The Queen v [ ] Clark

[2004] NZCA 445

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION LAW REPORT OR LAW DIGEST PERMITTED.

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/04

THE QUEEN

v

[     ] CLARK

Hearing:         22 November 2004

Court:             Chambers, Baragwanath, and Goddard JJ Counsel:     C B Cato and A J Guest for Applicant

S P France for Crown Judgment:  6 December 2004

JUDGMENT OF THE COURT

AApplication for leave to appeal granted.

BThe decision of the District Court dated 8 March 2004 is set aside. In its place, order that evidence of offending on 1 January 1997 is not admissible.

CThe decision of the District Court dated 4 August 2004 confirmed.

R V CLARK CA CA306/04 [6 December 2004]

REASONS

(Given by Baragwanath J)

The challenged rulings

[1]        This application for leave to appeal is from two pre-trial rulings of the District Court under s 344A of the Crimes Act 1961.

[2]        The applicant has been indicted on two counts of sexual offending. The first is that on or about 27 August 2003 at Orewa he sexually violated complainant A by having unlawful sexual connection  with  her  occasioned  by  the  penetration  of  her genitalia by his finger. The second is that on a  date  unknown  during  September 2003 (but probably 22^nd) at Auckland he sexually violated complainant B by raping her.

[3]        On 8 March 2004 Judge Tompkins granted the Crown’s application for leave to adduce evidence of the applicant’s earlier indecent assault of a 17 year old woman on the morning of 1 January 1997 when he was alleged to have fingered her private parts through her shorts and pulled up her clothing and kissed her breasts while asleep in a car in which the applicant  had  driven  other  relatives  home  after  a New Years Eve party. He had pleaded guilty and was convicted of the offence.

[4]        On 4 August 2004 Judge Lance QC declined to sever the trial of the present counts.

Count 1: complainant A

[5]        Complainant A was 13 years of age when she attended a birthday party on  27 August 2003 at an  address  at  Orewa  at  which  the  applicant  was  present.  She alleges that during the evening he offered to take her and a friend to get some alcohol and was invited to stay the night. During the evening he came up to the

complainant and a friend saying “You are beautiful girls, you are so gorgeous that sort of thing.” The complainant drank about seven bottles of Tattoo and a shot of  Jim Beam over a period of some four hours. She and her boyfriend slept on a  foldout couch on the floor adjacent to the mattress on which the applicant went to bed. As she was falling asleep she noticed he had his arm around her waist and was rubbing her thigh and began pulling her down towards him. She decided to get up and went to the bathroom. Before she could close the door he pushed it open and entered the room. He began kissing her and before she could speak put his tongue down her throat. He backed her against the washing machine so she could not get away, grabbed her arms  and  forced  her  back  on  top  of  the  washing  machine. He asked if he could have sex with her and she said no.  He removed her trousers  and underwear and asked if he could put his penis inside her and she said no and tried to keep her legs together. He parted them using his legs and his hands and put his fingers into her vagina. He began to lick her about the vaginal area and put his tongue inside her vagina. She told him that if he did not leave her alone she would shout. He backed away, she pulled up her pants and ran back to her boyfriend and snuggled up against him. The applicant returned to his mattress about five minutes later.

[6]        In the morning she got up and complained to a girlfriend. She sat on the couch and the applicant came and sat beside her, put a blanket around them and started rubbing her thigh. She got up and changed.  He then asked her to go out to  the car and go to the shops with him and she declined.

Count 2: complainant B

[7]        Complainant B was also 13 years of age. She was babysitting at a house in Whangaparaoa and went to a service station to buy some chips. On her way back  she saw the applicant only a few steps behind her. She knew him as a friend of a friend and had previously bought cigarettes for them. He asked her if she would like a cigarette and she agreed. He led her to a nearby reserve where she said he grabbed the back of her elbow. She slipped on the wet grass and he pulled her down to the bushes and pushed her down on to the ground with his hands so she could not move

hers.   He said to her “You are so pretty and  you have a really beautiful body.”     He tried to kiss her mouth but she moved her head and he began kissing and licking her and sucking her neck. He unzipped her top and pulled up her halter neck shirt and her brassiere and licked and kissed her breasts. He put his fingers into her vagina, pulled his trackpants down  to  his  knees  and  put  his  penis  inside  her.  He ejaculated and having got up proposed that he meet her at the local plaza on the following Wednesday when he would shout her lunch and give her some money.

[8]        Complainant B’s friend became worried when she had been away for about half an hour and then saw her approach sobbing and hysterical with “hickeys” on her neck, what appeared to be fingernail scratches in the same area and her top only half zipped up. She later made a complaint to her friend. About a week later the two young women were at the plaza when the applicant walked towards them. He asked what they were doing and asked the complainant to come back to his place for a session of massage. He tried to get close to her.

[9]        Interviewed on 23 October 2003 he initially denied having been to the  reserve with a female. But having been told that complainant B who saw him in the bus stop that day had made a complaint that he had taken her into the reserve and  had sex without her consent, he admitted that he had been in the reserve with her.  He explained that he had seen her around the Whangaparaoa Plaza, invited her to smoke some cannabis to which she agreed and they walked into the reserve where they smoked cannabis and he kissed her.   They agreed to meet later at the plaza.    He denied that sexual intercourse had taken place. In a subsequent hand-written statement he asserted that complainant B was lying and that he did not rape her.

The issue of collaboration

[10]      Following the argument before Judge Lance the prosecution learned and notified the defence that complainant A had gone to the home of complainant  B   and learned that the latter had laid a  complaint,  whereupon  she  laid  her  own.  That information was provided to the Judge as raising an issue of possible collaboration. It was not discussed in his judgment.

Discussion

[11]      Both judgments under appeal relate to “similar fact” (or “discrete conduct”) evidence. While ostensibly the challenge to Judge Lance’s decision concerns an argument about severance the basis of the severance argument was whether or not complainant A’s evidence may be used in the trial concerning complainant B and vice versa.

[12]      The principles were discussed by this Court in R v Holtz [2003] 1 NZLR 667 at [35]-[39].

[13]      With respect to the evidence of the 1997 offending, Judge  Tompkins accepted

[Crown counsel’s] analysis that there is an underlying unity or commonality in the kind of behaviour which the accused has admitted in respect to his niece and is charged with in all respect to the two named complainants. All relate to occasions where the accused has developed a superficial awareness of or relationship with each complainant and when the opportunity has presented itself has by the use of force or threats of violence engaged in non consensual sexual conduct with all three.

[14]      But Mr France found himself unable to support that aspect of the decision observing that the elapsed time between the incidents was seven years and that one normally sees a stronger underlying unity than exists here in order to support admissibility in relation to either of the present complainants.

[15]      We are not satisfied that the standard required by law is met in relation to the evidence considered by Judge Tompkins, grant leave to appeal and allow the appeal against the decision to admit the evidence of the New Years Eve 1997 transaction.

[16]      The  issue  considered  by  Judge   Lance   QC   presents   more   difficulty. As Cross and Tapper observe (9^th ed p359)

Probative force depends upon relevance and cogency. Relevance is heavily influenced by the line of defence adopted by the accused, and cogency by  the other evidence in the case.

[17]      Here there is no issue of identity, where a very high degree of probative value is required to avoid risk of injustice. The elements in issue are whether the Crown can establish the elements of sexual connection and, if so, absence of  consent.  While the defence has yet to identify the nature of its challenge to the Crown case, in respect of complainant B no suggestion has been made that the statement to the police admitting an episode of being in the reserve and kissing her is inadmissible.

[18]      As the late Professor Sir John Smith pointed out in his note to R v Musquera [1999] Crim LR 857 at 858-9, the essential question is whether the two complainants are speaking the truth. If collusion does not exist, the mutual relevance of each complainant’s evidence to the other case lies in the unlikelihood of two non-colluding persons making allegations of similar types against the same man within a short period of time if they are not true. The greater the similarity between the allegations, the less likely it is that they are both lying or mistaken.

[19]      The factors of significance in this case are that the complainants allege offending within the Hibiscus Coast area, both are of the same young age entailing a significant difference from the age of the applicant (32), the use of blandishment,  and the relatively short time between the two alleged offences, all coupled with the brazen nature of offending by a man on a young woman who he knows will be able to identify him and immediately invites her to socialise with him.

[20]      We are satisfied that taken together these factors meet the standard required for admission of the evidence. While granting leave to appeal against Judge Lance’s conclusion we agree with it and dismiss the appeal against it.

Collusion

[21]      The fact that each makes allegations of sexual violation against the same man increases the likelihood that they are speaking the truth.

[22]      Mr Cato argued that the case should be sent back to the District Court for pre- trial voir dire to determine whether there is a real risk of collusion. If a real risk  were established then in his submission severance should be ordered.

[23]      That submission is inconsistent with authority. In R v H [1995] 2 AC 596 the House of Lords considered that the issue of contamination should normally be left to the jury unless no reasonable jury could regard it as free from collusion, in which event there should be a direction to disregard it.

[24]      In cases where there is a strong risk of collusion the trial Judge may, as a matter of discretion,  withhold  similar  fact  evidence: R  v  Narain  (No.  2)  [1988] 1 NZLR 593 at 595. But normally, as occurred in that case and also in R v S CA201/95 22 September 1995 following R v H, the proper course will be to admit the evidence and direct the jury to consider first whether the possibility of collusion can be excluded before they may use it in a similar fact way (see Cross on Evidence (looseleaf ed) at [13.20]).

Solicitors:

Crown Law Office, Wellington