T v The the Queen

[2022] NZHC 189

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-000101

[2022] NZHC 189

BETWEEN

T

Appellant

AND

THE QUEEN

Respondent

Hearing:	8 February 2022 (via VMR)
Appearances:	Catherine Harold for the Appellant Ben Smith for the Respondent
Judgment:	16 February 2022

JUDGMENT OF MOORE J

[Appeal against conviction]

This judgment was delivered by me on 16 February 2022 at 10:00 am.

Registrar/ Deputy Registrar Date:

T v R [2022] NZHC 189 [16 February 2022]

Background

[1]                 On 14 May 2021, T was convicted of one charge of sexual violation by unlawful sexual connection following a judge-alone trial before Judge T R Ingram in the Tauranga District Court.1

[2]T now appeals his conviction. His grounds are that the Judge:

(a)relied on inadmissible propensity evidence; and

(b)as a consequence, erred by concluding on “the totality of the evidence” that T was guilty, having found that the victim’s evidence was insufficient to prove guilt in itself.

The offending

[3]                 T was formerly in a relationship and residing with the victim’s mother. The victim, B, is her four-year-old daughter. From time to time B was in T’s care, typically when B’s mother left the house for short periods to run errands.

[4]                 On 8 September 2020, B told her mother that T had entered her bedroom, woken her up, removed her pyjamas and “licked her bottom”. B’s mother reported this to Police. B subsequently underwent an evidential video interview. During that interview she described being licked by T’s tongue, that his tongue was hard, and that she did not like it. She later stated that T had licked her “mimi” and pointed to her groin.

District Court propensity decision

[5]                 Pre-trial, the Crown applied to adduce propensity evidence of the facts underlying T’s prior convictions for sexual offending against three girls, all aged under 12 years old. Judge Ingram found that T’s offending against one victim, for which he pleaded guilty to attempted rape and indecent assault, did not meet the threshold for admission.2 T’s offending against the other two victims, however, involved unlawful

1      R v [T] [2021] NZDC 7876.

2      R v [T] [2021] NZDC 7020 at [7].

sexual connection by oral contact with the victim’s genitalia and was admissible as propensity evidence.3 For this, he was convicted of three representative charges of sexual violation by unlawful sexual connection (and three charges of indecent assault).4

[6]                 The Judge identified T’s propensity as one for licking the genitalia and anus of young girls.5 While the 25 year gap between T’s prior convictions and the alleged offending pointed towards rejection of the evidence,6 the acts were “practically identical in all three cases”.7 There were an “undisclosed number of incidents” involving two complainants, with no suggestion of collusion or suggestibility.8 The Judge considered that oral sexual connection between an adult male and genitalia and anus of a child was “very rare, and very unusual”.9 The respective ages of T and the victims, and the differences in their relationships, were dismissed by the Judge as both a function of the passage of time and T’s opportunistic offending.10 Judge Ingram accordingly found that the probative value of the evidence was high, and not outweighed by unfair prejudice.11

District Court conviction decision

[7]                 Judge Ingram expressed the sole issue at trial as whether the evidence established beyond a reasonable doubt that the complainant’s allegation was truthful and sufficiently reliable to discharge the Crown’s burden of proof.12

[8]                 The Judge noted that the “only direct evidence supporting the Crown case was that of the complainant”.13 While the victim had given inconsistent descriptions of the number of times that T licked her, the Judge was satisfied on the totality of the

3 At [7].

4 At [4].

5 At [10].

6 At [15].

7 At [16].

8      At [14], [17] and [18].

9 At [20].

10 At [24].

11     At [25] and [29].

12     R v [T] [2021] NZDC 7876 at [10].

13 At [25].

evidence that there was one single incident involving several contacts.14 The “essence” of the victim’s evidence was “clear beyond measure”.15 The initial allegation was “clear”, “simple”, “explicit” and “completely unprompted”.16 The victim repeatedly rejected any claim that she might be lying, initially to her mother, then in the evidential video interview, and finally at trial.17 Nor was there any basis to conclude that the victim’s mother was not a reliable and accurate witness.18

[9]                 Judge Ingram continued that there was admissible propensity evidence of T’s prior convictions for sexual violation of two girls, then aged nine and 11 years old.19 The Judge considered that this, in combination with the victim’s mother’s evidence that T always performed oral sex on her when they were intimate, established that T had a tendency to engage in the sexual practice described by the victim.20 This propensity evidence added “significant weight to the Crown case”.21

[10]              These strands of evidence, in conjunction with the absence of any evidence of evidential contamination, collusion, or motive to make a false complaint, left the Judge with no reasonable doubt “about the central element of the complainant’s evidence.”22 Judge Ingram therefore convicted T on the charge of sexual violation by unlawful sexual connection.23

Approach to appeals against conviction

[11]              Appeals against conviction are brought under s 232 of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.24 A miscarriage of

14    At [32]–[33].  The Judge further noted that the victim’s account of events included other “flights of fancy”, in particular that her mother was at the store when she was sexually violated and that the following day her mother had taken her to the fire station, not a medical centre. The Judge considered neither directly relevant to the allegations.

15 At [43].

16 At [40].

17 At [47].

18 At [41].

19 At [52].

20     At [55]–[56].

21 At [57].

22     At [60]–[61].

23 At [62].

24     Section 232(2)(b) and (c).

justice includes any error, irregularity, or occurrence in or in relation to or affecting the trial that:25

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[12]              A real risk arises if there is a reasonable possibility that a more favourable verdict might have been delivered if nothing had gone wrong.26

Did the Judge err by relying on inadmissible propensity evidence?

Submissions

[13]              Ms Harold, for T, submits that the Judge erred by relying upon inadmissible evidence of T’s prior convictions for sexual violation by unlawful sexual connection. She submits that the Judge mischaracterised the unusualness of T’s propensity, and in turn overstated the probative value of the evidence. Ms Harold emphasises the time between T’s prior offending and the alleged offending, and the differences between those incidents, in submitting that the probative value of the evidence is outweighed by unfair prejudice.

[14]              Mr Smith, for the Crown, submits that the Judge’s decision admitting the propensity evidence was “orthodox, unremarkable, and correct”. He submits that the differences between the incidents were properly rejected by the Judge.

Legal principles – propensity evidence

[15]              Propensity evidence is evidence 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.27 As the Supreme Court emphasised in Mahomed v R, the rationale for the admission of propensity evidence rests largely on the concepts of linkage and

25     Section 232(4).

26     Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

27     Evidence Act 2006, s 40.

coincidence – the greater the linkage or coincidence, the greater the probative value that the evidence is likely to have.28

[16]              The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.29 The Court must therefore take into account the nature of the issue in dispute when assessing the probative value of the evidence.30 Probative value may be assessed with reference to the factors set out in s 43(3) of the Evidence Act 2006.

[17]              When assessing the prejudicial effect of the evidence, the Court must then consider whether the evidence is likely to unfairly predispose the fact-finder against the defendant and whether the fact-finder may give disproportionate weight to it in reaching its verdict.31

What is the probative value of the propensity evidence?

[18]              The propensity evidence is probative of T’s propensity to take advantage of opportunities where he is in a position of trust and alone with young girls by sexually offending against them, specifically by performing oral sex on them. This is, of course, relevant to the issue in dispute, which the Judge correctly identified as being whether the victim’s allegations were truthful and sufficiently reliable to discharge the Crown’s burden of proof.

[19]              There are a number of factors which support the probative value of the propensity evidence. T previously offended against two victims,32 and there is no suggestion of collusion or suggestibility.33 His sexual interest in prepubescent girls is unusual.34 Ms Harold’s submission that child sex offenders performing oral sex on

28     Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].

29     Section 43(1).

30     Section 43(2).

31     Section 43(4).

32     Section 43(3)(d).

33     Section 43(3)(e).

34     Thompson v R [2019] NZCA 385 at [31].

the victims is not unusual does little to erode the central issue here, namely that it is the tendency to sexually offend against children which in itself is unusual.

[20]              T’s prior offending is very similar to that alleged by B.35 Both involve T taking advantage of opportunities where he was in a position of trust and alone with young girls, first undressing them and then performing oral sex on them. The differences cited by Ms Harold have limited bearing on the probative value of the propensity evidence. Differences are of less significance than similarities.36 But in any event, many of the differences are attributable to the passage of time. For example, the age gap between T and B is simply because he has aged – his paedophilic tendency remains unchanged. To the extent that Ms Harold submits that T’s prior offending involved a broader range of sexual conduct and therefore differs from B’s allegations, that additional conduct is not relied on as being demonstrative of the relevant propensity (which is limited to performing oral sex). That was the basis for T’s conviction for attempted rape being inadmissible as propensity evidence.

[21]              There was some degree of frequency to his offending at that time, reflected by the fact he was convicted of representative charges.37 I accept there has been a significant period of some 25 years since that offending (the offending accordingly not being connected in time).38 This temporal gap is the principal obstacle to the admission of the propensity evidence.

[22]              On this point Ms Harold relied on Lowe v R, where the Court of Appeal rejected propensity evidence of the appellant’s prior convictions for sexual offending committed more than 30 years earlier.39 There the appellant was charged with sexual violation by unlawful sexual connection for allegedly fondling a 12 year old boy’s genitalia.40 The Crown sought to lead evidence of the appellant’s prior convictions for

35     Section 43(3)(c).

36     Banks v R [2011] NZCA 469 at [13] citing R v Mataira [2008] NZCA 323 at [7]; and W v R [2011] NZCA 135 at [14].

37     Section 43(3)(a).

38     Section 43(3)(b).

39     Lowe v R [2011] NZCA 400.

40     At [2]–[7].

fondling four different victims’ genitalia in differing circumstances, one of which also involved an attempt at anal intercourse.41

[23]              The Court of Appeal considered the nature of the prior offending was “similar, but not identical”.42 The absence of any similar conduct during the intervening 32 year period meant that the probative value of the evidence was moderate.43 The Court of Appeal commented that:

“[27] No authority was drawn to our attention to demonstrate that, in similar circumstances, convictions based on events that occurred over 30 years ago has been admitted as propensity evidence. In R v Davis (Robert), the Court of Appeal of England and Wales considered an admissibility issue in the context of a violent relationship that the accused had had with a woman some 20 years earlier. Rix LJ, for the Court, said (in the context of a different statutory regime) that while one conviction from 20 years earlier might establish a propensity, there would be a need for “some special and distinctive feature” before it would be admitted.”

(footnotes omitted)

[24]              In Cox v R, however, the Court of Appeal made the following comments where the gap was 12 years:44

“[13] The Judge did recognise the gap in time between the propensity offending and the current offending as a factor that might lessen its probative value. That gap is some 12 years. Further, Mr Cox was aged between 15 and 17 (and was a troubled teenager) when the propensity offending occurred. He had been the subject of abuse as a child. In contrast, he was between 30 and 31 years old in the period to which the current charge relates. The Judge correctly observed that these factors did not affect the admissibility of the proposed propensity evidence, but that they would raise a question of weight for the jury.”

[25]              The present case is similar to Cox, although the greater gap in time means that there must be “some special and distinctive feature” before the propensity evidence should be admitted. I am satisfied that T’s penchant for taking advantage of opportunities where he is in a position of trust and alone with prepubescent girls to perform oral sex on them meets the threshold for admission. The probative force of the propensity evidence is not only derived from T’s tendency to act in the way alleged

41 At [10].

42 At [25].

43 At [25].

44     Cox v R [2016] NZCA 60.

by the victim, but also the “implausibility of a complainant who wishes to make a false complaint happening to choose someone who just happens to be a paedophile”.45 The gap in time goes to weight.

[26]              For these reasons, I consider that the probative value of the propensity evidence in the present case sits between moderate and high.

Is the potential for unfair prejudice outweighed by the probative value of the propensity evidence?

[27]              The obvious concern with the propensity evidence of T’s prior offending is that the fact-finder will conclude “once a paedophile, always a paedophile.”46 While this issue is somewhat finely balanced, I am satisfied that the probative value of the evidence outweighs the risk of unfair prejudice. Much of the prejudicial value of the evidence is the consequence of its probative value, in that the truth and reliability of B’s account was in issue and T had offended in a similar way previously. The propensity evidence was introduced by way of a statement of agreed facts, which excised prejudicial details of T offending against the victims in other ways. Furthermore, the fact-finder was an experienced District Court Judge, who rightly observed that he was accustomed to assessing propensity evidence and directing juries in relation to it.

[28]              Given those circumstances, I am satisfied the Judge did not err in admitting the propensity evidence of T’s prior sexual offending.

Did the Judge err by finding that T was guilty, so as to give rise to a miscarriage of justice?

[29]              Ms Harold then submits that the Judge erred in his assessment of the evidence, so as to give rise to a miscarriage of justice. First, she submits that the Judge erred by having regard to propensity evidence given by the victim’s mother that, in her experience, T had a fetish for oral sex. Secondly, that the evidence was insufficient to establish that T sexually offended against the victim.

45     Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [85(a)].

46     Lowe v R [2011] NZCA 400 at [31].

[30]              There is considerable force in Ms Harold’s submission that the Judge relied on the victim’s mother’s evidence that T had a preference for oral sex without undertaking the necessary analysis required for propensity evidence. The Judge commented that:

“[56] … But when the mother’s evidence on that matter is considered together with the evidence relating to the defendant’s prior convictions for exactly the same type of conduct with two girls under 12 …, I am satisfied that there is more than sufficient evidence to justify a finding that the defendant has a propensity to engage in the sexual practise described by the complainant.”

[31]              The preference for oral sex alleged by the victim’s mother is evidence of a tendency to act in a particular way, which was used for a propensity purpose by the Judge. As Ms Harold submits, this evidence has limited probative value in relation to the issue in dispute. A person who has a tendency to engage in consensual oral sex with an adult partner does not have a corresponding tendency to perform non- consensual oral sex on a child.

[32]              Even putting the victim’s mother’s evidence of T’s penchant for performing oral sex to one side, however, I am satisfied that the Judge did not err in his assessment of the evidence. My reasons follow.

[33]              First, B’s account of events was credible and detailed. She repeated that account with clarity (acknowledging the difficulty that a four-year-old might have in conveying her allegations). B’s complaint was unprompted. When challenged on it, she repeatedly rejected any question that she might be lying, initially to her mother, then in the evidential video interview, and finally at trial. At trial she further stated that T was the person who was lying. The Judge correctly identified that B and her mother previously liked and trusted T, and there was a paucity of evidence of a motive to fabricate the allegations.47 Nor was there any evidence of evidential contamination. The Judge was correct to conclude, in effect, that the absence of anything properly impugning the victim’s account meant that significant weight could be attached to it.

47 I note in this context that Ms Harold relied on R v E [2008] 3 NZLR 145 at [50]–[52] in submitting that the absence of evidence of a motive to lie does not increase the credibility of a complainant. That passage relates to a prosecutor questioning the accused whether the complainant has a motive to lie, and the drawing of an adverse inference from the accused being unable to point to one. Here, the trial Judge was drawing an inference of credibility from the previous positive relationship between the victim and T, and the absence of defence counsel questioning the complainant about a plausible motive to lie.

[34]              Secondly, I reject Ms Harold’s submission that B struggled to distinguish reality from make believe. Ms Harold criticised the following passage of B’s evidence:

“Q.      [B], have you watched the movie Moana?

…

Q.       [B], is Moana real?

…

A.       She is real. She is real. She is real in the Disney world.

Q.       What about the movie Frozen?

A.       She’s in the Disney world.

Q.       Is Elsa real?

A.       She’s real in the Disney world.”

[35]              As noted by the Judge, B’s answers demonstrated an acute awareness of the distinction between the “Disney world” and the real world. The description of that notion as a Disney character being “real in the Disney world” is an entirely consistent, even sophisticated, expression of that notion from the perspective of a four-year-old. In any event, Ms Harold’s contention would have limited bearing on the reliability of B’s account, given that the core allegations were not undermined by flights of fancy.

[36]              Thirdly, the Judge did not err in finding that the propensity evidence strengthened the Crown case. There was no dispute that T was in a position of trust where he had access and opportunity to offend, and previously in those circumstances had done exactly that. It is a striking coincidence that four-year-old B made an unsolicited and unprompted allegation of sexual violation against a convicted paedophile, likely having no knowledge or understanding of the sexual conduct or of T’s history. That sort of behaviour is outside the ordinary experience of a four-year- old child. B’s mother’s evidence of the steps she took to prevent B from being exposed to sexual material further supports that conclusion.

[37]              It is my view that the combination of B’s account of events, the evidence of the circumstances surrounding it, and the propensity evidence is sufficient to establish beyond a reasonable doubt that T sexually offended against B in the manner alleged.

[38]              I am accordingly satisfied that the Judge did not err in his assessment of the evidence. Nor can there be a miscarriage of justice.

Result

[39]The appeal is dismissed.

Moore J

Solicitors:

Public Defence Service, Tauranga Crown Solicitor, Tauranga