R v Selini
[2019] NZHC 998
•23 May 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-009-005041
[2019] NZHC 998
THE QUEEN v
TASI FAITALA SELINI
Hearing: 22 May 2019 Appearances:
C J Boshier for Crown
A M S Williams for Defendant
Ruling:
23 May 2019
PRE-TRIAL RULINGS COOKE J
[1] The defendant, Mr Selini, faces a number of charges involving violence against his partner between February and May 2018. He has entered not guilty pleas to the charges and is to appear for trial in December 2019.
[2] The Crown applies for directions about the way the complainant is to give evidence. The Crown also applies for directions the following convictions be adduced as propensity evidence: wounding with intent to injure (x2), threatening to kill; male assaults female (x5); assault with intent to injure (x2); and assault with a weapon (x2)
– convictions entered on 9 June 2011.1
1 The Crown initially sought to also adduce a breach of protection order on 3 November 2009. That is no longer sought.
R v SELINI [2019] NZHC 998 [23 May 2019]
[3] The defendant seeks non-party disclosure orders from 2degrees Mobile Ltd and from the Department of Corrections.
Directions as to the way the complainant is to give evidence
[4] The Crown proposes the complainant give evidence from behind a screen/partition to ensure she cannot see the defendant or the public gallery. This is consented to by the defendant.
[5] Section 103 of the Evidence Act 2006 permits a judge to order that any witness in any civil or criminal proceeding may give evidence in an alternative way. Section 105(1)(a) sets out the potential ‘alternative ways’ in which a witness may give evidence — including from outside the courtroom and by evidence recorded prior to trial. Section 106 governs proceedings in which video record evidence is given. Section 103(3) gives the grounds an alternative order may be made upon, including:
…
(c)the trauma suffered by the witness:
(d)the witness’s fear of intimidation:
…
(f)the nature of the proceeding:
(g)the nature of the evidence that the witness is expected to give:
(h)the relationship of the witness to any party to the proceeding:
…
[6] The Crown relies on R v O, a decision of the Court of Appeal against a refusal to permit the playing of an evidential video as a complainant’s evidence in chief.2 The Court said:3
Section 103 allows a broad fact-specific inquiry. It appears to signal a distinctive shift in legislative policy to extend the scope for the mode of giving evidence by alternative means beyond the previous limitations to young and mentally impaired complainants in sexual cases. The provision vests a broad and unfettered discretion in the trial Judge once the jurisdiction to make an order is established. As this Court has previously observed, there is now no
2 R v O [2012] NZCA 475.
3 At [37].
default position or presumption in favour of giving evidence in the ordinary way.
[7]In Wealleans v R, the Court of Appeal held:4
The protection of victims and other potentially vulnerable witnesses is an important consideration in achieving justice in criminal trials. The Court will necessarily be concerned about the interests of witnesses contributing to that process. Where possible the Court should seek to alleviate stress and trauma on witnesses required to give evidence, particularly where the content of the witnesses’ evidence relates to matters such as sexual offending against a young person. That goal has been statutorily endorsed, by implementing subpart 5 of the Evidence Act.
[8] After s 103(3) factors are engaged the assessment shifts to the mandatory considerations in s 103(4). This essentially concerns weighing the fair trial rights of the accused against the views and needs of the witness.
[9]In making an order the Judge must have regard to:5
(a)the need to ensure—
(i)the fairness of the proceeding; and
(ii)in a criminal proceeding, that there is a fair trial; and
(b)the views of the witness and—
(i)the need to minimise the stress on the witness; and
(ii)in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence; and
(c)any other factor that is relevant to the just determination of the proceeding.
[10] The jury will be directed not to draw any adverse inference against the defendant because of the use of an alternative mode of evidence. The Crown submits that the order will promote the interests of justice in enabling some degree of comfort for the complainant and thus ensuring that the best evidence is before the Court. In R v O the Court of Appeal said that s 103’s reference to fairness includes fairness to all parties, including the complainant.6 In that case, the Court supported the prosecution’s
4 Wealleans v R [2015] NZCA 353 at [31].
5 Evidence Act 2006, s 103(4).
6 R v O, above n 2, at [43].
application that the complainant’s evidence-in-chief be given in the form of his pre- trial video interview.
[11] I agree this is an appropriate case to give evidence by an alternative method. Accordingly I direct that the complainant give evidence from behind a screen in court, or with a screen positioned in such a way that she does not look at the defendant or the public gallery.
Admissibility of prior convictions
[12] The Crown seeks to adduce evidence of the defendant’s convictions for wounding with intent to injure (x2), threatening to kill; male assaults female (x5); assault with intent to injure (x2); and assault with a weapon (x2) dated 9 June 2011.
Alleged facts
[13] The defendant and the complainant were acquaintances who began a relationship in January or February 2018. They moved in together shortly after commencing their relationship.
[14] It is alleged that the relationship became violent very early on, in late January or early February when the defendant was helping the complainant move out of a previous address. They separated briefly and then the relationship was rekindled.
[15] In early April there was a prolonged assault where the defendant is alleged to have assaulted the complainant in his bedroom, grabbed her by the hair and made her stand up and sit down, threatened to kill her, strangled her with a cord, eye gouged her, and detained her by refusing to let her leave the room for a number of hours.
[16] In mid-April there was a further assault in the garage where the defendant knocked the complainant to the ground, pulled her up by the hair, threatened to kill her and kicked her to the ground. On another occasion between April and May 2018 the defendant became angry about a previous partner of the complainant. He hit the complainant in the head repeatedly, which perforated her ear drum, then kicked her in
the stomach and punched her whilst she was on the ground. He then hit her in the head with a kitchen pot.
[17] In late May 2018 it is alleged the defendant assaulted the complainant while they were in bed at night. He called her a slut and a whore, kicked her out of the bed and held a knife against her stomach. He accused her of cheating on him. The next morning, he hit her across the face. A few days later he grabbed her and pushed his fist into her throat. The complainant says the defendant broke his hand while assaulting her and when he was arrested on 31 May x-rays showed he had broken a bone in his hand. He gave varying explanations for how he injured his hand.
Prior offending
[18] In July 2008 the defendant entered into a relationship with the previous victim. By 20 August 2008, they were living together. He was convicted at trial including of the following offending relied upon by the Crown. Mr Williams for the defendant was able to provide me with the sentencing notes. He accepted the summary of the offending presented by the Crown, but has only just been given the notes of evidence, and he noted that he may need to apply if anything emerged from those notes. In any event the prior offending involved:
(a)Male assaults female: the first time he assaulted her was in September 2008 because she had not ironed a shirt properly. The defendant pushed her against the wall and grabbed her by the hair causing her to fall to the ground.
(b)Assault with intent to injure: the following day the victim told the defendant he should not have hurt her the day before. He pushed her over and then grabbed her neck and squeezed, making it hard for her to breathe.
(c)Male assaults female: on another occasion, some friends visited their house and the victim spent time talking to an ex-boyfriend. After they left the defendant confronted her and pushed her against a car in the
garage and strangled her. He grabbed her by the hair and threatened to slam the car door on her head.
(d)Assault with a weapon: one morning the defendant became angry because the victim did not want to have sex. He pushed her into the kitchen and threw a pair of nunchucks at her ankle, she fell to the ground crying and he emptied the rubbish bin over her and told her to clean it up. When she did so he again emptied it over her and told her to clean it up.
(e)Male assaults female: on another occasion, the victim was vacuuming when the defendant became angry with her and started kicking her.
(f)Male assaults female: on 6 November 2008 the defendant instructed the victim to leave a message for his lawyer. She got it wrong and he punched her as he was driving. An off-duty Police officer driving behind witnessed the defendant strike her and called Police. When Police attended the victim claimed nothing had happened and the mark on her face was from sleeping on the car door.
(g)Causing grievous bodily harm with intent to injure: two weeks later the victim fell asleep on the couch. The defendant told her to come to bed, but she fell asleep again. He became angry and punched her to wake her up. He threw her to the ground, kicking her in the ribs and punching her. As a result, she had fractured ribs.
(h)Assault with a weapon: around the end of November 2008, they moved to a new house. The victim did not want to smoke marijuana with the defendant and he became angry, picking up a wooden coffee table and throwing it at her. The table hit her in the legs. He then picked up a heavy wheel brace and began tapping it into the palm of his hand, asking if she wanted to play a game of how many bones in her body could he break.
(i)Assault with intent to injure: after a brief stay they again moved. On 14 December 2008 the victim asked to stay at her mother's house, as she was planning on leaving the defendant. He saw she had packed most of her clothes and confronted her, accusing her of going to meet another man. She was on the bed and the defendant straddled her and strangled her.
(j)Male assaults female: the next morning the victim asked if the defendant if he wanted a cup of tea. His response was to knee her in the thighs causing her to fall onto the couch, then to make her stand again and knee her until she fell again. This happened several times.
The law
[19] The law as relating to propensity evidence is contained in ss 40 – 43 Evidence Act 2006. Section 40 defines propensity evidence as 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. Propensity evidence may only be offered in accordance with ss 41 – 43.
[20] In R v K the Supreme Court has recently reiterated the rationale for the admissibility of propensity evidence, as described in Mahomed v R in the following terms:7
[3] The rationale for the admission of propensity evidence rests largely, as William Young J says, on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.
7 R v K [2019] NZSC 46 at [13]; Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3]
(emphasis in original).
[21] Under s 43(1) of the Evidence Act, the prosecution is permitted to offer propensity evidence about a defendant 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.
[22] Section 43(2) requires a judge assessing the probative value of propensity evidence to take into account the nature of the issue in dispute. The issue here is a straight denial of the conduct. The Crown submits that it will be of critical importance for the jury to know that instead of being an invention, the oppressive dynamic the complainant describes reflects the relationship shared with another former partner of the defendant. The Crown submits the defendant’s violent conduct is probative and relevant to the jury’s determination as to the extent of what occurred on these occasions in relation to the allegations of violence. The Crown submits that the propensity evidence demonstrates a strong theme of abuse of power within the defendant's domestic relationships.
[23]The Crown and defendant both addressed the factors outlined in s 43(3).
Section 43(3)(a) – the frequency of occurrence
[24] The Crown says there are numerous alleged instances of physical abuse against the complainant, over a three-month period (February-May 2018). Similarly, there are numerous convictions for assaulting the former victim over a three-month time period (September-December 2008). The defendant submits that there is nothing in this point.
Section 43(3)(b) — the connection in time
[25] The defendant submits that the offending is separated by ten years. The Crown says this is largely due to the sentence of imprisonment served by the defendant as a result of the earlier offending. He was sentenced to nearly eight years’ imprisonment on 9 June 2011. He was paroled in November 2017 and entered the relationship with the present complainant less than two months later. The Crown submits that there is a very close connection in time. The defendant disagrees that this can be relevant given the length of the gap.
Section 43(3)(c) - similarities
[26] It is submitted by the Crown that there are material similarities between the current violent allegations and the propensity evidence, namely:
(a)the context of an intimate domestic relationship;
(b)the fast moving nature of the relationship;
(c)the particular aspect of requiring the victim to sit down/stand up in quick succession, grabbing the victim’s hair, strangulation/pressure applied to the throat/restriction of breath, using a coffee table during the assaults, and kicking;
(d)the defendant is quick to resort to violence;
(e)some assaults are motivated by jealousy and accompanied by verbal abuse; and
(f)the use of threats.
[27] The defendant submits that the similarities are not strikingly so, that many are common features of domestic violence, and in many respects the offending is strikingly dissimilar — including that the earlier offending was with a young person, was interwoven with allegations of sexual offending, and further interwoven with drug and alcohol use.
Section 43(3)(d) — number of persons making allegations
[28] The Crown submits there is one current complainant of violence and one propensity witness.
Section 43(3)(e) — collusion or suggestibility
[29] There is no indication that the current complainant knows the previous victim and no indication of collusion.
[30] The defendant submits, however, that the complainant was aware of prior complaints and was aware that the defendant had a potential weakness in that respect (including in relation to a proposed ESO order) so may have had a greater basis for which to make false allegations.
Section 43(3)(f) — extent to which the acts are unusual
[31] The defendant describes the allegations made as being relatively common in domestic violence cases before the courts. Counsel suggests there is nothing unusual or peculiar which ties the offending.
[32] In response, the Crown submits that while regrettably domestic violence and abuse of a partner come before the courts on a regular basis, the particular combination of circumstances make these acts unusual. As the Court of Appeal noted in R v Panapa, allegations of significant factual similarity in the domestic violence context, here the particular aspects such as strangulation, demonstrate tendencies which go beyond a mere allegation of a tendency to hit women.8
[33] In Howard v R the Court of Appeal upheld the admission of propensity evidence where the propensity demonstrated that the defendant was not only violent in his domestic relationships, but also that he created an oppressive and controlling relationship, marked by possessiveness and jealousy, and on occasion extreme physical violence.9 In that case as well the propensity evidence did not relate to sexual offending, but the current allegations included sexual offending. The Court upheld the admission of the propensity evidence, holding that the trial Judge would give careful directions about which charges the propensity evidence related to.
[34] In H (CA757/2011) v R, the Crown sought to introduce propensity evidence from a former partner of H at his trial in relation to acts of domestic and sexual violence against his current partner.10 The Court of Appeal held:11
Although there are obviously differences in the evidence of M and K about the nature of their relationship with the appellant, both describe a developing
8 R v Panapa [2011] NZCA 536.
9 Howard v R [2016] NZCA 379.
10 H (CA757/11) v R [2012] NZCA 101.
11 At [60].
pattern of violent, possessive and oppressive behaviour as the appellant seeks to assert control over his partner. We agree that the relevant propensity is evidenced in the ways identified by the Crown, including the use of violence, often serious violence, the belittling verbal and psychological abuse of the women, his tendency to make irrational accusations and demands, his determination to prevent contact with outside persons and the creation of an atmosphere of fear and intimidation.
[35]The Court concluded:12
The developing pattern and dynamic in both relationships provides the specificity and the link between the evidence of M and the evidence of K. The evidence of M has significant probative value in relation to the offending alleged against K because it is probative of a tendency by the appellant to act in a particular way and to have a particular state of mind in both cases. The specificity lies in the developing pattern of violence, oppression and obsession in the conduct of the appellant in both relationships.
Conclusion on probative value
[36] Having considered the above case law and factors, my assessment is that the events are sufficiently frequent, reasonably connected in time, of a significantly similar nature, raise no concerns about collusion, and are sufficiently unusual to satisfy s 43(1).
[37] Whilst I accept Mr Williams’ submission that many of the features relied upon are probably common across all domestic violence offending of this kind, such as coercion and control, that does not by itself mean that the evidence is not admissible as propensity evidence. The particular nature of this offending also has striking similarities of a particular kind. Those include the allegation that the defendant required the victim to sit down and stand up again in quick succession, the use of grabbing hair, strangulation, kicking, and assault with a coffee table. These demonstrate to me sufficiently distinctive allegations such that there is probative value in the prior offending.
[38] Mr Williams relied on three features which demonstrated very different allegations in the present case compared with the earlier offending —the age of the victim, the sexual nature of the earlier offending, and the fact that drugs and alcohol were involved in the previous offending. I accept that the fact the prior offending
12 At [64].
involved sexual offending arising from the victim being underage in particular involves a significant difference. But that by itself does not remove the probative value involved in the other elements of the offending, which still remain strikingly similar.
[39]For those reasons I conclude that, subject to s 43(4), the evidence is admissible.
Prejudice
[40] Section 43(4) requires that the Court, when assessing the prejudicial effect, consider, among other relevant matters, whether the evidence is likely to unfairly predispose the jury against the defendant and whether the jury will tend to give disproportionate weight to the evidence.
[41] The submissions advanced by Mr Williams on this aspect were very similar to those he advanced in relation to the probative value of the prior offending.
[42] The Court of Appeal has noted the emphasis in s 43(4)(a) is on "unfair" predisposition against the defendant and correspondingly the over-riding test in s 43(1) refers to "unfair" prejudice. In Mahomed v R the Supreme Court stated:13
[7] Obviously any evidence that is probative will be prejudicial to the accused but not normally unfairly so. Unfairness is generally found when and to the extent the evidence carries with it a risk that the jury will use it for an improper purpose or in support of an impermissible process of reasoning. In assessing the probative value/unfair prejudice balance, the court may need to take into account the extent to which it considers a "proper use" direction in the trial judge's summing up is likely to guard against the risk of improper use.
[43]In R v Tui the Court said:14
[21] Sometimes the concern may be expressed that the propensity evidence is “too good”. The worry is that its probative value, in the sense of what it plainly says about the current charges, is so compelling that there is a perceived risk the fact finder may not move beyond the propensity evidence. While this concern can be identified, it cannot be a basis on which to exclude the evidence. It would be almost perverse to require the prosecution to proceed without such evidence because it is too probative. Instead the Judge will emphasise to the fact finder that it is always necessary to focus on whether the
13 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
14 R v Tui [2010] NZCA 243.
charged events happened as alleged. The propensity evidence can assist with that assessment, but that is all.
[44] The Crown submits the evidence is more probative than prejudicial and relates directly to the issue in dispute in the trial. It is submitted that there is no unfair prejudicial effect to the defendant, and the jury will receive directions on how to approach and use the evidence.
[45] Taking the above matters into account with the balancing exercise required by s 43(1) and (4), my view is that the probative value of the evidence outweighs any illegitimate prejudicial effect and the Crown should therefore be permitted to lead the propensity evidence at trial.
Non-party disclosure orders
[46] The defendant seeks non-party disclosure orders from 2degrees Mobile Ltd and from the Department of Corrections. Non-party disclosure orders are governed by ss 24 – 29 Criminal Disclosure Act 2008. Section 24 provides:
24 Application for non-party disclosure hearing
(1)This section applies at any time after the defendant has—
(a)pleaded not guilty; or
(b)in the case of a child or young person, made a first appearance in the Youth Court.
(2)The defendant may apply to the court for an order granting a hearing to determine whether information that is held by a person or agency other than the prosecutor should be disclosed to the defendant.
(3)The application must—
(a)describe with as much particularity as possible the information that the defendant seeks to have disclosed, and state the name of the person or agency that the defendant alleges holds the information; and
(b)set out the grounds on which the defendant relies to establish that the information is relevant; and
(c)contain written evidence indicating that the defendant has made reasonable efforts to obtain the information from the person or agency that the defendant alleges holds the information.
(4)The defendant must give a copy of the application to the prosecutor, and the prosecutor must be allowed a reasonable time to make written submissions to the court concerning the application.
(5)The Court may seek and consider written submissions from the person or agency that the defendant alleges holds the information or any other person or agency that the court believes would have knowledge of the existence of the information, its whereabouts, and its likely relevance to the proceedings.
[47] The Court may grant the application under s 24 if it is satisfied that all or part of the information that the defendant seeks is likely to be held by the agency that the defendant alleges holds the information and all or part of the information appears to the court to be relevant.
29 Determination of court following non-party disclosure hearing
(1)After the hearing under section 27, the Judge may order the person or agency who holds the information to disclose it, or part of it, to the defendant, subject to any conditions imposed under subsection (4), if the Judge is satisfied that—
(a)the information or part of it is relevant; and
(b)the disclosure of the information or part of it is necessary in the public interest.
(2)The Judge may refuse to order disclosure of the information, or part of it, if the Judge is satisfied that—
(a)any of the reasons described in section 16 or 18 for which information could be withheld apply to the information; or
(b)the application of section 17 requires that the information not be disclosed.
(3)In addition to subsections (1) and (2), in determining whether to order the disclosure of the information or part of the information to the defendant, the Judge must take into account—
(a)the extent to which the information will assist the defendant to properly defend the charge; and
(b)the probative value of the information; and
(c)the nature and extent of any reasonable expectation of privacy with respect to the information, including any expectation of the person to whom the information relates; and
(d)the effect of the determination on the fairness of the trial or hearing process.
(4)If the Judge orders the disclosure of the information or part of the information to the defendant, the Judge may impose conditions on the disclosure to protect the public interest and, to the greatest extent possible, any privacy interests of any person to whom the information relates, including, for example, any of the following conditions:
(a)that the information be edited as directed by the Judge:
(b)that a copy of the information, rather than the original, be disclosed:
(c)that the defendant not disclose the information to any other person, except with the approval of the court:
(d)that the information be disclosed only to counsel for the defendant and not to the defendant himself or herself:
(e)that no copies of the information be made, or that restrictions be imposed on the number of copies of the information that may be made:
(f)that details relating to any named person in the information, such as the person's address, telephone number, or place of employment, not be disclosed.
(5)If any information is disclosed under this section to the defendant's counsel and, before the proceedings are determined, that counsel ceases to act for the defendant, the counsel must return the information and any copies of it in the possession of the defendant or the defendant's counsel to the court or Registrar, together with a declaration that those copies have been returned.
(6)If any person fails to comply with subsection (5) without reasonable excuse the court may, on its own motion or on the application of the prosecutor, deal with the failure as a contempt of court.
[48] The procedure to be followed was outlined by the Court of Appeal in R v Medcalf where the Court held:15
[24] Although s 29(2) and (3) indicate circumstances in which a judge might grant or refuse a disclosure order, the ultimate decision must be exercised under s 29(1), after consideration of all relevant factors. Only if the information (or part of it) were relevant to a trial issue and it is necessary, in the public interest, for the information to be disclosed can the court exercise its discretion to make a non-party disclosure order.
2degrees Mobile Ltd
[49] The data sought relates to a mobile phone used and owned by the defendant at the relevant time. The defendant has instructed counsel that data on that telephone
15 R v Medcalf [2013] NZCA 333.
may be relevant to his defence. That telephone was on a pre-pay plan and while the defendant has proof of purchase he does not have the pin number that the non-party requires to confirm his identity. The data has been secured but the non-party requires a court order before releasing it to the defendant.
[50] This order is sought on the basis that it is only disclosed to the defendant and not the Crown. It is submitted such an order is appropriate given the privacy considerations associated with such material.
[51] The relevant issue here is a confined one. Mr Selini is unable to prove to 2degrees that he was the owner of the pre-paid phone. He has presented evidence to me that the phone was purchased by his mother. I am satisfied on the balance of probabilities that is likely to be the case, and that Mr Selini is not seeking access to some third party’s phone information.
[52] The potential relevance of the material is simply that this could potentially be relevant to Mr Selini’s defence, as it will be evidencing his communications over the period of the alleged offending.
[53]For those reasons I agree the orders should be made in the terms sought.
Department of Corrections
[54] By notice of application filed in the District Court before this matter was transferred to the High Court the defendant sought the following material form the Department of Corrections:
(a)All recorded telephone calls made by or using the telephone login details of two identified prisoners.
(b)The names of all prisoners who have the telephone number identified in the application as an approved number and recordings of all calls to that number.
(c)All prisoner emails received from an email address identified in the application.
[55] The defendant submits he has reason to believe the complainant has been speaking to other prisoners and encouraging them to be violent towards him. The defendant submits that, if this is the case, then that is a matter which will be relevant for the purpose of his defence. This request is an attempt to obtain evidence in support of this suggestion. The defendant understands that some of these requests have been made in telephone calls made by or using the telephone login details of the two prisoners named in the application. The defendant also understands the telephone number referred to was used by the complainant at the relevant time and that she was speaking with a number of prisoners using this number. The defendant also understands that the email address referred to was used by the complainant to correspond with prisoners using the ePrisoner platform.
[56] This information is sought for the period beginning with Mr Selini's remand in custody from 1 June 2018 until 1 November 2018.
[57] In order that this discovery order be met, it would be necessary for the Department of Corrections to go through all the recordings of the telephone calls made by the relevant inmates to review any communication with the complainant. That could be quite an extensive exercise. That would be over and above retrieving the information associated with the identified telephone number and email addresses.
[58] Mr Williams argued that this material could potentially be relevant because if it were demonstrated that the complainant had been seeking that acts of violence or similar conduct be undertaken in relation to the defendant that could affect her credibility, including in relation to the charges in question.
[59] Ms Boshier emphasised that the Court needed to be satisfied that the information was likely to be held by the relevant third party. Notwithstanding that this is a relatively low threshold, I accept her submission that the information gathering exercise does not have sufficient particularity to justify the orders. The relevant statutory provisions contemplate a degree of particularity. Even if there were
communications with the material in which the complainant indicated a desire that the defendant be harmed, the evidential value of that in terms of the actual charges the defendant faces would be low. Mr Williams argued that he would be able to use it to attack the complainant’s credibility, but that is a possibility only.
[60] The existence of the suggested information is a matter of speculation, it involves hearsay, and has marginal relevance. The steps required by the orders would involve an extensive review of potential material. I am not satisfied that there is sufficient information before me to justify an order in the terms sought being made. I accordingly dismiss the application.
[61]I make the following directions:
(a)That the complainant give evidence from behind a screen in court, or with a screen positioned in such a way that she does not look at the defendant or the public gallery.
(b)That the Crown’s application to admit the evidence of prior convictions is granted.
(c)That the application for non-party disclosure from 2degrees Mobile is made on the basis that it is only disclosed to the defendant and not the Crown.
(d)That the application for non-party disclosure from the Department of Corrections is dismissed.
Cooke J
Solicitors:
Raymond Donnelly & Co., Christchurch A M S Williams, Barrister, Christchurch
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