advanced was that the complainant wished to develop a relationship with a third party and believed that her previous sexual relations earlier in the evening with the appellant might stand in the way and so alleged rape.  This Court stated:

…there was no reason why the complainant could not have been asked whether she was interested in developing such a relationship without having to refer to the sexual activity which took place between her and T.  While accepting that evidence of that sexual activity would possibly strengthen the force of the question, it was not necessary to include it… We do not see that in respect of this possible defence, the sexual activity with T was of such direct relevance to the facts in issue that to exclude it would be contrary to justice, or more importantly that its exclusion resulted in a miscarriage of justice.

[12]     Judge Lance considered that the position is similar in this case.  He reasoned that  it  is  not  the  sexual  conduct  before  and  after  the  incident  between  the

complainant  and  the  accused  that  is  relevant  but  the  nature  of  the  relationship between the complainant and the boyfriend and, as in Pio, while it might give more force to the defence theory to allow specific cross-examination, to do so would breach the underlying policy and the strict threshold test of s 23A.

Discussion

[13]     The  argument   in   this   Court   was   more   tightly   focused   than   in   the District Court  upon  the  alleged  actus reus  of  movement  of  the  complainant’s clothing.  While s 23A must be given due effect in the manner stated by this Court in R v Uiti [1983] NZLR 532; R v McClintock [1986] 2 NZLR 99 and R v Duncan [1992] 1 NZLR 528 the Court must exercise discretion in favour of leave where the conditions of subs (3) are satisfied. Failure to do so will risk breach of the absolute right to a fair hearing confirmed by s 25(a) of New Zealand Bill of Rights Act 1990: see R v A (No. 2) [2002] 1 AC 45.

[14]     On the core issue of who moved the clothing the evidence of the witness to whom the complainant spoke is supportive of the defence theory: that it was the complainant who had lifted her dress and moved her underwear in preparation for a sexual encounter, albeit with her boyfriend rather than with the appellant; and accordingly the alleged actus reus of shifting the clothing was not performed by the appellant and an essential element of the count is not established.

[15]     The evidence of the complainant’s sexual relations with her boyfriend earlier in the evening in the environs of the same social function is closely linked with her moving her leg to facilitate sexual intercourse.   Each is of direct relevance to the factual issue in the case - who moved the complainant’s clothing.  We are satisfied that  to  exclude  questioning  to  establish  the  fact  of  such  intercourse  with  the boyfriend would deprive the appellant of evidence potentially vital to that issue and would, in terms of the statutory formula, be contrary to the interests of justice. We are of a different opinion about the intercourse the following day which, as Mr Fairley conceded at the hearing, could not be of any relevance.

[16]     We accordingly allow the  appeal.   The appellant is  granted leave at the forthcoming trial to cross-examine the complainant as to her having had sexual intercourse  with  her  boyfriend  at  the   social   function   at   about   8.00pm   on

21 April 2004.

Solicitors:

Thomson Wilson, Whangarei for Appellant

Crown Law Office, Wellington