THE QUEEN v FILO PIO [2001] NZCA 161 (24 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca25/01

THE QUEEN

V

FILO PIO

Hearing:	22 May 2001
Coram:	Tipping J Heron J
	Paterson J
Appearances:	T Saseve for the Appellant S P France for the Crown
Judgment:	24 May 2001

judgment of the court DELIVERED BY PATERSON J

[1] Mr Pio was convicted on one charge of sexual violation by rape. He appeals the conviction on the ground that the trial Judge wrongly refused leave under s 23A of the Evidence Act 1908 (the Act) for counsel to cross-examine both the complainant and another witness on consensual sexual activity which occurred approximately two to three hours after the rape.

Background

[2] Both Mr Pio and the complainant were part of a group who drank together at a party.The group then left the party to go to a nightclub by which time the complainant was quite intoxicated.When the group reached the nightclub, the complainant, who had travelled in Mr Pio's car, did not want to go into the club and chose to sleep in the back seat of his car.Mr Pio said he would stay with her.

[3] Shortly after the rest of the group went into the nightclub, Mr Pio drove off with the complainant.When he returned to the nightclub some time later, the complainant was still asleep in his car and was naked from the waist down. T, one of the members of the group, tried to wake her up but she was still half asleep and went back to sleep.

[4] T's evidence was he asked Mr Pio what he had done and Mr Pio acknowledged that he had had sex with the complainant.The complainant was taken to a house and put to bed.When she later woke up she did not have her jeans or underpants on and there was nothing on her feet.In a statement to the Police she said that when she woke up she was not alone in the room but at first she was not sure who the other person was.She asked for a blanket and was given one.When she realised the other person was T, she asked him to keep her warm and he lay down on the floor next to her and put his arms around her.She said that both T and herself had partners but there was a mutual attraction between them on the two previous occasions they had met.The complainant and T started kissing and this developed into sexual activity, including digital penetration of her vagina.In her statement she said she remembered feeling a little sore inside her vagina but did not know why.Mr T performed oral sex on her.The activity stopped when there was a knock on the door.

[5] The application to the trial Judge pursuant to s 23A of the Act was to cross-examine both the complainant and T in relation to this sexual activity.

Pre trial ruling

[6] The District Court Judge summarised the defence submission in her ruling in the following terms:

"That the defence is one of consent, therefore the issue of the complainant's evidence to the injury as to this activity a fairly short time afterwards is sufficiently relevant because it shows the conduct of the complainant and shows that there are questions that if she realised she had been violated, why would she consent to sexual activity with another man within such a short time afterwards.It is part, the defence say, of the res gestae and it seems highly improbable for such an occurrence to happen.It is part of the events surrounding the whole matter."

[7] After summarising the Crown's submissions and the relevant case law, Her Honour noted that the sexual activity

"is relevant to the facts at issue but that is not the test.The test is a strong test provided any such evidence or questions shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters."

In terms of the test she concluded that to exclude the cross-examination would not be contrary to the interests of justice, and further, the circumstances did not meet the strong test as propounded by Cooke P in R v McClintock (1986) 2 CRNZ 158.

The law

[8] This was a "case of a sexual nature."As such, s 23A of the Act applied, the relevant provisions of which state:

(2)In any case of a sexual nature, no evidence shall be given, and no question shall be put to a witness, relating directly or indirectly to--

(a)The sexual experience of the complainant with any person other than the accused; or

(b)The reputation of the complainant in sexual matters,--

except by leave of the Judge.

(3)The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to--

(a)Facts in issue in the proceeding; ...

that to exclude it would be contrary to the interests of justice:

Provided that any such evidence or question shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.

[9] The application of s23A was considered by this Court in McClintock. In giving the judgment of the Court, Cooke P said at p162:

"Questions or evidence doing no more than indicating or suggesting a general disposition or propensity of the complainant in sexual matters are barred. That is straightforward enough. But often it will be said that they go further: that they are relevant, for instance, as going to credit or showing a course of conduct or giving grounds for a defendant's belief in consent.

As to such contentions, it is implicit in the section that a question or evidence is not to be permitted merely because it is in some way relevant. At a trial it must have such direct relevance to facts in issue that to exclude it would be contrary to justice. This is a strong test. For example, many questions going only to credit will be excluded because only of indirect relevance to facts in issue: compare the observations of Lord Lane C.J. in R. v. Viola at 77. But, as the Lord Chief Justice points out in the same passage, there will always be exceptions; and we do not altogether exclude the possibility of such a major impact on a complainant's credit that the matter could be said to be directly relevant to facts in issue.

Similarly acts of intercourse with other men may be so closely connected with the alleged rape, either in time or place, or by other circumstances, that evidence of those other acts may be probative of the fact that the complainant consented to the intercourse with the accused, or of the fact that the accused believed that the witness was consenting: Gregory v. The Queen [1983] HCA 24; (1983) 151 C.L.R. 566; R. v. Viola. In the language of the New Zealand section there will then be such direct relevance to facts in issue that to exclude the evidence would be contrary to the interests of justice. Ultimately whether a case is in this category can only be a question of degree."

Appellant's submissions

[10] Mr Pio's defence was that the sexual act with the complainant was consensual or, alternatively, that he believed on reasonable grounds that the complainant had consented.It was submitted that there were two reasons why cross-examination of the complainant and T should have been allowed in the interests of justice, namely:

(a) It went to the credibility of the complainant;and

(b) It may explain the reason for the complainant's allegationsand thus assist Mr Pio in his defence.

[11] The relevance on the grounds of credibility were said to be that the excluded evidence highlighted an aspect of the complainant's behaviour during a period of a few hours while she was under the influence of alcohol.As such, it showed the complainant's conduct and/or attitude during the specific period of that evening and the early hours of the morning.This may have assisted Mr Pio in either his defence that the sexual act was consensual or the alternative defence that he had a belief on reasonable grounds that she consented.

[12] It was said that a possible reason for the complainant's allegations was that she wanted to develop a relationship with T.She had made some progress with this during their sexual activity but T then desisted.The complainant may then have thought her previous sexual relationship that night with Mr Pio might stand in the way of developing her relationship with T.It was therefore necessary to absolve herself of a consensual sexual relationship with Mr Pio by alleging he raped her.

Conclusions

[13] The facts in issue in this case were three, namely, did the complainant consent to the sexual intercourse, did Mr Pio believe that the complainant consented to intercourse, and if so, did he have reasonable grounds for such belief. Any subsequent sexual activity between T and the complainant can obviously not be relevant to Mr Pio's reasons for his belief that the complainant consented to prior sexual intercourse with him.If the evidence of the sexual activity was directly relevant to a fact in issue, it could only have been to whether the complainant consented to the sexual intercourse with Mr Pio.

[14] It was submitted that the evidence would be directly relevant to the defence of consent because of its potential to undermine the complainant's credibility.Mr Saseve submitted that the evidence of the subsequent sexual activity showed a specific disposition on that particular night while under the influence of alcohol.Presumably, it was hoped to suggest that the complainant in her then intoxicated state would willingly and indiscriminately engage in sexual activity with more than one man.As such, a reasonable doubt may be created because the Crown would not be able to establish to the required standard that the complainant did not consent.This submission is an attempt to overcome the proviso to s 23A(3) which provides that the evidence must establish more than a general disposition or propensity of the complainant in sexual matters.On the McClintock principles it may do so if so closely connected with the alleged rape, either in time or place, or by other circumstances, that evidence of those other acts must be probative of the fact that the complainant consented to the intercourse with the accused.

[15] In this case, there was connection in time but this, in our view, is the only connection.Mr Pio had a difficulty in establishing consent or honest belief of consent where there was ample evidence to suggest that the complainant was in a deep alcoholic induced sleep, both before and after Mr Pio had sexual relations with her.There was no evidence of a common attraction between Mr Pio and the complainant similar to the common attraction which the evidence suggested existed between T and the complainant.The sexual activity with T did not amount to intercourse and although the sexual intercourse with Mr Pio occurred only two to three hours earlier, we cannot see how that time factor itself makes the subsequent sexual activity directly relevant to the allegation of consent that to exclude it would be contrary to justice.The strong test required is not met.The evidence has relevance but, in our view, any relevance goes no further than raising possible inferences as to the complainant's general disposition or propensity in sexual matters.

[16] There are also difficulties with the submission that the cross-examination may have assisted Mr Pio in a defence based on an allegation the complainant desired to build a relationship with T.If this was a possible defence, there was no reason why the complainant could not have been asked whether she was interested in developing such a relationship without having to refer to the sexual activity which took place between her and T.While accepting that evidence of that sexual activity would possibly strengthen the force of the question, it was not necessary to include it.Such a defence on the facts of this case, particularly in view of the complainant's state of intoxication at the time of the sexual intercourse with Mr Pio would have made this defence somewhat fanciful.We do not see that in respect of this possible defence, the sexual activity with T was of such direct relevance to the facts in issue that to exclude it would be contrary to justice, or more importantly that its exclusion resulted in a miscarriage of justice.

Result

[17] For the reasons given, we are of the view that the Judge did not err when she disallowed the cross-examination.The appeal is dismissed.

Solicitors

Saseve, Auckland, for Appellant

Crown Law Office, Wellington