R v S (CA514/07)

[2007] NZCA 497

NOTE: INTERIM ORDER SUPPRESSING RESPONDENT’S NAME AND IDENTIFYING DETAILS

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

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND REASONS 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

CA514/07 [2007] NZCA 497

THE QUEEN

v

S (CA514/07)

Hearing:         7 November 2007

Court:            Ellen France, John Hansen and Heath JJ Counsel:      M D Downs for Crown

J H M Eaton for Respondent

Judgment:      14 November 2007         at 12 pm

JUDGMENT OF THE COURT

A        The Solicitor-General’s application for leave to appeal is granted.

R V S (CA514/07) CA CA514/07  14 November 2007

B        The appeal is allowed.

C       The evidence of EM and of CR is admissible.

DOrder  prohibiting  publication  of  the  judgment  and  reasons  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 Ellen France J)

Introduction

[1]      The respondent is to be tried in the week commencing 26 November 2007 on a number of charges of sexual offending in relation to one complainant, “J”.  The alleged offending spans a period from 1967 to the end of 1978 when J was aged from

7  to  18  years  and  the  respondent  21  to  32  years.    In  a  decision  delivered  on

17 September 2007, Panckhurst J ruled that evidence from two other young girls that the respondent had touched them inappropriately on occasions in the period covered by the indictment was not admissible in the trial either as propensity evidence or, in relation to one of the girls, as direct evidence:  HC CHCH CRI 2006-009-001151. The   Solicitor-General   seeks   leave   to   appeal   against   that   decision   under s 379A(1)(aa) of the Crimes Act 1961.

Background

[2]      The indictment contains 15 counts.  The factual background is set out at [7] to [12] of the High Court decision.  J was born in December 1959 and is related by marriage to the respondent.  The complainant had rubella at a young age which left her deaf in both ears.  Throughout the relevant time she was deaf to the extent that

she was reliant on lip reading to communicate.  In 1997 J received implants which improved her hearing considerably.

[3]      The offending is alleged to have commenced in 1967.  J’s parents had a hotel in the city in which they lived.  On occasions, the respondent stayed at the hotel and counts one and two allege the commission of indecent  acts on a  girl under 12 (inducing J to touch his penis and rubbing his penis on her face).

[4]      Counts three, four, five and seven allege further acts of indecent touching of a girl under 12 at either the hotel or on a farm where the respondent lived.

[5]      The other nine counts allege rape or sodomy (one count) committed at a variety of addresses.  As Panckhurst J said at [10]:

In  effect  the  Crown  case  is  that  the  complainant  was  subjected  to  an escalating course of sexual abuse from about the age of 8 years until she was about 16 years of age (although the indictment refers to dates beyond that age).

[6]      A complaint to the police was not made until August 2004.  There was then a delay until February 2006 when the respondent was charged.  In the decision subject of the application for leave to appeal, Panckhurst J also dealt with and dismissed an application for stay by the respondent.  That decision is not in issue before us.

[7]      The respondent initially made no statement to the police.   However, in an affidavit dated 29 August 2007 the respondent said that he “engaged in a sexual act with the complainant … on a single occasion” at a time when the complainant was of “legal consenting age”.  The  respondent  described what  occurred  as  “consensual sexual intercourse”.

The evidence the Crown seeks to call

[8]      The evidence that is the subject of the ruling comes from two women, “EM”

and “CR”.

[9]      EM was a friend of the complainant.   She visited the complainant at the respondent’s  farm.     She  describes  incidents  of  inappropriate  touching  which occurred while in a truck on the farm in which she sat between the complainant and the respondent.   She says the respondent would touch her on top of her clothing between  her  legs  applying  brief  pressure.    There  is  some  suggestion  that  this touching occurred whilst the respondent was changing gears in the truck.  Further, she says that when the respondent lifted her down from the truck he touched her buttocks.

[10]     EM also describes the respondent asking her questions about her periods and about wearing a bra.  She also says the respondent brushed his hand down her breasts on one occasion.

[11]     It  is  not  entirely  clear  for  what  period  these  incidents  occurred  but Panckhurst J proceeded on the basis the evidence indicated that they were over a “considerable” period of time (at [101]).  EM was between 7 and 13 years old when she visited the farm.

[12]     CR describes one incident that occurred when she was 14 years old.  She met the respondent when visiting the complainant at her home.  She says that when she, the complainant and the respondent were together, he fondled her, kissed her on the neck and “intimated that [she] would want to go with him and J”.

The High Court judgment

[13]     Panckhurst J  said  that  the  test  to  be  applied  was  that  in  s 43  of  the Evidence Act 2006.  The overarching test was that in s 43(1), that is, that propensity evidence may only be given if its probative value in relation to the issue in dispute outweighs the risk that the evidence may have an unduly prejudicial effect on the defendant.  His Honour noted that s 43(2) provides that probative value is to assessed by reference to the nature of the issue in dispute.  The Judge proceeded on the basis that the central issue at trial would be whether the alleged sexual acts occurred (at [92]).

[14]   In terms of the evidence of EM, the Judge accepted that this occurred contemporaneously with some of the alleged offending in relation to J.   However, Panckhurst J said that the degree of similarity was comparatively slight.  That was because, in the Judge’s view, while the inappropriate touching described by EM equated with a dimension of what occurred in relation to J especially at the early stages, even then, the alleged offending with respect to J was “more intrusive”, involved  J  and  the  respondent  only,  and  was  “overt,  rather  than  an  aspect  of otherwise normal activities” (at [101]).

[15]     The Judge accepted that in terms of the two witnesses, there was a common element of “daring, or arrogance” in the alleged offending (at [102]).

[16]     Panckhurst J saw EM’s descriptions of what occurred as unusual but, when placed alongside the complainant’s allegations, not “mutually so” (at [103]).

[17]     In  terms  of  CR,  Panckhurst J  said  this  was  a  one-off  incident  although contemporaneous in terms of time.   There was no real degree of similarity in the allegation and while the event she describes was unusual again, not mutually so (at [104]).

[18]     The Judge also considered whether this evidence was directly supportive of the  complainant’s  account  of  a  guilty  relationship  between  the  respondent  and herself.  The Judge said at [105]:

Put shortly, for the [respondent] to openly and indecently touch one of [J’s] close friends, and suggest that she should go with himself and the complainant, is in the nature of direct evidence of a guilty association.

[19]     But, Panckhurst J said, the complainant did not refer to the events described by CR.  Looking at the evidence in the round, and on a straight propensity basis, the Judge was not persuaded that this evidence was admissible either (at [106]).

Submissions on appeal

[20]     The Solicitor-General says EM and CR’s evidence has considerable probative value because it occurred contemporaneously with the alleged offending in relation

to J, in two of the locations identified by J as places where some of the incidents involving her took place, and, while of a lesser nature in terms of seriousness, suggests a process of grooming similarly aged girls consistent with what J said occurred in her case.

[21]     Mr Downs also submits that the probative value has to be assessed in the context of the respondent’s admission of an act of consensual intercourse when J was at least 16.

[22]     In  terms  of  CR,  the  Solicitor-General’s  alternative  argument  is  that  this evidence is directly relevant.

[23]     Mr Eaton submits there has been no error in the Judge’s approach.

[24]     Mr  Eaton  emphasises  the  absence  of  any  similarities  in  the  touching described by the girls.  In terms of both EM and CR, what the witnesses described was rather more subtle than the immediately more serious touching alleged by the complainant.  Hence, Mr Eaton submits it is not possible to characterise what EM and CR talk about as grooming or as a precursor to more serious touching.  While the incidents described are contemporaneous that has to be viewed against the much longer period of time over which the  alleged offending involving J  took place. Mr Eaton accepts that the similar location is a factor but submits that there is no specificity in that respect.   For example, this is not a situation where all of the touching has occurred in a school classroom.  Rather, it has taken place where the respondent lives.

[25]     As to prejudice, it is submitted that there was a risk that the jury will see the respondent as someone of generally bad character and that the admission of this evidence will distract from the issue at hand.

[26]     Mr Eaton also  emphasises  the  historical  nature  of the  alleged  offending. When that factor is combined with the lack of detail and subtlety of what EM and CR describe occurred to them, it is difficult for the respondent to respond especially where the allegations were not raised with anyone at the time.

Discussion

[27]     We deal first with EM’s evidence.   In our view, in assessing the probative value of that evidence in terms of s 43, the Judge has significantly understated the extent of similarity in the incidents.  That similarity arises from both the context and the setting.

[28]     Essentially, on EM’s evidence, at the same time that J says the respondent is offending in a sexual way against her, in her presence, he is engaged in sexual activity with another young girl in exactly the same setting.  (There is some dispute about whether EM is correct in her evidence about which farm she visited because the respondent moved to a second farm at one point.) As to the setting, J does describe an incident occurring when she was in the truck sitting in the middle of the bench seat while visiting the respondent at his farm.  She says the respondent put her hand on his penis and then reached down between her legs and touched her on the vagina under her clothes.  Further, we consider that some weight should have been given to the fact that showing a sexual interest in young girls and acting on it is unusual.

[29]     As to the matters of prejudice outlined by Mr Eaton, we do not consider it can be said that this evidence would unfairly predispose the jury against the respondent or that it will give disproportionate weight to evidence of other acts.  We accept Mr Downs’ submission that the historical nature of the offending is neutral and could be met by directions in terms of s 122(2)(e) of the Evidence Act.   That section requires the Judge to consider whether to give a warning about the need for caution in relation to evidence concerning the conduct of the defendant where the conduct is alleged to have occurred more than ten years previously.  The direction would relate to both whether or not the evidence should be accepted and the weight to be afforded to it.

[30]     Turning then to the evidence of CR, we agree with Panckhurst J that this evidence should not be admitted on a propensity basis.  That is essentially because her evidence describes a one-off incident of minor touching.  However, we accept the Crown’s alternative argument that this evidence is directly relevant.  The logical

inference from what CR says the respondent said is that there was a pre-existing sexual relationship between the respondent and the complainant that CR was invited to join.  The fact that the complainant does not refer to this incident in her evidence is irrelevant to the question of admissibility.

[31]   We did hear from the Crown briefly on the leave application.   In the circumstances, it is appropriate to grant leave.

Result

[32]     For these reasons, leave to appeal is granted.   The appeal is allowed.   The evidence of EM and of CR is admissible.  We make an order prohibiting publication of the judgment and reasons in the news media or on the internet or other publicly accessible database until final disposition of trial.  Publication in law report or law digest permitted.

[33]     Finally, we note that there is an interim name suppression order in relation to the respondent in place in the High Court.

Solicitors:

Crown Law Office, Wellington