R v S CA183/03

In the Court of Appeal of New Zealand, the appellant was convicted on one count of indecent assault of a girl under the age of 12 years and one count of sexual violation by unlawful sexual connection, both counts involving the same child. The appellant was sentenced to 15 months imprisonment on the first count and two years imprisonment on the second count, to be served concurrently. The appellant appealed against his conviction on the grounds that the admission of an audio tape recording of the girl's complaint was prejudicial and inadmissible, resulting in a miscarriage of justice.

The legal issues that the Court was required to decide were whether the audio tape recording was a first complaint, whether it was spontaneous, unrehearsed and leading, and whether its prejudicial value outweighed its probative value. The Court examined the circumstances in which the audio tape recording was made and the proximity of the recording to the alleged incidents, and concluded that the recording was part of a single complaint made at the first reasonable opportunity. The Court found that the recording was not unduly leading or repetitive, and that its probative value outweighed its prejudicial value.

The Court of Appeal dismissed the appeal and held that the audio tape recording was properly admitted and played to the jury. The appellant's convictions and sentences were therefore upheld. The Court cautioned against the practice of recording complaints in future cases, and suggested that the circumstances in which a recording was made should be examined pre-trial to ensure its admissibility.