The Queen v [ ] Yum

[2021] NZCA 468

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICILY ACCESSIBLE DATABASE PENDING TRIAL, PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND CA54/01

THE QUEEN

V

[     ] YUM

Hearing:	16 May 2001
Coram:	Blanchard J Doogue J Randerson J
Appearances:	S P France and M F Laracy for Crown F P Hogan for Respondent
Judgment:	16 May 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]                  The respondent is charged with the abduction of two women, the rape of one and being a party to the rape of the other. The Solicitor-General seeks leave to  appeal the pre-trial exclusion of evidence characterised as similar fact evidence.

Facts

[2]                  The present charges relate to the earliest of three incidents involving the respondent. On or about 10 February 1998, the Crown alleges the respondent, together with an unknown associate, abducted the two complainants with the intention of raping them.

[3]                  The two complainants were hitchhiking near the Takanini motorway interchange. The respondent allegedly picked them up on the side of the road, drove them to a remote area, threatened them with a screwdriver, and directed them to remove their clothes. They were then effectively paired off by the two men and raped.

[4]                  The Crown alleges that, with the screwdriver in one hand, the respondent made the complainant lie on her back, performed oral sex on her and then proceeded to have frontal intercourse.  He then performed oral sex on the complainant while  she was on her hands and knees, had anal intercourse, frontal intercourse and then ejaculated inside her. The respondent allegedly promised not to hurt the complainant if she complied, but told her to “shut up” during the rape. The complainant was then abandoned at the roadside with her friend.

[5]                  The second incident on 20 June 1998 involved the respondent befriending the victim at an entertainment centre. He agreed to take her around the central Auckland area to find her friends. The respondent eventually drove her to a remote carpark, where he attempted to reach between her legs, kiss her and touch her breasts through her clothing. The respondent said that if she resisted, he would hurt and rape her, although no weapon was physically used to restrain her. Fortunately, she escaped.

[6]                  The third incident on 24 August 1999 involved the respondent picking up the victim when she was hitchhiking near the Takanini motorway interchange. While friendly to her at the outset, he eventually stopped the van in an isolated rural area. The respondent began to touch the victim sexually. When she refused to acquiesce, he threatened her with a knife and made her get in the back of the van. He promised not to hurt her if she complied. He continually told her to “shut up” during the rape which followed.

[7]                  The respondent then, with the knife in one hand, made the complainant lie on her back, performed oral sex on her and then proceeded to have frontal intercourse. He then had intercourse with the complainant while she was on her hands and knees, attempted anal intercourse, had frontal intercourse and then ejaculated inside her. (This is almost exactly the same sequence of offending as that against the complainant (para [4] above). The respondent then drove the victim to Manurewa and allowed her to leave.

[8]                  The respondent pleaded guilty to the second and third cases of offending, but denies the first. The Crown sought leave to adduce evidence of the factual circumstances surrounding the second and third incidents at the trial of the respondent for the first incident. While the defence conceded that identity and the actus reus are not at issue (the defence is consent), the Crown submitted that the ‘similar fact’ evidence was so relevant to the facts at issue in the first incident that, although the events occurred subsequently, its admissibility was critical.

The pre-trial ruling

[9]                  In a ruling given on 1 February 2001, after stating that an accused’s actions on one occasion are generally irrelevant to what he might have done on another occasion, the District Court Judge noted that the overall test is whether the probative value of the similar fact evidence outweighs any prejudicial effect to the accused (R v Accused [1992] 2 NZLR 187).

[10]               He acknowledged the need to ensure witnesses have not colluded to make up false allegations against an accused, although he held that there was no evidence of such collusion in this case. He also noted that similar fact evidence may sometimes be admissible where an offence is said to have been committed in a characteristic way, or has certain unusual or striking features, especially in sexual cases (DPP v P [1991] 2 AC 447). However, the Judge said that it should be logically more difficult to justify the admission of similar fact evidence where the issue is one of consent and not identification. He saw admissibility in such cases to be “rare indeed”. While noting that, especially in relation to the first and third incidents, there were striking similarities in both behavioural and sequential aspects, he held that the similar fact

Submissions on behalf of the Crown

[11]               The Crown submitted that the Judge’s exclusion of the evidence failed to address the context in which the defence of consent must be run. Consent is only a realistic defence if the respondent challenges the evidence of the two complainants about what occurred to them after they had been picked up by the two men, one of whom is accepted to have been the respondent.

[12]               The Crown argued that both women cannot mistakenly have told the same story. Either it happened as they say, or they have colluded.  It was submitted that  the similar fact evidence must be admissible, especially in relation to the third incident, to reinforce the credibility of the accounts given by the two complainants. The jury is required to infer the absence of either consent or a reasonable belief from the surrounding facts of the sexual intercourse. The similar fact evidence provides legitimate support for each complainant’s allegations as to the circumstances leading up to the sexual intercourse, and assists in negating any suggestion of collusion.

Submissions on behalf of the respondent

[13]               Mr Hogan supported the position taken by the Judge in the exercise of his discretion. He said that the Judge had addressed the matter applying the correct principles. Counsel asserted that the Court should not permit similar fact evidence to be adduced when the issue in the case was whether a complainant had consented to sexual activity and that to do so would undermine the defence. He also objected on the basis that the similar fact evidence was of incidents occurring many months after the alleged offending.

Decision

[14]               We take the view that the probative value of the evidence intended to be given in relation to the third incident (24 August 1999) clearly outweighs its prejudice, including the inherent prejudice arising from the plea of guilty, and that

such evidence ought to have been admitted. This Court pointed out in R v M [1999] 1 NZLR 315, 321 that:

Similar fact evidence may be used not only where the issue is the identity of the offender. It may be used to bolster the inference of the state of mind of an accused when doing some act. If the same act is shown to have been done by him repeatedly in the past in the same characteristic manner or in the same characteristic circumstances that will tend to support the inference that on the next occasion it was intentional, or was done for the same purpose or was done without belief in consent.

[15]               Both the current charges and the third incident involved the picking up of hitchhikers from near the same motorway exchange, taking them to a remote place, threatening them with weapons and then performing on them a nearly identical sequence of sexual assaults, also in each case telling them to “shut-up” during the rape. There are, of course, differences, in particular the fact that in the current offending there were two complainants and two alleged offenders. The weapons were also different. But overall there is the necessary distinctive similarly between the accounts given by the complainants, going well beyond the commonplace and amounting to a discernible pattern of behaviour.

[16]               Although the evidence of the third incident may be particularly prejudicial because of the respondent’s plea of guilty, it is powerfully probative of the offences now charged. The Judge himself said that there were “strikingly similar characteristics not only from behavioural aspects, but also sequential aspects”. If accepted by the jury, that evidence is supportive of the assertions by the present complainants that, like the victim in the third incident, they did not consent to what occurred to them and that they have not together fabricated a false complaint against the respondent.

[17]               In the light of the Court’s statement above in M and, we add, of many similar authorities of this Court, Mr Hogan’s submission that such evidence is not admissible where the issue is consent was somewhat surprising. Nor do we see any merit in his argument that the charges relate to the earliest of the incidents and that accordingly it would be unfair for the Crown to seek to support its case relating to that by bringing evidence of later events. The important consideration is whether

there is a pattern of behaviour to be discerned from the several events, not whether the incident to which a charge relates precedes or follows the incident in relation to which it is sought to give the supporting evidence. The time gap between events  may possibly affect the question of whether there is actually a pattern in the behaviour of a particular accused but there can be no rule that a subsequent occurrence is inadmissible when the first event happens to be the one to which the current charges relate. The reference in M to “in the past” is not to be read as being intended to give any such indication.

[18]               The position is different in relation to the second incident (20 June 1998). There are not the same distinctive similarities. It did not involve the picking up of a hitchhiker nor the same pattern of assaulting the victim. No weapon was used. The only common elements are abduction and a sexual assault, which fortunately did not progress very far before the victim escaped. Introduction of this evidence would show nothing more than a propensity to assault women indecently after befriending them and taking them against their will to a remote place. The Judge exercised his discretion against admitting it and we are not persuaded that in this respect he was clearly wrong.

[19]               Leave is granted and the appeal is allowed to the extent that the decision of the District Court concerning the evidence relating to the third incident is set aside and that evidence is declared admissible. The appeal is dismissed as to the evidence relating to the second incident.

Solicitors

Crown Law Office, Wellington