R v M Ca9/02

[2002] NZCA 365

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985

ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT UNTIL TRIAL

CA9/02

IN THE COURT OF APPEAL OF NEW ZEALAND

THE QUEEN

V

S D L M

Hearing:  18 February 2002

Coram:  Anderson J

Williams J Baragwanath J

Appearances:  N M Crutchley for the Appellant D D Rishworth for the Respondent

Judgment:  27 February 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Issues

[1]        In an oral judgment delivered on 12 December 2001, a District Court declined an application by the Crown under the Crimes Act 1961 s 344A to permit the Crown to call evidence from one JH as similar fact evidence at Mr M’s forthcoming trial. The Crown now seeks leave to appeal against that ruling.

[2]        Mr M currently faces three counts of indecent assault on one HM and a further count of sexual violation by unlawful sexual connection on the same complainant, that count being alternative to one of the indecent assaults.  However, as a result of discussions between the Bench and Ms Crutchley for the Crown during the hearing, as the Court understood it, depending on the outcome of this appeal, the Gisborne Crown Solicitor may apply for leave to amend the indictment by deleting the sexual violation count and providing particulars of the alternative indecent assault count, similar to those of the sexual violation, namely alleged penile manipulation of HM’s anus without allegations of penetration.

Facts

[3]        The offences relating to HM are alleged to have occurred in April-May 2001 when she was 6 years of age. In an interview videotaped on 3 May 2001 she alleged that in the evening a few days beforehand the accused, who was about 20 years of age and is her half-brother being a child of her father by another relationship, came to the address where she lived. She said she was sleeping in a bed in the lounge and was awakened by the accused who was drunk. He took “his diddle out of his pants and put my hand on it and made me shake it”, an assertion she repeated with some minor variations on several occasions. She also said that he had “hopped on me slowly” and that she could “feel his diddle … on my middle”. Those statements form the basis for two of the indecent assault counts.

[4]        She also claimed that the accused “put his diddle on my bum”, an assertion which was amplified by saying that the accused had put his hands “on” her bum or that his diddle was “in” or “inside” her bum. That assertion is the basis of the current sexual violation count and the alternative indecent assault charge.

[5]        This complaint was made to the Police on 2 May 2001 and after completion of the videotaped interview with her the Police  spoke  to  Mr M  on  29  May 2001. He suggested that drunkenness was the cause of his actions in relation to her, a statement he apparently repeated on a videotaped interview, though the transcript of that interview was not before the Court.

[6]        The evidence which the Crown sought to have admitted as similar fact evidence came from one JH, who is a younger sister of a former partner of HM’s father.                   She lives in Gisborne but at a different address from HM. She said that when she was visiting HM’s address on 8 February 2000, she went to sleep on a couch in the lounge but awoke about 11:00pm because she could “feel a hand on my stomach underneath the blankets but on the outside of my clothing”. She said that the assailant “touched me around my vagina area, was trying to put his hands in my pants” and that he “actually had one hand inside my shorts and his fingers just inside the  elastic  of my underwear”.          When she resisted the activity and sat up she identified Mr M as the assailant, he being known to her. According  to  her evidence the accused had been drinking. She complained immediately to her sister. When the accused was interviewed by the Police the following day he claimed to be unable to remember the incident because of intoxication.                   He was charged with indecent assault on JH and pleaded guilty.

[7]Mr M’s trial on the counts relating to HM has a fixture to commence in

the Gisborne District Court on 4 March 2002.     Mr Rishworth advised that his current instructions are that all defences available to Mr M are to be taken.

Law

[8]        The principles governing the admission of alleged similar facts are settled, even though their manner of expression may vary. The inherent prejudice of evidence tending to show wrongdoing on occasions other than that under particular consideration mandates a test of admissibility with reference to countervailing cogency. As this Court remarked in R v Accused (CA 247/91) [1992] 2 NZLR 187, 191-192:

While the description “similar facts” and the associated one “strikingly similar” have been used in New Zealand in the past, largely in deference to English authority, and will no doubt continue to be used as convenient labels, the real question is always whether, as a matter of common sense, the evidence is sufficiently supportive of the prosecution case to justify allowing it to go to the jury notwithstanding any illegitimate prejudicial effect that it might have.

[9]        What will be logically probative will depend on the circumstances. As this Court observed in R v Accused (CA 461/97) (1998) 15 CRNZ 674, 680-681:

There can be circumstances where evidence of past conduct can strengthen an inference that the accused has repeated that conduct but there must be some significant additional feature which lifts the evidence above showing only bad character or disposition to offend generally. That will be where some special characteristic or pattern emerges from the evidence, or where there is some underlying unity between the separate events. In those circumstances evidence of the presence of the characteristic or pattern on separate occasions may increase the likelihood that they are linked. …

[10]      Similar fact evidence may be relevant to issue of identity, the state of mind of an accused and to fabrication, collusion or mistake on the part of a complainant or complainants, or any other issue which may logically be proved by reference to the particular evidence. The significance of the issue and the cogency of the similar evidence will need to be considered in the light of the prejudicial qualities of that evidence.

[11]      In R v Sanders [2001] 1 NZLR 257, 260, 261, paras 17, 19 this Court also emphasised the need for the evidence to show a “similarity in the detail of each [complainant] which goes beyond the commonplace” and for juries to be directed to consider each charge and the evidence on it separately.

Decision under appeal

[12]      The Judge correctly summarised HM’s evidence. He noted that the similarities of a sleeping complainant, the same house and the same time of day are matters also found in the complaint by JH.

[13]      After referring to authority, the Judge posed the test as to whether there was “an underlying unity” or a “distinctive similarity” in the common elements or a “mere predilection for indecent assault”. The dissimilarities which he found persuasive were the differences in age and physical conduct though he held that those differences may be accounted for by age. However, a matter which he finally found compelling, or “unavoidably significant” in his words, were that HM’s

evidence-in-chief would be given by videotaped interview while that from JH “would come not only from a much older, and presumably more able to relate clearly and distinctly her story, complainant” but other supporting witnesses. That led him to conclude that the evidence concerning the February 2000 incident might tend to “overwhelm” the evidence relating to the May 2001 to Mr M’s prejudice.

Discussion and Decision

[14]Applying the authorities to this case, two preliminary points require noting.

[15]      The first is that the Crown’s intention to seek leave to amend the indictment attenuates the prejudice inherent in similar fact evidence by obviating the risk of a jury thinking that because the appellant may have indecently handled the complainant he must therefore have been likely to penetrate her anus with his penis.

[16]      The second matter to be noted is that Mr Rishworth’s current instructions are that all defences are to be taken. Whilst, in the family circumstances, he accepted that identity may not be a strong defence, given the ages of the complainant and the fact that the complaint by HM was some 15 months later than that by JH, the defences of fabrication, mistake or collusion may be open.

[17]      All those issues bear on the discretion to be exercised in relation to the similar fact question.

[18]      The identification of “similar facts” will always depend on the level of abstraction with which material for consideration is viewed and on perceptions of the nature or quality of the facts with reference to issues. The test of admissibility requires satisfaction not only of the test of relevance to issues in the case that all evidence must meet, but of a further test – of being so material that justice requires its admission notwithstanding its tendency to show that the accused has committed other offending and the consequential risk of prejudice against him.

[19]      Dissimilarities may also require such  scrutiny.  In  that  regard  we  note Mr Rishworth’s submission that there are major dissimilarities in the case in respect

of the different ages of the two complainants and the evidence by JH being of actions done to her by the accused whilst HM deposes to actions which she was induced to perform upon the accused.

[20]      The proposed evidence discloses material similarities which need to be examined in terms of relevance. The similarities are:

·    Each alleged offence occurred at night when other members of the household were sleeping.

·    The sleeping arrangement for each complainant was in the lounge.

·    Each was woken up, indicating an opportunistic molestation of a sleeping child away from the rest of the family.

·    Each child testifies that the accused had been drinking at the time of the particular incident.

[21]      The significance of these similarities lies in their relevance to what must be a central issue in the trial, the credit of the complainant. Each girl can testify to being sexually molested by the accused in the circumstances of similarity referred to above. Plainly the disputed evidence is admissible as relevant to the credit of the complainant on the issue whether she was sexually molested by the accused in the circumstances she refers to. The accused may raise issues of mistake, dreaming, conscious or unconscious fabrication, or even identity. The availability of each of these potential defences reinforces the appellant’s claim that the evidence is admissible because the similarities are of such a nature that it is highly unlikely that they are merely coincidental. When materiality and relevance is viewed in this way the exact particulars of who did what to whom in the course of the molestation is largely incidental rather than relevant.

[22]      Nor, with respect to the Judge, can we accept that the greater cogency of JH’s evidence compared with that of the complainant is an appropriate reason for excluding the contested evidence. It is indeed an indication for, not against, admission. Probative cogency is a justification for admitting relevant evidence which is potentially, otherwise inappropriately, prejudicial.

[23]      It goes without saying that any pre-trial ruling on admissibility is amenable to reconsideration if matters arise, including in the course of trial, which make it just to review the matter. Testimony at trial may differ from a brief or the conduct of a trial may result in a redefinition or exclusion of anticipated issues. The trial Judge in this case will no doubt be mindful of such considerations.

[24]      For these reasons we find that the disputed evidence is admissible, grant leave, and allow the appeal accordingly.

Solicitors

Crown Law, Wellington for Appellant

Rishworth Wall & Mathieson, Gisborne for Respondent