R v Tereva CA82/06

The appellant, Jeremy Tereva, was convicted by a jury in the District Court at Manukau of one count of sexual violation by unlawful sexual connection, one count of kidnapping, and two counts of indecent assault. The appellant was acquitted on one count of threatening to kill, and another charge, anal intercourse with a severely subnormal person, was dismissed as it was laid as an alternative to the sexual violation charge. He was sentenced to a term of imprisonment of nine and a half years. The appellant appealed against his convictions and sentence, arguing that the trial judge should have granted him leave to cross-examine the complainant and the complainant’s mother on the complainant’s previous sexual history, which would have shown that the complainant had made false complaints of sexual assault in the past. The appellant argued that this would have demonstrated the unreliability of the complainant’s evidence in the present case, and resulted in a miscarriage of justice.

The Court of Appeal held that the trial judge was correct to refuse the appellant leave to cross-examine the complainant and his mother on the previous complaints. The Court noted that the appellant had not established a proper evidential foundation for the proposition that the previous complaints were false. The Court also held that the appellant’s defence was that sexual conduct had occurred but was consensual, and that the previous complaints were examples of the same type of consensual sexual conduct, later misrepresented as non-consensual. This created the risk that the cross-examination would become little more than a general challenge to the complainant’s moral character or prior sexual history, which is the mischief that s 23A of the Evidence Act 1908 was intended to prevent. The Court held that the appeal was dismissed.

The Court of Appeal dismissed the appeal and upheld the appellant’s convictions and sentence. The Court held that the trial judge was correct to refuse the appellant leave to cross-examine the complainant and his mother on the previous complaints, as the appellant had not established a proper evidential foundation for the proposition that the previous complaints were false, and the cross-examination would have become a general challenge to the complainant’s moral character or prior sexual history.