R v Waikato CA274/05

This case involves an application for leave to appeal a pre-trial ruling made by Judge Harvey under s 344A of the Crimes Act 1961, which was filed slightly out of time. The appellant, who is alleged to have committed sexual offences on 13 June 2004 against a 12-year-old girl, challenges the admissibility of evidence associated with the second complaint made by the complainant. The complainant made her first complaint to her grandmother late on the night of 13 June or in the early hours of 14 June, and her second complaint to her mother at about 8.30am on the morning of 14 June. The appellant argues that the second complaint should not be admitted as it does not meet the criteria for admissibility of recent complaint evidence.

The court was required to decide whether the evidence of the second complaint was admissible under the relevant legal principles and authorities. The court considered the orthodox position in New Zealand that recent complaint evidence is admissible if it is made at the first reasonable opportunity, and that evidence of a second complaint may be admitted in some circumstances where it forms a "single process of disclosure" or where the "complaint emerged by a close process of development." The court also considered the reason given by Judge Harvey for the complainant not waking her parents, which was not based on evidence given at the preliminary hearing.

The court found that Judge Harvey's ruling was correct, and that the evidence of the second complaint was admissible. The court accepted that the complainant went further and was more explicit in her second complaint than she was in the first complaint, and that there will be at least an apparent semantic inconsistency between what she told her grandmother and what she tells the jury. The court also found that there was no element of a "staged retelling" in the second complaint made to the mother, and that it was a natural sequel to what she had told her grandmother. The court concluded that the second complaint was essentially just another step in the process which the complainant herself had initiated the night before.

The court granted leave to appeal but dismissed the appeal. An order was made prohibiting the publication of the judgment and any part of the proceedings (except the result as set out in [16]) in news media or on internet or other publicly available database until final disposition of trial, with publication in Law Report or Law Digest permitted. The publication of the name or identifying particulars of the complainant was also prohibited by s 139 Criminal Justice Act 1985.