R v Neville CA304/04

The Court of Appeal of New Zealand heard an appeal against the decision of a District Court Judge who declined the appellant’s application for severance in relation to four counts of indecent assault. The appellant argued that the third count, involving a single incident of indecent assault on a complainant (C3), should be severed from the other three charges. The appellant accepted that the remaining three charges should be tried together. The Crown argued that a joint trial was appropriate because the evidence in relation to each count was admissible as similar fact evidence. The Court of Appeal found that there was a clear pattern that supported similar fact admissibility and that there was nothing in the evidence of complainant (C3) that suggested a different or higher level of illegitimate prejudice such as to require the severance of the third count.

The legal issues before the Court were whether the probative value of the evidence outweighed its prejudicial effect and whether the third count could be distinguished from the other three counts. The Court found that the evidence had a probative value in relation to an issue in dispute in the proceeding which outweighed the risk that the evidence may have an unfairly prejudicial effect on the defendant. The Court found that the counts were rightly heard together and the circumstances were such that evidence on the three counts was admissible in relation to the other, and vice versa. The evidence showed 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.