R v P CA73/04

[2004] NZCA 403

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.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.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA73/04

THE QUEEN

v

P J P

Hearing:         23 June 2004

Coram:Glazebrook J Chisholm J Potter J

Appearances: A R Burns for Crown

G A Anderson for Respondent Judgment:  30 June 2004

JUDGMENT OF THE COURT DELIVERED BY CHISHOLM J

[1]    The respondent faces two charges of indecently assaulting a girl aged between 12 and 16 years. Both charges arise out of the same incident. The Crown seeks leave to appeal against a pre-trial ruling excluding evidence the Crown wishes to adduce.

R V P CA CA73/04 [30 June 2004]

Background

[2]    Despite a relationship between the complainant’s mother and the respondent having ended, the respondent remained a family friend. On 2 May 2003 arrangements were made for the complainant, then aged 13 years, to direct the respondent to a property at which the respondent was to carry out some work for the complainant’s mother. After carrying out the work the respondent was to take the complainant to her grandmother’s house.

[3]    It is alleged that instead of taking the complainant to her grandmother’s  house the respondent took her to a secluded car park and that on the way he made a number of lewd comments to the complainant and mentioned that he had had sex with the complainant’s second cousin when she was 14 years old. At the reserve the respondent is alleged to have removed his shorts, exposed his penis and placed the complainant’s hand on his penis while he masturbated himself to ejaculation. Count one arises from these events.

[4]    Count two arises from an allegation that the respondent then placed his hand under the complainant’s clothing and bra and touched her in the vicinity of her breasts. It is alleged that after this the respondent attempted to place his hand under the complainant’s skirt but that he desisted when she resisted and began to scream. When confronted by the police the respondent said that the complainant’s allegations about him were untrue but declined to make any statement.

[5]    A statement was obtained by the police from the complainant’s cousin, Ms D, who stated that in about 1992, when she was 14 years old, she had a relationship with the respondent after he had broken up with her cousin. Ms D said in her statement:

[P] had broken up with [M] at the time but I can’t remember how the relationship between [P] and I started.

From what I remember it started off with kissing and stuff.

Most of the time the intimacy between [P] and I occurred in his car.

Most of the time he would suggest that I give him a hand job and he would push my hand down there onto his penis.

He would also try to touch me down below but I didn’t want that so he didn’t try too hard.

I felt that this was supposed to be what I should be doing, that saying no was not a cool thing to do.

[P] would have known that I was 14 years old.

I can’t remember but I don’t think this carried on too long and he went back to [M] after this.

It was also stated by Ms D that the only people who would have known about these events were the respondent and possibly her cousin who had been going out with the respondent. At the time of these events the respondent would have been 22 years of age.

[6]    Pursuant to s344A of the Crimes Act 1961 the Crown made application for an order that Ms D’s account of events was admissible as similar fact evidence.

District Court ruling

[7]    Six factors of similarity relied on by the Crown were summarised by the Judge:

“… that the events took place in the respondent’s car; that the girls were of a similar age and were known to the accused through his relationship with a member of the complainant’s family or extended family but that that relationship had at the time of the events finished; that the activity on both occasions was the girl masturbating the accused and that when the accused attempted to touch their genitalia they both voiced protest and the accused desisted.

After referring to several authorities cited to him by counsel the Judge observed that it was necessary for him to decide whether the evidence sought to be adduced was sufficiently supportive of the Crown case to warrant the jury hearing it despite the inherently prejudicial effect it may have.

[8]    Two factors persuaded the Judge that the evidence should not be adduced at trial: first, on his reading of Ms D’s brief it was not at all clear that the events described were non-consensual; secondly, the gap of around 11 years between those events and the alleged indecent assaults in 2003.

[9]    With reference to the first factor the Judge noted that there had been no complaint to the police. He also commented that given the way the brief read there would be a significant factual basis for the argument that Ms D consented, at least from the respondent’s perspective. Although the Judge accepted that he could not reach any concluded view about the question of consent, he noted that the 1992 situation was “qualitatively different” from that giving rise to the current complaint and that under those circumstances the factors of similarity identified by the Crown were of less moment when viewed against the purpose of the evidence which was to support the complainant’s credibility. As to the second factor, the Judge noted the “significant” passage of time between the two alleged events. He concluded that when these two factors were looked at together the evidence Crown was seeking to adduce would not materially assist the jury and dismissed the Crown’s application.

Crown submissions

[10]   Mr Burns claimed that Ms D’s evidence is highly probative because it gives credibility to the complainant’s version of events. He identified the following specific features of similarity:

•The alleged sets of offending took place in the respondent’s car.

•Both girls were of a similar age when the offending occurred, 13 and 14 years of age respectively.

•The respondent held a position of trust in relation to both girls through his prior relationship with the complainant’s mother, who is Ms D’s cousin.

•At the time of both sets of offending the respondent’s relationship with the complainant’s mother had ended.

•The offending in both cases consisted of the respondent pushing their hands on to his penis to masturbate him.

•In respect of both young women the respondent attempted to touch their genitals but desisted when they voiced protest against that happening.

It was submitted that the likelihood of two people coming up with such similar stories without collaboration is extremely low.

[11]   According to the Crown too much weight was placed by the Judge on the possibility that the activity between the  respondent  and  Ms  D  was  consensual. Mr Burns said that given the respective ages of Ms D and the respondent in 1992 there could be no question of Ms D consenting for the purposes of s134 of the Crimes Act and even if the conduct was consensual an offence would still have been committed. He said that under those circumstances the consensual nature of the conduct could not detract from the similarities between Ms D’s evidence and the complainant’s account of events. It was also submitted that the Judge placed too much weight on the time gap between the two incidents and pointed out that in R v E (CA369/03, 2 March 2004) similar fact evidence was admitted where there was a   14 year gap.

[12]   Mr Burns also placed reliance on the fact that it was the respondent himself who had told the complainant about having had sex with Ms D when she was 14. Under those circumstances, he submitted, Ms D’s evidence was extremely cogent because it verified the complainant’s account of events. Although Mr Burns acknowledged that this particular feature had not attracted any comment by the Judge, he suggested that it was a highly relevant consideration that could be taken into account by this Court. He claimed that since the issue at trial would be credibility it would be unfair to deprive the jury of Ms D’s evidence.

Respondent’s submissions

[13]   Mr Anderson supported the District Court ruling. On his analysis the possibility of consensual sex with Ms D in 1992 is irrelevant and would be of no assistance to the jury. He expressed concern that the admission of such evidence could give rise to a situation where, notwithstanding any direction from the trial

Judge, the jury might jump to the conclusion that because the respondent had been sexually involved with a young girl previously he is of bad character and must have offended on this occasion. Under those circumstances, submitted Mr Anderson, the prejudicial effect of the evidence must far outweigh any probative value.

[14]   Counsel also claimed that each of the similarities relied on by the Crown are equivocal, do not involve any striking features and are in fact of little probative value. Additionally he highlighted the 11 year gap, the risk that the jury might become confused by the need to determine not only the events giving rise to the two counts but also the 1992 events, and the additional risk that Ms D’s evidence might have been contaminated by contact with the complainant.

[15]   With reference to the Crown’s point that Ms D’s evidence would enhance the complainant’s credibility by verifying her description of events, Mr Anderson explained that he did not have specific instructions from the respondent on this point. He did not rule out the possibility that the existence of a relationship between the respondent and Ms D might be conceded. We take it, however, that Mr Anderson was only referring to the fact that there had been a relationship without any further detail and particularly without reference to the age of Ms D at the time.

Discussion

[16]   The broad principle to be applied when considering the admissibility of similar fact evidence is not in dispute. For present purposes it is conveniently summarised R v Holtz [2003] 1 NZLR 667 at paragraph [35]:

… to be admissible the evidence must be such that its probative value outweighs illegitimate prejudice to the accused in having adduced evidence of past conduct that might be given undue weight or used improperly in reasoning towards guilt of the crime charged.

It is common ground that the Judge applied the right test. The only issue is whether he correctly exercised his discretion.

[17]   Like the Judge we consider that Ms D’s evidence is of limited probative value. On the face of her brief there are strong indications that the events described

by her were consensual. While we accept that in terms of s134 of the Crimes Act a defence based on consent would not have been available to the respondent, we have not been persuaded that in the present context that is a significant matter. To us the significant factor is that the conduct described by Ms D appears to be of a  completely different character to the conduct that will be scrutinised at trial. Apart from the strong possibility that the events involving Ms D were consensual, it is also significant that they occurred at a time when the respondent was comparatively young (22 years of age). Added to that there is a gap of 11 years.  In our assessment it is impossible for the points of similarity relied on by the Crown to overcome these factors and provide Ms D’s evidence with the necessary cogency to outweigh the prejudice.

[18]   The Crown places considerable importance on the fact that Ms D’s evidence would be able to verify the complainant’s version of events, in particular that the respondent had told her about his relationship with Ms D. It seems to us, however, that such verification could be provided by evidence that there had been such a relationship without more. That approach would avoid the introduction of  prejudicial evidence, including evidence about Ms D’s age at the time. Having said that, we acknowledge that these are matters for counsel and the trial Judge.

[19]   We have not been persuaded that the Judge was wrong in the exercise of his discretion.

Result

[20]Leave to appeal is granted. The appeal is dismissed.

Solicitors:

G A Anderson, Auckland for Respondent Crown Solicitor, Auckland