THE QUEEN v STEVEN BRUCE ABSOLUM [2002] NZCA 25 (20 March 2002)

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

ca396/01

THE QUEEN

V

STEVEN BRUCE ABSOLUM

Hearing:	14 March 2002
Coram:	Keith J Robertson J Gendall J
Appearances:	R Mansfield for the applicant F E Guy for the Crown
Judgment:	20 March 2002

judgment of the court delivered by ROBERTSON j

[1] This is an application for leave to appeal against a pre-trial ruling on the admissibility of evidence delivered by Fisher J in the High Court at Auckland following a hearing on 19 October 2001.

[2] The applicant has been committed to the High Court on an indictment which alleged:

Section 209(1)(a) Crimes Act 1961	1. THE CROWN SOLICITOR AT AUCKLAND charges that STEVEN BRUCE ABSOLUM on 27 November 2000, at Auckland, unlawfully detained [X] without her consent with intent to cause her to be confined.
Section 135(a) Crimes Act 1961	2. The said Crown Solicitor further charges that STEVEN BRUCE ABSOLUM on 27 November 2000, at Auckland, indecently assaulted [X] a woman over the age of 16 years by fondling her breasts.
Section 135(a) Crimes Act 1961	3. The said Crown Solicitor further charges that STEVEN BRUCE ABSOLUM on 27 November 2000, at Auckland, indecently assaulted [X] a woman over the age of 16 years by rubbing his groin against parts of her body.
Section 135(a) Crimes Act 1961	4. The said Crown Solicitor further charges that STEVEN BRUCE ABSOLUM on 27 November 2000, at Auckland, indecently assaulted [X] a woman over the age of 16 years by fondling nearby her genitalia.
Section 129 Crimes Act 1961	5. The said Crown Solicitor further charges that STEVEN BRUCE ABSOLUM on 27 November 2000, at Auckland, attempted to sexually violate [X].

[3] The Crown applied for a ruling under s344A of the Crimes Act 1961 as to the admissibility of evidence of allegedly similar conduct by the applicant towards three other persons.

[4] The Judge ruled that evidence of two of the other persons could be called but not the third.He said:

The central fact in issue is whether in each case the accused had a propensity for pressing his sexual advances upon women without their consent.It does not seem sufficiently clear from the evidence relating to complainant A that there was a lack of consent. ... There are certainly other features in common but without that critical feature I think that the evidence ought to be excluded and I rule accordingly.

[5] The present application is to exclude the evidence of one of the other two. That person's evidence is now challenged on the basis that the Judge erred in finding that the evidence of that witness fell into the category of similar fact evidence.Instead, counsel submits that the witness's evidence was not sufficiently probative of any fact in issue in the trial and that the prejudice which would flow clearly outweighed any probative value it might have.

[6] The factual circumstances out of which the allegations in the five counts before the Court arose are that in November 2000 X used the internet to search for a job.She located an advert for a dial-a-driver, rang a telephone number and spoke to the applicant.She went to his home address that day in the early afternoon.At his home the two of them went downstairs to Mr Absolum's bedroom and while inside the bedroom the applicant on a number of occasions took hold of the complainant's hand while they were talking.

[7] Mr Absolum then closed the curtains and bedroom door and grabbed a bread and butter knife and jammed it into the doorframe securing the door closed saying he did not want anyone walking in.The complainant says the applicant then rubbed his hands over her legs, stomach and breasts.When she said she was uncomfortable and stood up to leave he pulled her back by her arms onto the bed.She tried to resist asking him to stop as he removed parts of her clothing.

[8] X continued to try to get her clothing back on and get off the bed but Mr Absolum pulled her down on top of him and starting rubbing his groin up and down against her back.He also fondled her breasts while pinning her down against him.

[9] The applicant then unzipped the complainant's jeans and put his hand inside her underwear around her pelvic area and onto her vagina.She stopped him pursuing this line by crossing her legs.The applicant continued to touch other parts of her body and rub his groin up and down her leg.He also attempted to put his tongue into the complainant's mouth.

[10] Despite attempts to get away Mr Absolum held the complainant down and masturbated himself in front of her.When this was finished he told the complainant to get dressed and he removed the knife from the doorway and allowed her to go.When spoken to subsequently he admitted touching her breasts and said that this had been consensual.

[11] In respect of the potential witness Y, Mr Absolum has already pleaded guilty to a charge of indecent assault.This witness says that she had met Mr Absolum so that he could use his spiritual powers to make contact with her deceased child.She was shown into his bedroom where they discussed his spiritual powers and after he had made adverse comments about her current relationship he gave the complainant a massage.Although this began consensually, when he started touching her breasts she objected.There is no argument that this material can be available to the jury at the trial.

[12] The other evidence which was ruled admissible and is challenged on this appeal related to one Z who says she took a job with Mr Absolum.Within a couple of days he sexually molested her in his bedroom with a knife in the door jam to keep it shut.She says that it began with a cuddle and led to his sucking her breast without consent and finished up with him masturbating in front of her.

[13] Assuming this appeal is not successful the Crown have produced an amended indictment which includes three counts relating to Z which would be heard at the same time.They are in the following form:

Section 135(a) Crimes Act 1961	6. THE said Crown Solicitor further charges that STEVEN BRUCE ABSOLUM between 20 June 2001 and 20 July 2001 at Auckland, indecently assaulted [Z] a woman over the age of 16 years by sucking her breast. [First occasion]
Section 135(a) Crimes Act 1961	7. THE said Crown Solicitor further charges that STEVEN BRUCE ABSOLUM between 20 June 2001 and 20 July 2001 at Auckland, indecently assaulted [Z] a woman over the age of 16 years by sucking her breasts. [Second occasion]
Section 1359a) Crimes Act 1961	8. THE said Crown Solicitor further charges that STEVEN BRUCE ABSOLUM between 20 June 2001 and 20 July 2001 at Auckland, indecently assaulted [Z] a woman over the age of 16 years by sucking her breasts. [Third occasion]

[14] On the question of the similar fact principles, the hearing Judge said that he found of most assistance his own decision in R v Tulisi (2000) 18 CRNZ 418 and referred also to the decision of this Court in R v C (CA317/00, 27 November 2000).

[15] Generally the starting point for a consideration of the principles is the decision of this Court in R v M [1999] 1 NZLR 315 where it was noted by Gault J (at 320-321):

There can be circumstances where evidence of past conduct can strengthen an inference that the accused has repeated that conduct but there must be some significant additional feature which lifts the evidence above showing only bad character or disposition to offend generally.That will be where some special characteristic or pattern emerges from the evidence, or where there is some underlying unity between the separate events.In those circumstances evidence of the presence of the characteristic or pattern on separate occasions may increase the likelihood that they are linked.An obvious case is where identity is an issue on a charge of burglary, and the same distinctive method of entry evident in the present case has been used in previous burglaries. That suggests the same person may have committed both.The case against an accused charged with burglary may be strengthened by evidence that the accused committed a burglary on another occasion in the same manner.That is not because disreputable conduct in the past makes it more likely that there has been further offending but because offending by that particular method - with that particular characteristic or pattern - by the accused on another occasion supports the inference that the offending by that method now disclosed was by the same person.In other words, the evidence of the previous offending is directly relevant to the contentious issue of the offender's identity.

And further (at 321):

Similar fact evidence may be used not only where the issue is the identity of the offender.It may be used to bolster the inference of the state of mind of an accused where doing some act.If the same act is shown to have been done by him repeatedly in the past in the same characteristic manner or in the same characteristic circumstances that will tend to support the inference that on the next occasion it was intentional, or was done for the same purpose or was done without belief in consent.

[16] Fisher J in this case identified three features which he described as "common" between the present case and the other two witnesses who he ruled could be called.He said:

The first was an alleged propensity for pressing sexual favours upon women from remarkably early in the relationship, being a first meeting in two cases and within a couple of days or so on the third.The second was the evidence that in all three situations the accused arranged for the complainants to come to his own bedroom for seemingly innocent reasons.The third was the evidence that the accused took advantage of a position of dominance, whether stemming from an employment context or the use of his spiritual powers.

[17] The Judge also identified what he described as strongly similar and "idiosyncratic similarities" including the insertion of a knife in the door jam, the confinement, the masturbation at the end of the sexual episode and the fact that young women were placed in a compromising position with regard to an actual or potential employer.

[18] Although the Judge properly weighed issues of prejudice his opinion was that the probative value clearly out-weighed it.

[19] The Crown, in its written submissions, undertook a detailed examination of the three episodes and supported the Judge's view of similarity.

[20] Mr Mansfield's primary contention was that the similarities found by Fisher J, upon analysis, did not have probative similarity and that many were rather commonplace matters which did not lift the evidence above showing only bad character or disposition to offend generally.Counsel was able to point to a number of material differences in the behaviour and conduct of the applicant towards each of the three people which counsel submitted negated the suggestion of special characteristic or underlying unity.

[21] We are not persuaded that is the position.We respectfully adopt the factual analysis of the Judge below.Although we do not ignore Mr Mansfield's submission that the trial will be run on the basis of consent (even though that is not necessarily how the evidence presently would confine it) even on that basis we are satisfied that the similar fact evidence provides significant probative material upon that issue.Some of the matters (and we take for instance the knife in the door which may be explicable both on the basis of keeping people out or as confining) are issues for investigation before the jury but that is not a basis for excluding evidence from jury consideration.

[22] This is an appeal from an exercise of discretion.If the task of determining admissibility had been ours afresh we would have reached the same conclusion as the Judge below.There is no basis upon which it could be said that his careful analysis was clearly wrong.

[23] Leave to appeal is refused.

Solicitors

Crown Law Office, Wellington