THE QUEEN v ROBERT BRUCE ANDERSON [1999] NZCA 60 (29 April 1999)

ORDER PROHIBITING PUBLICATION UNTIL TRIAL

IN THE court of appeal of new zealand

ca51/99

THE QUEEN

V

ROBERT BRUCE ANDERSON

Hearing:	28 April 1999 (at Auckland)
Coram:	Eichelbaum CJ Gault J Robertson J
Appearances:	B R Northwood for Applicant S P France for Crown
Judgment:	29 April 1999

judgment of the court delivered by GAULT J

[1] The appellant is charged with one count of indecent assault.His trial is set for 3 May 1999.He seeks leave to appeal against a pre-trial ruling that evidence of explicit videos found in his possession and of such videos being shown to the complainant is admissible at his trial.

[2] The case for the Crown will be that the complainant, who was 14 years old at the date of the offence, was a friend of the appellant and lived across the road from him.The complainant would spend time at the appellant's house and would often stay there over night.He would sleep either in a spare bedroom or in the sitting room on the couch.It is alleged that one evening in January 1998 the complainant was at the appellant's house with several young people. The complainant was told to sleep in the appellant's bed since there was no room in either the spare room or the sitting room.The complainant alleges that when he awoke the appellant was lying in bed beside him touching his penis.He alleged that this continued for some time before the complainant left the bed.

[3] The complainant alleges that he watched several video tapes depicting sexual activities at the appellant's home at Easter 1998 some three months after the offence charged.It is said the appellant allowed another boy to play the videos while the complainant and the appellant (for a time) watched.

[4] A subsequent police search of the appellant's house uncovered (inter alia) three sexually explicit videos which are the subject of the present appeal. They were identified in the pre-trial hearing as exhibits 10 and 11.Exhibit 10 consists of two homosexual videos.Exhibit 11 is an explicit video in foreign language showing actors dressed as boys engaged in sexual activity.It is not clear whether the complainant viewed any of these videos, though it seems he did not view exhibit 11 because his evidence makes no reference to the depiction of sexual activities other than among adults.

[5] In the course of his ruling the Judge stated that the fact that videos were watched by the complainant and the appellant at Easter when the alleged incident had occurred in January has no bearing on the decision as to their admissibility.He drew an analogy with cases involving the admissibility of similar fact evidence covering matters both before and after the event.The Judge accepted that evidence that explicit videos were shown to the complainant and that such videos were found in the possession of the appellant should be available to the Crown to counter defences of innocent association and a claim that the appellant had denied an interest in sexual activities with young boys. He referred to R v Harrison CA113/83, judgment 26 October 1983 where photographs of the complainant in sexual poses were ruled admissible against the accused who was charged of indecent assault on a boy then aged 15 years. It was alleged that the assault had occurred while the accused was preparing the boy for photographs to be taken and the accused had claimed innocent association for artistic purposes.

[6] The Judge also relied on R v Dee High Court Auckland T146/91 where Temm J ruled video tapes depicting homosexual activity admissible in a trial where the accused was charged with sexual offences against teenage boys. The video tapes were ruled admissible because they were corobative evidence of what the youths saw and were relevant to establishing the nature of the association of the accused with the complainants.

[7] The possible defences the Crown advanced before the Judge had their basis in the interview of the appellant recorded by the police.In the course of that he is recorded as saying that the incident "probably did happen" though he had no recollection of it, which he attributed to stress he was under at the time.That is a claim neither of innocent association nor of accidental touching.

[8] Also in the interview the appellant acknowledged bi-sexuality.The transcript records the following questions and answers:

Q. In you telling me that well could have happened, but you can't remember, I, I obviously get the idea that you have a liking for umm younger boys at times, we're talking about teenage boys here not young ones, but is that correct then

A. Oh well

Q. Is that a fair assumption

A. Probably yeah

[9] Further on the matter of the appellant's interest in "younger" boys was reverted to:

Q. And from that like I asked you before you do, you do have a bit of a liking for the, for the younger guys.

A. Not as such

Q.Mmm

A. Umm

Q. But it's there

A. When you say younger guys umm

Q. I'm talking about boys

A. I like to help them out

Q. Yeah but I mean you do have a sexual liking for younger boys obviously

A. Not as such

[10] These passages are unclear but they provide no strong basis for a claim for the Crown that the appellant has denied any sexual interest in teenage boys.

[11] The case for the appellant is that the Judge overstated the probative value of the evidence;that indeed it has no probative value to support the Crown case, and that any probative value it may have is outweighed by its potential illegitimate prejudice to the accused.

[12] Probative force depends upon what is to be proved.This is well illustrated by the decision in R v Phillips CA208/94, 15 September 1994 in which evidence of pornographic videos in the possession of the appellant was of no real assistance where the essential issue in the case was whether the appellant genuinely believed the complainant was consenting to alleged sexual violation.

[13] Evidence otherwise irrelevant may become relevant if it contradicts a defence reasonably to be anticipated.This is the basis for the decisions in Harrison and Dee which the Judge relied on.However for the appellant it was submitted that the Judge overstated the probative value because the defences the Crown contends the evidence is needed to negate are not reasonably to be anticipated.

[14] Mr France for the Crown accepted that the nature of the alleged offending makes accidental touching an unlikely defence but he contends that it can be expected the relationship between the appellant and the complainant will be portrayed as simply a companionship or friendship.He submitted that it is necessary to recognise the reality of the trial's context and the relationship the appellant had with the complainant will be a key factor.It was said that the showing of the videos indicates the way in which the appellant viewed the complainant.

[15] It was further submitted with reference to potential prejudicial effect of the evidence that because it does not extend to other discreditable acts by the appellant its diminished probative value is matched by lessened potential prejudicial effect.He submitted that the prospect that the jury might misuse the evidence is unlikely and that, properly directed, they would not be overwhelmed by the stigma that might be seen to attach to the conduct of the appellant in merely possessing and showing the videos.This argument does not provide much assistance in the particular case with the essential issue of whether the probative value of the evidence is outweighed by potential prejudice.That still must be assessed in the whole context of the case, if necessary at the time the evidence is about to be given.

[16] In this Court Mr Northwood indicated that the defence at trial will be that the alleged indecent assault did not occur.It will be contended for the appellant that, his interview statements notwithstanding, had it occurred he would have remembered so that it cannot have occurred.The presence of the complainant in his bed it seems, will be explained as innocent and consistent with their relationship.

[17] We accept, as did Mr Northwood that if possession of and showing pornographic videos to the complainant had been around the same time as the alleged offence, evidence of those facts would be probative of the nature of the relationship and inconsistent with innocent association.Further, it would be difficult to envisage cross-examination of the complainant on his relationship with the appellant not drawing an answer making reference to the video tapes.

[18] The real issue is whether the lapse of time of some three months between the alleged offence and the time the complainant viewed explicit sexual videos at the appellant's home makes a material difference.Certainly the probative value of the evidence as showing the nature of the relationship three months before is considerably reduced.The potential prejudice of possible misuse of the evidence by the jury remains.This leads us to the view that the evidence should not be admitted unless it is material to counter an inconsistent defence.

[19] A defence of innocent association inconsistent with the evidence in issue is not yet clearly to be run.The interview with the appellant does not show that.With respect to the Judge, we think it is premature to rule the evidence admissible on this basis, although it might emerge in the course of the trial that the jury is being invited to regard the appellants relationship with the complainant in such light that the evidence would become material.In that event the Crown's application can be renewed before the trial Judge.

[20] Accordingly we grant leave to appeal, allow the appeal and direct that evidence should not be given (including by the complainant) of the showing or possession of pornographic videos at or after Easter 1998, unless in accordance with a ruling from the trial Judge.

Solicitors

Crown Law Office, Wellington