R v W HC Dunedin CRI-2006-012-2644
[2007] NZHC 1677
•27 February 2007
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2006-012-2644
THE QUEEN
v
W
Hearing: 20 February 2007
(Heard at CHRISTCHURCH)
Appearances: Mr C Power for Crown
Mr J A Westgate for Accused
Judgment: 27 February 2007 at 9.30 am
JUDGMENT OF LANG J
[on application for stay, severance and orders determining admissibility of evidence]
This judgment was delivered by me on 27 February 2007 at 9.30 am, pursuant to
Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Crown Solicitor, Dunedin
Counsel:
Mr J A Westgate, Dunedin
[1] The Crown Solicitor at Dunedin has presented an indictment containing nine counts against Mr W. He faces six charges of raping and indecently assaulting his
R V W HC DUN CRI-2006-012-2644 27 February 2007
daughter, L, between 1971 and 1978. He faces two further charges of indecently assaulting his granddaughters, C and E, between 1 January 1994 and 31 December
1998.
[2] Mr W’s trial is due to commence in the High Court at Dunedin on 12 March
2007.
[3] Mr W has now applied for an order staying the charges that relate to his daughter. In the alternative, he has applied for an order that those charges be tried separately from the charges relating to his granddaughters. At Mr W’s request the Crown has also applied for an order determining whether the evidence relating to the alleged offending against L is admissible in relation to the charges in respect of the granddaughters, and whether their evidence is admissible in the charges in respect of L.
[4] In order to understand the context in which the individual applications have been brought, it is necessary to set out in some detail the allegations that the three complainants make.
The allegations
Count 1-6 – The charges relating to L
[5] The charges that relate to L are founded upon her deposition statement, which has now been amplified by an amended brief of evidence that the Crown produced on 8 February 2007.
[6] L was born on 5 April 1962. She says that her father began sexually abusing her when she was about 9 or 10 years of age. She pinpoints the commencement of the abuse as being around that period because it had begun prior to the point at which the family had a holiday at Te Anau in or about December 1972.
[7] L says that the abuse occurred until the point at which she left school on
5 August 1977. She was aged 15 years and 4 months at that time.
[8] When L was approximately 7 or 8 years of age, her father would come into the bathroom and ask her to show him certain things, for example, a spider walk or gymnastic type moves. He would then watch her perform those acts whilst she was naked.
[9] On Sunday mornings L would sometimes climb into bed with her parents. When her mother got up to make breakfast, L would sit on top of her father’s chest. He would then bounce her up and down and at the same time move her further down his body to the area of his genitals. He would then rub L back and forth and up and down until she would complain that something was digging into her.
[10] L shared a bedroom with her older sister until the point at which her sister left home and went nursing in or about January 1973. Thereafter her father would regularly come into her bedroom at night and ask whether she had the cat in her bed. When she told him that the cat was not in the bed, her father would lift up the bed covers and would put his hand under the covers and tickle her. On occasions her father would work his fingers up to her genitals, and would put his finger inside her vagina. Whilst doing so, he would talk to L and ask her “if it was nice”. He also told her that this was “how to love”, and he warned her not to tell anyone as this was their secret. He also said that if other people knew about what was happening, she would be a naughty girl and would get into trouble.
[11] If Mr W heard anyone approaching the bedroom whilst this was going on, Mr W would duck quickly into the toilet, which was situated immediately opposite L’s bedroom. He would then flush the toilet and walk out into the hall as if he had been in the toilet the whole time. L says that this behaviour continued as the opportunity was available, and that it probably occurred several times a month.
[12] When L was approximately 10 or 11 years old her father began to lease a 50- acre island in the middle of the Clutha River near Barnego, on the Clydevale Road. Mr W and his business partner ran sheep, pigs and cattle on the property, and they also grew vegetables on it.
[13] L recalls first going to the island with her father when she was approximately
11 years of age. On this occasion her father laid her down on the grass, told her to take her pants down and began stroking and fondling her. He told her that “this would be really nice” and that she would like it. He then coaxed L to open her legs and penetrated her genitals with his finger. Despite L’s efforts to close her legs, her father prised them open and tried to insert two or three of his fingers into her vagina.
[14] He then said that he thought that L was ready, and he undid his pants and pulled out his penis. Her father told her to look at his penis and he asked her if she had ever seen one before. He also told her to touch it. After telling her that he would not hurt her, Mr W inserted his penis into L’s vagina. She told him that he was hurting her, and after a minute or two he withdrew his penis and asked if she wanted to touch it. When she indicated that she did not, Mr W proceeded to masturbate until he ejaculated on the ground in front of his daughter. She says that she was disgusted by this.
[15] After Mr W had finished he told L not to tell anyone, because she would be regarded as a very naughty girl and would get into lots of trouble. He told her again that this was “our little secret” and that she was “just a wee rabbit” for making him do that to her.
[16] L says that she tried to avoid going to the island on her own after that incident, but she went there again on up to five occasions. On each of those occasions her father would put his fingers into her vagina.
[17] L says that other incidents of sexual abuse also occurred when she went out in the countryside with her father, who was working as a fencing contractor at the time. She said that acts of abuse happened in a paddock on the side of a hill behind some bushes. It also happened in the bush on occasions when they went out to check possum lines.
[18] L also refers to an occasion on which she went clay bird shooting with her father at the Pukutiro Gun Club, near Owaka. She says that her father got drunk
after the day’s events, and that they left for home at about 8 to 9 pm. It was dark at the time.
[19] On a gravel road not far from the gun club Mr W pulled the car over to the side of the road, and said that he wanted to have sex with L. He then came around to the passenger side of the vehicle and began to have sex with her. He had just inserted his penis into L’s vagina when a car approached, and he was forced to immediately jump off L. The person in the other car was another member of the gun club, Mr B. He, too, was drunk. Mr B pulled up alongside Mr W’s vehicle, wound his window down and asked if everything was all right. Mr W assured him that everything was fine and Mr B then drove off. Mr W and L then went home.
[20] On 1 April 1975 L and her family began living in a house attached to a fish and chip shop in Clyde Street, Balclutha. This was just four days before L’s 13th birthday.
[21] Whilst they lived at this address L would see her father peeping in the window when she was in the toilet or going to have a shower. As a result, she would try to get undressed and changed in the bathtub behind the shower curtain.
[22] L says that her father began coming into her bedroom more frequently after they moved to the Clyde Street address. This was because there was more opportunity by virtue of the fact that the living quarters were behind the shop, and her mother would often be working out the front in the shop. During this period Mr W told L that he would have to teach her how to kiss and that if he did not do so, she would never be able to get a boyfriend. He would then kiss her and also caress and fondle her. He also continued to put his finger into L’s vagina and would “talk dirty” to her when doing so. Incidents such as this would generally end when another member of the family approached or when L managed to push him away.
[23] L says that her father never had sexual intercourse with her after she got her period at the age of 13 ½ years. He did, however, continue to touch her in the genital region. By the time she was 15 years of age, L knew that what her father
was doing to her was not right, and she resisted his advances. She says that this seemed to work, and thereafter he left her alone.
Counts 7 to 9 – C and E E
[24] E was born on 25 November 1985 and is now 21 years of age. C was born on 2 September 1988 and is now 18 years of age. They grew up with their mother L and their father, G, in Balclutha. L’s parents also lived in Balclutha during this period.
[25] When E was 9 and C was about 6 years of age the family moved to Fairfield, near Dunedin, where L and her husband had bought a business. The alleged abuse of L’s daughters began when they were sent to stay with Mr W and his wife in Balclutha during the school holidays.
[26] E says that, for her, the abuse began when she was almost 9 years of age. Because she had eczema at the time, it was necessary for eczema ointment to be applied to her arms, inner elbows, stomach and inner thighs before she went to bed. She says that her grandfather, Mr W, applied that ointment. She says that after applying the ointment to her inner thighs, he began running his finger over her labia and that he then parted her labia and inserted a finger inside her vagina. She says that his finger was lubricated at this time with the ointment. When he did this, Mr W asked, “does that feel good?” She did not answer, and he continued to move his finger slowly in and out of her vagina. She says that this first incident continued for approximately five minutes.
[27] E says that similar incidents of abuse occurred thereafter. These would often start after she had been sitting on her grandfather’s knee in the lounge in front of the TV. Most nights she and C would have a bath, which her grandfather would sometimes “supervise”. They would then get changed for bed. When E went to bed she wore a nightie but no underwear. Generally speaking the two girls would say goodnight to their grandmother before they went to their bedroom. Their
grandfather would then come in and apply the eczema ointment. In the process he would penetrate E’s vagina with his fingers before wiping his hands on the sheets and then going over to C’s bed.
[28] E says that she began to understand that what he was doing was wrong, and she would try to attract his attention so that he would come back to her bed and leave C alone.
[29] E also says that her grandfather would run his finger up and down her anus to her clitoris. He would then insert his finger into her vagina again as though he was trying to “pleasure” her. She says that these incidents occurred often when she stayed with her grandparents. Although it did not happen every night, she believes that it happened most nights. She says that her grandfather always asked her, “does that feel good?” and he would sometimes ask “do you like that?”
[30] E can recall that on one occasion she lay on her stomach and pretended to be asleep so that her grandfather would leave her alone. She says that he inserted his fingers into her vagina from behind, but he must have found this difficult because he kept saying “roll over”. He kept trying to roll E over with his free hand without removing his finger from her vagina. She says that she tried to make noises like she was asleep, but he was very persistent.
[31] E also recalls a particular incident that occurred when she was about 10 years of age. Her grandfather had been touching her but not penetrating her vagina. He then sat her on his stomach and told her to move down. He put his hands on her hips and tried to push her down onto his groin. She resisted, but he continued to try to persuade her to move down onto his groin. Eventually he said “come on, we had better get up before we do something we both might regret”, and lifted her off.
[32] E also says that from time to time her grandfather would take her rabbit shooting. Although no abuse occurred during these expeditions, her grandfather would say things like “do you like it when granddad shows you how he loves you?” and “it’s our secret; don’t tell anyone”.
[33] E says that the abuse happened over a period of 2 ½ to 3 years, and that it stopped when she was almost 12 years of age.
C
[34] C’s evidence is to much the same effect. She, too, suffered from eczema and her grandfather would apply eczema would apply ointment each night when she was staying at his house. Whilst doing so, he would move his hands down from her stomach to her vagina. He would then rub around her vagina and insert his fingers inside it. He would then ask E if it “was nice”.
[35] E does not recall when the abuse stopped but believes it was before her 8th birthday. She says that after touching her, her grandfather would say “this is our wee secret, okay?”.
[36] C is also able to say that she saw her grandfather’s hands under E’s bedcovers, and she assumed that he was doing to E what he had done, or was going to do, to her.
Disclosure of abuse
[37] L married her husband G in February 1983. At that time she was 21 years of age, and had never told anybody about the things that her father had done to her. Shortly after she was married, she began to experience difficulties during intimate moments with her husband. She was concerned about the effect that these were causing for her marriage, and decided to tell her brother’s partner about what her father had done to her as a girl. Shortly after doing so, she also told her husband about the abuse. She says that her husband wanted to kill her father, and that he lost all respect for him. She and her husband made a joint decision, however, that they would not do anything about it,
[38] L says that the abuse continued to remain in the back of her mind, and that she did not want to have anything similar happen to her daughters. After the family moved to Fairfield in 1994, however, she allowed the girls to stay with her parents in
Balclutha. She did so because her father had aged since the time that he had abused her. She believed that he had also mellowed, and would no longer be likely to abuse young girls in his care. L also took comfort from the fact that she had talked to the girls about “stranger danger” and also “not so stranger danger”, and from the fact that they would be together in Balclutha.
[39] L says that E began having problems at school when she was aged about 11 years. As a result, arrangements were made for her to be seen by a counsellor. It was during one of these sessions that L learned that E had been sexually abused by her grandfather. L says that she broke down when E made this disclosure, and she told E that she believed her because her father had done it to her also.
[40] At that time L’s parents were staying with her brother A and his family in Australia for the winter. L then thought of her brother’s 8-year-old daughter, and the fact that she might be at risk. She telephoned her brother and told him about everything that had happened to herself and E. Her brother then told her other brother, who also lived in Sydney.
[41] Shortly after this L spoke to her father by telephone, and says that “what started off as an apology soon turned around to blaming me”. She says that, by way of explanation for what he had done to her, he said that it had occurred at a time in his life when he was sexually deprived. He also told her L that he was only teaching her how to love, that she “wanted it”, that she “made him do it”. He also said that “anyway it wasn’t intercourse”, so he hadn’t done anything wrong.
[42] In relation to E and C, L says that her father told her that he only wanted to make their eczema better, that he was only trying to help them. He said that he loved the girls and would not do anything to harm them.
[43] L and the rest of her family decided not to make a complaint at this time because they were not sure whether the girls and L would cope with the ordeal of a police investigation. In reaching this decision they also took into account the fact that L’s mother was in poor health, and that the family did not want to put her through any more stress.
[44] L says that the period between 1995 and 2002 were very traumatic and very difficult. She went to a counsellor a few times, but ceased going because she felt that the more that she talked about the abuse the more it was in her mind. She also says that C would not talk to anyone, and that E had gone down the path of “trying to totally self destruct”.
[45] L’s mother died in September 2002. One evening, just prior to the funeral and after making the funeral arrangements, L was with her father and other members of the family. E came into the house in an upset state, and she and L decided to leave. L’s sister became involved and a “huge row” erupted. This culminated in L’s father saying to those present that it was all E’s fault. As a result, L said, “so you mean that if she had kept her mouth like I did all these years everything would have been alright?” Her father is said to have responded by saying “Exactly!”
[46] L did not take the matter any further between 2002 and 2005. In 2005, however, L wrote a letter to her father telling him exactly what she thought of him. She posted that letter to him so that it would reach him in time for Father’s Day. A short time later she received a letter from a lawyer in Invercargill. In that letter her father’s lawyer said that her father was likely to sue her for slander and defamation as a result of the letter that she had written.
[47] In December 2005 L learned that her father had been spending a lot of time with an 8-year-old girl who lived next door to him. She also learned that her father had told the child’s parents that L was spreading rumours about him being a paedophile, that it was not true and that L had been suffering depression ever since her mother had died.
[48] This information finally drove L to go to the police to lay a complaint about the abuse that she had suffered at the hands of her father. She did this early in December 2005. C and E also laid complaints with the police at this time.
1. The application for an order staying the charges relating to L
The principles
[49] There is no doubt that the Court has an inherent jurisdiction to prevent an abuse of its process. This includes the power to stay proceedings where delay has been such that an accused person is prevented from obtaining a fair trial: Department of Social Welfare v Stewart [1990] 1 NZLR 697.
[50] In R v S HC Hamilton T17/93 10 September 1993 Penlington J considered that the following principles were relevant to the decision as to whether to stay a proceeding on the grounds of delay:
1.An order for a permanent stay of proceedings in the exercise of the Court’s protective inherent jurisdiction on the grounds of delay is only to be made in exceptional cases;
2.The onus would normally be on the accused to show on the balance of probabilities that, owing to delay, he will suffer prejudice to the extent that a fair trial is now impossible;
3.How the accused discharges that onus will depend on all the particular circumstances of the case;
4.Where the period of delay is long, it can be legitimate for the Court to infer prejudice without proof of its specific prejudice; and
5.Ultimately the pertinent issue is whether, despite the delay, the accused can in the particular circumstances of the case still receive a fair trial.
[51] These principles have been referred to in several subsequent decisions of this
Court: see eg R v The Queen [1996] 2 NZLR 111; R v F HC Dunedin T068/380
26 August 2004 John Hansen J.
[52] Mr Westgate also referred me to H v R HC Auckland T100/96 24 June 1996 in which Anderson J said:
The criminal law is not a private right to be invoked for private reasons. A delay of a quarter of a century is inexcusable and plainly results in prejudice to the accused.
[53] Given these principles, it is now appropriate to consider the grounds upon which Mr W contends that the Court should exercise its discretion to stay counts 1 to
6 in the present case.
The grounds advanced in the present case
[54] Mr Westgate advanced his argument on this point under three broad heads. First, he contended that the delay by L in laying her complaint was both inordinate and inexcusable. Next, he submitted that that delay will cause Mr W to suffer general, or presumptive, prejudice in the event that the charges relating to L are permitted to proceed. He based this submission on the fact that they will require Mr W to defend himself against allegations relating to events that are said to have occurred between 27 and 34 years ago. Finally, he argued that Mr W will also be the subject of specific prejudice because two important witnesses, namely his wife and Mr B, are now dead.
Was the delay inordinate and inexcusable?
[55] The delay in the present case ran from 1972, when the offending is said to have begun, until December 1995 when L finally laid her complaint with the police. Approximately 33 years therefore passed before L elected to advise the authorities of the fact that she had been abused as a child.
[56] A delay of 33 years is a very lengthy delay by any measure. It is even greater than the delay in R v F, where (at [43]) the Judge described a delay of 30 years duration as being inordinate. Similarly, in S v R (1994) 12 CRNZ 78 the Court regarded the complainant’s decision not to lay a complaint for between 24 and
29 years as being a material factor in its decision to stay the proceedings.
[57] The delay in the present case also occurred notwithstanding the fact that L first disclosed the abuse to her brother’s partner shortly after her marriage in 1983 and, I infer, to her husband shortly thereafter. The abuse also surfaced in 1994 when E made her disclosure and in 2002 at the time of Mrs W’s death. On each of those occasions it was open to L to go to the police, but she made deliberate decisions on each occasion not to do so. In those circumstances I really have little option but to conclude that the delay in the present case was inordinate.
[58] A more difficult matter, however, is whether the failure to make a complaint at each of these points was also inexcusable. Ordinarily it might reasonably have been expected that, once L had attained adulthood, she would have made a complaint on the occasions when the issue came to the surface as it did several times between
1995 and 2005. The difficulty in relation to this issue arises from the fact that L has provided an explanation for her failure to make a complaint at each of those points.
[59] There is no such difficulty, however, in relation to the period between 1972 and 1983. L’s decision to remain silent during that period is completely understandable. She no doubt hoped that she would be able to shut out the events of her childhood and that her memory of them would eventually go away.
[60] I also have little difficulty in accepting that L would also have been extremely reluctant to take matters further when she disclosed the abuse to her brother’s partner and to her husband shortly after her marriage. At that time the reticence that she felt regarding sexual matters was such that it was threatening to destabilise her marriage. Laying a complaint with the police would have placed even more pressure upon her and her husband. Their joint decision to take the matter no further at that point is also entirely understandable.
[61] When E made her disclosure in 1995 one might have expected that that would spur L into taking action. The disclosure alerted her for the first time to the fact that her father had abused her daughter in a manner not dissimilar to the way in which he had also abused her as a child. As is often the case, however, matters were not that simple. As L explains, E was having trouble at school, and this is what had triggered her disclosure. L and her husband eventually decided not to lay a
complaint because they were not sure that L and the girls would be able to cope with the stress that that would inevitably cause. In addition, L’s mother was not well, and a complaint would place huge pressure on her when she had done nothing wrong. L says that she was also under huge pressure at work at this time, and was working 90 to 100 hours per week. All of these matters persuaded her and G that it would not be in the interests of the family to lay a complaint.
[62] Although at first sight surprising, L’s decision is understandable when it is viewed in the context of the explanation that she gives. I have no doubt that, had she laid a complaint at that time, it would have placed a huge amount of stress on her entire family, including her ailing mother, at a time when they were particularly vulnerable. I have therefore reached the conclusion that the decision has been adequately explained and that it was not unreasonable in the circumstances that existed at that time.
[63] The next incident that occurred was in September 2002, at the time of Mrs W’s funeral. The argument that occurred at this time was obviously a matter of some moment for the family, but it, too, needs to be viewed in context. As I have already outlined, L says that the period between 1995 and 2002 had been very traumatic and difficult for her and her family. She says that she was no longer able to be intimate at all with her husband, and she could not cope with the demands of the shop. Moreover, the difficulties described earlier (at [44]) in relation to E and C had also arisen. In those circumstances she just tried to put the abuse out of her mind.
[64] Given that background, I do not find it surprising that L elected not to place further pressure upon her family between 1995 and 2002. It also provides an explanation for the fact that she did not go to the police even after the incident that occurred at the time of her mother’s funeral. The impression that I gain is that, although the alleged abuse was clearly a major issue within the family, L made a firm decision at that time that she was not prepared to expose herself and her daughters to the inevitable stress that a complaint to the police would generate. This obviously remained her position over the next three years. It is also clear that, had it not been for the fact that L learned in December 2005 that her father was spending a
lot of time with the 8 year old neighbour, L’s complaints would never have seen the light of day.
[65] Viewing the matter overall, I accept that L’s reluctance to involve the police may at first sight seem unusual, particularly after E made her disclosure in 1995. When the circumstances of this family are taken into account, however, I consider that L’s reluctance to transfer the allegations into the public arena is understandable. It is only natural that, if at all possible, she would want to shield herself and her family from the trauma that a complaint to the police would inevitably produce. She was ultimately only prepared to take that step when she believed that yet another child might have been at risk of abuse from her father. For these reasons I have concluded that, although the delay was undoubtedly inordinate, it cannot be described as inexcusable.
Will Mr W suffer general prejudice as a result of the delay?
[66] Any delay of the magnitude that has occurred in this case must result in a degree of general prejudice. It is difficult to answer allegations when they relate to events in the past, and that difficulty is magnified when the delay spans more than three decades.
[67] For this reason I accept that Mr W will face difficulties in defending the charges that may not have been present if a complaint had been made promptly. As Mr Westgate submitted, the passage of time and Mr W’s advancing age necessarily means that his memory has dimmed and his ability to recall details of events is diminished.
[68] The existence of such difficulties is not, however, of itself sufficient to warrant a stay being granted. The touchstone must always be whether the passage of time has created a real risk that Mr W will not be able to receive a fair trial.
[69] The nature of the present case is such that I do not consider that the issue of general prejudice warrants the exercise of the Court’s protective inherent jurisdiction. L’s allegations paint a picture of persistent and longstanding sexual
abuse of varying descriptions. Although she is able to describe some discrete incidents, including that which is said to have followed the clay bird shoot at the Gun Club, for the most part L describes numerous incidents of abuse in general terms. Defence of those charges will necessarily be in the form of a general, albeit vigorous, denial that any such incidents occurred. Mr W may advance the explanation, at least in relation to some of the charges, that she has misinterpreted innocent actions on his part. In respect of at least some of the charges, however, Mr W has little option but to seek to persuade the jury of the possibility that, for a purpose known or unknown, L has fabricated her evidence.
[70] In those circumstances the effect of general prejudice is likely to play a lesser role than it may in other cases. Where, for example, the allegation relates to a single identifiable incident, the surrounding details may become crucial to the defence. Those details may prove that the incident could not have occurred, or at least not in the way that the complainant has said. In a case such as the present, however, issues of detail are unlikely, in my view, to play a large part. For this reason I do not consider that the issue of general prejudice is one of particular significance.
Will Mr W suffer specific prejudice?
[71] Mr Westgate submitted that the deaths of Mrs W and Mr B will create specific prejudice for Mr W in defending the charges.
[72] The death of Mrs W is said to create prejudice in three ways. First, it is suggested that she may have been able to support him by giving evidence regarding lack of opportunity on Mr W’s part to commit the offences he is now charged with. There is nothing to suggest, however, that Mrs W may have been able to give that evidence. Even if she could have, her evidence on this point could not be given any real weight by the jury. In cases involving allegations of offending over a lengthy period of time within the family circle it will generally be impossible to demonstrate that the alleged offender had no opportunity to commit the offences.
[73] Next it is submitted that she may have been able to assist Mr W by confirming that E and C appeared to be normal and happy when they stayed with
their grandparents in Balclutha. Again, however, such evidence would provide the jury with little or no assistance regarding the issues that it will need to determine.
[74] Finally, it is suggested that Mrs W may have been able to refute the suggestion that her husband made statements that can be viewed as admissions at times when he was challenged by the family regarding his conduct in relation to L and her daughters. This submission may have had some force if there was some evidence to suggest that Mrs W would have been able to assist in this way. There is, however, none. What Mrs W may or may not have been able to say therefore remains very much a matter of speculation. At most, his wife’s death has denied Mr W the opportunity to pursue this particular avenue of enquiry.
[75] For these reasons I do not accept that the death of Mrs W has created any significant specific prejudice for her husband.
[76] Mr Westgate submitted that the death of Mr B has removed a crucial defence witness. He suggested that Mr B may have been able to assist Mr W to defend one of the few discrete incidents that L is able to describe.
[77] The submission has an initial attraction, because Mr W’s ability to defend L’s more general allegations would no doubt be advanced considerably if he could show that that incident did not occur. Viewed more closely, however, the submission has difficulties. First, there must be a real question as to whether Mr B would have been able to remember the incident at all. It occurred many years ago and would presumably have had little or no significance for Mr B either then or subsequently.
[78] Assuming that Mr B would have remembered the incident, it is difficult to see how he could have given any evidence about it that could assist the jury in determining whether the incident occurred in the way that L describes. L does not say that she was distraught at the time that Mr B arrived, or that there was anything else about the incident that is likely to have attracted Mr B’s attention. It therefore seems likely that Mr B’s evidence would either be to the effect that he cannot remember the incident or, if he can, that he stopped on the side of the road and obtained confirmation from Mr W that everything was in order.
[79] I therefore do not consider that the death of Mr B will create specific prejudice for Mr W. To be fair to Mr Westgate, he virtually conceded this point during argument.
The admissions
[80] In S v R (1994) 12 CRNZ 78 Holland J had regard to the nature of the evidence against the accused in considering whether to order a stay of proceedings. He considered (at 82) that if there was evidence of a “clear admission fairly obtained”, he found it difficult to see how the extent of any delay could, on its own and without more, lead to abuse of process that would justify the Court in exercising its discretion to order a stay of proceedings.
[81] In the present case the Crown contends that Mr W has made statements to his family that amount to incriminating admissions, and that these should influence the Court in exercising its discretion.
[82] The difficulty with this argument is that Mr W denies that he has ever made the statements in question. Whether or not he did so will need to be determined by the jury. In those circumstances I do not consider that I should give this factor any weight.
Conclusion
[83] As will probably be clear from what I have already said, I am not persuaded that the Court should order a stay of the charges in the present case. Although the delay in laying the complaint was inordinate, it was understandable in the circumstances. Moreover, there are no matters of general or specific prejudice that require the Court to intervene and exercise its protective inherent jurisdiction.
[84] As always in such cases, Mr W will need to defend the charges using such means and material as are available to him. In cases of this type the defence is traditionally based upon a close examination of both the circumstances in which the complaint came to be made and the motivation, if any, that the complainant may
have to make false allegations. The defence will also be able to focus in the present case upon other issues that cast doubt upon the veracity of L’s version of events. These include not only her very lengthy delay in making a formal complaint, but also the seemingly incongruous fact that L permitted her own daughters to stay with her father in circumstances where, if her evidence is to be believed, she knew that they would be at risk of abuse. All of these matters will no doubt be fully explored before the jury to draw its attention to the possibility that, for whatever reason, L has made false allegations against her father.
[85] Viewed in this light, I consider that Mr W will still be able to receive a fair trial notwithstanding the age of the allegations. Although the age of L’s allegations may produce some difficulties, Mr W is in a similar position to many other persons who are accused of sexual conduct that they deny occurred.
[86] For these reasons the application for an order staying the proceedings is dismissed.
2 The application for orders as to admissibility of evidence
[87] The Crown has applied under s 344A of the Crimes Act 1961 for an order determining the admissibility of the evidence of L in relation to the charges in respect of her daughters and the evidence of her daughters in relation to the charges in respect of L. It does so on the basis that the principles relating to similar fact evidence permit the evidence to be adduced.
[88] The Crown also contends that the evidence is relevant and has probative value on grounds other than similar fact.
Is the evidence admissible under the traditional “similar fact” principles?
Principles
[89] As the submissions of counsel demonstrate, the authorities on the topic of similar fact evidence are legion. Moreover, the problems in this area arise not from
any difficulty in stating the applicable principles but rather from the application of those principles to the facts in any given case.
[90] The starting point is the general principle that counts arising from incidents unrelated in time or circumstance are not to be tried together unless evidence as to one is relevant to another. The relevance must be sufficient that its probative value outweighs its prejudicial effect. That may be so in a variety of circumstances, of which similarity of the facts is one: R v W [1995] 1 NZLR 548 at 555.
[91] The test therefore is whether the evidence is “sufficiently supportive, relevant and probative of the prosecution’s case to admit it notwithstanding the prejudicial effect that it might have”: R v P CA 338/05 2 March 2006.
[92] In deciding whether the evidence is of sufficiently similar character to be admitted under similar fact principles, attention must be paid to the similarities between the evidence under consideration and not the differences: R v E (2004) 20
CRNZ 847 at [22].
Decision
[93] At the outset I record that both counsel accepted that my decision on the present application will be subject entirely to further review by the trial judge at the conclusion of the evidence.
[94] I consider that, applying conventional principles, the following aspects of the evidence of each of the three complainants is of a sufficiently similar nature to lead to the conclusion that it is relevant and admissible in relation to each of the charges in the indictment involving an allegation of digital penetration:
(a) All three complainants are the children or grandchildren of the accused.
(b) The conduct in question occurred on numerous occasions whilst each complainant was in his care.
(c) In each case the conduct occurred when the complainant was under 10 years of age and pre-pubescent.
(d) The conduct involving digital penetration occurred always, in the case of E and C, and often, in the case of L, shortly after the complainants had got into bed at the home of the accused.
(e) The conduct always occurred in circumstances where the wife of the accused was in another part of the house.
(f) The conduct involved the accused lifting the bedcovers and digitally penetrating the complainants over a period that lasted for more than a minute.
(g) On each occasion the accused masked his true intention by, in the case of E and C, using the opportunity provided by the application of the eczema ointment and, in the case of L, using an excuse (such as asking if the cat was in the bed) to put his hands under the covers.
(h) The accused would also regularly ask the complainants whether what he was doing was nice or felt good, or whether they liked what he was doing.
(i) The accused also told both L and C that what he was doing was “our little secret”
(j) At around the time of the offending the accused also used various methods to enable him to see L when she was in the toilet or the shower and he would also “supervise” E and C when they were having a bath.
[95] It seems to me that this evidence goes well beyond mere propensity. It suggests that the accused used his position as the complainants’ father and grandfather to enable him to gain access to them when they were naked and in bed. Having done so, he used either a legitimate or an apparently innocent excuse to put
his hands under the covers and digitally penetrate them. The use of similar language in talking to each complainant about what he was doing is also of some significance.
[96] For these reasons I have reached the view that the evidence shows that the actions of the accused had an underlying unity of purpose and that it should be admitted on the basis of the conventional principles relating to similar fact evidence. Any prejudice that its introduction may create is outweighed, in my view, by its probative value.
[97] There are, however, also other bases upon which I consider that the evidence of each of the three complainants is admissible in relation to the charges that relate to the other two.
[98] First, the evidence of E and C may assist the jury to understand why L waited so long before reporting the matter to the police. Her reticence in this regard prior to the girls’ disclosure in 1995 appears to have become even more pronounced once she became aware that her daughters were also likely to become involved in any investigation by the police. The relevance of such evidence was confirmed in R v W (supra at 555):
We agree that in relation to the counts involving C the Crown is entitled to place before the jury the fact of the complaints made many years later by the two grand-daughters as explaining what might otherwise seem the inexplicable decision on C's part to raise her own complaints after such a lapse of time. This has nothing to do with similar fact. We would however go further and hold that in relation to J and B, in two respects the evidence of C, if accepted, would be of distinct probative value. First, given the emphasis in the current era (absent in C's childhood) about "bad touching", it would assist the jury to assess the possibility that these two young children had misunderstood the actions of their grandfather and overreacted to innocent actions on his part. Secondly, C's evidence would cast light on and assist the jury to assess the possibility that the relationship between the appellant and his grand-daughters was a normal and innocent one and that it was out of the question that events such as alleged by J and B could have happened. In other words, it is relevant to the credibility of J and B. In those respects the evidence is admissible as similar fact.
[99] This passage is particularly relevant in relation to the allegations relating to E and C. L says that she had told both her daughters about both “stranger danger” and “not so stranger danger”, and that that was one of the reasons why she permitted them to go to stay with her parents. When questioned by his family about his
ointment in an appropriate way. As in R v W, L’s evidence may be relevant to the jury’s assessment as to whether they may have misunderstood and overreacted to their grandfather’s actions.
[100] For these reasons I am satisfied that, at least to the extent that it relates to allegations involving digital penetration, the evidence of each of the complainants has probative value and is admissible in relation to charges arising out of the allegations made by the others. Given that it was not the subject of argument before me, I reserve for further consideration at trial the issue of whether the evidence is also admissible in relation to charges involving allegations other than digital penetration.
Conclusion
[101] In terms of s 344A of the Crimes Act 1961, and subject to review by the trial
Judge, I determine that the evidence of E and C is relevant and admissible to counts
1, 2, 4 and 6 (being the counts involving allegations of digital penetration in respect of L).
[102] The evidence of E is also admissible in respect of count 7 (being the count involving an allegation of digital penetration in respect of C), as is that of L to the extent that it relates to instances where she was allegedly digitally penetrated by the accused.
[103] The evidence of C is admissible in respect of counts 8 and 9 (being the counts involving allegations of digital penetration in respect of E), as is the evidence of L to the extent that it relates to instances where she was allegedly digitally penetrated by the accused.
3. Application for separate trials
[104] Mr W seeks an order that counts 1 to 6, which relate to L, be tried separately from the remaining three counts that relate to E and C.
conducive to the ends of justice to do so, to order that an accused person be tried on one or more counts separately.
[106] My conclusion in relation to the admissibility of the evidence of the three complainants goes a long way towards determining this particular application. As the Court of Appeal noted in R v E (supra at [24]), in cases where there are two or three complainants, and the evidence of each of them can be used to support the credibility of the others, it is usual to hear the complaints together. That is the situation, as I see it, in the present case. It would make no sense for there to be two separate trials at which different juries listened to effectively the same evidence. Neither should the complainants, if at all possible, be required to give evidence on more than one occasion.
[107] Moreover, the charges arise out of events that occurred in a single family over a considerable period of time. It would be artificial in the extreme if the allegations were to be determined in the context of more than one trial. It makes far greater sense for all of the allegations to be determined together. In this context the following passage from the judgment of the Court of Appeal in R v W (supra at 555) is particularly apposite:
We do not go so far as to accept the proposition advanced for the Crown that whenever members of a family make allegations of abuse against the same individual within the family, all charges should always be heard together. Nevertheless, where as here the allegations are interwoven or interconnected the desirability of presenting the case on a realistic rather than an artificial basis will usually point against severance. Here in our opinion the probative value of the evidence on each set of charges in relation to the other set is sufficiently strong to outweigh the prejudicial effect.
[108] I recognise that a necessary consequence of this conclusion is that the trial Judge will need to explain to the jury the extent to which evidence relating to one complainant may be used in relation to charges that relate to another, and if so for what purpose. Although that may present its own difficulties, they are outweighed in the present case by the advantages that a single trial offers. I therefore do not consider that it would be conducive to the ends of justice for counts 1 to 6 in the indictment to be tried separately from the remaining counts.
Lang J
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