The Queen v Michael Brian Hodgson

NO PUBLICATION UNTIL AFTER TRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA125/00

THE QUEEN

MICHAEL BRIAN HODGSON

Hearing:	29 June 2000
Coram:	Tipping J Heron J Williams J
Appearances:	J K W Blathwayt for Appellant
J C Pike for Crown
Judgment:	13 July 2000

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

In an oral ruling delivered on 6 April 2000 Judge Atkins QC allowed the Crown’s application under the Crimes Act 1961 s 344A to be permitted to call evidence from a child F at Mr Hodgson’s forthcoming trial on one count of indecent assault on F’s sister P. Mr Hodgson has sought leave to appeal to this Court against this ruling.
Mr Hodgson was a friend of the girls’ family. In September-October 1998 he stayed with their family. During the course of his association with the family and, more particularly during his visit, he is alleged to have touched the two sisters indecently. He is also said to have filmed members of the family, particularly P, on videotape on occasions including during what the Crown asserts were some of the indecent assaults.
Mr Hodgson was originally charged with indecent assault on both F and P, the latter as a representative charge. At the conclusion of a trial held in December 1999, he was convicted on one count of indecent assault on F but the jury were unable to agree on the count of indecent assault on P. Mr Hodgson’s defence was that the incidents never happened or, alternatively, that any touching was accidental or innocent.
As a prelude to Mr Hodgson’s re-trial on the charge relating to P, the Crown applied under s 344A for an order permitting it to call F at the re-trial to give evidence not of Mr Hodgson’s conviction for indecently assaulting her but as similar fact evidence to corroborate her sister’s evidence.
In his oral ruling, the learned District Court Judge recounted that background and the prosecution contention that F’s evidence was probative if a defence of fabrication, misunderstanding or exaggeration of innocent activity was propounded. In the Judge’s review of the prosecution’s contentions, he observed that Crown counsel :
… asserted that the probative force can be assessed with reference to the similarity of the two alleged assaults as to time and place and the nature of offending and alleged offending. The evidence of F gains force, he submitted, by virtue of the following: the events and alleged events occurred during the course of a one week period when Mr Hodgson was a guest at the girls’ home; the girls are sisters; and both girls were under the age of 12 at the time when the offending and the alleged offending are said to have occurred. [Counsel] argued that the details of the two allegations of indecent assault are similar in that the alleged activity against both girls involved touching the genital area through clothing. There is also evidence which suggests that the friendship or trust of both girls was obtained by the use of a video camera by Mr Hodgson and also by the purchase of small gifts for them.
In his review of submissions put forward by Mr Blathwayt, counsel for Mr Hodgson, the Judge noted that at the earlier trial the Crown had not put the charges on the basis that the evidence of each of the complainants could be admitted as similar fact evidence in relation to the other. The Judge accepted that the Crown’s earlier stance might imply a lack of confidence on its part as to the probative value of F’s evidence in relation to the charge concerning P but concluded that the issue had little significance in relation to the re-trial.
The application was granted on the conventional ground that in the Judge’s view the probative worth of F’s evidence outweighed the prejudicial effect of admitting it at the re-trial.
In his submissions on appeal, Mr Blathwayt challenged the judgment principally on the basis that it omitted any identification of the points of similarity between the two girls’ accounts, followed by a consequential balancing of those issues to decide whether there was a sufficient link between the similar fact evidence of F and P’s statement to justify the admission of the former’s evidence in the re-trial (R v O (No.2) [1999] 1 NZLR 326, 332). Whilst it would have been preferable had the learned Judge undertaken that exercise, we consider that his failure so to do is not fatal to the order which he made, particularly as the listing of the similar matters is largely encapsulated in the Judge’s review of Crown Counsel’s submissions. In addition, this was a relatively straightforward matter where a comparison between the transcripts of the videotaped interviews of the two girls makes the similarities plain.
This Court has re-visited the question of similar fact evidence on a number of occasions over recent years. Because the law and the tests have evolved since earlier cases such as R v McLean [1978] 2 NZLR 358 and R v Hsi En Feng [1985] 1 NZLR 222 it is unnecessary to reconsider the intermediate cases and is sufficient for present purpose to note: R v M [1999] 1 NZLR 315 (also reported as R v Accused (CA361/97) (1998) 15 CRNZ 674) where this Court observed (at 322, 682):
There must be a sufficient factual link between the similar fact evidence and the direct evidence of the crime in question. That link is necessary to make the similar fact evidence more probative than prejudicial. It is the strength of the link constituted by the points of similarity, whatever form they take, which is the crucial question. If the evidence is admitted, its probative force comes from that link. This is what makes the evidence relevant to the credibility of the complainant, if that is an issue. It is for the jury to determine whether, and if so to what extent, the suggested link assists the Crown case on the issue to which the link is said to be relevant.
When F and P’s statements are analysed in terms of that approach, the similarities are that both gave evidence of being touched or tickled, the touching or tickling was manually by Mr Hodgson, both were touched on the private parts, both were touched only on the top of their clothes, the touching in each case occurred in their brother’s bedroom and whilst the girls were on the bed and, although there is some imprecision in this regard, whilst the girl in question and Mr Hodgson were in similar postures. Although there were a number of dissimilarities between the accounts including repeated touching asserted by P, a touching on the buttocks as well as the vagina, her telling him to stop, touching other than in the bedroom and the videotaping, those may be explained as no more than expected differences given that F was only about 6 and her sister 2 years older. In any event, those dissimilarities are insufficient to displace the view which the jury might take that there was a sufficient characteristic or pattern in the appellant’s conduct which logically dispelled the suggestion that the touching never happened or that it was accidental or innocent.
In those circumstances, the Court takes the view that no case has been made out to disturb the learned District Court Judge’s order and the application for leave to appeal is accordingly dismissed.

Solicitors:

Wollerman Cooke & McClure, Carterton, for Appellant
Crown Law Office, Wellington

[2000] NZCA 124

13 July 2000