R v P CA401/00 [2000] NZCA 425 (20 November 2000)

Last Updated: 18 January 2019

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT UNTIL AFTER THE COMPLETION OF THE TRIALS AGAINST THE ACCUSED IN RESPECT OF THE COUNTS IN T 586/00 (WELLINGTON HIGH COURT REGISTRY). PUBLICATION OF NAME OF ACCUSED SUBJECT TO ANY SUPPRESSION ORDER IN FORCE IN HIGH COURT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 401/00

THE QUEEN

V

P

Hearing:	20 November 2000
Coram:	McGrath J Doogue J Young J
Appearances:	B Davidson and N Levy for the accused B M Mackintosh for the Crown
Judgment:	20 November 2000
Reasons for Judgment:	21 November 2000

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1] The Crown laid an indictment against the accused containing 36 counts of alleged sexual offences, two in the alternative, against 14 young males. The accused sought severance. The Crown accepted that one trial of the 36 counts would be oppressive. The Crown sought an initial trial on 20 counts involving 11 complainants (counts 1, 5, 6, 8, 10, 12-15, 18, 19, 22-29 and 31) and sought to have the other counts severed from those. A High Court Judge upheld the Crown position and refused to order the five separate trials sought by the accused. The accused applies for leave to appeal and seeks a further severance of the charges he faces. At the end of the argument leave was given to appeal but the appeal was dismissed with reasons to follow as the trial is imminent. These are the reasons.
[2] To put the matter into context, it is simplest to refer briefly to the original indictment to what has been ordered and to what is sought by the accused.
[3] The original indictment containing 36 counts involved 14 male complainants between 12 and 16 years old, spanning a 22½ year period between January 1977 and August 1999. Ten of the counts were representative and two were charged in the alternative. Some of the alleged offending pre-dated the coming into force of the Homosexual Law Reform Act 1986 on 11 July 1986. Two of the counts (30 and 31) spanned the period when the law changed. In general, the defence to the counts is a denial of the unlawful sexual activity with some of the complainants and in respect of other of the complainants an acknowledgement of the sexual activity but a defence that it was consensual activity as the complainants were over 16 years of age.
[4] The order under appeal provides for the following counts to be heard in the first trial. Where the accused denies the alleged actions, that is noted. Otherwise the defence is that the complainant was over 16 years of age at the time of the sexual activity alleged and consented to it.

Count 1 A representative charge of indecent assault of M1 by the accused touching his hand while trying to get M1 to touch the accused’s genitals in the years 1977 to 1979 inclusive.

Count 5 A representative charge that the accused induced I to do an indecent act with him, namely to pose with his genitals exposed while being photographed in I’s bedroom between the end of December 1978 and the end of December 1981.

Count 6 A representative charge that the accused attempted to sodomise I in the same period as mentioned in count 5.

Count 8 A charge that in the years 1979, 1980 the accused indecently assaulted W by touching W’s penis with his mouth. (The accused denies this.)

Count 10 A charge that between early 1977 and early 1980 the accused induced D1 to do an indecent act with him, namely to pose with his genitals exposed while being photographed.

Counts 12 to 15 These four counts relate to D2. They relate to the period between 2 August 1981 and 2 August 1983. Counts 12, 14 and 15 allege sodomy. Count 13 alleges indecent assault by touching D2 with a vibrator while in the accused’s bedroom.

Count 18 This is a representative charge that between 1 January 1982 and 19 March 1985 the accused did an indecent act with D3 (now deceased), namely to pose with his genitals exposed while being photographed.

Count 19 This count charges the accused with an offence of indecent assault against M2, namely the touching of M2’s genitals with his mouth and hands between 15 February 1981 and 15 February 1982. (The accused denies this.)

Counts 22 and 23 These are two further counts relating to M2. Count 22 relates to the period between 15 February 1982 and 15 February 1983. It charges the accused with an indecent assault by touching M2’s genitals with his hand and inserting his finger in M2’s anus. Count 23 relates to the period between 15 February 1983 and 15 February 1984 and is a charge of sodomy. (The accused denies these.)

Counts 24 and 25 These are two counts of indecent assault upon S. Count 24 relates to the period 1 November 1981 to 1 February 1982 and alleges the touching of S’s genitals by the accused with his hand. Count 25 relates to the period between 1 November 1981 and 1 November 1983 and charges the accused with touching S’s penis with his hand.

Count 26 This is a charge of sodomising L between 3 April 1983 and 3 April 1984.

Counts 27 and 28 These are charges of indecent assault of D4 by the accused touching D4’s mouth with his penis between 3 April 1983 and 3 April 1984. (The accused denies these.)

Count 29 This charges unlawful sexual connection with R between 1 June 1986 and 31 December 1986 by the penetration of R’s anus by the accused’s penis.

Count 31 This is a representative charge that between 1 January 1986 and 22 December 1986 the accused indecently assaulted R by touching R’s genitals with his mouth at various addresses.

It is an essential ingredient of all the counts except count 29 that the complainant was under the age of 16 years.

[5] In the High Court the Crown did not seek at the first trial to pursue further counts relating to M1 and I, who are brothers, D1, D2, D3 and R; nor counts relating to alleged offending in the 1990s in respect of three further complainants. In this Court the Crown intimated it may seek to change that stance. The point was not formally before us and we say no more about it.
[6] In the High Court the accused sought five trials. The first trial sought related to 10 counts involving M1, I, W and D1. The second trial would have involved 18 counts relating to six complainants: D2, D3, M2, S, L and D4. The third trial would have been limited to three counts in respect of one complainant, R. The fourth trial would have been limited to one count of an alleged offence of indecent assault in 1992-1993 in respect of A. The fifth trial would have involved four counts, two in the alternative, in respect of alleged offences against two further complainants. In this Court the accused concentrates on the first three trials proposed by it, which would cover the period and complainants in the proposed single trial upheld by the High Court Judge. The essence of the accused’s case is that, where the only issue is the age of the complainant, evidence of other complainants can only go to propensity and cannot be similar fact evidence. To the extent the accused denies sexual contact he says the extent of the similar fact evidence sought to be called is oppressively prejudicial and unnecessary.
[7] As the appeal is against the exercise of a discretion it must be shown that the Judge erred in principle, or took into account irrelevant considerations, or failed to take into account relevant considerations, or that the exercise of the discretion is plainly wrong. The appeal is brought upon the basis the Judge erred in principle.
[8] As to principle, the Judge relied in particular on what was said by this Court in R v W [1995] 1 NZLR 548, 555:

The general principle is that counts arising from incidents unrelated in time or circumstance are not to be tried together unless evidence as to one is relevant to another, to an extent that its probative value outweighs its prejudicial effect. That may be so in a variety of circumstances, of which similarity of the facts is one.

[9] He expanded on that statement by reference to judgments of this Court in R v M [1999] 1 NZLR 315 and R v Tahir (CA 95/98, 24 June 1998). Other citations have been put before this Court but they merely restate or expand upon what is said in R v W.
[10] The appeal basically turns upon the proposition that the Judge erred in principle in finding that the evidence of each of the 10 surviving complainants involved in the 20 counts selected by the Crown is properly admissible as similar fact evidence in respect of counts where the only issue is age. The position for the accused is that the evidence was simply strong evidence of propensity and does not constitute similar fact evidence. It is further submitted that to the extent the evidence of the complainants constitutes similar fact evidence in respect of the denied offences then its probative value does not outweigh its illegitimate prejudicial effect. It is further submitted the position of the complainant R is separate and distinct.
[11] In pursuing the accused’s application, submissions were lodged in support of the multi-trial proposals of the accused in the court below. However, the issue is not whether trials could be heard on some other basis but whether the trial ordered of the 20 counts noted has been shown to offend against principle. It is the Judge’s evaluation of the relevant considerations which is at issue.
[12] It is simplest to approach the matter in the context of the light of the accused’s primary submissions.

Where sexual activity admitted and age the only issue, can similar fact evidence be led, or is it only evidence as to propensity?

[13] For the accused it is submitted that in respect of eight of the 11 complainants the only issue is the age of the complainants as the accused admits that sexual activity occurred. It is therefore submitted that the Judge erred in principle in accepting that evidence of other complainants as to age could be similar fact evidence as all it would indicate was propensity, namely that the accused had a propensity to have sexual activity with young males under the age of 16. It is submitted that the age of one complainant is not relevant to the age of another complainant.
[14] For the Crown it is submitted that the evidence is similar fact evidence because it goes not just to the propensity of the accused to have sexual activity with young males under the age of 16 years but that his whole pattern of behaviour was addressed to grooming young males to have sexual activity with him and that that pattern of behaviour occurred so consistently as to rebut the accused’s denial that the complainants were under the age of 16 years. It is said for the Crown that the consistency of the pattern of behaviour with the complainants was such that it goes beyond mere propensity. It is not merely evidence of the accused having sexual activity with young males under the age of 16 years but evidence that he consistently and deliberately adopted the same pattern of behaviour in respect of young males with a view to sexual activity with them and, as a result, he had to know they were younger than 16 years. The type of behaviour that the Crown relies upon includes such actions as the supply of cigarettes to all but two of the 11 complainants, the supply of alcohol to all the complainants, permitting seven of the 11 complainants to drive his motor vehicle, and taking 10 of the 11 complainants not only on day trips but on overnight trips. In respect of eight of the 11 complainants it is said that the sexual activity occurred while the complainant was asleep. In respect of seven of the 11 complainants it is said that a photograph of the complainant was found in the possession of the accused and that the photographic evidence will of itself assist the Crown in rebutting the imputation that each individual complainant was over the age of 16 years at the time of the relevant sexual activity. There are other common factors, but the earlier of the group of factors mentioned in particular point to the accused working on the susceptibility of young males to gain their confidence and trust to enable him to promote sexual activity with them. The conduct, it is said, is only consistent with the accused knowing the young males were under the age of 16.
[15] The Judge summarised the cases for the accused and the Crown on this issue in his judgment. He noted, apart from what has already been said, that it was part of the case for the accused that he took complainants on trips and otherwise sought to develop their trust in him while they were under the age of 16 in the hope of having a sexual relationship with them after they attained 16. Thus it was said for the accused that the evidence of developing the relationships with the young males was not itself relevant to the issue of age. Further it was said for the accused that he could be obliged to call evidence of sexual activity with young males over the age of 16 years, which could compound the alleged prejudice to the accused from the proposed “similar fact” evidence. The Judge noted the essence of the case for the Crown just mentioned, with the commonality of features in relation to the young complainants going to rebut the accused’s suggestion that eight of the 11 complainants were over the age of 16 when the sexual activity occurred.
[16] The Judge did not accept the submissions for the accused. He considered that the evidence of other complainants that the accused had comparable sexual conduct with them when they were under 16 years of age and in similar circumstances and at a similar time was very probative on the issue of whether the accused had sexual conduct with the complainant in question before that complainant turned 16, as alleged by the Crown, or only after that, as stated by the accused.
[17] Neither counsel could refer us to any decision where the only element of the offence at issue was that of age, and the Crown sought to lead similar fact evidence in the way that has arisen in this case. However, the evidence sought to be led by the Crown is not simply propensity evidence. It is not evidence of the accused having dissimilar sexual associations with a number of young males under the age of 16. It is evidence of a calculated system of the accused of working upon the susceptibilities of young males knowing they were under the age of 16 years. That evidence, common in so many ways to so many of the complainants, is evidence which would assist the jury to evaluate the evidence of the complainants and of the accused through his interview with a police officer or evidence given at trial should he choose to give such evidence, or both. It is evidence probative of the accused’s modus operandi and of his knowledge of the ages of the various complainants. It may assist the Crown to rebut the suggestion that any one complainant was over the age of 16 years at the time of the alleged sexual activity. It is evidence, however, which will go to the credibility of the various complainants and of the accused. It is evidence which will assist the jury to evaluate whether they accept the Crown’s case the complainants were under 16 years of age or the accused’s case that they were over that age. The jury will have a full picture of the accused’s behaviour and not one limited artificially.

Did the Judge err in principle in ordering a trial of the 20 counts where sexual activity is denied only in three?

[18] It was submitted for the accused that to hold the one trial results in prejudice which outweighs the probative value of the similar fact evidence when the accused denies sexual activity with but three complainants. It is said that the position in respect of those complainants can be readily met by the three separate trials proposed on behalf of the accused.
[19] For the Crown it is submitted that the evidence of all the complainants for the reasons already traversed is similar fact evidence which is probative in respect of the accused’s trial in relation to any of the complainants where he denies sexual activity. Thus it is submitted that simply because the evidence of the 10 surviving complainants is more probative and therefore more prejudicial to the accused than the evidence of a smaller group of complainants does not lead to the conclusion advanced for the accused. It is submitted for the Crown that the jury is entitled to see the whole pattern of behaviour alleged by the Crown in the 10 years from 1977 to 1987 when there are so many strong common elements in relation to the various complainants and it would be artificial to give the jury just a snapshot in separate trials of that position.
[20] The Judge accepted that, because of the similarities identified by the Crown, he considered the evidence of all the complainants to be highly probative of whether the accused sexually assaulted the complainants where he denies any sexual activity. We agree. The commonality of features is such in respect of all complainants that their evidence is probative wherever there has been a denial. Any prejudice is outweighed by the probative value of the evidence.
[21] There is a further facet of this issue that was touched upon in argument by the Judge. In an interview by the police the accused alleged fabrication by two of the complainants whose allegations he disputes. He suggested that those two complainants along with another complainant conspired together to make false complaints against him. For the Crown it was said, and this was upheld by the Judge, that this was an additional reason for enabling the evidence of all 10 complainants to be given in the one trial. The Crown is entitled to use the similar fact evidence of the other complainants to rebut the suggestion of conspiracy by fabrication of false complaints made by the accused in respect of three of the complainants. The accused says that the position can be adequately met in a trial involving six complainants, but, when those six complainants include the three complainants of whom the accused alleges conspiracy and a deceased complainant, that would take away from the Crown its ability to rely upon the evidence of the other five complainants quite unnecessarily. This additional feature was in itself a justification for ordering the single trial once it was established, as it was, that the evidence was truly that of a similar fact nature in respect of all complainants.
[22] It was submitted for the accused that, as there was no suggestion that the other complainants in the other groups defined for the accused had fabricated their stories, the Judge erred in principle in ordering the joint trial. However, we can only reiterate that we see no error of principle in the course adopted. Rather, the decision would seem to be entirely in keeping with principle.

Should the trial relating to the complainant R (counts 29 and 31) have been severed in any event?

[23] It is the submission for the accused that the Judge erred in principle in respect of the trial relating to this complainant as it was so distinct in time and circumstance and method of introduction from the other complainants that to incorporate it into the trial involving the other complainants created unwarranted prejudice in excess of any probative value resulting.
[24] The alleged offending in respect of this complainant is at the end of the 10 year period that the allegations span. It is true that the alleged offending is approximately two years after the alleged offending prior to it. However, the commonality in circumstances in relation to the earlier offending is high. It is true that it appears that the complainant met the accused at their common place of work rather than in some other way. However, that common place of work to some extent featured in the connections of other complainants with the accused, and there were connections between this complainant and other complainants. To sever the trial relating to this complainant from that of the other complainants would be artificial. There is no reasoning which requires the trial relating to this complainant to be treated separately from those of the earlier complainants, even although there is good reason, as acknowledged by the Crown, for separating it from the trial or trials relating to subsequent complainants.

Conclusion

[25] The order of the High Court Judge ordering the trial of 20 counts involving 11 complainants out of the draft indictment before the High Court was upheld. We express no views on any other trial or trials.

Solicitors
Greig Davidson Gallagher, Wellington, for accused
Crown Solicitor, Wellington, for the Crown