R v Maru

[2007] NZCA 275

NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

JUDGMENT AND REASONS THEREFOR NOT TO BE PUBLISHED IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

CA72/07 [2007] NZCA 275

THE QUEEN

v

MIKAERA TE AROHA MARU

Hearing:         13 June 2007

Court:            Ellen France, Ronald Young  and Keane JJ Counsel:   J G Rowan QC and R D Waitai for Appellant

M D Downs for Crown

Judgment:      4 July 2007         at 10 am

JUDGMENT OF THE COURT

A        Appeal  against  admissibility  of  evidence  of  Ms  H,  Ms  B  and  Ms  M

dismissed.

B        Appeal against admissibility of evidence of Ms T is allowed.

R V MARU CA CA72/07  4 July 2007

CThe judgment and reasons therefor not to be published in news media or on   the   internet   or   other   publicly   accessible   database   until   final disposition of trial.  Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]      The appellant faces trial on sexual violation by rape and indecent assault charges with respect to the same complainant.  This appeal challenges a decision of Judge Clapham to admit, as similar fact, the evidence of four other women.   The essence of the appellant’s case is that a consideration of the evidence of the four women and the facts of this case do not reveal “an underlying unity” sufficient for the probative value of the evidence to outweigh the prejudice to the appellant and that admission of the evidence in the circumstances of this case would be unfair and an abuse of process.

Factual background of alleged offending

[2]      At the time of these events, 6 October 2005, the appellant was 45 years of age and the complainant 18 years.  The complainant had recently arrived in Wanganui and on the evening of 6 October she had been drinking with friends of her father (Johnny Te Awhe and Penny Richards) at their place.  Over the course of the late afternoon and early evening several others arrived at the house.   After dark the complainant, Ms Richards and two other men, went for a drive to buy more alcohol. They were stopped by the police.  The complainant then began to walk back to the house when she was picked up in a car by Mr Johnny Te Awhe and another man to whom she was introduced (the appellant).  All three then went to the Police Station and waited for Ms Richards to be released.

[3]      While waiting the complainant asked the appellant to take her to the public toilets.   He drove her around Wanganui and out to Castlecliff stopping at various houses without going inside.  Eventually the appellant went to a money machine and then he and the complainant returned to the Police Station without stopping at any toilet.  Initially, the complainant was in the back seat of the appellant’s car but later was seen in the front seat wearing the appellant’s jacket.

[4]      Eventually Ms Richards was released from the Police Station and they all returned to the house.  At the house the appellant said he needed to get some money he owed Johnny.   He asked the complainant to come outside and eventually convinced her to go for a ride with him in the car to a money machine.   The complainant said that he assured her it would only take a few minutes.  The appellant and complainant drove around the Castlecliff area but were unable to find such a machine.  Eventually they ended up near the beach.   It was between 1.00 a.m. and

2.00 a.m.  The appellant parked the car on a dirt road near the sea.  The appellant tried to touch the complainant’s shoulder but she immediately rejected him. Eventually the appellant grabbed the complainant, threatened her with violence and sexually assaulted and raped her in the back seat of the car.   During the rape the complainant said the appellant had remarked, “You like it, you like it”.   The complainant said because she was afraid of what the appellant would do she tried to placate him and apologised for how she had acted earlier in the evening.  Afterwards he dropped her off at the house insisting, on departing, she kiss him on the lips.

[5]      After release the complainant immediately complained of the rape and the next morning was taken to the police and medically examined.  The appellant was interviewed by the police and denied any sexual activity with the complainant.  ESR evidence revealed the presence of DNA from the complainant’s vaginal swabs as being 30,000 million times more likely as having come from the appellant than any other male in New Zealand.  Counsel for the appellant advised that there is now no issue that intercourse between the appellant and complainant occurred.  The defence case is consent or reasonable grounds for belief in consent.

Evidence sought to be admitted

[6]      Before turning to the proposed evidence of the similar fact witnesses, there is an unusual feature in this case involving a previous similar fact judgment of this Court relating to the same appellant and some of the proposed similar fact witnesses in this case: R v Maru CA130/03 10 July 2003.   In that case this Court was also considering an appeal from a pre-trial ruling allowing the evidence of three women to be admitted as similar fact evidence.  The Crown had sought to call a fourth such witness, however, this evidence was rejected by the District Court Judge and was not the subject of any appeal.  The appellant was, in that case, charged with a variety of sexual offences, including rape, of a relative.  This Court concluded that two of the three proposed similar fact witnesses, whose evidence the District Court Judge had accepted was admissible, could give evidence.  In fact, the two similar fact witnesses did not give evidence at the trial.   Mr Maru was acquitted at trial of the charges relating to his relative.

[7] The four similar fact witnesses in this case are the same three whose evidence was considered in this Court at the previous appeal and the appellant’s relative - the complainant mentioned in [6].

[8]      Turning now therefore to the proposed similar fact witnesses.   The events which involved the appellant and Ms H occurred in 1991 and a useful summary is contained in this Court’s previous judgment as follows:

[10]      Ms H is to give evidence of events in March 1991 when she was

25 years and the appellant 30 years of age.   As she was leaving a night club in Auckland on foot the appellant spoke to her.   She could not escape from

his attentions.     She attempted to dissuade the appellant by self inflicting a cut to her forearm.    The appellant said he would take Ms H to a hospital for

treatment.   She declined that offer and gripped a lamp post in resistance to the appellant’s efforts to put her in his car.  She failed, and was in due course driven to an isolated area.  There she was forced into the back seat.  After

some preliminary sexual advances it is alleged she was raped.    Following that act the appellant kissed Ms H and she invited him to her home for

breakfast.   However, the invitation was not genuine.   When the appellant stopped at a petrol station Ms H escaped and made a complaint to the police.
After a third trial the appellant was convicted of rape, but the conviction was overturned on appeal.  A further trial did not eventuate.

[9]      And for complainant Ms B, a description of the alleged facts was contained in this Court’s previous judgment as follows:

[11]      In March 1994 Ms B, aged 16 years, attended a party with her mother, who at that time was in a relationship with the appellant (then aged

33 years).  Following a disagreement between the appellant and the mother

the latter left the party.  Subsequently, the appellant offered to drive Ms B home.   In fact she was taken to an isolated coastal location.   He forcibly kissed her.     She was ordered into the rear of the vehicle and raped.  The appellant then drove Ms B to his brother’s home, called a taxi and gave her

$30 for the fare.  After three inconclusive trials a stay of proceedings was filed.

[10]     As to the complainant Ms T, she was aged 17 years and hitchhiking with her boyfriend in May 1994 when they were picked up by the appellant and another man in their truck.  When the vehicle ran out of petrol Ms T’s boyfriend and the other man went to try and get petrol.   The appellant then made attempts at consensual sexual contact with the complainant but was rebuffed by her.   The appellant then forcibly raped the complainant on a mattress on the back of the truck.  During the rape the accused repeatedly said to the complainant, “Do you like it, do you like it”. The appellant told the complainant to keep quiet or her boyfriend  would be in danger.

[11]     Eventually her boyfriend and the other man arrived back with the petrol and they travelled to a house in Manukau Heights, Auckland.  There they slept the night. The next day the complainant’s boyfriend left with the other man.  The other man returned to the house without the complainant’s boyfriend.  The appellant agreed to take the complainant to her boyfriend.   He did not do so but drove her to another address where that evening he raped her.  The appellant showed the complainant a firearm and said he would use it if “anyone tried to stuff him around”.   Further promises were made to take the complainant to her boyfriend, however the complainant was driven to Turangi by the appellant who then raped her again.  The appellant was convicted after a second trial.

[12]     As to the complainant Ms M, we adopt this Court’s summary of the facts from the earlier judgment as follows:

[2]       The sexual allegations which form the basis for the first three counts in the indictment concern events alleged to have occurred on 1 April 2002.

The complainant is a solo mother, aged 21 years, and is a [relative] of the appellant.      During Easter weekend 2002 she moved house.      She was assisted  by  relatives,  including  the  accused.      He  stayed  at  her  house overnight because he claimed to have no furniture at his own address.   On the morning of 1 April it is alleged that the appellant indecently assaulted the complainant whilst she was in bed.      The assault consisted of intimate touching beneath nightclothes.

[3]       Later  that  day  the  complainant  and  the  appellant  left  the  house travelling alone in the complainant’s car.   She understood that the purpose of the trip  was to  drop the appellant  off  at  his  place  since  she  had  made arrangements to go away with some others.   The appellant drove.    He went to a park and asked the complainant to take a walk with him.     Adjacent to some toilets the appellant kissed the complainant, despite her objections. He then removed the complainant to a cubicle within the men’s toilet area. There the alleged  acts of  digital  penetration  and rape  occurred.       The complainant was then told to clean herself up.   The appellant walked her back to the car arm in arm as if nothing untoward had occurred.    Despite appearances the appellant asked the complainant as they proceeded whether she was going to “nark” on him, and whether she was going to be “a bitch or not”.

[13]     The appellant was acquitted by a jury.

Judgment appealed from

[14]     The Judge concluded that given the previous District Court and Court of Appeal judgments dealing with the evidence of Ms H and Ms B their evidence should be admitted as similar fact in this case.  As to the evidence of Ms T the Judge recognised that although the District Court Judge had allowed this evidence to be given as similar fact the Court of Appeal had not.   The Judge said, applying the factors identified by the Court of Appeal as relevant to the underlying pattern said to have been established, the following factors convinced him that the evidence of Ms T was admissible as similar fact (at [11]):

a)        Identifying and obtaining their company. b)        The source of travel.

c)        The control as to where and when such travel occurred.

d)The destination, unknown to the complainant and known only to the accused.

e)        The manner of the alleged indecencies and violation.

f)        Control and dominance of the complainant is the central feature.

Accordingly  the  evidence  of  [T]  is  admissible  as  similar  fact evidence.

[15]     As to Ms M the Judge was also satisfied the “central features of the accused’s alleged conduct” were present in this allegation and her evidence should be admitted as similar fact.

Submissions

[16]     The appellant submits that the facts in this case are distinctly different than the allegations of the other  women  and  there  is  no  pattern  or underlying unity revealed between this offending and the other four events.   The appellant submits there is particular need for caution in this case because of the previous decision of this Court.  This is especially so, counsel argues, because any similar fact evidence in this case is likely to tip the balance against the appellant at trial.  The appellant submits that in some of the cases the complainants are strangers to the appellant and in others they were known to him.   He points to the fact that in this case the complainant willingly remained with the appellant outside the Police Station.  The fact that in some cases the appellant is alleged to have raped the complainant in the back of the car was said by counsel for the appellant to be more of a question of vehicle architecture than part of any underlying pattern.  Counsel also points out that in some cases express threats are said to have been made but in others none are alleged.

[17]     As to the complainant T the appellant submits that the underlying pattern is not present.  In particular, counsel points to the presence of an implicit threat from a firearm said to be in the appellant’s possession; that the first rape did not involve taking the complainant to any isolated area; and that there were a number of further alleged rapes involving actual violence in various houses making this case clearly dissimilar.

[18]     The respondent says the underlying unity or pattern which can be seen in all the four situations in varying degrees is:

(a)      the use of a motor vehicle and subterfuge;

(b)self-assuredness and apparent absence of concern about the possibility of complaint;

(c)      opportunism;

(d)      implicit threat of violence and control; and

(e)      age of the victim.

Discussion – Similar fact

[19]     We make four general observations.  We have been advised by counsel for the appellant the only issue for the jury in this case will be whether the Crown can establish there was no consent or no belief in consent based on reasonable grounds. Secondly, in three of the cases the appellant was either acquitted or had the charges stayed or the conviction quashed.  This, however, is not by itself an impediment to calling the evidence as similar fact: R v Degnan [2001] 1 NZLR 280 (CA). We will return to this aspect later in the judgment.

[20]     This Court has regularly observed in such cases that identifying differences between sets of facts may not be helpful unless those differences significantly reduce the likelihood that an overall pattern exists: R v Dudley CA106/04 4 August 2004; R v Wilson  CA317/05  5 December  2005.     As  this  Court  said  in  R v Conroy CA443/05 23 February 2006:

[14]     It has been said often that the focus of the analysis in cases such as this  needs  to  be  on  the  similarities  rather  than  the  dissimilarities.    We endorse that comment.  In the present case the Court must consider all the similarities and dissimilarities to determine whether, taken in the round, the features of the past conduct of the accused person are of sufficient similarity to the conduct alleged in the present case to be probative of guilt in the present case.  . . . It is the combination of factors that is important, rather than the degree of similarity and distinctiveness of each individual factor.

[21]     The appellant is to be tried in August 2007.  We have decided the case on the existing law given that the Evidence Act 2006 is not yet in force and the submissions dealt with the matter on the basis of the current law.

[22]     We consider, firstly, whether any of the evidence of the four complainants qualifies as similar fact evidence.   For reasons to be given, we are satisfied the evidence of Ms B, Ms H and Ms M does qualify as similar fact evidence.  We then consider whether there is sufficient illegitimate prejudice to the appellant in this evidence such that it would be unfair or an abuse of process to allow its admission.

[23]     The significant aspects of the complainant’s evidence in this case as it relates to similar fact evidence are:

(a)The deception involved in getting the complainant into the appellant’s car.

(b)       Driving the complainant to an isolated area. (c)          The attempt at consensual sexual contact.

(d)      Threats of violence when faced with rejection by the complainant. (e)          Rape and sexual assault in the back seat of the car.

(f)       During the rape a statement by the accused, “You like it”.

(g)Returning the complainant to the house and kissing her when she left the car.

Ms H

[24]     As to Ms H’s allegations the appellant forcibly pushed the complainant into his car but then untruthfully offered to take her to hospital; he drove her to an

isolated place; there was an attempt at consensual sexual contact; she was then forced into the back seat of the car and raped.

[25]     Given  the  obvious  factual  similarities,  in  our  view,  there  was  a  clear underlying pattern between the allegations in this case and Ms H’s allegations such that the Judge was correct to admit Ms H’s evidence as similar fact evidence.

Ms B

[26]     As to Ms B, the appellant convinced the complainant to get into his car based on a deception; the appellant took the complainant to an isolated area; the appellant attempted consensual sexual contact; when rejected the appellant ordered the complainant into the rear seat of the car where he raped her; he asked her “did you enjoy it?”.   The appellant then drove the complainant to his brother’s home and called a taxi for her.

[27]     Again  we  consider  the  obvious  factual  similarities  speak  for  themselves. There is, in our view, a clear underlying pattern when comparing the facts of this case with Ms B’s case such that the evidence qualifies as similar fact evidence.

Ms T

[28]     As to Ms T’s evidence, while there are a number of similar features to the current case the facts alleged by Ms T contain a number of quite different features which distinguish it from the others.  The circumstances of the first rape of Ms T had some similar features including the rape occurring in the back of a truck, and the use of the words, “Do you like it” during the course of the rape.  The following rapes also had a common feature with the other complaints in that they involved the appellant deceiving the complainant into believing she was being taken to see her boyfriend when she was taken to another house where the rapes occurred.

[29]     We are not satisfied in this case there are sufficiently similar underlying features such that Ms T’s evidence should be considered similar fact.  While some

features  are  in  common  with  the  pattern  we  have  identified,  we  consider  the incidents involving Ms T are essentially quite different.   Ms T’s case involved a number of rapes over several days in the back of a truck and in several houses.  The complainant remained with the appellant for several days when these rapes occurred. The appellant apparently had possession of a firearm which at least implicitly he used to threaten the complainant.   We acknowledge the Crown’s offer not to lead evidence about the presence of the firearm should Ms T’s evidence be admitted otherwise.  However, we consider the probability that the appellant’s possession of the pistol will be revealed in evidence if, as seems likely, the complainant’s decision to stay at the various houses with the appellant is challenged.  This evidence, should it be given before a jury, would be unfairly damaging to the appellant.  While not determinative, Ms T’s case does involve a relatively complex set of facts much of which, if admitted will, we have been advised, be disputed by the appellant.  There is a risk that the jury could be side-tracked by an extensive evidential dispute.   In summary, therefore, we do not consider the underlying pattern is present in this case and  in  addition  we  see  potential  illegitimate  prejudice  to  the  appellant  in  any reference to the possession of a firearm and difficulties arising with the complex facts.  Ms T’s evidence should not be admitted as similar fact.

Ms M

[30]     As  to  Ms  M  the  rape  occurred  when  the  appellant,  who  drove  the complainant’s car, was to be dropped off at his place.   He did not drive to his residence but stopped at a park.  There he attempted consensual sexual contact with the complainant and when rebuffed raped her in a toilet in a public park.   The appellant then walked back to the car arm in arm with the complainant.  While there are some differences between the alleged facts of this case and Ms M’s case these do not in  our  view  detract  from  the  overall  pattern.    The  similarities  in  our  view illustrate the underlying pattern.  The appellant was able to get the complainant away from her house and into a car by deceit.  The appellant took the complainant to an isolated area where there was an attempt at consensual sexual contact.   When the complainant  rejected  the  appellant  there  was  a  forcible  rape.    Afterwards  the appellant tried to create an impression of closeness with the complainant.

[31]     We acknowledge that in this case there was an earlier indecent assault the night before and the rape was in a toilet and not the rear seat of a car.   These differences do not, however, influence our view of the presence of an overall pattern. We are satisfied this evidence is properly identified as similar fact evidence.

Illegitimate prejudice/unfairness/abuse of process

[32]     We have concern in this case about the historic nature of the similar fact evidence of Ms H and Ms B together with the fact these trials involved charges which were either stayed or overturned on appeal after multiple trials.

[33]     These concerns relate only to the complainants Ms H and Ms B.  As to Ms M this rape was alleged to have occurred in 2002.   There was only one trial which resulted in the appellant’s acquittal.  As we have observed, that is not by itself an impediment to the evidence being given: Degnan.   The twin concerns of multiple trials and the historic nature of the complaints as present in Ms H’s and Ms B’s complaints are not present in Ms M’s complaint.  Counsel for the appellant did not identify any particular illegitimate prejudice, unfairness or abuse of process relevant to Ms M’s evidence.  We agree with the Judge that the probative value of Ms M’s evidence outweighs any illegitimate prejudicial effect and the evidence of Ms M should therefore be admitted as similar fact evidence.

[34]     To return to the evidence of Ms H and Ms B and the fact that their complaints are historic in nature and that the appellant has already faced three trials with respect to each complainant.   Such matters of concern can be dealt with either when considering whether there is any illegitimate prejudice to an accused which may occur if the evidence is admitted: R v Kingi CA66/06 21 March 2006 at [35] or it may be seen as part of the exercise of a residual discretion which considers whether any unfairness or abuse of process has arisen sufficient to tip the balance in favour of rejecting the evidence: R v Maru CA130/03 10 July 2003.

[35]     We turn, firstly, therefore, to the question of multiple trials and the ultimate acquittals of the appellant  with  respect  to  both  Ms  B  and  Ms  H.    The overall

approach to similar fact evidence where that evidence has resulted in an acquittal, disagreement or stay was described by Tipping J in Degnan at [33] in this way:

If it were not so the unedifying spectacle might arise of a succession of acquittals based on individual allegations which, viewed in isolation, left room for doubt, but which, when viewed as part of a pattern, each drawing support from the others, might lead irresistibly to a conclusion of guilt. The accused has the benefit of the earlier acquittal or acquittals in that he can never again be tried for the offences involved. But he should not have the further benefit of being immunised from the relevant evidence when facing a similar charge in the future. This is an issue on which the law must strike a balance between the interests of those previously acquitted and the interests of society in having all relevant evidence before the Court when someone is prosecuted for a crime. In this field that balance generally comes down in favour of the interests of society. But there must always be a reserve power to exclude the evidence, if in the particular circumstances it would not be fair to the accused to admit it.

[36]     When Maru was previously argued in this Court, the historic nature of the complaints of Ms B or Ms H and the fact that the appellant had been tried on three occasions with respect to each complainant before his acquittal or stay were not argued or apparently considered by this Court.

[37]     As to the historic nature of similar fact evidence, where this significantly impedes the ability of an accused to impeach a witness then this will be relevant to whether a trial can be fair if the evidence is admitted.   In R v King CA295/02

18 November 2002 this Court in considering historic offending and loss of relevant information said at [55]:

The significance of their evidence against the appellant will depend (at least in part) on the view the jury takes as to the accuracy of their evidence.  The Judge, in his conclusion that the relevant counts ought to be stayed, has held that his ability to impeach their evidence has possibly been compromised by the loss of the Police file.  This possible loss of ability to impeach evidence is also relevant to the similar fact arguments which the Crown wishes to run.

[38]     To return to the facts of this case.  Ms H’s complaint was of rape in 1991. The appellant had three trials.  His conviction on the third trial was overturned on appeal and no further trial eventuated.  Ms B’s complaint was of rape in 1994.  The proceedings were stayed after three inconclusive trials.   We do not know what information relating to these six trials is now available.  Copies of Ms H and Ms B’s original statements made to the police are still available.

[39]     The historic nature of the complaints (now 16 and 13 years ago) by itself does not in our view result in unfairness to the appellant.  To establish unfairness the appellant would need to be able to point to particular circumstances which might give rise to unfairness.  For example loss of police files or Court trial files which may prejudice the appellant’s ability to challenge the reliability of the complainant’s evidence.  In this case no specific prejudice has been identified.  After such a time no doubt memories of events will have dimmed.  This, however, can be dealt with by a jury reminder that they will themselves need to be satisfied about what happened in

1991 and 1994 and that these events are, as the Crown claims, sufficiently similar to the alleged events to be legitimately used by them.

[40]     We  accept  that  there  is  some  illegitimate  prejudice  or  unfairness  to  the appellant in requiring him for a fourth time to answer the complaints of Ms H and Ms B.  On the other hand if the evidence is admitted and is reliable and credible then together with Ms M’s evidence it will be highly relevant to the trial issue of consent and reasonable belief in consent.  As Tipping J observed in Degnan this is a question of balancing “the interests of those previously acquitted” with the community’s interest in the jury having all relevant evidence when it considers its verdict.

[41]     We are satisfied the balance in this case lies in favour of the admission of this evidence.   No specific prejudice or unfairness to the appellant has been identified beyond that inherent in the historic complaints and multiple trials.  The jury will be able to assess whether the evidence relating to the historic complaints is reliable. While there is some prejudice inherent in having to face an allegation for the fourth time the appellant has enjoyed the advantage of an acquittal or a stay with respect to Ms H and Ms B’s complaints.   We are therefore satisfied that the Judge correctly admitted the evidence of Ms H and Ms B as similar fact evidence together with, for reasons given, the evidence of Ms M.

Judge’s directions

[42]     At the end of his judgment Judge Clapham provided to counsel “suggested directions” he proposed to give to the jury regarding the similar fact evidence in this

case.   Counsel for the appellant had a number of criticisms of these suggested directions and invited us to give the Judge guidance.   Given our ruling as to the admissibility of Ms T’s evidence these directions will require some reconsideration. This will also provide an opportunity for counsel for the Crown and defence to provide comment to the Judge on the suggested directions.

Result

[43]     The appeal is therefore allowed with respect to the evidence of Ms T.  Her evidence is not admissible as similar fact.  The appeal is dismissed with respect to the evidence of Ms H, Ms B and Ms M whose evidence is admissible as similar fact.

Solicitors:

Crown Law Office, Wellington