R v P HC Auckland CRI 2006-092-2766
[2009] NZHC 1936
•29 July 2009
This case has been anonymized
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-092-2766
THE QUEEN
v
P
Hearing: 21 July 2009
Appearances: N R Williams & J Shaw for the Crown
S Cassidy & S Blake for the Accused
Judgment: 29 July 2009
RESERVED REASONS JUDGMENT OF PRIESTLEY J (Admissibility of Evidence and Propensity Witness)
This judgment was delivered by me on 29 July 2009 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
N R Williams & J Shaw, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: 09 336 7629
S Cassidy, P O Box 26172, Epsom, Auckland 1344. Fax: 09 631 7785\ S Blake, P O Box 12705, Penrose, Auckland 1642. Fax: 09 578 0286
R V P HC AK CRI 2006-092-2766 29 July 2009
Introduction
[1] On 21 July 2009, at the conclusion of a chambers hearing I ruled the evidence of Ms AB, which the Crown sought leave to call, was admissible at the accused’s trial. These are my reasons for that ruling.
The Trial
[2] Prior to the trial’s first day (20 July 2009) the accused faced an indictment of some 39 counts. There were, at that stage, five complainants involved, one of which was Ms AB.
[3] Ms AB was the victim in respect of five counts. Those counts related to obtaining money by deception pursuant to s 240(1)(a) of the Crimes Act in 1961.
[4] The other 34 counts, spread across six alleged victims, relate to rape, sexual violation, attempted sexual offending (some counts being laid in the alternative), blackmail, and unlawful detention, none of which counts need to be specified.
[5] By arrangement, before the jury panel arrived in Court, the accused was arraigned in respect of the five counts relating to Ms AB. He pleaded guilty and was remanded for sentence on a date to be fixed. The Crown then presented an amended indictment omitting the counts to which the accused had pleaded.
[6] Despite those pleas, the Crown proposed to call Ms AB to give evidence. It was the Crown’s broad submission that Ms AB’s evidence was legitimate propensity evidence which would assist the jury in respect of many of the other counts they would have to consider. Mr Cassidy, for the accused, opposed that application.
Background
[7] There had already been a two day pre-trial hearing before Asher J which led to his reserved judgment of 11 December 2008. At that stage the accused faced a 45
count indictment ranging across eight complainants. One was Ms AB. Another was a 12 year old relative of the accused, WG, who had been living in his family home at the time of the alleged offending involving her.
[8] The sole matter before Asher J was the accused’s application for severance of the counts relating to WG under s 340(3).
[9] In a lengthy judgment His Honour closely examined the detail of the Crown’s allegations in respect of all eight complainants. He considered matters of admissibility and the various matters listed in s 43(3) of the Evidence Act 2006. His Honour concluded:
[95] In this case I do not consider that the allegations as between WG and the other seven complainants are particularly interwoven or interconnected. What happend to WG was quite different to what happend to the other seven complainants so that, for the reasons given, I do not consider that a pattern of offending is made out. Moreover, I consider that the risk of prejudice to Mr P should the charges all remain joined is real and significant. I conclude that severance should be granted.
[10] His Honour clearly accepted that there were significant similarities in the evidence relating to complainants other than WG. This of course included the evidence of Ms AB.
[11] Significant too is this comment in [2] of Asher J’s judgment:
[2] …While not suggesting that charges relating to the other seven complainants should not be tried together, Mr Cassidy submitted that the differences between WG and the other seven complainants are of sufficient importance to warrant a separate trial.
[12] I emphasise that introductory passage. Clearly, at an earlier stage, counsel had the opportunity to consider and, if appropriate, apply for severance of the counts relating to Ms AB. For good and understandable reasons he chose not to do so.
The Issue
[13] The issue must thus be whether, in a trial which would otherwise have entailed the jury hearing evidence from Ms AB in respect of the s 240 counts
relevant to her, the pleas of guilty are a proper bar to Ms AB giving evidence, not as a complainant as originally envisaged, but as a propensity witness.
Ms AB’s Evidence
[14] Ms AB is a Muslim woman who was aged 22 years old at the time of the offending. She was having difficulties with her parents on the topic of arranged marriages. Her contact with the accused was on an internet chat site in March 2008. Email and text messages followed. The accused in fact used a false name on the site, calling himself Jay Patel.
[15] During the course of their electronic friendship the accused (calling himself Mr Patel) stated that he was being blackmailed by a person who had seen him driving away, without stopping, from the scene of an accident. Ms AB felt sorry for him and, initially against her better judgment, agreed to lend him money to pay off the blackmailer. The accused on various occasions met Ms AB at her place of work or outside her bank to take delivery of large sums in cash. The accused passed himself off as a messenger for Mr Patel. He bore no resemblance to what was purportedly Mr Patel’s photograph on the internet site.
[16] In the event Ms AB paid a total of $10,800 to the accused. When she demanded repayment the accused threatened to commit suicide.
[17] Additionally there was evidence from Ms AB that, at an early stage during their communications, the person with whom she was communicating (the clear inference being that this was the accused) asked her to send him naked photographs of herself. She refused. There was also an occasion when a meeting at a motel in Middlemore was suggested. This overture too was rebuffed.
[18] The relevance of Ms AB’s evidence, as it relates to the other complainants, all but one of whom are victims of alleged sexual offending, is its inclusion of a number of relevant themes and similarities. Thus, submits the Crown, her evidence was admissible at trial despite the fact that the counts specifically focusing on her were no longer before the jury.
Propensity Evidence
[19] Section 40 of the Evidence Act 2006 relevantly provides:
40 Propensity rule
(1) In this section and sections 41 to 43, propensity evidence—
(a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is—
(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.
(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.
(3) However, propensity evidence about—
(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; …
[20] Section 43 provides:
43 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has 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.
(2) When assessing the probative value of propensity evidence, the
Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the
Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
Mandatory matters for me to consider are those contained in ss (2) and (4).
[21] The issue in dispute so far as most of the counts going to the jury are concerned, as articulated by Mr Cassidy in his brief opening statement, is whether or not the sexual activity was consensual. Given the remaining number of complainants (six) and the undoubted themes and similarities weaving through much of their evidence, I am satisfied that the jury will not give Ms AB’s evidence disproportionate weight (s 43(4)(b)). Nor is that evidence likely to unfairly predispose the fact finder. The evidence from Ms AB is at the very least confirmatory of the epithet applied to the accused by his counsel in his opening statement as being a “rat bag”.
[22] Mr Williams pointed to patterns relating to all six complainants and submitted that the evidence of Ms AB would assist the jury by reinforcing those patterns and by corroborating the evidence of the complainants. A predominant pattern was the accused befriending young Indian women aged between 12 and 23 from strict religious or cultural backgrounds in an internet chat room; following up with text messages, phone calls, and messages placed on the web site; typically
seeking intimate photographs or videos; and arranging face to face meetings, in the majority of cases, in the same Middlemore motel; and initiating sexual contact. Consent was secured in some cases by way of blackmail, frequently playing on the complainants’ religious and cultural backgrounds. In other cases there was simple refusal to stop.
[23] Although there was no sexual contact or motel encounter between the accused and Ms AB, there was reference to both the motel and naked photographs. This evidence from Ms AB, submitted counsel, demonstrated the accused’s sustained pattern of behaviour and his modus operandi.
[24] Additionally, in respect of two other complainants, the accused had threatened suicide if the complainants did not visit him at the Middlemore motel or send more revealing photographs.
[25] Section 43(3) confers on the Court a discretion to consider a number of issues. Many of those subsections come into play. They include:
• The frequency of the overtures made by the accused.
• The fact that the alleged offending occurred over a period of approximately two years.
• Extensive similarity between the acts and circumstances of the alleged offending.
• The number of people (the six complainants, plus Ms AB, plus another propensity witness whom the jury heard without challenge) making similar allegations against the defendant.
• The fact that none of the complainants know one another, which puts to rest any issues of collusion or suggestability.
[26] Mr Williams helpfully listed in his submissions a number of matters arising out of Ms AB’s evidence which were substantially consistent with the evidence of other complainants. These included:
• The difficulties which Ms AB was experiencing with her family flowing from a strict cultural approach to her social activities.
• Meeting the accused on a social networking web site.
• The development of a relationship between text messages and chatting on the site.
• The use of a false name coupled with posting a photograph on the site displaying a man of significantly slighter build than the accused and with a significantly lighter skin colour.
• Suggestions of work in the South Island by the accused.
• A request to Ms AB to send the accused naked photographs on her mobile phone.
• A request on 24 April 2008 to meet him at the Middlemore Airport Motel
(the scene of other sexual encounters involving the accused).
• Coercion to extract money.
• Suicide threats.
Discussion
[27] As the Court of Appeal commented in R v Mataira [2008] NZCA 323 at [27], s 43(3)(c) focuses on similarities rather than dissimilarities. The similarities between Ms AB’s evidence and the evidence of various other complainants is, in my judgment, striking.
[28] The central issue, as I have mentioned, is whether the Crown can prove the relevant sexual complaints against the accused by satisfying the jury beyond reasonable doubt that there was no consent.
[29] In R v Brown [2007] NZCA 585 it is clear that propensity evidence is admissible in situations where consent is the only issue, and in particular the accused is contesting the credibility of complainants. The jury in this case has already seen lengthy video interviews of the accused focusing on the complainant MC during which the accused is adamant that the sexual activity had been consensual. In virtually every other respect the accused confirmed the fine detail of that complainant’s evidence.
[30] The Court of Appeal in Brown stated:
[19] …In those circumstances the credibility of the complainants and other witnesses was crucial and the mutual support which similarities in their evidence might give others’ accounts was pivotal. The credibility of their evidence was capable of being enhanced by the high degree of similarity in the appellant’s actions described by each. That was accordingly highly relevant to the critical issue as to whether each complainant’s account on each charge would be accepted by the jury.
[20] …[I]f similarity in the evidence of other witnesses and complainants assisted the jury in deciding on the credibility of the particular complainant in the count it was considering, that was material to proof of that primary issue [consent] – in most counts essentially the only issue.
[31] Focusing on the admissibility issue from a procedural point of view, I can see little logical sense in a result which would exclude Ms AB’s evidence, which would otherwise have been admissible at trial and to which there had been no challenge, merely because the accused had pleaded guilty to the counts which focused on his deceptions of Ms AB.
[32] Approaching the same issue by the primary s 43 route, I consider that the evidence of Ms AB is probative in relation to the central issues in dispute (consent in respect of other alleged victims and the overall credibility of those people). Although, as is usually the case with relevant evidence, the evidence of Ms AB is prejudicial to the accused, I do not consider the probative value of propensity
evidence from Ms AB is outweighed by the risk of unfair prejudice. There is no unfair prejudice here.
[33] The scheme of s 43 and the criteria which can be considered under s 43(3) are clear and have been analysed by me. They point strongly to admissibility, particularly in relation to areas of similarity and modus operandi. Particularly potent is the fact that none of the complainants are known to one another.
[34] Returning to s 43(4) matters I see no unfair predisposition flowing from Ms AB’s evidence given the multiplicity of complainants and counts. Nor do I consider in those circumstances the jury will lean towards giving Ms AB’s evidence disproportionate weight.
Result
[35] For all these reasons I considered that the evidence of Ms AB is properly admissible as propensity evidence at the accused’s trial. It was for these reasons that I so ruled.
..........................................… Priestley J
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