THE QUEEN v DAVID ROBERT NICHOLSON [2001] NZCA 10 (5 February 2001)

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL.PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT OR WITNESS A PROHIBITED.

IN THE court of appeal of new zealand

ca250/00

THE QUEEN

V

DAVID ROBERT NICHOLSON

Hearing:	5 February 2001
Coram:	Richardson P Keith J Blanchard J
Appearances:	R M Mansfield for Appellant D J Boldt for Crown
Judgment:	5 February 2001

judgment of the court delivered by blanchard j

[1] David Robert Nicholson appeals his conviction after trial in the District Court at Auckland on two charges of sexual violation by unlawful sexual connection and one of attempted unlawful sexual connection.
[2] The complainant, R, was a 17 year old youth.In August 1999 he was attending a "Skills Update" course in Mangere, Auckland in a class tutored by Mr Nicholson who was 45 years of age.The appellant suggested to R that he stay at the appellant's home over one weekend.On the Friday evening the appellant took R shopping and brought clothes for him.They also went to a restaurant and to a trotting meeting at Alexandra Park.Alcohol was consumed. R's evidence was that when they returned to Mr Nicholson's home he was told to go to Mr Nicholson's bedroom.The appellant got into bed with him, put his arm around him, took off his pants and began kissing him.When the appellant had removed all R's clothes the appellant played with R's penis and also caused R to touch the appellant's penis.He performed oral sex on R and attempted to insert his penis into R's anus.
[3] R's evidence was that he did not want these things to happen but said nothing because he felt trapped and scared.When oral sex was being performed on him he covered his face with a pillow and began crying.Mr Nicholson asked why he was crying and R said, "because I don't like it" to which the appellant replied "its alright little buddy".R said nothing further.According to R, neither of them ejaculated during these events.
[4] Later they talked and went to sleep together in the same bed.In his evidence R said he felt scared but did not run away because he thought the appellant might hurt him.
[5] In the morning, Saturday, the appellant began masturbating R and caused him to do the same to the appellant.The appellant then masturbated himself to the point of ejaculation.
[6] R remained in the appellant's company that day and again stayed overnight. They slept together once more in the same bed but without any sexual activity. The appellant took R home on the Sunday.
[7] Mr Nicholson did not give evidence at the trial but his position was recorded in a police video interview which was shown to the jury.He admitted performing the sexual acts on R but said that R had consented to them or that he had a reasonable belief that R was consenting.
[8] Before the trial the prosecution applied under s344A of the Crimes Act 1961 for leave to call evidence from a Mr A concerning what had occurred between A and the appellant in 1988 when A was a boy of 15 attending a secondary school near Wellington at which Mr Nicholson was a teacher (though A was not in any of his classes).The Judge ruled that the evidence was admissible.
[9] At the trial to which this present appeal relates A described an evening when Mr Nicholson bought some beer for A and another boy using their money. Later they attended a dance at the school.When they were leaving the dance about 11pm the appellant asked if they wanted to come back to his place and "have a good time".A took up this invitation.When they arrived at Mr Nicholson's home they watched a pornographic movie.A described his reluctance when Mr Nicholson initiated sexual conduct by producing a bottle of baby oil and suggesting that he masturbate, saying "don't be such a blouse, be a man". A also described feeling "pretty scared" but gave no evidence of any protest about or immediate resistance to what was occurring.The appellant touched him on the penis and then masturbated himself, encouraging A to do the same.A unzipped his pants and began masturbating.The appellant then performed the oral sex on A and also induced A to suck his penis for some 20 or 30 seconds. A described this in the following way:
He said for one to do it to him.I wasn't terribly keen.He put his hand on my head I think my shoulders and positioned me in a position over his crutch.
They then went into Mr Nicholson's bedroom and undressed.Mr Nicholson unsuccessfully attempted to put his fingers in A's anus and to perform anal intercourse.A placed his hands in a position so as to prevent this.The appellant proceeded to ejaculate on A's hands and the lower part of his bottom. The appellant then performed oral sex on A who also ejaculated.
[10] Both then went to sleep but after half an hour A woke up, retrieved his clothes and left the building by jumping out a window.In the morning he told his parents what had occurred and later he made a statement to the police.
[11] Mr Nicholson pleaded guilty to a count of indecent assault on a boy under 16 years in respect of this incident with A but no evidence was given at the trial to which this present appeal relates about that criminal prosecution or the guilty plea.
[12] A was not cross-examined by counsel for the appellant.
The pre-trial ruling
[13] The Judge who made the ruling admitting the evidence did so on the basis of a written statement of the evidence which the Crown believed that A would give.Some matters apparently mentioned in that statement (which we have not seen) were apparently put a little differently from the way in which they came out in evidence.In particular, in his evidence A did not say that he had told Mr Nicholson that it hurt when the latter attempted to penetrate him anally.
[14] The Judge reached the view that there was very clear evidence in the statement made by A that the activity was non-consenting "which the accused was quite happy to persist in despite the lack of consent and despite that lack of consent being obvious".The Judge also thought that there were "a number of striking similarities" between what the present complainant, R, described and A's description.He said that the Crown was entitled to rely on the evidence of A "to show that this man was perfectly happy to initiate and continue sexual activity with his pupils, being young males, without their consent."In the Judge's view its probative value was very high and far outweighed any illegitimate prejudice:
The earlier case taken together with this one does, in my view, or is capable of showing a clear pattern of a modus operandi of a man in a teaching position using that position of trust to befriend young boys, entice them into his home, ply them with alcohol, excite them sexually and then sexually abuse them in a manner that does not involve their consent.
The directions to the jury
[15] The trial was presided over by a different District Court Judge, who in directing the jury referred to A's evidence as follows:
Apart from the offences alleged concerning which you are called upon to give verdicts, you have heard evidence from [A] of events involving the accused back in 1988.I need to explain the extent to which that evidence can be relevant. That relevance is limited, and you need to be very careful about it.Normally, when a Court is considering a charge, evidence about what an accused is said to have done at any other time is deliberately excluded.That is because what an accused might have done on one occasion is by and large irrelevant to what might have been done on another.But there are logical exceptions to that general rule.One of those arises where these three factors are present:-
First, when - as here - the defence puts forward the suggestion that what happened was consented to by the accused, whereas the Crown says that was not so; nor - so it submits - could the accused have had any reasonable ground at the time of the event in question for believing there was consent.That is the first aspect, and I remind you here of course of the by now I hope obvious - that absence of consent and absence of any such reasonable grounds are of course matters that the Crown must prove.
Second, that the offences are said to have been committed in a characteristic way, or to have some features about them which are unusual or striking and which might in the end bear particularly on this issue of consent.
Third, that particularly on that issue, the conduct of the accused on the present occasion can be linked to his conduct on such another occasion where he has acted - if you find it so - in the same characteristic way, or where his conduct has shown - if you find it so - the same kind of unusual or striking features.
Where those factors exist, the Crown may call evidence about the other offences, but for one purpose only in the context of the present case.It may use that evidence as the basis for a submission to you that the characteristics or features of the offences alleged in the present trial are strongly similar to the events described by [Mr A].So strong as to be of assistance to you in deciding whether it is really at all likely that the accused would have been deterred by any apparent lack of consent; or whether he could possibly have believed, on reasonable grounds, that in the present case there was consent. But before you would be entitled to draw conclusions on those issues from that evidence, you would have to be satisfied of these things:-
First, that the accused did what he was said to have done and behaved as was described by [Mr A], in 1988.[Mr A's] evidence was not challenged by cross-examination.
Second, that those events, as he described them, did show some particular characteristics or features.
Third, that the alleged present offending shows the same kind of characteristics or features.
Fourth, That it is rational and logical to conclude that those similarities support the propostion that what is said to have happened here in fact involved a series of deliberate, intentional acts by the accused, willing to create an environment of climate for, and then initiate and continue with, sexual activity despite an apparent or obvious lack of consent or absence of any reasonable grounds for thinking that there was.The Crown indeed has put that aspect of its case in that way.
Speaking generally on the subject, a jury like yourselves in a case like this may sometimes need to be careful about any reasonable possibility that the witnesses - here, [Mr A] and the complainant - have somehow got their heads together and made up false but matching allegations against the accused.But in this case of course, there has been no suggestion of that; nothing at all to suggest to us that they even know each other.In fact [Mr A] disavowed any such possibility.I do not think that you could see that as at all an issue here.
Second - and what does matter in this case - if in the end you think there was no relevant feature or characteristic common to both series of events, then you come to a point where you must be very careful - careful to guard against the danger of thinking - "Well, although there is no pattern here, it seems to us that the accused is inclined to act in an unacceptable way, so he must be guilty on the present occasion."That would be false logic, and quite unfair - itself unacceptable.
Of course, in none of this do you forget that each charge is to be considered separately.
[16] There are three grounds of appeal:
1. That the evidence of A was inadmissible;
2. That the Judge's directions concerning that evidence were inadequate; and
3. That non-disclosure to the defence of a police summary of facts relating to A, in which it was said that he had consented, was prejudicial.
Inadmissibility of A's evidence
[17] Counsel for the appellant, Mr Mansfield, submitted that it was obvious to the jury that A was an under-age boy.Therefore the evidence concerning him involved the commission of a crime and was highly prejudicial.On the other hand, counsel said, it did not qualify as similar fact evidence - the facts did not show any pattern of behaviour in the two incidents some 11 years apart. The only similarity taking the incidents out of the ordinary was the teacher/pupil relationship in both cases, though in the present case R was a tertiary student, not a pupil at a school.In law R was able to consent.It was said that there was not therefore the same breach of trust as had occurred with A.
[18] The matter which counsel emphasised was the contention that because the defence in the present case was one of consent or reasonable belief therein and A's evidence did not indicate anything more than reluctance - no protest or resistance - it was not probative of any lack of consent by R.
[19] For the Crown, Mr Boldt argued that there was an underlying unity between the two events.In each of them the appellant initiated sexual contact with a young and naïve partner and persisted despite the response being entirely passive.He was a very much older man in a position of authority in relation to both and in each case he had arranged for the complainant to come to his home.It was open to the jury to conclude that on both occasions the appellant had taken advantage of his victim's inexperience and inability to articulate his distaste for what was occurring.The appellant had been at best reckless about the question of consent.Recognising that A's evidence indicated that he might be taken eventually to have been consenting Mr Boldt stressed the importance of what occurred prior to that point by way of persistence directed against a passive partner.This evidence, like that of R, starkly contrasted with the account given by the appellant in his video interview in which the appellant endeavoured to portray himself as careful to ascertain that there was consent at various stages.
[20] We are persuaded by Mr Mansfield's argument that the evidence of A was, at best, only slightly probative and must have created very significant prejudice as it showed Mr Nicholson having a homosexual relationship with an under-age boy.A's evidence showed that he was, initially at least, a reluctant partner who found the appellant's advances distasteful but it also showed that he was able to prevent the appellant from performing anal intercourse upon him and that the appellant did not persist with the attempted penetration.A's evidence also indicates that in some respects he was willing to be persuaded to acquiesce in sexual activity initiated by the appellant - in masturbating himself and allowing Mr Nicholson to perform oral sex upon him involving ejaculation by A.
[21] We think therefore that, taken as a whole, while the evidence shows morally repugnant and indeed criminal behaviour towards a vulnerable youth, and a degree of persistence, it does not plainly demonstrate a willingness to proceed where persistence did not obtain a consent or apparent consent.
[22] In view of the character of the evidence from a witness who had been under age at the time and the consequent degree of prejudice, it should not have been admitted, despite the similarities, as it was insufficiently supportive of the prosecution case on the critical issues of consent.
The directions
[23] For Mr Nicholson it was said that the Judge provided insufficient assistance to the jury about how A's evidence might be used.We consider, however, that assuming the evidence of A had been admissible the directions were adequate and that really counsel's attack upon the directions was just another way of attempting to demonstrate that the evidence was of no probative assistance to the prosecution.The Judge clearly told the jury that its relevance could only be to issues of consent and referred to the need for striking or original features.As to direction on similar fact evidence see R v M [1999] 1 NZLR 315 and R v Sanders (CA126/00, 10 July 2000).
Non-disclosure
[24] In the police summary of facts which the defence did not see until after the trial there was a statement indicating consent by A.It had been counsel's understanding that A would say that he had not consented.The argument put to this Court was that if the summary had been disclosed trial counsel could have cross-examined A on it and called the officer in charge in 1988 to ask him about how the statement came to be included.
[25] We do not consider that there was any prejudice in this respect. Mr Nicholson's experienced trial counsel understandably did not challenge A's evidence as given at trial after the s344A ruling.She was in a position, on the basis of what A said in examination in chief, to submit that though possibly reluctant he had acquiesced in what the appellant had done. Cross-examination pursuing with him the issue of consent might have been counter-productive.
Result
[26] The appeal is allowed, the conviction set aside and a new trial is ordered.
Solicitors
Crown Law Office, Wellington