R v O(CA106/06)

In the Court of Appeal of New Zealand, the Crown appealed a ruling by a District Court Judge, who had ruled inadmissible the "recent complaint" evidence of the complainant, referred to as A, in the forthcoming trial of the respondent, O. The respondent faces multiple charges of sexual violation, unlawful sexual connection, attempted unlawful sexual connection, and assault. The events in question allegedly took place on 20 March 1998 in a police station at Kaitaia, while the respondent was a serving police officer.

The legal issues before the Court of Appeal were whether the District Court Judge had erred in ruling that the complainant's evidence was inadmissible and whether the evidence of the complainant's boyfriend, A, was admissible. The Court of Appeal considered the established test for determining whether complaint evidence is admissible, as set out in R v Duncan [1992] 1 NZLR 528 (CA). This test requires the Court to consider whether there is an unacceptable risk that the substance of the complaint may have been the result of suggestion through the manner of questioning.

The Court of Appeal found that the District Court Judge had erred in his application of the rule, as he had accepted the submission of counsel that it was a "fundamental rule" that a leading question offended basic principles and that any liberalisation of the rule referred to in Duncan did not apply to mature adults. The Court emphasised that the underlying principle is that complaint should not be excluded simply because the question was in a leading form, even to the extent of naming the accused or specifying the suspected act. The Court held that there was no foundation for the submission that adults are more likely to make false utterances in responding to a leading question than children.

In the context of the factual circumstances as described by the witness, the Court of Appeal concluded that it was not possible to objectively conclude that there was an unacceptable risk of a false complaint being made as a consequence of the question. The Court of Appeal found that the Judge erred in excluding the evidence of the complainant’s former boyfriend and allowed the appeal. The complaint evidence of A is admissible.

The Court of Appeal granted leave to appeal and allowed the appeal. The complaint evidence of A is admissible. The Court also ordered that the name or identifying particulars of A, the appellant, and the judgment and any part of the proceedings (including the result) cannot be published in news media or on the Internet or other publicly accessible databases until the final disposition of the trial. Publication in Law Report or Law Digest is permitted.