R v Warren

[2016] NZHC 84

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2015-006-482

[2016] NZHC 84

THE QUEEN

v

JASON DAVID WARREN

Hearing:	2 February 2016 (Heard at Nelson)
Appearances:	A J D Bamford for Mr Warren J Webber for the Crown
Judgment:	2 February 2016
Reasons:	4 February 2016

JUDGMENT OF MALLON J

R v WARREN [2016] NZHC 84 [4 February 2016]

Introduction

[1]    The defendant faces charges involving physical violence and sexual offending against his former partner, H. The trial is to take place later this year. The Crown seeks to adduce propensity evidence of the defendant’s previous convictions. The defendant opposes that application. At the conclusion of the hearing I advised that the application was granted. I now set out my reasons.

The present charges

[2]    The present charges relate to the period of 13 February 2014 to 19 August 2014. They arise from an alleged course of violent behaviour in the home, culminating in sexual offending where the defendant used a climate of fear to achieve H’s submission.

[3]Specifically:

(a)Charges one and three are charges of male assaults female. It is alleged that on 13 February 2014 (charge one) and 16 July 2014 (charge two) the defendant became angry with H, placed a pillow over her head and punched her through it repeatedly. Charge four (wounding with intent to injure) relates to the same incident as charge three. It is alleged the defendant cut H’s foot with a key and threatened to cut her face as well.

(b)Charge two is a further charge of male assaults female. It is currently under review by the Crown and it may not proceed.

(c)Charge five (male assaults female), charge six (threatening to kill) and charge seven (kidnapping) relate to an incident on 10 August 2014. It is alleged the defendant became angry with H, punched her and kicked her around the head, threatened to kill her, and locked her in the house for several hours.

(d)Charge eight (a representative charge of male assaults female) relates to the period between 10 and 16 August 2014 during which it is alleged the defendant was constantly angry and abusive and frequently hit H.

(e)Charge nine (sexual violation by unlawful sexual connection) and charge 10 (sexual violation by rape) relate to an incident on 19 August 2014. The defendant had left the house on 16 August 2014 and returned on 19 August 2014. He asked H for oral sex. It is alleged she repeatedly said no, but then the defendant’s voice and demeanour became threatening. It is alleged H performed oral sex on the defendant and had sexual intercourse with him because she was afraid of a violent response from him if she refused.

[4]    The defendant intends to enter guilty pleas to all the remaining charges after the Crown’s review of charge two, except the kidnapping (charge seven) and the sexual violation charges (charges nine and 10). The trial issue on the kidnapping charge will be whether a detention took place. The trial issue on the sexual violation charges will be whether H consented and, especially, whether the defendant reasonably believed that H was consenting. The credibility of H will be in issue for all charges.

Proposed propensity evidence

In relation to charges nine and 10

[5]    The Crown wishes to adduce evidence of the defendant’s previous convictions in relation to E, a former partner, for male assaults female, assault with a blunt instrument, sexual violation by unlawful sexual connection, and sexual violation by rape. These relate to offending on 23 June 2000.

[6]    The circumstances were as follows. The defendant and E had been arguing in their bedroom. E told the defendant that the relationship was over. The defendant grabbed E around the throat. E screamed. The defendant placed a pillow over her face. He struck her on the face through the pillow. The defendant opened E’s vest. E knew he wanted sex. She did not say no because she thought it would make him angrier and she feared she would end up in hospital. He proceeded to have sexual

intercourse with her. The defendant told E she was free to go. When E tried to leave, he said he was just saying that to see what she would do. He strangled and punched her again. He threatened to kill her. He placed a leather belt around her neck and pulled it tight. After some time he told E to perform oral sex on him. She did as he requested. He also proceeded to have sexual intercourse with her again. The defendant left the room returning moments later to check that she had not jumped out the window. He told her not to tell anyone.

[7]    The Crown submits that this evidence demonstrates a tendency on the part of the defendant to think about and act in a particular way, namely to become violent towards his domestic partner, to detain her and to sexually violate her using the fear of further violence to achieve her submission. It submits that this is probative in relation to whether H consented to, or whether the defendant had a reasonable belief that H consented to, the sexual intercourse and oral sex.

[8]    The defendant submits that the propensity evidence has low probative value for three reasons. First, the sexual offending in relation to E occurred in the course of physical violence. It arose when E told the defendant that their relationship was over. In contrast, it is not said that the defendant was inflicting physical violence on H at the time of the alleged sexual offending and it is not apparent that it arose because H was ending the relationship. Secondly, the offending in relation to E occurred 14 years earlier. Thirdly, there is a possibility of collusion or suggestibility about H’s allegations of sexual offending, because she lives in the same small town as E.

[9]    I consider the proposed propensity evidence from E to be highly probative in relation to the sexual violation charges.1 H says she submitted to the sexual intercourse and performed oral sex on the defendant against her will because she feared violence, in circumstances where she had been subjected to violence by him in the days leading up to that incident. Relevant to the jury’s assessment of the credibility of H’s account is the defendant’s proven propensity, through his convictions in relation to E, to obtain his partner’s submission to sexual intercourse and to have her perform oral sex on him through fear of violence.

1      Evidence Act 2006, s 43(2).

[10]   The differences relied on by the defendant between the propensity evidence and the current allegations are not significant ones.2 The climate of fear is present in both: in E’s case because the violence occurred as part of the same incident as the sexual offending, and in H’s case because of past violence most recently occurring over the course of six days, three days prior to the alleged sexual offending. The context of a possible end to the relationship is present in both: E had told the defendant she wanted to leave him and H alleges she had kicked the defendant out of the house after the violence over the preceding six day period.

[11]   In my view the 14 year gap between the offending against E and the current allegations does not materially detract from its probative force.3 The defendant was in prison for five of those years for the offending against E. Moreover the nature of the offending is that it arises in the context of a domestic relationship. As matters transpired, the defendant proceeded to be physically violent with two further partners between his release from prison and the present allegations.

[12]   The possibility of collusion or suggestibility does not detract from the probative value of the propensity evidence.4 There is little put forward to support this possibility: E and H live in the same small town, there is a connection between a friend of the defendant and H’s daughter and the allegations of sexual offending evolved in H’s interviews. Further, the possibility of collusion or suggestibility is raised in relation to H’s allegations, not in relation to the proposed propensity evidence.5 The latter is proven. It is probative in relation to H’s allegations. Factors that may detract from H’s credibility, such as that H did not make these allegations initially and may have been aware of what happened to E, can be tested at trial.

[13]   I therefore consider that the proposed propensity evidence has high probative value in relation to the charges of sexual offending against H. I note that the violence against E may in some respects be worse than that against H, at least in so far as it involved pulling a belt around E’s throat. Some prejudice against the defendant may arise from that. On the other hand the violence against H was more sustained in that

2      Section 43(3)(c).

3      Section 43(3)(b).

4      Section 43 (3)(e).

5      R (CA458/2015) v R [2015] NZCA 457 at [22].

it occurred on a number of occasions and it was dangerous in that it involved punching and kicking her around the head. I consider that the risk of unfair prejudice can be ameliorated by judicial directions. I consider that the high probative value of the evidence outweighs the risk of unfair prejudice.6

In relation to charge seven

[14]   The Crown also proposes to adduce the defendant’s convictions for offending against E and two other former partners, A and K, as propensity evidence in relation to the kidnapping charge. That offending did not involve charges for kidnapping. However in each case the Crown submits the narrative involved detention of the victim beyond that which is part of, or inherent in, inflicting violence on the victim.

[15]   In relation to E the narrative included the defendant testing her to see if she would leave and checking on her to see that she had not.

[16]   The offending against A resulted in two convictions for male assaults female. The circumstances of that offending are as follows. On 7 June 2007 the defendant and A were arguing. A told the defendant she was leaving. She attempted to leave but the defendant prevented this by pushing her down onto the bed and punching her in the cheek. He punched her a number of times. A attempted to end the violence by telling the defendant that she was not leaving. She waited until she thought the defendant was asleep and attempted to leave. The defendant was not asleep. He punched her several times and told her that if she went to the police or got anyone else involved, he would kill her. A fought back. The defendant pushed her over. She hit her head  on a window ledge. The defendant apologised and the violence ended.

[17]   The offending against K resulted in a conviction for assault with a weapon. The circumstances of that  offending  are  as  follows.  The  assault  took  place  on 27 February 2011 in the home the defendant and K shared. Following an argument, the defendant pinned K on the bed and struck her with a stick. The defendant left the room. K ran to an exterior door to leave. By the time she had unlocked the door, the

6      Evidence Act 2006, s 43(1).

defendant was on the outside of the house at that door. He attempted to stop her from running off but she was eventually able to get away.

[18]   In each of these cases there is an element of detention. The defendant’s counsel acknowledges this. It is evidence of a propensity to detain his partners against their will when he has become physically violent towards them. That propensity is relevant to the jury’s assessment of the credibility of H’s account that she was locked in the house for several hours after the violence on 10 August 2014. That propensity has high probative value given the similar circumstances of each instance of detention7 and that three complainants, in addition to H, say this occurred.8 I consider that high probative value outweighs the risk of unfair prejudice to the defendant.9

Other matters

[19]   If the guilty pleas as foreshadowed are entered, the Crown accepts the evidence of the defendant’s convictions relating to A and K are not relevant to show a propensity for physical violence against his partners (as that would not be in issue). I have not considered whether the evidence of the physical assaults on A and K would be admissible as propensity evidence on the physical violence charges (charges one to six and eight) if guilty pleas on those charges are not entered. This will need to be considered if they are not. However the defendant’s counsel advises that his instructions are clear. A callover date should be allocated within the month so that the guilty pleas can be entered.

[20]   The defendant’s counsel wishes to take further instructions on whether a guilty plea might be entered in respect of the kidnapping charge (charge seven). That is because his counsel understood from H’s interview that the charge covered the period between 10 and 16 August 2014, rather than the allegation that the defendant locked H in the house for several hours on the night of 10 August 2014. If a guilty plea is entered on charge seven, the admissibility of the evidence involving A and K would need to be reconsidered.

7      Section 43(3)(c).

8      Section 43(3)(d).

9      Section 43(1).

[21]   The Crown is to discuss with the defendant’s counsel the form in which the propensity evidence will be adduced. The Crown is also to discuss with the defendant’s counsel the form in which evidence of the admitted physical violence on H (assuming the guilty pleas are entered) will be adduced: the Crown proposes that H’s recorded interviews will be played in full because the narrative is relevant to the circumstances in which H says she submitted to the sexual offending. Counsel will revert to the Court if agreement is not reached.

Result

[22]   The application to adduce evidence of the defendant’s convictions for physical violence and sexual offending on 23 June 2000 in relation to E is granted in relation to charges seven, nine and 10. The application to adduce evidence of the defendant’s convictions for physical violence in June 2007 in relation to A and in February 2011 in relation to K is granted in relation to charge seven.

Mallon J