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.

[48]     Furthermore on the evidence before me, the pattern that emerges across Complainants 1, 2, 4 and 5 is consistent across some 10 counts.  The alleged offending against Complainant 3 is odd because it does not include the core elements of that pattern, namely touching of the vagina through clothing or digital penetration.  The acts alleged by Complainant 3 ranged from pulling down pants to rape.  They allegedly occur in the middle of the period of offending, yet do not share the common characteristics or pattern of offending to that point and after.

[49]      Turning then to the assessment criteria in s 43, I accept the Crown’s

position that following matters in subsection (3): (i)        frequency (s 43(3)(a));

(ii)      connection in time (s 43(3)(b));

(iii)     collusion or lack thereof (s 43(3)(e)), and

(iv)     unusual offending (s 43(3)(f)), are satisfied or partially satisfied.

[50]      But I am not satisfied that s 43(3)(c) relating to the similarity of the acts is satisfied or that s 43(3)(d) is fully satisfied.   Rape is materially different from the pattern of conduct in relation to the other complainants and the age of Complainant 3 is sufficiently dissimilar to mark it out as a point of difference.   I also consider that the age difference (7-4 years) is material (but would not, by itself, have been a basis to disqualify the evidence).   I consider it is also relevant that only one complainant alleges rape.

Prejudice

[51]      There can be little doubt in my view that the allegations of rape would be highly prejudicial.   It places Mr T at the high end of sexual offending.  While the type of offending is not as severe as sexual violation in JRSP, I consider the rape component significantly elevates the nature of the sexual violation to the point that the jury could develop an appreciably worse impression of Mr T in relation to the other complainants.  There is a real risk that this impression will unfairly predispose the jury against Mr T in relation to them.  I am also satisfied that the jury could place disproportionate weight on the evidence of a rape complainant in reaching a verdict on the other allegations.

[7]      I  would  note,  however,  at  this  stage  that  I  accept  the  Crown’s  basic

proposition that:

(a)      I  did  not  rule  out  the  prospect  of  the  Crown  seeking  to  adduce

propensity  evidence  of  the  other  complainants’  evidence  in  the context of the resolution of LTA’s complaint.

(b)With the conviction of Mr T for the previous offending, the factual basis for my assessment has changed.

The facts of LTA’s complaint

[8]      LTA was 13 years old at the time of the alleged offending.  She is a niece of the accused.   The offending was said to have occurred between 3 April 2003 and

4 July 2003.

[9]      The complainant identifies two incidents that occurred while she was at the

accused’s address.

[10]     On 3 April 2003 the complainant was sitting on a couch when Mr T came over to her and tried to put his hand up her pyjama pants.  The complainant brushed his hand away and she went to bed.

[11]     On 4 July 2003 Mr T and the complainant were alone together in the lounge. Mr T sat on the couch with the complainant, “got down” the complainant’s pyjama pants, “pulled his own pants down” and tried to insert his penis into her vagina. Mr T succeeded after which the complainant pushed him off and went to bed.

Facts of the convicted offending

[12]     I am greatly assisted by Simon France J’s record of the offending as trial Judge in relation to the convicted offending.   I rely on it.   His sentencing memorandum  says:

[S]

[6]       The complainant said that [Mr T] would get into the shower with her and feel around her naked genital area with his bare hand.  She also alleged that he would come into her bedroom.   He would put his hand under her pyjamas either on top of or under her knickers.  He would feel around her

genital area.  In my view the evidence establishes that each type of offending occurred on numerous occasions.

[K]

[7]       [Mr T]  lived  for  a  short time  with  [K’s]  parents,  in  a  boarding

capacity.  This was predatory and disturbing offending.  One night, around

1.00 a.m., [Mr T] went into [K’s] room.  I am unsure if he woke her or she

was awake.  He invited her to go to the lounge.  He had a present there for her, namely a Barbie book.  He talked to her about her conduct, praising her

for her behaviour.   He had the young girl of eight rub lotion on his back,

allegedly for a sore shoulder.   Concerned about what was happening, she engineered the opportunity to go back to bed.  However, he followed her into the bedroom and as she lay in bed, her knees bent, he placed his hand down the  back  of  her  pyjamas,  felt  around  and  then  digitally  penetrated  her. [Mr T] had in my view been drinking.  He was evicted from the house the next day, so it was a single charge in relation to [K].

[T]

[8]       Mr T was in a relationship for some time with [T’s] grand-mother. T was a very regular visitor who would stay for extended periods with her grand-mother.

[9]       There are five convictions.  Four relate to the same type of offending but at different houses or flats.   The offending involves putting his hand down her pants and feeling around her genital area.  The jury verdicts undoubtedly reflect a conclusion that it happened so often the jury could be satisfied it happened at every address where they lived.

[10]      The final address was [A Street].  The opportunity there was limited to a three to four week period before [Mr T] and [T’s] grand-mother parted ways.   The offending probably occurred less there for this reason.   That address is also where [T] alleged that [Mr T’s] behaviour progressed to digital penetration.  The child’s description on the video was compelling and left little doubt in my mind that she had experienced such abuse.  In terms of frequency the evidence means that this conduct must be regarded as having only happened a few times.

[11]      Whilst on this topic it is clear that [T] was confused about addresses, and did not recall an intervening residence between [B Street] and [A Street], namely [C Street].   However, the charge relating to digital penetration is limited   to   [A   Street],   and   an   assessment   of   frequency   must   be correspondingly   limited.      By   contract   the   other   indecent   conduct undoubtedly occurred often over the period.

[C]

[12]      [C] was the most recent complainant and the youngest witness at nine years of age.  She was also the youngest victim being aged four to five years old. The conduct is again touching of the genital area under clothing. [C] was confused about dates and addresses, but was resolute in her conviction as to the offending occurring.  Although one can be suspicious, the child’s evidence was that it happened only two to three times and I

consider for sentencing purposes that should be the extent of the offending. It was on this charge that the sole majority verdict was entered.

[13]     In summary, the convicted offending shares the following common factors:

(a)      They are all in a familial context.  (Mr T had a relationship with the complainants’ mothers or grandmother and was occupying the family residence);

(b)The  offending  involved  Mr  T  touching  the  complainants’ vagina either on or under the complainants’ clothing;

(c)       The victims were very young, between four and eight;

(d)      The offending occurred  between 18 November 2001 and 29 June

2007 (before and after the present complaint).

The Crown case

[14]     The Crown acknowledges that in my decision severing LTA’s complaint from the other complaints, I formed a view that the probative value of LTA’s complaint was outweighed by the prejudicial effect of it, particularly as it included a rape allegation.

[15]     The Crown submits, however, that the matter can now be looked at afresh, because:

(a)      The  offending  against  the  victims  is  now  proven  as  opposed  to unproven.

(b)The propensity evidence is to be used in support of the allegations against the accused relating to LTA, as opposed to the propensity evidence being mutually supportive of each of the allegations (as was intended in the previous pre-trial).   In other words, the propensity evidence is to be used in one direction only.

(c)       The case law has developed since the last pre-trial argument.

[16]     The Crown helpfully surveys the legal principles relevant to my assessment. In  addition  to  the  over-arching  principles  of  relevance,  probative  value  and prejudicial effect,1 the focal point of the analysis remains ss 40 – 43 of the Evidence Act 2006 as they relate to propensity evidence.  The Crown in a very detailed way examines the relevant criteria under s 43 in order to substantiate its basic contention that the convictions must now come in.

Argument for the accused

[17]     Mr H Young emphasises that I have already addressed the substantive issues in my previous pre-trial ruling and refers to the various decisions that I gave there including reference to O v R2  (insofar as the Court observed that the real probative value of propensity evidence is the similarity of the offending) and the position of JRSP v R3    where the difference in ages and the more extreme nature of the allegations by one complainant affected its propensity value.

[18]     Mr H Young also observes that the Crown, without tying its colours to the mast, has indicated that it is unlikely to proceed to trial in relation to this last complainant  if  it  is  unable  to  produce  the  propensity  evidence  in  support. Mr H Young says that this is a concession by the Crown that the case concerning LTA is a weak one.

[19]     Helpfully, Mr H Young identifies that the main issue for the jury at trial will be the question concerning whether or not the alleged acts actually occurred.   He submits that it follows from this analysis that the credibility of the complainant will be an issue.

[20]     As to the value of the proposed propensity evidence, he contends that the proposed value of the evidence is at best moderate.  While the complainant is still a

1      Evidence Act 2006, ss 7 and 8

2      O v R [2010] NZCA 194

3      JRSP v R HC Auckland CRI-2008-092-002766, 11 December 2008

young girl, aged 13 years, there is a clear age difference between her and the others. There is also a clear difference, he says, between both her sexual and emotional development.  In addition there does not appear to be any grooming in this case.

[21]     Mr H Young then traverses the relevant considerations under s 43(3).   In summary:

(a)      He accepts that this is a case where there are numerous incidents of offending against young girls.   He emphasises that the offending is against prepubescent girls who are at a different stage of emotional and sexual development than complainant LTA.  He emphasises also that the dissimilar sexual offending will no doubt create feelings of revulsion and distaste and severely prejudice the accused.

(b)He accepts that there was a connection in time but that the extreme nature of the rape allegation does not fit the pattern of the other offending.

(c)      As to the extent of the similarities, he observes that the offending in fact occurred at various places which in turn makes it easy for the Crown to point to similarities.  He says that the real focus should be that  all  the  offending  occurred  in  the  family home  but  again  the difference in ages and the type of offending against them must remain relevant because of the dissimilarity.

(d)While there were four complainants, Mr H Young emphasises again the difference in the nature of the sexual offending and the age of the girls.

(e)      There are concerns about the potential for collusion given that it is said LTA must have known about the other complaints.

[22]     Finally and perhaps the most significant submission by the accused’s counsel

is that a jury is bound to give disproportionate weight to the fact that the accused has

so many convictions for sexual offending against young girls.  He says they will see him as some kind of serial paedophile and that this will inevitably generate feelings of revulsion and disgust.

[23]     Mr H Young also observes that available evidence shows that LTA has made a previous false statement alleging sexual assault by a stranger.   He also refers to other witness testimony which suggests that LTA’s version of events is not supported by other evidence including:  the opportunity for the accused to have committed the offending; what LTA was wearing at the time; and her happy demeanour.

Framework of assessment

[24]     It is common ground that the focal point for my enquiry is ss 40 and 43. Section 40 provides:

40       Propensity rule

(1)      In this section and sections 41 to 43, propensity evidence -

(a)       means 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; but

(b)      does not include evidence of an act or omission that is -

(i)        1 of the elements of the offence for which the person is being tried; or

(ii)      the cause of action in the proceeding in question.

(2)       A  party  may  offer  propensity  evidence  in  a  civil  or  criminal proceeding about any person.

(3)      However, propensity evidence about -

(a)       a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and

(b)       a  complainant  in  a sexual  case  in  relation  to the complainant's sexual experience may be offered only in accordance with section 44.

(4)       Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

43       Propensity evidence offered by prosecution about defendants

(1)       The prosecution may offer propensity evidence about a defendant in a criminal proceeding only 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.

(2)      When  assessing  the  probative  value  of  propensity  evidence,  the

Judge must take into account the nature of the issue in dispute.

(3)      When  assessing  the  probative  value  of  propensity  evidence,  the

Judge may consider, among other matters, the following:

(a)      the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:

(b)       the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the   acts,   omissions,   events,   or   circumstances   which constitute the offence for which the defendant is being tried:

(c)       the  extent  of  the  similarity  between  the  acts,  omissions, events,  or  circumstances  which  are  the  subject  of  the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d)       the  number  of  persons  making  allegations  against  the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e)       whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:

(f)       the   extent   to   which   the   acts,   omissions,   events,   or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the  offence  for  which  the  defendant  is  being  tried  are unusual.

(4)       When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters, -

(a)       whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and

(b)       whether the fact-finder  will tend  to  give  disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[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 to the conduct or mental state alleged to constitute the offence for which the person is being tried.

[27]     The propensity evidence thus must be probative of the matters directly in issue.  In the absence of a clear nexus between that evidence and the issues it will not meet the threshold test for propensity evidence under s 344A.

[28]    In this particular context there must be some care to ensure linkage or coincidence at the finer grain so as to achieve particularity envisaged in Mahomed v R.     The statutory indicia at  s 43(3) provide a  non-exclusive set  of criteria for assessing the probative value of the propensity evidence.

[29]     As to prejudicial effect, the focal point for the inquiry is unfairness of the effect.   Unfairness is generally found when and to the extent the evidence carries with it the risk the jury will use it for an improper purpose or in support of an impermissible process of reasoning.5

[30]     Finally, in assessing the probative value/unfair prejudice balance, I may need to take into account the extent to which I consider that a “proper use” direction in the trial Judge’s summing up would be likely to guard against the risk of improper use.6

[31]     Given this framework I will address my assessment by:

(a)       Identifying the issues in dispute against which the proposed evidence might be relevant.

4       Mahomed v R [2011] NZSC 52.

5       Ibid at [7]

6       Ibid.

(b)I will address the linkage and  coincidence having regard to s  43 matters.

(c)       I will weigh the probative value of the proposed evidence against the prejudicial effect of it.

Relevant issues

[32]     With  the  benefit  of  argument,  I  consider  that  the  proposed  evidence  is relevant to two key issues, namely:

(a)       Whether Mr T did the offending; and

(b)       The credibility of LTA.

[33]     I draw guidance in this regard from the approach taken by the Court of Appeal in S v The Queen.7    The issue in that case was whether R’s evidence was credible and whether Mr S acted as she alleged.  In that case, R alleged that she was raped by her father and wanted to adduce evidence from her sister that their father had acted in the same way toward her.  In the present case, I join with the reasoning process  adopted  by  the  Court  of Appeal,  that  is,  I  am  satisfied  that  the  prior

offending evidence, if accepted, is relevant, showing that Mr T has a particular characteristic, namely, a sexual interest in young girls in a familial context and by coincidence reasoning that is at least relevant to LTA’s credibility8 - whether sufficiently so is a matter I must now consider.

Linkage and coincidence

[34]     As I observed in my first pre-trial judgment concerning the other complaints, there are similarities between the proven offending and the alleged offending. Familial  context,  including  the  nature  of  the  relationships  and  the  common

environment is a consistent feature.   The sexual touching of young girls is also a

7      S v R [2011] NZCA 477

8      Ibid, refer to analysis by Court of Appeal at paragraph [17]

common feature.  I am told alcohol also appears to be a common feature.  I further accept  that  their  proximity  to  each  other,  that  is  the  accused  to  all  of  the complainants on each of the occasions of offending, was similar.   If I “freeze frame” the comparison at this point, the offending is marked by a high level of linkage (commonality) and coincidence (logical and probable consistency).

[35]     But the offending is also marked by two significant differences, the age of LTA, a teenager, and the rape.   The alleged offending against LTA was obviously escalated to another level.  Mr J Young contends that this simply reflects a natural progression from sexual touching of young girls to rape of a teenager (though still a young girl).  Yet the two kinds of offending are distinct, and indeed attract different responses in terms of punishment.  Approached objectively there is a break in the linkage and coincidence or there is a dissimilarity which reduces its propensity value in the sense of demonstrating a tendency to act in a particular way or to have a particular state of mind.  In my view the proposed evidence takes us only so far as to demonstrate a tendency to sexual touching of young girls when in a familial context. It does not, with respect to the careful argument of Mr J Young, demonstrate ipso facto a tendency to rape.  That element is simply missing from the characteristics of the prior offending.  Indeed, it stands in stark contrast to it.

[36]     Turning then to the assessment criteria in s 43; as I did in my first pre-trial

judgment, I accept the Crown’s position that the following matters in subs (3):

(i)        Frequency (s 43(3)(a));

(ii)       Connection in time (s 43(3)(b));

(iii)      Collusion or lack thereof (s43(3)(e)); and

(iv)      Unusual offending (s 43(3)(f));

are satisfied or partially satisfied.

[37]     Equally, I do not change my view that I am not satisfied that s 43(3)(c)

relating to the precise similarity of the acts is satisfied or that s 43(3)(d) is fully

satisfied.  As I observed, rape is materially different from the pattern of conduct in relation to the other complainants and the age of LTA is sufficiently dissimilar to mark it out as a point of difference.

[38]     On balance, however, I have reason to depart from my earlier decision to this extent - the value of the propensity evidence lies in demonstrating a proven tendency to  show  an  interest  in  the  sexual  touching  of  young  girls  where  he  has  the opportunity to do so, characteristically in a family home.  A similar tendency was

sufficient in Metcalfe v R.9   The linkage and coincidence in this case on this aspect is

strong.   Subject to the question of unfair prejudice, the evidence of the prior convictions is sufficiently probative in relation to that specific issue and therefore the credibility of LTA, to warrant admission.

Prejudice

[39]     I commence by restating the s 43(4) matters I must consider when assessing prejudicial effect:

(a)       whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and

(b)      whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[40]     The assumed natural progression from sexual touching to rape asserted by the Crown presents the greatest risk, in my view, that the jury will reason rape of a teenager is an inevitable progression from sexual touching of young girls.  On the question of joinder I formed the view, and remain of the view, that the rape component significantly elevates the nature of the sexual violation to the point that if the complaint had been heard together the jury could and would have developed an appreciably worse impression of Mr T in relation to the other complainants.  The risk was that this impression would unfairly predispose the jury against Mr T in relation to them.

[41]     The question before me now, however, is a different one.   I am no longer concerned about the rape impacting upon allegations of sexual touching.  Rather, I am confronted with a situation of proven sexual touching against young girls and the implications that has for an allegation of rape. The same risk is not present (although it is replaced by a different one).  The nature of the sexual touching by itself will not disproportionately affect the jurors in terms of their view of the accused.   In that regard the prejudicial effect of the evidence is conterminous with its probative value.

[42]     The residual and significant issue remains, however, namely whether as I have said the jury will simply apply a natural progression reasoning approach and erroneously form the view that sexual touching of young girls must inevitably lead to rape of a young teenage girl.  In resolving this issue, I take some guidance from the

approach taken by the members of the Court of Appeal in Lindsay v R10.  That case

has similarities to the present to the extent that the accused had been convicted of eight charges of sexual offending against girls in his care.  The Court was divided with the majority finding that any possibility of predisposing the jury against the defendant could be dealt with by a proper direction.  MacKenzie J, in the minority, had this to say:

[30]      ...  It  is  not legitimate  propensity reasoning to reason  that  solely because a person has a sexual interest in young girls, he is likely to act upon that sexual interest in a way which is significantly different from and much more serious than the way in which he has acted upon that sexual interest on another occasion. As I have discussed in relation to probative value, the reference to a sexual interest in young girls did not sufficiently focus the jury’s inquiry, and was unfairly prejudicial for that reason.

[43]     Wild and Rodney Hansen JJ, by contrast, observed:

[34]      We consider the propensity evidence and Mr Lindsay’s admissions are relevant to the issues at the re-trial and that their probative value in relation to those issues outweighs any risk that they may have an unfairly prejudicial effect on Mr Lindsay. It goes to the credibility of AM and VL, making it more likely the jury will believe that Mr Lindsay did to them while they were in his care the things they allege, things Mr Lindsay flatly denies.

[44]     Their Honours then reasoned that a properly focussed direction, explaining the illogicality of progression reasoning, should suffice to overcome any potential unfairness.  On the question of disproportionate weight, Wild and Rodney Hansen JJ observed:

... Probative value and prejudice to the accused are the two sides of the same evidentiary coin.

Result

[45]     Against this background, I have come to the view that the evidence of prior convictions and the associated facts should be admitted to evidence for the following reasons.

[46]     First, I do not consider that the evidence will “unfairly” predispose the fact finders  against  the  accused.    The  jury may be  predisposed  against  the  accused because of the previous offending.  But the accused’s counsel has openly said that the defence proposes to take a very strong line on the credibility of the complainant (LTA).  They propose to adduce evidence of prior false claims by LTA.  A critical assessment  for  the  jury  will  be  whether  LTA  should  be  believed.    The  prior offending, in my view, appropriately goes to resolving whether LTA’s account is credible, and is fairly evidence that might predispose the jury against the accused in terms of his challenge to LTA.

[47]     Second, the potential for “unfairness” arises from the progression reasoning I have identified (and was a matter of some significance to MacKenzie J in Lindsay). But this can be ameliorated in this case by a clear direction as to the proper use to which material can be put.  In a significant respect the differences in the offending provide the focal point for counsel and the trial Judge in bringing home to the jury that that leap of logic is not appropriate and that ultimately the jury must be satisfied on the evidence that the rape in fact occurred.   I am also confident that Crown counsel will not invite the jury to deduce from the convictions that a rape is an inevitable progression from the prior offending.

[48]     Third, I am not naive to the risk here, including potential for disproportionate weight to be given to the prior offending.   But in my view the combination of propensity  value  and  reliability of  the  evidence  offset  the  undoubted  prejudice. Indeed, it is a combination of weight and reliability that distinguishes this application from the application for joinder.  It is well to remember that aligned to the principle of  fairness  in  the  Evidence Act  2006  is  the  principle  of  reliability.    Generally

‘weight’ is not a precondition to admissibility.11   But that does not mean ‘weight’ is

irrelevant  to the proportionality exercise  contemplated at  s  43.    Highly reliable evidence of propensity must in my view have more probative value than evidence of questionable reliability.    Thus, to the extent that the prior convictions are heavily prejudicial, that is because of the inherent value and weight that can be afforded to those convictions.

[49]     For the foregoing reasons,  I am satisfied that the probative value of the evidence sought to be adduced by the Crown is conterminous or co-extensive with and therefore proportionate to the likely prejudicial effect.

[50]     Accordingly, there will be orders pursuant to s 344A of the Crimes Act 1961 granting  the  admissibility  of  previous  convictions  of  the  accused  for  sexual offending as propensity evidence.

[Judge has discussion with counsel]

[51]     Following discussion with counsel I will leave it with them to formulate how that evidence should come in.  Orders accordingly.

Solicitors:

Preston Russell, Invercargill, for Crown

Hugo Young, Invercargill, for Accused

11     Wi v R [2009] NZSC 12 at [24] cf s 18 regarding hearsay