THE QUEEN v BARRY RAYMOND LANGDON [2001] NZCA 274 (24 October 2001)

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIALS.PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.

PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE court of appeal of new zealand

ca284/01

THE QUEEN

V

BARRY RAYMOND LANGDON

Hearing:	23 October 2001
Coram:	Richardson P McGrath J John Hansen J
Appearances	M-J Thomas for Crown T Sutcliffe for Respondent
Judgment:	24 October 2001

judgment of the court delivered by JOHN HANSEN J

[1] The Crown seeks leave to appeal a pre-trial ruling where the Judge granted severance of sets of sexual offending relating to three complainants.

[2] The complainants were the wife, (1^st complainant), adopted daughter (2^nd complainant), and daughter (3^rd complainant) of the accused.

Background

[3] The 1^st complainant and the accused married in July 1973.A daughter by a previous relationship, the second complainant, was born in 1971. She was adopted after the marriage.A further daughter, the third complainant, was born to the couple in 1987.

[4] The 1^st complainant alleges that some time into the marriage the accused began a pattern of physical and verbal abuse.She alleges that between 1978 and 1989, on numerous occasions, the accused forcibly had sexual intercourse with her, including anal intercourse.Normally the circumstances of these attacks involved the accused coming home drunk.There is specific reference to an occasion when he punched and kicked her, obtained a loaded cross-bow from a wardrobe, which was held to her neck, and which was coupled with a threat to kill.

[5] In the course of the sexual assaults comments were made relating to the size of her vagina, and contrasting vaginal sexual intercourse with her unfavourably with anal intercourse.In 1989 she left the family home.

[6] The second complainant lived with her parents until she was 18 years old. She alleges that from the age of 10 the respondent committed indecencies on her.This led to a complaint being made to the Police, and the accused was charged.In the Tauranga District Court in January 1985 he pleaded guilty to two counts of indecent assault, and was fined $1,500-00 and sentenced to 18 months probation.

[7] This complainant alleges that the abuse re-commenced in November of 1986, and was accompanied by threats.Allegations are made of digital penetration, and on one occasion forcibly putting his penis in her mouth.

[8] She gave no specific evidence relating to intoxication, but it appears most of the incidents involving her occurred late at night.They also involved acts of violence, and threats of violence.On one occasion this also involved the use of the cross bow, coupled with a threat to kill.In the course of the sexual assaults, derogatory comments were made regarding the size of her mother's vagina.

[9] Ultimately, she left home at the age of 18, and she said that in 1996 the accused apologised to her for what he had done.

[10] The third complainant lived with her parents until she was 4.After their divorce she continued to see the respondent on day visits and weekends. She alleges instances of indecency from the age of 11 in 1998, and a rape in 1999.

[11] It is alleged the rape occurred when the accused was intoxicated.She claims he said during the rape that she was just like her mother in lots of ways:

"......you're just like your mother used to be, you're very quiet aren't you, you're just like your sister."

There was also violence associated with this offending.

The High Court decision

[12] The Judge grouped the counts into three discrete kinds of complaint.The first he said related to the wife, and he found they preceded the alleged abuse against the children.Accordingly, he said there could be no "similar facts" to support that group of counts.However, he said the prejudice to the accused would be significant if the counts against the children were coupled in the same trial.

[13] In relation to the counts relating to the children, the Judge held they both arose out of different times and circumstances, and that there was no particular signature or pattern to them.He found there were complications relating to the guilty plea for the earlier indecent assaults on the second complainant, and found that this could be "hugely prejudicial elsewhere".

[14] At paragraph 21 the Judge said:

"There may be similar facts qua violence, particularly the threats to kill, but they are not qua sexual offending."

[15] Finally, he concluded that even if the evidence was "similar fact", the probative force that existed was significantly outweighed by the prejudice to the accused.

Submissions

1^st and 2^nd Complainants

[16] On behalf Crown, Ms Thomas submitted that the relationship between the first and second complainants, and the circumstances surrounding the offending, were such thatseverance should not be granted.

[17] She submitted that the incidents were very much related in time, place and circumstances.She pointed to an error in the judgment, where the learned Judge held that the offending in relation to the wife preceded the abuse of the children.In fact, there is an overlap in relation to the second complainant, and both these complainants were living in the accused's household at the time of the offending.She said it was important to consider the dynamics of that household, and the manner in which the complainants were dominated and controlled by the accused's violence.It was the Crown's submission that this was relevant to show why and how the abuse continued over such a lengthy period, as well as any issues of consent.

[18] Ms Thomas submitted that the Judge set too stringent a test when dealing with "similar fact" evidence by applying a "strikingly similar" test.It was submitted this emphasis led the Judge into error, and a focus on the difference between acts of intercourse and the physical particulars of the sexual assaults, as opposed to looking at the overall pattern of conduct.

[19] She submitted that there was a pattern of conduct arising from the allegations.There was coincidence in time and place.Demands were made on the complainants when the accused was in an intoxicated state.There was violence and threats of violence.Reference was made to the wife's sexual physical inadequacies.Finally, there was submission through fear.Ms Thomas submitted that the probative value was not simply the physical circumstances of the offending, but the dynamics of the relationship between the accused and the complainants.

The third complainant

[20] Ms Thomas accepted that the allegations involving the youngest daughter were far removed in time and place from those concerning the other complainants.She nonetheless submitted that in terms of family ties, intoxication, violence and reference to other offending during the commission of the rape were sufficient to establish a necessary pattern.

Defence submissions

[21] For the respondent Mr Sutcliffe stressed the breadth of the discretion under s.340(3) of the Crimes Act, and the fact that the Judge had considered the wider discretion, rather than focussing simply on "similar fact" evidence. He submitted the refusal of joinder was an available exercise of discretion, and the Crown had failed to point to any error.

[22] He accepted there was a factual error when the Judge found no overlap between the offending against the first and second complainants, but said this error did not lead the Judge astray, as the real focus was on factors going to improper admissibility and the illegitimate prejudice that followed.There was no common thread of violence, and Mr Sutcliffe pointed out that neither of the incidents involving the cross-bow were followed by sexual offending.

[23] The second complainant did not link the sexual offending with intoxication, and only in relation to the allegation of oral sex did she link it with a specific act of violence.

[24] Mr Sutcliffe stressed the difference between the nature of the sexual offending, and said that in context it was important to bear in mind that the second complainant made no allegation of rape against the accused.

[25] It was submitted on behalf of the accused that the Judge accurately stated the law by reference to R v W [1995] 1 NZLR 548.Mr Sutcliffe accepted that recent cases indicated a movement away from requiring the Crown to establish "strikingly similar behaviour", but there was still a need for look for "a pattern, common thread", or underlying unity".

[26] He submitted that the Judge considered a wide range of factors, of which the "similar fact" evidence was but one.He said the Judge was correct to determine, after a careful review of the evidence, that the underlying unity was absent, and that the Crown's purpose in seeking joinder was, in effect:

".....to dress up character or propensity evidence as it describes as `similar fact evidence'".

Decision

Third Complainant

[27] In relation to the youngest complainant, it is clear that the alleged offending is far removed in time, place and circumstance from the offending relating to the other two complainants.Although Ms Thomas did not abandon the appeal, she did not press it with vigour when this difficulty was pointed out to her by the Court.In respect of the third complainant, counsel has not demonstrated any error in the exercise of the Judge's discretion. Accordingly, leave to appeal against the order for severance is refused in relation to the third complainant

First and Second complainants

[28] Unfortunately, there is a factual error in the course of the Judge's reasoning, as it relates to the first and second complainants.The Judge was wrong to hold that the alleged offending in relation to the first complainant preceded the abuse of the second complainant.There is a significant overlap, as the useful chart set out in Ms Thomas' written submissions makes clear.

Victim	Age	Where Offending Occurred	Offences
1st Complainant	Adult	Waihi 1978 - 1989	Rape 1/1/78 - 31/1/86 Sexual Violation by rape 1/2/86 - 31/12/86 Sexual violation by rape 1/2/86 - 31/12/89 Sodomy 1/1/78 - 31/12/86 Sodomy 1/1/78 - 31/12/80 Sodomy - Between 1/1/82 and 31/12/82 Unlawful sexual connection 1/2/86 - 31/1/89
2nd Complainant	10 - 18	Waihi 1985 - 1989	1985: Indecent assaults - pleads guilty. Indecent assault on girl 12-16: 9/11/86 - 8/11/87 Indecent assault on girl 12-16: 9/11/86 - 8/11/87 Indecent assault on girl 12-16: 9/11/86 - 8/11/87 Indecent assault: 9/11/87 - 8/11/89 Indecent assault: 9/11/87 - 8/11/89 Indecent assault 9/11/87 - 8/11/89 Sexual violation by unlawful sexual connection: 9/11/86 - 8/11/89 Sexual violation by unlawful sexual connection: 9/11/8- 8/11/89

The error requires this Court to evaluate the application for severance afresh.

[29] Severance is governed by s.340(3) of the Crime Act, which provides:

340 Joinder of counts

.................

(3)If the Court thinks it conducive to the ends of justice to do so it may order that the accused shall be tried upon any one or more of such counts separately."

[30] It is clear the statutory provision confers a broad discretion, which has been the subject of a number of decisions.In R v W (supra) this Court said at page 555, line 4:

"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 facts is one."

[31] And, further, at line 23:

"We do not go so far as to accept the propositions advanced for the Crown that whenever members of a family make allegations of abuse against the same individual within the family, all charges should always be heard together. Nevertheless, where, as here, the allegations are interwoven or interconnected, the desirability of presenting the case on a realistic rather than an artificial basis will usually point against severing."

[32] Inevitably, in applications for severance, questions of "similar fact" evidence arise.In a case referred to by both counsel, T v R (CA393/98, 30^th March 1999), this Court stated at paragraph 24:

"In R v Ross(supra) the Court held that the question of severance was dependent upon whether the evidence of one complainant may be regarded as admissible, as similar fact evidence, on the trial of the other. Later in the judgment the Court expanded upon the question of what will make such evidence admissible.It held that there must be some feature which lifts the pattern above evidence which proves only propensity.A feature or features must demonstrate a pattern of behaviour or some underlying unity which is sufficiently strong that the probative force outweighs the prejudice that will always be present when evidence of this kind is adduced.It was in this decision the Court emphasised that, while the necessary distinctiveness may lie in unusual events, it may also be found in a sufficient combination of relatively mundane factors."

[33] And further, at paragraph 25:

"......What is required, the Court stressed, is analysis in the light of principle.There must be a sufficient factual link to render the similar fact evidence sufficiently probative to outweigh the illegitimate prejudice which arises from an inference merely of propensity."

[34] With respect to the purported requirements of "striking similarity" the position was summarised by Richardson P in R v Guy (1996) 13 CRNZ 589 (B)(L) at 593, where the following statement from R v The Accused (CA247/91 [1992] 2 NZLR 187, 191 - 192 was endorsed:

"We do not consider that it matters which description is used.While the description "similar fact" and the associated one "strikingly similar" have been used in the past, largely in deference to English authority, and will no doubt continued to be used as convenient labels, the real question is always whether, as a matter of commonsense, the evidence is sufficiently supportive of the prosecution case to justify allowing it to go to the Jury notwithstanding any illegitimate prejudicial effect that it might have."

[35] Giventhat it is necessary to evaluate this matter afresh, it is appropriate to consider the evidence in some more detail.

[36] It is clear from the table set out above that the offending overlapped. It is of significance that the more serious offending alleged by the second complainant of digital penetration, which is the subject of a representative charge, and the allegation of oral sex, come within the overlapping period.

[37] In our view, it is not possible to separate the evidence of incidents of violence from that of the sexual offending.There is violence inherent in the offences contained in the indictment, but in this case the evidence of violence goes much further.In the case of the first complainant, there are allegations of violence and physical assaults occurring one or two times a fortnight.She alleged the accused punched her and slapped her around the neck and breast area, and would grab her by the throat.On one occasion, he is alleged to have pulled her off the toilet and dragged her outside by her head.Although her allegations cover a long period of time, in her brief of evidence she states that between 1986 and 1989 the rapes were becoming more frequent and more violent.

[38] In relation to the second complainant, she gave evidence of the accused holding her around the neck, placing his mouth over hers, and forcing his tongue into her mouth.Her evidence is that on many occasions the offences occurred when the accused returned home late and she was already in bed.She states that when she became older ( 17 - 18 years old) the abuse started getting more violent, because she was doing things to avoid being abused. During the last two years at home, part of this overlapping period, the incident that led to the alleged oral sex occurred.On that occasion the accused is alleged to have tied a piece of nylon rope around the second complainant's neck, and pulled it tight forcing her to suck his penis.This was done with sufficient force to cause bruising.The increase in violence and the more serious offending occurred at a time when the 1^st complainant said the offences were more frequent and more violent.

[39] Of particular significance are the two incidents involving a cross-bow. In relation to the first complainant, this occurred when the accused arrived home drunk, and there was a serious argument.The first complainant alleges he got a cross bow, loaded it with a spear and held it to her neck, and said "I'll kill you".

[40] In relation to the second complainant, she had taken the extreme step of moving her wardrobe against her door to prevent the accused entering when he arrived home late at night.It is alleged that when he tried to get into the room, he became so angry he pushed the door hard enough to cause the wardrobe to fall on the floor.He then said "If you ever do that again I'll fucking kill you", and dragged the second complainant by her hair off the bed and into the dining room.It is alleged the accused then got a loaded cross bow, held the point of the arrow to the second complainant's chest, and told her again "If you ever do that again I will kill you".

[41] Sexual depravity of the sort alleged in this case often occurs when women are cowed by violence and threats to such an extent that an accused exerts almost total control over them.The allegations here fall into that category. By the use of violence and serious threats, it is alleged that the accused was in a position to exert total control over the first and second complainants. Placing a loaded cross-bow at the head or chest is really no different from presenting a loaded firearm in similar circumstances.The fear such actions would engender is self evident.

[42] In our view, the evidence of serious violence and threats, far in excess of those inherent in the offences themselves, demonstrate the necessary pattern of behaviour or "underlying unity".Violence and threats were persistently used to enable the sexual offending to occur.In the circumstances, the evidence is sufficiently strong that its probative force outweighs any illegitimate prejudice that occurs when such evidence is adduced.Its relevance and cogency is such we have no doubt its probative value outweighs its prejudicial effect.To allow a Jury to consider the evidence of these complainants in isolation wouldbe artificial and would sanitise the relevant events within this apparently dysfunctional household.

[43] At paragraph 26 of the judgment under appeal there was a reference to the "complication of the earlier plea of guilty" in relation to the second complainant.The Judge continued:

"The Crown says that knowledge can be avoided but that is problematic in a trial.And it is usually prejudicial elsewhere."

[44] This matter was addressed by both counsel, but, in our view, the admissibility of that evidence is entirely a matter for the trial Judge.

[45] For the reasons we have given in relation to the first and second complainants, leave to appeal is granted, the order for severance made in the High Court quashed and application for severance refused.Leave to appeal in relation to the third complainant is refused and the order for severance remains in effect.

Solicitors

Crown Law Office, Wellington

Till Henderson King, Hamilton, for respondent