R v T - [2012] NZHC 291

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

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF ACCUSED.

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2012-425-000018 [2012] NZHC 291

REGINA

V

T

Hearing: 24 February 2012

Counsel: JNP Young for Crown
H Young for Accused

Judgment: 24 February 2012

PRE-TRIAL RULING OF WHATA J

[1] Mr T was recently convicted for sexual offending against four female victims between 18 November 2001 and 31 December 2007. Mr T is now on trial on two counts of sexual offending against the complainant, LTA.

[2] The Crown now wishes to adduce evidence of Mr T’s previous convictions. One problem for the Crown is that in a pre-trial hearing in relation to the previous complainants, I severed the current indictment on the basis that the facts of this
indictment did not share the common characteristics or pattern of offending of the

R V T HC INV CRI 2012-425-000018 [24 February 2012]

other complaints and the prejudice to Mr T of having those complaints heard together with the current complaint outweighed the probative value of those complaints.

[3] The Crown now submits that the matter can be looked at afresh. Ultimately the key issue for me to determine is whether the convictions (as opposed to the complaints) are propensity evidence of sufficient probative value as to outweigh the prejudice.

Background

[4] The basic background to this matter was not contested and was usefully summarised by the Crown.

[5] Mr T was convicted of sexual offending comprising the following: (a) Indecent assault on a girl under 12 (x 2) against Victim 1;
(b) Sexual violation by unlawful sexual connection against Victim 2;

(c) Indecent act on a child (x 4) and sexual violation by unlawful sexual connection against Victim 3; and

(d) Indecent act on a child against Victim 4.

[6] Prior to the trial involving the four above victims, a pre-trial hearing was heard before me relating to joinder and severance of the complainants. At that hearing I determined that the charges relating to LTA (the present complainant) were to be severed from the indictment and were to be determined at a separate trial. The following paragraphs of my judgment capture the core of my reasoning:

[47] As the Court of Appeal said in O v R, the real probative value of the propensity evidence is the similarity of offending which is relevant under para (c). In the present case the common elements of sexual violation, location and position of trust need to be offset against the dissimilarities of the age and severity. For my part, while the alleged facts portray a pattern of sexual violence by a person in a position of trust, and with opportunity

against young girls, the age and rape elements are materially different. This reduces, objectively, the probative value in terms of establishing a consistent pattern of conduct beyond sexual violation in a broad brush sense.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v T

Details

AGLC: R v T [2012] NZHC 291
Case: [2012] NZHC 291
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Judge Whata presided over the case of Regina v T, a trial concerning sexual offences against a complainant, LTA, by the accused, Mr T. Mr T had previously been convicted of sexual offences against four other victims. The Crown sought to introduce evidence of Mr T's previous convictions to support the allegations against LTA. However, Judge Whata had previously severed the current indictment from the other complaints due to differences in the nature of the alleged offences and the potential for unfair prejudice. The Crown argued that the matter could be reconsidered given the proven nature of the previous offending.

The court considered whether the probative value of the previous convictions outweighed the prejudicial effect. The court noted similarities in the familial context and the nature of the offending, but also highlighted differences in the ages of the victims and the escalation to rape in the current allegations. The court concluded that while the evidence demonstrated a tendency towards sexual touching of young girls in a familial context, it did not necessarily demonstrate a tendency to rape. The probative value of the evidence was deemed sufficient to warrant admission, particularly in assessing the credibility of LTA's account.

The court also addressed the potential for unfair prejudice, noting that the risk of the jury erroneously forming the view that sexual touching of young girls must inevitably lead to rape of a teenage girl could be mitigated with a proper direction. The court concluded that the probative value of the evidence was proportionate to the prejudicial effect and ordered the admission of the previous convictions as propensity evidence.

Orders