The Queen v Filo Pio - [2001] NZCA 161

IN THE COURT OF APPEAL OF NEW ZEALAND

CA25/01

THE QUEEN

FILO PIO

Hearing:	22 May 2001
Coram:	Tipping J Heron J
Paterson J
Appearances:	T Saseve for the Appellant S P France for the Crown
Judgment:	24 May 2001

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Mr Pio was convicted on one charge of sexual violation by rape. He appeals the conviction on the ground that the trial Judge wrongly refused leave under s 23A of the Evidence Act 1908 (the Act) for counsel to cross-examine both the complainant and another witness on consensual sexual activity which occurred approximately two to three hours after the rape.

Background

Both Mr Pio and the complainant were part of a group who drank together at a party. The group then left the party to go to a nightclub by which time the complainant was quite intoxicated. When the group reached the nightclub, the complainant, who had travelled in Mr Pio’s car, did not want to go into the club and chose to sleep in the back seat of his car. Mr Pio said he would stay with her.
Shortly after the rest of the group went into the nightclub, Mr Pio drove off with the complainant. When he returned to the nightclub some time later, the complainant was still asleep in his car and was naked from the waist down. T, one of the members of the group, tried to wake her up but she was still half asleep and went back to sleep.
T’s evidence was he asked Mr Pio what he had done and Mr Pio acknowledged that he had had sex with the complainant. The complainant was taken to a house and put to bed. When she later woke up she did not have her jeans or underpants on and there was nothing on her feet. In a statement to the Police she said that when she woke up she was not alone in the room but at first she was not sure who the other person was. She asked for a blanket and was given one. When she realised the other person was T, she asked him to keep her warm and he lay down on the floor next to her and put his arms around her. She said that both T and herself had partners but there was a mutual attraction between them on the two previous occasions they had met. The complainant and T started kissing and this developed into sexual activity, including digital penetration of her vagina. In her statement she said she remembered feeling a little sore inside her vagina but did not know why. Mr T performed oral sex on her. The activity stopped when there was a knock on the door.
The application to the trial Judge pursuant to s 23A of the Act was to cross-examine both the complainant and T in relation to this sexual activity.

Pre trial ruling

The District Court Judge summarised the defence submission in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Filo Pio

Details

AGLC: The Queen v Filo Pio [2001] NZCA 161
Case: [2001] NZCA 161
Decision Date: 24 May 2001

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Filo Pio against his conviction of sexual violation by rape. The appeal hinged on the trial judge's refusal to allow cross-examination of the complainant and another witness about consensual sexual activity that occurred approximately two to three hours after the alleged rape. The appellant argued that this refusal was an error under section 23A of the Evidence Act 1908, which governs the admissibility of certain sexual history evidence in sexual cases. The court was tasked with determining whether the trial judge's decision to exclude this cross-examination was correct under the stringent criteria set by the Act and relevant case law.

The legal issue before the court was whether the trial judge erred in refusing to grant leave for the defence to cross-examine the complainant and another witness about consensual sexual activity that occurred shortly after the alleged rape. The court needed to consider if this evidence was of such direct relevance to the facts in issue that its exclusion would be contrary to justice, as required by section 23A(3) of the Evidence Act 1908. The court also had to assess if the evidence was not merely indicative of the complainant's general disposition or propensity in sexual matters, as prohibited by the proviso in section 23A(3).

The Court of Appeal held that the trial judge did not err in disallowing the cross-examination. The court reasoned that the evidence of subsequent sexual activity between the complainant and another individual was relevant only to the complainant's credibility and general sexual disposition, not directly to the facts in issue. The court found that the temporal proximity of the sexual activity to the alleged rape did not sufficiently connect it to the issue of consent in a way that met the stringent test outlined in R v McClintock. The court concluded that the excluded evidence, while relevant, did not rise to the level of direct relevance necessary to warrant its admission. Therefore, the trial judge's decision to exclude the cross-examination was upheld, and the appeal was dismissed.

The Court of Appeal dismissed the appeal and affirmed the conviction of Filo Pio on the charge of sexual violation by rape. The reasoning of the trial judge in refusing the cross-examination was found to be correct, as the evidence did not meet the strict criteria for admissibility under section 23A of the Evidence Act 1908.

Orders