R v Wood Ca105/05
[2005] NZCA 498
•26 July 2005
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R v Wood
Court of Appeal Wellington CA 105/05 & 131/05
15 June; 26 July 2005
Glazebrook, Randerson and Williams JJ
Criminal practice and procedure – Witness – Cross-examination of
complainants as to previous convictions – Previous conviction for rape – Relevance of convictions to credibility and to defence theory – Evidence Act
1908, ss 5, 12, 13 and 23A.
Evidence – Witness – Cross-examination of complainants as to previous convictions – Previous conviction for rape – Relevance of convictions to
credibility and to defence theory – Evidence Act 1908, ss 5, 12, 13 and 23A.
Wood was charged with a total of ten counts of indecent assault against three boys, S, F and L, in relation to incidents which occurred in a period of
14 months, ending some four and half years earlier. Wood’s defence was that the three complainants had colluded to concoct the allegations. He applied for
severance of the trials, which was refused. He applied for leave to cross-examine the three complainants about previous convictions. S’s previous conviction appeared (on the information available) to be either for rape or for unlawful sexual intercourse with a girl under 12. Wood wished to show that when S had undergone a STOP programme after that conviction he had made
no mention of being assaulted by Wood, and that the allegations only appeared later in response to probing by the Children and Young Persons Service. The trial Judge refused leave under s 23A of the Evidence Act 1908. F had several convictions for arson, theft, contravening a restraining order and assault. The trial Judge refused leave on the ground that none of the offences showed a
tendency to lie on oath. Wood appealed to the Court of Appeal.
Held: 1 The applications to cross-examine S and F came within the terms of s 12 of the Evidence Act and within the terms of the discretion under s 13(1). The discretion was to be exercised in accordance with the criteria in s 13(2), bearing in mind the general rule that evidence of character of a witness other
than the accused was generally admissible, and the assumption underlying s 12 that convictions for at least indictable offences were relevant (see paras [37], [39], [40]).
R v Tinker [1995] 1 NZLR 330 (CA) applied.
Wilson v Police [1992] 2 NZLR 533 (CA) discussed.
2 The credibility of a witness could be affected by convictions other than for dishonesty, and F could be cross-examined on all his convictions. The convictions could also support an argument that F was sophisticated enough to lend credibility to the defence theory of collusion. They might also be relevant to whether S and F could have colluded in an institution (see para [41]).
3 Section 23A applied to a previous conviction for rape, but where such a conviction was relevant to credibility, as here, the interests of justice might more easily override the restriction imposed by the section. The conviction here was relevant not only to credibility but also to the allegation of fabrication, and
it was in the interests of justice that the questioning be allowed (see para [48]). 5
Result: Appeal allowed in part.
Other cases mentioned in judgment
R v Anderson [2000] 1 NZLR 667 (CA).
R v G (1992) 8 CRNZ 9 (CA).
R v M (2000) 18 CRNZ 368 (CA). 10
R v M (2002) 19 CRNZ 300 (CA).
R v T (Court of Appeal, CA 27/05, 7 June 2005).
R v Williams (Court of Appeal, CA 448/02, 12 June 2003).
Appeal
This was an appeal by Peter Ernest Wood from conviction before Judge and 15 jury in the District Court on the basis of rulings by the trial Judge as to
cross-examination of complainants.
S J Zindel and M K Moorhead for the accused.
J C Pike for the Crown.
The judgment of the Court was delivered by
WILLIAMS J.
Cur adv vult 20
Issues
In a six-day trial which commenced in the Nelson District Court on
9 March 2005, the appellant faced an indictment alleging the following: 25
(a) Two charges of indecent assault on a boy aged between 12 and 16, sexual violation (two counts) and attempted sexual violation, all relating to one S and said to have occurred between 4 –
11 January 1999. The jury was unable to reach a verdict on any of
these counts, and the appellant faces retrial. 30 (b) Seven counts of indecent assault on one F between 9 September 1998
– 1 December 1999. The appellant was discharged on one under s 347 of the the Crimes Act 1961 at the end of the Crown case and acquitted by the jury on all but one of the balance. On that one the jury was
unable to agree, and the appellant again faces retrial. 35 (c) One count of indecent assault on 23 September 1999 on one L, a boy
then aged between 12 and 16. The jury acquitted the appellant on that count.
In an oral ruling, delivered on 22 July 2004, Judge McKegg refused an application for severance as between the three complainants. The appellant 40 challenges that ruling, though at this hearing, Mr Zindel, leading counsel for
Mr Wood, did not strongly pursue that aspect of the appeal.
In oral rulings delivered on 8 and 10 March 2005, Judge McKegg refused leave to cross-examine S about a previous conviction, but granted leave
to the defence to cross-examine F about some of his previous convictions. 45
Details appear later.
[4] Appeals were lodged in relation to those rulings, but they could not be heard before trial.
[5] On 7 April 2005, the Judge reissued his decisions on the severance and cross-examination points to provide the basis for the present appeal. No
objection was taken to this approach.
[6] We are unaware whether at the retrial the Crown will attempt to call L
or F to give similar fact evidence of matters on which the appellant has been acquitted. If it does, a pretrial hearing on an application in respect of s 344A of the Crimes Act would appear appropriate, as difficult issues arise in that regard.
Severance ruling
[7] The severance application was based on the ground of insufficient
similarity between the three complainants to warrant all counts being tried together. It was also submitted there was a possibility of collaboration or conspiracy. The Judge held:
“What is the issue, is to provide support for each complainant’s evidence of particular behaviour by showing similar behaviour towards another complainant, where an accused denies that the certain actions occurred. So in that sense, the evidence is required on issues of credibility.”
[8] After reminding himself the evidence must show a “combination of a
pattern or underlying unity” exceeding the commonplace, the Judge considered differences and similarities in the complainants’ descriptions of what occurred. These included the fact that each claimed the offending occurred when they were at the appellant’s home and when he was in a position of some authority in relation to them, his threats about disclosure and the short time frame over
which offending occurred. Additional factors were the location of the alleged offending and the complainants’ ages. The application was declined on the basis there was “sufficient probative value in the evidence to outweigh any prejudice that it may have”.
Rulings
Cross-examination of complainants on convictions
(a) S
[9] The application which the Judge declined was to cross-examine S about his previous record which, on the criminal history sheet produced to us, was described as “male rapes female under 12”. It is unclear whether that entry was
intended to refer to conviction under s 128(2) of the Crimes Act for sexual violation by rape, or under s 132(1) for sexual intercourse with a girl under 12. In either event it must be incorrectly described. The offence was said to have occurred on 8 April 2001, the conviction was entered on 31 May 2001, and S was imprisoned for four and a half years, with his name suppressed.
[10] The Judge recorded the argument in favour of the application in the following way:
“It is proposed to cross-examine the accused on that conviction because it allows further examination of him as to the likelihood that he made up the allegation as a result of the questioning that he received during counselling
[while imprisoned] at Kingsley in Christchurch. The submission is that he had, prior to that, been subject to a STOP programme in which he had never mentioned any prior events, and that it was only later that this allegation came as a result of probing, it is said, by CYPS in the course of
treatment. There is no signed statement of the complainant by the witness. Rather, the defence is relying on two statements contained in reports completed by CYPS workers, or social workers in Christchurch. The social workers are to record what was said to them by the complainant. That is
the extent of the cross-examination. There is no other evidence to be 5 called, and there is no positive defence. Rather, it is an attack on the believability of this witness.”
[11] The Judge took the view that the circumstances engaged s 23A of the Evidence Act 1908 because a “conviction for a sexual offence is sexual experience”. He declined the application on the basis that disclosure of the rape 10 conviction could affect credibility, but under s 23A had to go further and establish a foundation for the defence. He said it was unnecessary to
cross-examine S about the conviction to get before the jury the essential proposition that S invented the allegations against the appellant as a result of probing by the social worker as to whether he had ever been abused. 15
(b) F
The application to cross-examine F as to his previous convictions was made immediately prior to his evidence beginning on the ground they might affect credibility in a trial where the appellant’s defences included that no
sexually untoward behaviour had occurred. 20 [13] The Judge recorded F’s lengthy list of criminal involvement as having occurred since May 2002, the month before his initial complaint to police. In
fact, according to the information made available to us, F’s Youth Court appearances began on 1 May 2000 and his District Court appearances began on
13 November that year. After noting in outline the provisions of ss 12 and 13 of 25 the Evidence Act, the Judge described the issues relating to F as whether the convictions were relevant to collusion and whether his bad character led to the making of a false complaint or to a predilection for lying under oath. The Judge held:
“(i) The list of prior convictions notes that F was sentenced to three years’ 30 imprisonment on 26 January 2001 for the crime of arson, and again sentenced to imprisonment in 2004 for the crime of wilful damage by
use of explosives. An allegation is to be made that at least two of the complainants were in the same facility at the same time, but proof of
the convictions and reference to them in evidence is required for 35 that purpose.
That being the case, at least under this heading, those two convictions appear to be appropriates and I rule that they can be referred to. That ruling does not include any other conviction.
(ii) Evidence of general bad character: While I accept that any evidence 40 of convictions for a serious crime is capable [of] bearing upon the credibility of a witness, nevertheless there has to be a foundation laid
to establish the bearing that they would have upon the veracity of the witness in his allegations.
I am required by s 13(2)(a) to determine if the questions are of such a 45 nature that the truth of the imputation conveyed by them would seriously affect the opinion of the jury as to the credibility of the witness on that matter.
A summary of the convictions in the District Court contained in the criminal history sheet indicates (apart from the two convictions that I have referred to) three instances of theft, one of preparing to commit a crime, one of contravening a restraining order and three of assault.
At least one of the assaults took place after the complaint was made in relation to this matter and all offending took place after the alleged date of the offending complained of.
In my view those convictions would not seriously affect the opinion of the jury as to the credibility of the witness. They are remote in time
and character from that issue.
(iii) There are no convictions in that list which example a tendency to lie
under oath.
Accordingly I rule that the charge of arson and wilful damage may be referred to in cross-examination of the witness F, but no other
conviction may be referred to.”
[14] In November 2004, F sought a restraining order under the Harassment Act 1997 against two women. He withdrew it in January 2005. An application to cross-examine F on the ground that his supporting affidavit was a lie was declined on the basis it was a collateral issue too remote in time. It occurred
between depositions and Mr Wood’s trial.
(c) L
[15] Though L had a number of convictions, including three for burglaries committed in July and October 2002 entered against him in June 2003 in the Youth Court and three more for burglary entered against him in the
District Court in February 2004, no application was made to cross-examine him on those.
Facts
[16] S was placed with the appellant, his wife and family for eight days in
January 1999 by an organisation called Homebuilders, an agency which places
children in suitable homes to give their caregivers respite.
[17] S, 12 at the time, said when they were eeling and on subsequent
occasions the appellant persuaded S to allow him to fondle his penis. He said the appellant attempted anal intercourse, sucked his penis and made him do the same. In cross-examination S acknowledged behavioural problems, but denied
stealing, fire lighting, making threatening phone calls and ever meeting F or L or colluding over their respective allegations. However, he accepted that during counselling in March 2002, in a secure youth centre in Christchurch, he was asked whom he blamed for being in that placement and was repeatedly asked whether he had been abused. He denied blaming his father, a family friend or
the appellant for his predicament. He also denied ever saying the appellant might kill him and denied fabricating the allegations or using his assertions of abuse to “get back” at Mr Wood.
[18] F’s family knew the appellant and his family. They often visited each other. F said that on a visit when he was about 15 the appellant fondled his
penis, masturbating while he did so. He fondled him again when he stayed at the appellant’s property during school holidays, twice more on a fishing trip, again on a later visit while he masturbated himself, and again when he was helping with the cows, about Christmas 1998, while the appellant again masturbated. F was placed in Social Welfare care in Nelson in May 1999 at
about the time the appellant and his family shifted from the West Coast to
Nelson. F’s foster parents took him to visit the appellant on a number of occasions, and in October or November 1999 he said the appellant again indecently assaulted him while masturbating.
As with S, in cross-examination F acknowledged certain behavioural problems but disputed others. He denied knowing S or L or colluding with 5 them. Like S, he too denied fabricating the allegations with a view to obtaining money from the appellant or ACC. He admitted the convictions for arson and
use of explosives, about which the Judge had allowed cross-examination, but claimed they were under appeal. He denied he was “just sophisticated enough
. . . to put together a conspiracy of young boys to make these allegations” about 10 the appellant and his family.
Acknowledging that not all the incidents the subject of charges had been disclosed when he initially went to the police in June 2002 but the two later incidents returned to him in a dream, he firmly denied on a number of occasions
any collusion with the other complainants or fabrication of the allegations. 15
The allegation by L, which formed the only count relating to him, was
said to have occurred when he was visiting the appellant’s home in Nelson. The appellant allegedly lay on him in bed and indecently rubbed his penis against his back. He denied fabricating the allegation to get away from the appellant’s
family. He, too, denied knowing any of the other complainants at the time or 20 colluding with them. As noted, the appellant was acquitted on this charge.
Appeal on cross-examination of S and F on previous convictions
(a) Submissions
In careful submissions on whether leave should have been granted to
cross-examine S and F on their previous convictions, Mr Zindel particularly 25 relied on the decision of this Court in Wilson v Police [1992] 2 NZLR 533 and Canadian authority discussed in that case.
The statutory basis for such cross-examination lies, however, in s 12 of the Evidence Act, which provides:
12. Proof of previous conviction of witness – A witness may be 30 questioned as to whether he has been convicted of any indictable offence,
and, upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, the cross-examining party may prove such conviction.
The authors of Mathieson et al, Cross on Evidence (NZ looseleaf ed), 35 para [9.67] suggest the wide terms of s 12 mean “a witness may be asked about
any conviction whether it would ordinarily be thought relevant to credibility or not”. That appears to be too broad a proposition, not least because it overlooks the provisions of s 5, particularly s 5(2), (4) and (10), which read:
(2) Subject to subsection (3) of this section, where any person is 40 charged with an offence, whether solely or jointly with any other person, –
(a) The person charged shall be a competent witness for the defence;
and
(b) That person’s spouse shall be a competent and compellable
witness for the defence – 45 at every stage of the proceedings.
. . .
(4) A person charged and called as a witness in pursuance of subsection (2) of this section –
(a) May be asked any question in cross-examination notwithstanding that it would tend to incriminate that person as to the offence charged; and
(b) Is liable to be cross-examined like any other witness on any
matter, though not arising out of that person’s examination in chief; but so far as the cross-examination relates to any previous conviction of that person, or to that person’s credit, the Court may limit the cross-examination as it thinks proper, although the cross-examination may be permissible in the case of any other
witness.
. . .
(10) The provisions of this section shall not affect the operation of any other provision of this Act or of any other enactment, but shall apply notwithstanding any rule of law to the contrary.
[25] It is also to be noted that, although the decision in Wilson is cited in Cross on Evidence in relation to s 12, the case was, in fact, concerned with disclosure to the defence of convictions of prosecution witnesses thought relevant to credibility. There is a lack of direct authority on s 12. That arises because applications for leave under that section have usually been determined
as if they were applications to cross-examine witnesses other than accused persons about previous convictions, and thus a subset of cross-examination as to credit under s 13. That reads:
13. Cross-examination as to credit – (1) If any question put to a witness upon cross-examination relates to a matter not relevant to the
proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the Court to decide whether or not the witness shall be compelled to answer it, and the Court may, if it thinks fit, warn the witness that he is not obliged to answer it.
(2) In exercising this discretion the Court shall have regard to the
following considerations:
(a) Such questions are proper if they are of such a nature that the truth
of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies:
(b) Such questions are improper if the imputation they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the Court as to the credibility of the witness on the matter to which he testifies:
(c) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence.
(3) Nothing herein shall be deemed to make any witness compellable to give evidence upon any matter he is now by law privileged
from disclosing.
[26] The procedure to be followed in relation to applications under both ss 12 and 13 is as appears in Wilson at p 537 in the following passage:
“There appears to be no doubt that in England summary convictions may go to credit and be put in cross-examination: Clifford v Clifford
[1961] 3 All ER 231, 232; R v Sweet-Escott (1971) 55 Cr App R 316.
As Mr Rogers submitted, we think that the New Zealand s 12 is directed against the rule prohibiting proof of a collateral matter and does not confine cross-examination to convictions of indictable offences. But s 13 gives the Court a discretionary control over cross-examination as to credit;
and we think that the proper practice for counsel, whether representing the 5 defence or the prosecution, who proposes to put a previous conviction to a witness for the purpose of impeaching credit is to seek the leave of the Judge. In a jury trial that should be done in Chambers.”
Mr Zindel also relied on the decision of this Court in R v G (1992)
8 CRNZ 9, again a case principally concerned with disclosure of convictions 10 of prosecution witnesses relevant to credibility. This Court held at p 11 the
test was:
“. . . whether a reasonable jury or other tribunal of fact could regard it
[such cross-examination] as tending to shake confidence in the reliability
of the witness.” 15
Mr Zindel submitted that all the convictions of all the complainants were relevant to credibility and went beyond matters of general credit. That, he submitted, was particularly the case since Mr Wood’s evidence at trial – which will be repeated at retrial – included his lack of previous convictions. Mr Zindel
submitted that the convictions of the complainants were neither trivial nor 20 remote in time.
With specific regard to S’s conviction for rape, he accepted, in reliance on this Court’s decision in R v M (2000) 18 CRNZ 368 at paras [27] – [28], that the conviction had to establish a foundation for a defence rather than simply
being speculative or showing criminal propensity. That case, however, was 25 primarily concerned with s 23A of the Evidence Act. He submitted S’s previous conviction was not sought to be adduced to show familiarity with sexual matters or confusion between his allegations against Mr Wood and the circumstances which gave rise to the conviction, but to show it was only insistence by CYFS staff which triggered the complaint and that it was false. 30 [30] F’s convictions, which were said to be relevant to his credibility, included seven for misuse of a telephone in February and March 2004. The Judge said in his reissued judgment that they had been intended to have been captured by the earlier ruling debarring cross-examination, but were omitted. Those, Mr Zindel submitted, were also relevant since one at least included what 35 the appellant said in evidence was a telephone call to his home by someone claiming to be S asking for money. Mr Zindel wished to put it to F that he made
the call, impersonating S in doing so, relying on the telephone convictions as support.
He also submitted the defence should have been permitted to 40 cross-examine F about his withdrawn Harassment Act proceeding because a number of assertions in the supporting affidavit could be shown, Mr Zindel submitted, to be fantasy.
For the Crown, Mr Pike submitted the proposed cross-examination of S
was intended to do no more than blacken his character, particularly when the 45 rape occurred over two years after Mr Wood’s claimed misconduct with him.
He submitted s 23A of the Evidence Act was relevant and should be held to
prevent the proposed cross-examination, because it was unlikely that the facts and circumstances of the rape were relevant to the allegations against Mr Wood. Debarring cross-examination on the topic would not be contrary to the interests of justice.
(b) Discussion: general
[33] In considering the correctness of the rulings, it is to be borne in mind that Mr Wood’s defences to the charges against him were that he never behaved in a sexually untoward manner towards any of the complainants. His defence was therefore that their evidence must have been fabricated and they must have
colluded in manufacturing what they said about him because of their personal problems and their desire to “get back” at him. Further, given that Mr Wood put his own lack of convictions and thus his good character in evidence, credibility as between Mr Wood and the complainants was, and is, a fulcrum issue.
[34] Before discussing these matters in detail, we must observe that we are
somewhat hampered by not having all the information concerning the complainants’ convictions. While we had a criminal history sheet in relation to S, as earlier noted it was inaccurate. We also had a criminal history in relation to L, which also seemed to be incomplete as additional convictions were listed in a letter from the Crown Solicitor to Mr Zindel. However, as again earlier
noted, there was no application for leave to cross-examine L on that topic. With F, we had caption sheets only relating to offending in 1999 and criminal history sheets relating to some of his Youth Court and District Court offending between May 2000 and November 2002, though those, too, appeared to be incomplete when compared with the Crown Solicitor’s letter to Mr Zindel. We also had
informations covering offending under the Telecommunications Act 2001 of using a telephone on 23 February and 1 March 2004 to disturb certain persons and other offences under that Act with notations as to outcome. Of some importance, however, is that none of that material included any details of the arson and theft convictions discussed by the Judge in his ruling. It will
obviously be important before retrial for correct and complete conviction records to be agreed.
[35] Turning to the Evidence Act, a textual comparison shows a dissonance between the terms of ss 5, 12 and 13.
[36] In the first place, s 5(10) indicates that s 5 is subordinate to other
provisions in the Evidence Act, but cross-examination of an accused on previous convictions has long been regarded as different from cross-examination of other witnesses on that topic, with the discretion conferred by s 5 being normally exercised in accordance with what was formerly s 1(f) of the Criminal Evidence Act 1898 (UK) (R v Anderson [2000]
1 NZLR 667; R v M (2002) 19 CRNZ 300 (CA); and R v T (Court of Appeal, CA 27/05, 7 June 2005)). An alternative, very much to the same effect, is to follow the Judges’ Rules 1901 (Robertson et al, Adams on Criminal Law (NZ looseleaf ed), para [Ch 2.3.07]).
[37] As mentioned previously, applications to cross-examine witnesses other
than accused (or their spouses) under s 12 have usually been determined in accordance with the criteria listed in s 13(2), notwithstanding the lack of statutory linkage between the two sections. Further, though s 12 is, in its terms, limited to cross-examination about convictions for indictable offences, in Wilson, in the passage earlier cited, this Court extended cross-examination
under s 12 to convictions for all offences. As this Court observed in R v Williams (CA 448/02, 12 June 2003), s 12 is reflective of the common law right to cross-examine on all convictions.
The approach to the cross-examination of witnesses (other than their
spouses) remains as this Court said in R v Tinker [1985] 1 NZLR 330 at p 333. 5
The witness had been asked if he was an associate of a person who had recently
been convicted of a widely reported robbery. The witness denied the suggestion, but this Court observed of the question:
“We are of opinion that the question fairly came within the rule that in
order to discredit a witness’s testimony he may upon cross-examination be 10 asked any question concerning his antecedents, associations or mode of
life which would be likely to have that effect, though he cannot always be compelled to answer . . .”
(See also Phipson on Evidence (15th ed, 2002), para [19-22] and Cross and Tapper on Evidence (10th ed, 2004), p 381.) 15 [39] However, difficulties arise in interpreting s 13(1). Plainly enough, it
gives the Court a discretion to decide whether witnesses can be compelled to answer irrelevant questions. But the phrase “except in so far as it affects the credit of the witness by injuring his character” seems to suggest that irrelevant questions can be put to witnesses if their answer might injure their character 20 and thus discredit them. In such a case the discretion conferred by s 13(1) comes into operation. Given that witnesses’ credibility is so often in issue, it is difficult to see questions injuring their character and thus bearing on that topic
as being irrelevant, though the terms of s 13(1) clearly give Judges a duty to decide whether the witness should be required to answer such damaging 25 questions, a power to limit cross-examination as to credit, and an obligation to
warn the witness in terms of s 13(1) should the Judge’s decision be that an answer is required. How far s 13 should operate to exclude evidence of past convictions, however, needs to be judged against the general rule that evidence
of the character of witnesses, other than an accused, is admissible as going to 30 credit and the assumption underlying s 12 that convictions for at least indictable offences are relevant.
Applying those issues to this appeal, however, it is clear that the application for leave to cross-examine S and F on their previous convictions comes within s 12 and the discretion conferred by s 13(1). The line of proposed 35 cross-examination is intended to injure their character and credibility. The discretion to permit that line of cross-examination is to be exercised in accordance with the criteria in s 13(2).
(c) F
As far as F was concerned, we take the view, with respect to the Judge, 40 that he can be cross-examined as to all his convictions. Credibility can be affected by convictions other than for dishonesty. A lack of trustworthiness may
be demonstrated by repeated instances of contempt for the law. To the extent we are able to gauge the details, F’s list of previous convictions includes not
just a number for dishonesty but also a number for offences such as 45 contravening a restraining order and assaults. In the circumstances of this case,
proof of those is relevant to F’s general credibility and the suggested motivation for his complaints about Mr Wood’s behaviour. Similarly, convictions for arson and use of explosives are relevant to the former. Counsel put it to F in
cross-examination at the first trial that these convictions demonstrated a degree 50
of sophistication sufficient to lend credibility to the defence theory of collusion. Depending on the timing of remands in custody and the serving of terms of imprisonment, proof of S’s and F’s convictions may also be relevant to the possibility of collusion if they were in the same institution at the same time.
[42] The conviction for breach of a restraining order and proceedings issued by F against the two women seeking such an order under the Harassment Act are, in our view, also matters on which cross-examination should be permitted. [43] Since F sought orders under Part 3 of the Harassment Act, which relates to civil harassment, this is a matter which falls to be determined under s 13,
rather than s 12. But if, as Mr Zindel contended, the defence is able to demonstrate not merely that he issued and then withdrew those proceedings but that the affidavit he made in support of his application contained lies or, more, fantasies, then we take the view that cross-examination with a view to demonstrating those matters may have been very relevant to defences that the
complainants were lying and fabricating their allegations against the appellant.
Cross-examination on those topics should accordingly have been allowed.
[44] The final aspect concerning F is that in the reissued decision of 7 April the Judge said that seven convictions of F for misuse of a telephone in February and March 2004 were intended to be covered by the ruling prohibiting
cross-examination. Evidence of threatening telephone calls or calls seeking money from Mr Wood or his family or those associated with him may all affect his credibility. Thus, cross-examination on those topics should have been permitted. But this is a topic which will need to be reconsidered by the trial Judge on a case-by-case basis when further information is available.
[45] For completeness, we observe that although the timing of the various matters about which the defence wished to cross-examine F appears to have concerned the Judge, we take the view that, so far as we are able to gauge the matter, all the issues were within a reasonable time relationship to F’s allegations concerning the appellant. In so far as the convictions are relevant to
credibility, as credibility is judged at trial, even convictions that occur after the alleged offences and after the complaint may be relevant.
(d) S
[46] As far as the ruling concerning the cross-examination of S is concerned, we take the view the Judge was incorrect not to allow cross-examination as to
S’s previous conviction.
[47] Whether the conviction is correctly described as one for sexual violation by rape or one for sexual intercourse with a girl under 12, its relevance to the appellant is to support the proposition that S fabricated his allegations against Mr Wood as a result of being pressed to disclose suggested prior abuse of him
which led to his abusing the girl in question. We cannot agree with the Judge that such evidence could have been introduced without cross-examining S as to the earlier conviction. The stilted nature of the cross-examination on this topic at Mr Wood’s trial confirms that. We think it actually fairer to S to permit him to be cross-examined as to his conviction, since it will give him an opportunity
to explain the circumstances in which it occured.
[48] Though the rationale underpinning s 23A is difficult to reconcile with a conviction for sexual violation by rape – if that is what it was in S’s case – we consider that the section nevertheless applies. Where a conviction is relevant to credibility, as it is here, the interests of justice may, however, more easily
override the restriction imposed by the section. In this case, the conviction is
relevant not only to credibility but also (and crucially) to the allegation of fabrication. In such circumstances it is, in our view, in the interests of justice that the questioning be allowed.
(e) Summary
In summary, we would allow the appeal and grant leave to 5 cross-examine both S and F as to all their previous convictions and F’s complaint under the Harassment Act.
Severance
This matter can be dealt with briefly.
The Judge’s reasoning for declining severance as between the 10 complainants has been recounted.
As is common, although there were similarities in the versions put forward by the three complainants, there were also dissimilarities. In a joint trial the evidence would require careful direction as to the extent to which the
evidence of one complainant could permissibly be taken into account in support 15 of the evidence of another. If the trials were severed, it would appear, as the Judge noted, that other complainants could have been called under the similar
fact rubric. We take the view the Judge did not err in principle in the ruling he made.
Accordingly, the appeal against refusal to order severance is dismissed. 20
Result
In the result:
(a) the appeal in relation to the pretrial rulings concerning cross-examination of the complainants S and F is allowed to the extent
of granting leave to cross-examine both as to all their previous 25 convictions; and
(b) the appeal against the refusal to order separate trials in relation to each of the complainants is dismissed.
Solicitors for the accused: Zindels (Nelson).
Appeal allowed in part.
30
Solicitors for the Crown: Crown Law Offıce (Wellington).
Reported by: Bernard Robertson, Barrister
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