R v Neville CA304/04

[2004] NZCA 394

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA304/04

THE QUEEN

v

MICHAEL WARREN NEVILLE

Hearing:         28 September 2004 Coram:  Hammond J

Wild J France J

Appearances: R B Squire QC for Appellant

A Markham for Crown Judgment:  14 October 2004

JUDGMENT OF THE COURT DELIVERED BY FRANCE J

Introduction

[1]    The appellant appeals against a pre-trial decision of Judge Connell in the District Court at Palmerston North on 11 August 2004. The Judge declined an application by the appellant for severance in relation to four counts of indecent assault. The appellant now accepts that three of the four charges which he faces

R V NEVILLE CA CA304/04 [14 October 2004]

should be tried together. The appeal is limited to the claim that the third count, a single incident of indecent assault involving the complainant (C3), should have been severed from the other three charges.

Background

[2]    The appellant, a school teacher, faces three counts of a representative nature alleging indecent assault on a girl under the age of 12, and one charge of indecent assault relating to a single incident. There are four complainants.

[3]    The charges cover 1999, and then a period from 2001 to 2003. Over that period, at various points in time, the complainants were pupils in the appellant’s class.

[4]    The first charge of indecent assault involving the complainant (C1) alleges that on a number of occasions in the period 1 January 1999 to 31 December 1999 the appellant would feel the complainant, then aged between six and seven years old, touching her bottom and working his way around into her clothing. She says he did this on a regular basis. On one occasion, the complainant says this culminated in the appellant touching her vagina rubbing it up and down. The alleged offending occurred while the complainant was in the classroom and the appellant was testing her spelling.

[5]    The second representative charge of indecent assault relates to the complainant (C2) and is alleged to have occurred over the period 1 January 2001 to 25 August 2003. The complainant was aged around eight to ten at the time. The touching alleged here involved patting the complainant on her bottom and putting a hand on her stomach and chest, all of which occurred on top of her clothes. The alleged assaults occurred in the school grounds and in the classroom when the complainant would take material up to the appellant or seek his help.

[6]    The third count of indecent assault involving the complainant (C3) is said to have occurred in the period 1 January 2002 to 31 December 2002. The complainant, who was then eight or nine years of age, refers to an incident when she was helping

the appellant in a little room, underneath a loft at one end of the classroom. She says that the appellant touched her on her vagina on one occasion underneath her pants. She said that he was rubbing her vagina up and down and that he also gave her cuddles. She said that the appellant apologised for this behaviour the next day.

[7]    The final count of indecent assault involving the complainant (C4) covers assaults alleged to have occurred over 1 January 2001 to 31 December of that year. The complainant (C4), then aged eight or nine, talks of the appellant touching her bottom on top of her clothing on two to four occasions. This occurred in the classroom when she went up to his desk.

[8]    The Crown’s position is that a joint trial is appropriate because the evidence in relation to each count is admissible as similar fact evidence. The Crown says the counts are so related in time, place and circumstance as to provide some scope for joinder on that basis as well.

The pre-trial ruling

[9]    The District Court Judge concluded that the evidence in question was relevant to the issue of whether the offending in fact occurred. The Judge noted that the evidence in this case comes from four girls who attended the same school and were pupils in the appellant’s class at different points in time. The allegations all related to sexual offending against girls of proximate age attending the same school.

[10]   Judge Connell then weighed the probative value of the evidence against its prejudicial effect. The key factors in Judge Connell’s findings were as follows:

(a)The girls were of reasonably similar age (between six to ten years) at the time of the offending.

(b)All of the girls allege offending by a particular teacher while pupils in his class.

(c)All of the girls allege that offending took place in a classroom although one alleges offending in the school grounds and another in the room under the loft at one end of the classroom.

(d)Three of the complainants say that the offending occurred when they were at the appellant’s desk for help with their school work.

(e)All of the complainants allege offending directed below the waist although one also alleges touching on her stomach and chest area.

(f)Two of the complainants allege that the appellant put his hands inside their underwear and touched their genitalia.

[11]   After rejecting any suggestion of collusion, the Judge concluded that the probative value of this evidence outweighed its prejudicial effect.

The grounds of appeal

[12]   The appellant says that the District Court Judge has erred in concluding that the third count involving the complainant (C3) be heard with the other three counts. There is no challenge to the Judge’s conclusion as to relevance. The appellant’s concern is that the “discernible pattern in the detail” of the alleged offending, which is the prerequisite for the admission of evidence on a similar fact basis, is absent. The appellant refers, in particular, to the following extract from R v Sanders [2001] 1 NZLR 257 at para [19]:

“.. Before the evidence of one complainant can be treated as supporting the evidence of another complainant, there must be a similarity in the detail of the evidence of each which goes beyond the commonplace. There must be much more, for example, than the fact that the complainants are both women or girls and have been subject to an assault or assaults commonly found in sexual cases. There must be a discernible pattern in the detail of what each complainant says, which gives their individual accounts such a distinctive similarity as to reinforce what each says ..”

[13]   It is submitted the evidence of the complainant (C3) would comprise mere propensity evidence because there is no such pattern when that count is compared

with the other three. Rather, the third count is quite a separate and distinct incident which stands out from the allegations the subject of the other counts.

[14]   Mr Squire for the appellant identified the following distinguishing features between the third count and the other three counts:

(a)The complainant (C3) relates a one-off instance and no ongoing conduct, in contrast to the evidence of continuing touching from the other complainants. The complainant (C3) does not suggest the cuddling around the stomach, to which she refers, had any sinister overtones and Mr Squire referred to other evidence indicating the appellant was, as he put it, a somewhat tactile person.

(b)The third count alleges touching occurred in the little room under the loft rather than in the open, public, space of the classroom or school playgrounds.

(c)The complainant (C3) refers to touching in the genital area.

[15]   In support of this submission, the appellant submits that the matters the Crown relies on as evidence of a pattern, such as the teacher-pupil relationship and the school location, are simply matters of setting.

[16]   It is further submitted that this evidence is inherently prejudicial in supporting the theme that the appellant has a proclivity to assault sexually young girls in his class. This is seen as important given the appellant acknowledges that he may have patted two of the complainants on their bottoms as he did with others, as a sign of encouragement, but not with any intention to commit an indecent assault and where he denies the other allegations.

[17]   Finally, on the alternative basis for proceeding with a joint trial, the appellant argues that there is in fact a strong case for separating out this third count. The appellant ought to be able to defend himself on that charge and the jury not to be influenced by this other evidence.

Submissions for the respondent

[18]   The principal submission for the Crown is that there is no realistic basis on which the third count can be distinguished from the other three. It is submitted that, contrary to the authorities such as R v T (CA393/98, 30 March 1999, Thomas J), the appellant has focussed on the differences and has ignored the compelling and obvious similarities. Matters such as the teacher-pupil relationship and the location of  the  alleged  offending  cannot  be  treated  as  matters  of  setting.    Indeed,     Ms Markham for the Crown submitted the counts are so similar that any differences, although insignificant, stand out.

[19]   In terms of count 3 involving the complainant (C3), Ms Markham points out that the evidence is that this took place in the context of physical interaction on a regular basis. The complainant’s reference to cuddles, although not the subject of any charges, accordingly links this count with that of the other charges. Next, it is submitted there is the same general pattern involving the development of a close relationship and regular physical touching whether sinister or otherwise. In terms of the more invasive nature of the alleged touching referred to by the third complainant, Ms Markham notes that the first complainant (C1) refers to almost identical touching.

Decision

[20]   Before evidence may be admitted on a similar fact basis, the evidence must have a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

[21]   The appellant accepts that three of the counts should be tried together. We  are satisfied this is a case in which these three incidents are sufficiently probative in relation to the other count, and vice versa, to justify joint trials and mutual admissibility of the evidence. The counts are rightly heard together and the circumstances are such that evidence on the three counts is admissible in relation to

the other, and vice versa. The evidence shows a pattern of offending and,  if accepted, would either significantly increase the credibility of the complainants’ accounts or make it more likely that the acts occurred because of the coincidence that requires four complainants, absent collusion, to describe similar offending of that nature by the same person. The evidence would also be relevant to the believability of any attempt there might be to explain away the conduct complained of as innocent touching: patting and the like merely to encourage the complainants.

[22]   There are a number of common features and they are of such detail as to support mutual admissibility. We refer in particular to the following:

(a)The teacher-pupil relationship.

(b)The fact the alleged offending is all said to have occurred in the classroom or a room which is a part of the classroom or in the school grounds.

(c)The age of the children.

(d)The similarity in the general pattern, particularly the reference to regular physical touching in the form of cuddling.

(e)There are some overlaps in terms of the timeframe which is generally sequential.

[23]   We note here that we do not see the teacher-pupil relationship as solely a matter of setting. There is also some support for the Crown’s submission that the appellant developed a relationship with these girls to create opportunities for offending. In particular, the first complainant (C1) observes on her videotaped interview that she used to tell the appellant “a lot of secrets”. The appellant had given the second complainant some kittens and she was described by other children at the school as the “teacher’s pet”. The third complainant used to help the appellant before school with pool cleaning duties and the school principal’s evidence is that he noticed the appellant had a bond with her.

[24]   Mr Squire was critical of the characterisation in the Crown’s submission of the appellant’s behaviour as that of “grooming” the complainants. However, it is the case on the evidence at depositions that each of the girls to varying degrees had a relationship with the appellant. The teacher-pupil relationship clearly is a common feature.

[25]   The matters that Mr Squire, for the appellant, relies on as differences are not sufficient to  affect  the  pattern.  The  fact  the  offending  involving  the complainant (C3) is a one-off incident is not in our view significant. There is some overlap in the nature of the alleged touching between complainants (C1) and (C3) so, at best, this is a neutral factor. Finally, the fact the third count occurred in a little room rather than in the open space of the classroom or school playgrounds is not of any moment given the overall school location.

[26]   Accordingly, we agree with the District Court Judge. We are satisfied that there is a clear pattern that supports similar fact admissibility. There is nothing in  the evidence as at depositions of the complainant (C3) that suggests a different or higher level of illegitimate prejudice such as to require the severance of the third count.

[27]For these reasons the appeal is dismissed.

Solicitors:

Oakley Moran, Wellington for Appellant Crown Law Office, Wellington