R v S (CA395/06)

[2006] NZCA 495

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR

OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA395/06

THE QUEEN

v

S (CA395/06)

Hearing:         14 November 2006

Court:            O’Regan, Potter and Miller JJ Counsel: S J Gill for Appellant

P K Feltham for Crown

Judgment:      16 November 2006

Reasons:        24 November 2006

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

R V S (CA395/06) CA CA395/06  16 November 2006

BThe  appeal  is  allowed.    The  proposed  similar  fact  evidence  is  not admissible at the appellant’s trial.

COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other publicly accessible database until final disposition of trial.  Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by O’Regan J)

Result of appeal

[1]      We gave leave to appeal on this matter and allowed the appeal in a judgment dated 16 November 2006.  We indicated in that judgment that reasons would follow. We  took  that  step  because  the  appellant’s  trial  was  due  to  commence  on

20 November 2006.  We now set out our reasons for granting leave to appeal and allowing the appeal.

Charges

[2]      The appellant faces 11 charges in relation to the same complainant.  Eight are allegations of sexual violation and there are also two charges of threatening to kill and one of male assaults female.

[3]      The  first  three  counts  relate  to  an  incident  alleged  to  have  happened  in

December 2003 or January 2004 on the Akatarawa Hill Road.  There is one count of

sexual violation by anal penetration, one count of sexual violation by rape and one count of threatening to kill.  These three counts were the focus of the present appeal.

[4]      The other counts are:

(a)       Sexual violation by rape in the appellant’s bedroom at his home in the

Hutt Valley in late January 2004;

(b)Sexual violation (oral sex) in April or May 2004 at a storage facility in the Hutt Valley;

(c)       Male assaults female in September 2004 at the appellant’s home;

(d)      Threatening to kill immediately following the male assaults female;

(e)Sexual violation (anal penetration) in a vehicle in a remote location in the Hutt Valley on the same date as the previous two counts;

(f)Sexual violation (anal penetration) in November or December 2004 in the bushes at a park in Upper Hutt;

(g)Sexual violation (rape) in a caravan at the appellant’s home (a representative charge covering the period from July 2005 to January

2006);

(h)Sexual violation by rape in the caravan at the appellant’s home in January 2006.  This is said to have been the final occasion on which the appellant sexually violated the complainant.

Facts

[5]      The complainant was 16 when the alleged offending against her commenced. She had known the appellant most of her life and had referred to him as “granddad”. She went to live with the appellant and his wife in September 2003.

[6]      The  appellant  accepted  in  his  police  interview  that  he had  had  a sexual relationship with the complainant.   He described her as his partner.   He said the relationship had commenced about six months after she had gone to live with him and his wife.  The complainant gave birth to a son in early 2005, and the appellant said that a paternity test had confirmed that he was the father of this child.

[7]      The appellant denies that any non-consensual sexual activity between him and the complainant took place.   He also denied threatening or assaulting the complainant, apart  from one incident which occurred on 27 January 2006.    He pleaded guilty to a charge of male assaults female in relation to that incident.

[8]      In relation to the Akatarawa Hill Road counts (counts 1-3), the appellant told the police that there had been an occasion when he had gone to the complainant’s mother’s house in Kapiti to collect the complainant and take her back to his house in the Hutt Valley.  This was some time after the complainant had started living with the appellant.  The complainant’s mother had asked the appellant to do this.  He said he had collected the complainant at about midnight and driven back to the Hutt Valley over the Akatarawa Hill Road, but he denied that he had stopped the vehicle and denied that any sexual activity between him and the complainant had taken place.  He also denied threatening the complainant.

District Court decision

[9]      The Crown sought an order under s 344A of the Crimes Act 1961 that similar fact evidence from a victim of a rape committed by the appellant in January 1986 be admitted as similar fact evidence at the appellant’s trial.  We will call the victim of the 1986 rape “M”.

[10]     The evidence which M would give is to the following effect.  M was 16 at the time of the offending.   She met the appellant on New Year’s Eve (31 December

1985) at a night club in Wellington, where the appellant worked.  He said that in the early morning (around 5 am) the appellant offered to take her to Tawa where she was staying.  She said that instead of doing this he drove her to an isolated picnic spot on

the Paekakariki Hill Road, where he forcibly removed her clothing and raped her twice.  The appellant pleaded guilty to this offending on 21 March 1986.

[11]     The District Court Judge, Judge Kelly, accepted the Crown submission that the similarities between the 1986 offence and the present counts were sufficient to justify a ruling that M should be permitted to give evidence at trial.  The Judge dealt with the matter on the basis that the similar fact evidence would be relevant in relation to all counts against the appellant, presumably reflecting the way the case was argued before her.  However, in this Court counsel for the Crown said that the Crown sought to lead M’s evidence in support of the Crown case in relation to counts 1-3 (the Akatarawa Hill Road incidents), but did not maintain that M’s evidence could be used to support the Crown case in relation to the other counts against  the  appellant.    The  case  before  us  therefore  focused  on  the  Crown’s contention that there were a number of similarities between the 1986 rape and the Akatarawa Hill Road incident.

Principles

[12]     The principles applying to the admissibility of similar fact evidence were summarised by this Court in R v Holtz [2003] 1 NZLR 667 at [35]. The Court noted the general principle that, to be admissible, evidence must be such that its probative value outweighs illegitimate prejudice to the appellant in having evidence of his or her past conduct being given undue weight or being used improperly in reasoning towards guilt of the charge for which he or she has been tried. The Court said that the approach to admissibility involved determination and weighing of probative value and potential prejudice in the circumstances. This inquiry needed to focus on what the evidence sought to prove, what other evidence there was and whether the evidence related to prior proved offending or to concurrent charges. The inquiry needed to be undertaken against the underlying dangers inherent in propensity or bad character evidence.

Similarity

[13]     The District Court Judge considered a number of factors which led her to conclude there were sufficient similarities between the 1986 incident and the present allegations to justify the admission of M’s evidence.  We will evaluate these in the light of the arguments before us, bearing in mind that the focus of the Crown case in this Court was on counts 1-3 only.

[14]     The factors were:

(a)M was 16 when the appellant raped her, and the complainant was 16 when the Akatarawa Hill Road incident was said to have occurred. While that is factually correct, the context means that it is of little significance.     The  appellant  was  19  when  the  1986  offending occurred, and 37 when the Akatarawa Hill Road incident was said to have occurred.  There was a generational difference between him and the present complainant;

(b)The appellant was in a position of responsibility in respect of both the complainant  and  M.     That  was  clearly  so  in  relation  to  the complainant, as he had a caregiver role and, at the time of the alleged offending, was transporting her to his home in the course of that role. In relation to M, however, the position was different.  While M had trusted him to take her home, having checked with others that he was trustworthy, there was no parental or caregiver role, both being young people who had met for the first time earlier in the evening at a night club.  As Mr Gill put it, the feature of the 1986 offending was that it was a stranger rape, whereas the feature of the present allegations is the  alleged  abuse  of  a  familial/caregiver  position  in  relation  to  a young girl who treated the appellant as her grandfather;

(c)Instead of driving M directly to Tawa, the appellant drove to the Paekakariki Hill Road where the offending occurred.  Similarly, when taking the complainant from her mother’s house to his own, he travelled via the Akatarawa Hill Road which was not the most direct

route,  and  the  offending  is  said  to  have  occurred  at  that  remote location.  We accept the similarity in that regard;

(d)M described being pulled from the vehicle and dragged to the location where the rape occurred.  She was pushed to the ground and raped, and  the  appellant  tried  to  place  his  penis  in  her  mouth,  and masturbated himself.   The complainant describes similar violence towards her, though, unlike M, she was violated anally.  The appellant told the complainant to “suck his dick” but that did not occur, and he masturbated himself.  There are undoubted similarities, but many of the features described by the complainant were features of the allegations reflected in the other counts as well, in respect of which the Crown accepts the evidence of M is not admissible.  At least some of the features are inherent in sexual offending of this kind;

(e)      Both M and the complainant said that the appellant hugged them after the violation.  We accept the similarity in this regard;

(f)Although  the  appellant  admitted  the  1986  rape,  he  said  in  his statement there had been consensual kissing and touching between him and M prior to that offending, which was denied by M.   In the present case the appellant denied the Akatarawa Hill Road incidents happened at all, but said he had a later consensual sexual relationship with  the  complainant.    We  do  not  accept  that  there  is  any  real similarity in relation to this factor.

[15]     In considering these matters in the round, we accept the Crown’s submission that there are aspects of the complainant’s allegations which have similarities with the 1986 offending to which the appellant pleaded guilty.  Counsel for the Crown, Ms Feltham said that the purpose of adducing this evidence was to bolster the credibility of the complainant in the face of the appellant’s denial, which implicitly involved an allegation of fabrication on the part of the complainant.  She said it also would counter  any suggestion  that  the  complainant’s  account  of  the  appellant’s conduct is too inherently unlikely to be accepted.

[16]     We accept that  there  is  probative  value  in  the  proposed  evidence of  M, though this is not as significant as found by the District Court Judge because our estimation is that some of the factors the Judge saw as similarities were not such, and that others involved aspects of offending common to many offences of this kind. These  must  also  be  seen  in  the  light  of  the  different  context  of  the  present allegations, particularly the family-like relationship between the complainant and the appellant and the substantial age difference between the appellant and the complainant.   We see some force in the submission by counsel for the appellant, Mr Gill, to the effect that the 1986 offending was an opportunistic attack on a virtual stranger, whereas the present case was essentially an allegation of ongoing sexual abuse of a young girl by her caregiver.  It was also a striking feature of the present case that the appellant was said to have violated the complainant anally, not only in relation to the Akatarawa Hill Road counts but also in relation to other counts.  That was not a feature of the offending against M.

[17]     Mr Gill argued that the illegitimate prejudice would be substantial if M’s evidence were admitted.   He pointed to the 18 year gap between the offending against M and the alleged offending against the complainant, and said M’s evidence had the potential to overshadow the trial.  He noted that the Crown’s position was that the similar fact evidence was relevant only to counts 1-3, but he said its admission at trial would undoubtedly influence the jury’s assessment of the evidence in relation to the other counts, many of which involve sexual acts acknowledged by the appellant to have happened, but which he claimed were consensual.  He said the evidence of M had no probative value in relation to those counts but it would be difficult for the jury’s consideration of the similar fact evidence in relation to counts

1-3 not to then have some further influence on the jury’s consideration of the other counts.  This would be so despite any direction to consider M’s evidence in relation to counts 1-3 only, and to consider the remaining counts separately.   Some of the other counts involved allegations of sexual violation at remote places, yet the evidence of M would be relevant to only the Akatarawa Hill Road counts and not to the others.

[18]     We accept the submission that the potential prejudice in the present case is significant, and looking at the matter in the round we have come to the conclusion,

contrary to that of the Judge, that the illegitimate prejudice outweighs the probative value, which, while we acknowledge it is real, is less significant, in our view, than the District Court Judge found it to be.

[19]     We therefore granted leave to appeal and allowed the appeal, as recorded in our judgment of 16 November 2006.

Solicitors:

Gill & McAsey, Lower Hutt for Appellant

Crown Law Office, Wellington