R v Wyatt

[2007] NZCA 436

NOTE:  PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA311/07 [2007] NZCA 436

THE QUEEN

v

KEVIN VIVIAN WYATT

Hearing:         20 September 2007

Court:            Ellen France, John Hansen and Wild JJ Counsel:        D R La Hood and C A Patterson for Crown

N J Sainsbury and D A Hall for Respondent

Judgment:      10 October 2007         at 3 pm

JUDGMENT OF THE COURT

A        The application for leave to appeal is granted.

R V WYATT CA CA311/07  10 October 2007

BThe decision of the District Court dated 21 June 2007 is set aside.  In its place there is an order that all three counts on the indictment be tried together.

COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other publicly accessible database until final disposition of trial.  Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]      The   respondent   is   to   be   tried   by   a   jury   in   the   week   beginning

10 December 2007   on   three   charges   of   indecent   assault   relating   to   three complainants.   In a decision dated 21 June 2007, Judge Butler granted the respondent’s application to be tried separately on  each count of the indictment: DC WN CRI 2006-091-003568.   The appellant seeks leave to appeal against that decision.

Background

[2]      The  background  is  set  out  in  the  evidence  as  at  depositions  and  the description which follows reflects that evidence.

[3]      Count one involves the complainant “N”.   The respondent is charged that, between February 2003 and February 2004, he indecently assaulted N by patting her on her vagina over her clothes.   The context was that N had walked out of the bathroom at her home, her mother was in the kitchen and the respondent, a family

friend, came up to her and said “congratulations”.  This was apparently a reference to the fact N had just started menstruating.  She was 12 years old at the time.

[4]      N made her complaint about what had occurred some two and a half to three and a half years later.  In terms of that complaint, her grandmother gave evidence at depositions of a conversation on 29 October 2006 between N and the complainant in count three, “S”.  N and S are cousins.  Their grandmother says that S said to N:

And you stay away from “C” [the respondent’s nickname].  I don’t like him. He played with my boobs.

[5]      The  girl’s  grandmother  then  says  she  questioned  S  about  when  this  had happened and that S said two days earlier (27 October 2006).  The grandmother’s evidence continued:

And I said well you know you can complain to the police about this if you want to and her response was “let’s go”.

[6]      The grandmother said that before anything further happened, N spoke and told her what had happened with her.   Both girls were then taken to the police station.  The timing was described in this way by the grandmother:

[N] had said straight off that he [the respondent] had also touched her in places where he shouldn’t have been.  … She had said that he had touched her around her vagina.

[7]      The complainant in count two is “C”.  C is not known to either of the other two complainants.   C says that in December 2005, when she was 12, she and the respondent  shared  a  bedroom  one  night.    The  respondent  was  a  family  friend. C went to bed and went to sleep but woke up to find the respondent touching her. Her evidence is that he had his hand down her pants and was feeling around her chest.  He kissed her on the chest and then started to try to pull down her pants.  She says she pretended to wake up and questioned him and then eventually got up and walked to one of the other rooms where another family member was sleeping.  She then went and told her stepfather and a complaint was made to the police.

[8]      Finally, in terms of count three S, who was 11 at the time, says that on

27 October 2006 she came home from a school camp.   The respondent, a family

friend, had dinner at S’s house.  The context is that S describes that she had a “thing” about breasts at the time and would go up to her mother and say “titties”.  She did that on one occasion and the respondent went to her and grabbed one of her breasts and said “titties”.  As well as S’s mother,  her uncle was there at the time.  Then, on the evening after school camp, she was in the lounge watching television and she said the respondent came in and leaned closer to her, and then put his hand on her breast under her clothing.  Her sister was in the room at the time.

The decision to sever

[9]      Judge Butler dealt with the application for severance on the basis of the common law as the Evidence Act 2006 was not in force at the time.

[10]     The Judge expressed doubts as to whether the probative value of all three complainants giving evidence at a single trial would outweigh the risk of prejudice. But, he said at [15]:

When I factor the risk of collusion into the balance, I consider there should be separate trials in respect of each complainant.

[11]     Judge Butler continued at [16]:

Nor do I consider that the facts are so interwoven and interconnected that to order separate trials would be artificial.   None of the complainants would have to give evidence more than once.  [The girls’ grandmother] might have to give evidence twice, but I consider the [respondent’s] legitimate interests outweigh any inconvenience to her.

The appeal

[12]     The Crown’s case is that this evidence is propensity evidence admissible under s 43 of the Evidence Act.   The Crown says the Judge erred in giving any weight to the risk of collusion and, in any event, that the probative value of the evidence outweighs any prejudicial effect.

[13]     The respondent says the Judge correctly approached the matter.   First, the respondent submits that the possibility of collusion or suggestibility is a relevant

factor.  In any event, the respondent argues that the prejudice of the admission of this evidence to the respondent outweighs any probative value.

Discussion

[14]     Sections 7 and 8 of the Evidence Act set out the basic principles for the admission of evidence.  In terms of s 7, relevant evidence is admissible except as set out in s 7(1).   Section 8(1) states that evidence must be excluded if its probative value is outweighed by the risk that the evidence will have an “unfairly prejudicial effect” or needlessly prolong the proceeding.  In determining whether the probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect in a criminal proceeding, “the Judge must take into account the right of the defendant to offer an effective defence” (s 8(2)).

[15]     Where the evidence in  issue  is  propensity evidence,  and  the  prosecution wants to rely on that evidence, there are specific rules for assessing relevance in ss 40 and 43.   Accordingly, if the evidence in issue was not propensity evidence (and plainly it is), its admissibility would be determined under the general principles in ss 7 and 8.

[16]     “Propensity” evidence is defined in s 40 of the Evidence Act as evidence:

(a)… that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b)      does not include evidence of an act or omission that is –

(i)1 of the elements of the offence for which the person is being tried; or

(ii)       the cause of action in the proceeding in question.

[17]     In terms of s 40(2), a party may offer propensity evidence in civil or criminal proceedings about any person.  But s 40(3) makes it plain that propensity evidence about a defendant may be offered by the prosecution only in accordance with s 43.

[18]     The basis on which the Crown may offer propensity evidence in this case is set out in s 43(1), that is:

[O]nly if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

[19]     When assessing the probative value of propensity evidence the Judge must take into account the nature of the issue in dispute (s 43(2)).  Here, the focus will be on whether the Crown has proved to the requisite standard that the events described took place.

[20]     Section 43(3) then sets out a number of matters the Judge may consider when assessing the probative value, namely:

(a)the   frequency   with   which   the   acts,   omissions,   events,   or circumstances which are the subject of the evidence have occurred:

(b)the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(c)the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d)the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e)       whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:

(f)       the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or  circumstances  which  constitute  the  offence  for  which  the defendant is being tried are unusual.

[21]     Finally, s 43(4) provides that when assessing the prejudicial effect on the defendant, the Judge must consider, among other matters:

(a)       whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and

(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[22]     Counsel addressed us on the extent to which the common law will assist in the various inquiries envisaged by these two sections.  That is a matter which will no doubt be addressed in more detail as the jurisprudence develops but certainly the present case can be dealt with by the application of the statutory framework to the facts.

[23]     Taking first what the Judge described as the risk of collusion, s 43(3)(e) allows the Judge to take into account the fact that the complainant’s allegations “may be the result of collusion or suggestibility”.  That suggests that if there is evidence of collusion or suggestibility on the face of the record that is a matter that can be put into the mix along with other matters.  The approach is consistent with the history of the inclusion of a reference to collusion in s 43: New Zealand Law Commission Evidence Law: Character and Credibility (NZLC PP27 1997) at [278] and New Zealand Law Commission Evidence Volume 2: Evidence Code and Commentary (NZLC R55 1999) at draft s 45.

[24]     On the evidence here, the high point for the respondent in our view is an opportunity for collusion and, possibly, of suggestibility.   The latter, however, appears to envisage the type of situation where, for example, the way in which a question is put may have influenced the response: New Zealand Law Commission Evidence: Total Recall?  The Reliability of Witness Testimony (NZLC MP13 1999) at [124]ff.  There is nothing of that nature on the face of the record at present and there was no application under s 185C of the Summary Proceedings Act 1957 to cross-examine the complainants at depositions.  We agree with Mr La Hood that the evidence here was of material that might have reinforced N in making her complaint but no more than that.

[25]     Accordingly, we accept the Crown submission that the Judge was wrong to give weight to the possibility of collusion.   In any event, that can only have been relevant to N and S and not to the count involving C.  We add here that we have not been  asked  to  comment  on  the admissibility or otherwise of the  grandmother’s evidence (see s 35 of the Evidence Act dealing with previous consistent statements).

[26]     We turn then to the other matters set out in s 43(3).

[27]     The overall period of the alleged offending is three and a half years, at the longest, and two and a half years at the shortest.   There was a gap of ten months between the incidents involving C and S.   Accordingly, while the frequency of events is not particularly remarkable, the connection in time is of some relevance.

[28]     The offending involved similar sorts of indecencies amongst three girls of a similar age although Mr Sainsbury is right that there are some differences in the nature of the alleged touching.  This aspect is perhaps more neutral.

[29]     Of particular importance in terms of s 43(3)(c) and (f), however, is that the alleged  offending  all  exhibits  high  risk,  almost  voyeuristic,  characteristics  by  a person connected to each of the complainants through a family friendship.   The respondent allegedly took the opportunity to offend in situations where he was alone with the complainant but easily discoverable.  As Mr La Hood pointed out, in the case of N, the alleged offending occurred in a hallway when her mother was nearby in the kitchen.  In the case of C, the offending occurred in her bedroom while her stepfather and adoptive sister were awake watching television in the nearby lounge. In the case of S, the offending occurred in the lounge in the presence of the complainant’s four year old sister and S’s mother was nearby in the kitchen.  The alleged offending against S had an additional element of risk in that it occurred one week before the respondent’s trial on the complaint involving C was due to commence, at a time when he was subject to a bail condition that he not be alone with children under the age of 16.

[30]     The Crown also places some reliance on the similarity in circumstances, namely, the respondent’s degree of interest in the physical and sexual development of the complainants.   We have already made reference to the allegation that the respondent said “Congratulations” to N in reference to her first period.  He had, on the depositions evidence, previously given her a sexual device and subsequently told her he would take her virginity when she turned 16.   The respondent also told C: “When  you  grow  up  you  can  sleep  in  my  bed.”    Finally,  prior  to  the  alleged offending against S, the respondent had touched her breast on the outside of her clothes in the context of a conversation about physical development.

[31]     Mr Sainsbury took issue with the evidential basis for this aspect because, for example, the remarks allegedly made to C were reported by someone other than the complainant.    However,  we  agree  with  the  Crown  that  the  extent  of  similarity between the circumstances is significant in terms of s 43(3)(c) in particular.

[32]     Viewing  these  matters  overall,  it  is  plain  that  the  evidence  does  have probative value.  In our view that outweighs the risk of prejudice to the respondent when the matters in s 43(4) are taken into account.

Result

[33]     For these reasons the application for leave is granted.   The decision of the District Court dated 21 June 2007 to sever the counts is set aside.  In its place, we make an order that all three counts on the indictment be tried together.

[34]     We also make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on  Internet or other publicly  accessible  database  until  final  disposition  of  trial.     Publication  in Law Report or Law Digest permitted.

Solicitors:

Crown Law Office, Wellington