R v M (CA292/05)

In the New Zealand Court of Appeal, the appellant was appealing a decision made by Judge Lance QC in the District Court at Whangarei. The appellant had been indicted for indecent assault on a female under section 135(1)(a) of the Crimes Act 1961. The case arose from an incident on 22 April 2004, where the complainant, who had been drinking at a wedding reception, was found asleep in a car outside the venue. The Crown alleged that the appellant had gone to the vehicle knowing 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 defence argued that the complainant had consented to sexual activity and that she must have lifted her dress and adjusted her underwear to allow that to occur. The defence sought leave to cross-examine the complainant on her sexual relationship with her boyfriend at the function to support their case.

The legal issue before the Court was whether the Crown could establish that it was the appellant who moved the complainant's clothing, and whether the defence should be allowed to cross-examine the complainant on her sexual relationship with her boyfriend. The Court held that the evidence of the witness to whom the complainant spoke was supportive of the defence theory, and that the evidence of the complainant's sexual relations with her boyfriend earlier in the evening was closely linked with her moving her leg to facilitate sexual intercourse. The Court was satisfied that to exclude questioning to establish the fact of such intercourse with the boyfriend would deprive the appellant of evidence potentially vital to the issue of who moved the complainant's clothing and would, in terms of the statutory formula, be contrary to the interests of justice.

The Court accordingly allowed the appeal, granting the appellant 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 8.00 pm on 21 April 2004. The Court emphasised that the evidence of the complainant's sexual relations with her boyfriend the following day could not be of any relevance. The Court's decision recognised the importance of giving due effect to the provisions of section 23A of the Evidence Act 1908, while also exercising discretion in favour of leave where the conditions of subsection (3) are satisfied, to ensure a fair hearing for the appellant.