THE QUEEN v ALLAN JAMES McCREATH [2002] NZCA 31 (20 March 2002)

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL.PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.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 ARE PROHIBITED

IN THE court of appeal of new zealand

ca44/02

THE QUEEN

V

ALLAN JAMES MCCREATH

Hearing:	20 March 2002
Coram:	Gault J Tipping J Chisholm J
Appearances:	J J McCall for Applicant M N Zarifeh for Crown
Judgment:	20 March 2002

judgment of the court DELIVERED BY GAULT J

[1] The applicant sought leave to appeal against two pre-trial rulings made on 13 February 2002 by Panckhurst J in the High Court at Christchurch.The applicant is shortly to stand trial on multiple counts of sexual violation and abduction in relation to a 17-year-old complainant.The first ruling, under s23A of the Evidence Act 1908, refused defence counsel leave to cross-examine the complainant with respect to prior sexual experience even though the Judge ruled admissible evidence from the complainant that she was a virgin prior to allegedly being raped by the accused.The second ruling, pursuant to s344A of the Crimes Act 1961, was that evidence from the complainant that the accused had told her about prior rapes is admissible.

[2] The conduct giving rise to the charges is alleged to have occurred on 3 July 2001.According to the Crown case, the then 16 year old complainant had been staying at a friend's flat whilst her father was away.The accused, a 31-year-old male, was a regular visitor to the flat, being acquainted with a number of its occupants.On the morning of 3 July there was a difference of opinion involving the complainant and another female at the flat.The accused offered to give her a lift into town, an offer the complainant accepted.The Crown contends that instead of delivering the complainant into town, the accused drove her to a secluded area at the rear of Christchurch International Airport.There he produced a knife and made a number of threats until eventually he forced the complainant to perform oral sex on him.He then digitally penetrated the complainant's vagina and raped and sodomised her.

[3] The defence has indicated that the central issue in the trial will be that of consent.

Pre-trial ruling under s23A Evidence Act 1908

[4] The first pre-trial ruling was made in response to the Crown's application seeking a ruling that the complainant could give evidence that prior to the alleged offending she was a virgin.That was to be by way of background to evidence of a medical examination which was conducted very soon after the relevant events.

[5] Assuming for the purposes of the decision that evidence of virginity was evidence "relating directly or indirectly to the sexual experience of the complainant" in terms of s23A, so as to require leave of the Court, Panckhurst J ruled leave should be granted on the basis that evidence of the complainant's "personal context" was admissible in order to facilitate an assessment of her evidence relating to her pain, bleeding and fear during the course of the alleged rape.He added that in his view it was important for that piece of evidence to be given to enable the jury to properly evaluate the evidence of the examining doctor.

[6] In light of that ruling defence counsel immediately sought leave to cross-examine the complainant with reference to some previous sexual activities.It is common ground that within a day or so of the alleged offence the complainant was involved in what may be called sexual activities, though not sexual intercourse, with two men about her age at the flat.The main submission in support of this application was that such cross-examination would be necessary to avoid "an absence of balance".Panckhurst J disagreed, ruling that the s23A(3) test was not met.

[7] In his written submissions in support of the appeal, Mr McCall made it clear that it was only because of the ruling that the complainant could give evidence that prior to the alleged rape she was a virgin that he sought to overturn the ruling refusing leave to cross-examine her with reference to previous sexual experience.

[8] In the course of discussion with members of the Bench Mr Zarifeh indicated that the Crown would not lead the evidence from the complainant notwithstanding leave to do so.In light of that, Mr McCall did not pursue this aspect.Leave to appeal is accordingly refused.

Pre-trial ruling under s344A Crimes Act 1961

[9] The second ruling was made on the application of the Crown to test the admissibility of certain remarks attributed to the accused by the complainant in the course of the alleged offending.

[10] The complainant's evidence will be that when the car had been driven to the secluded place adjacent to the airport the accused rolled a cigarette and while smoking it said "You know I have to rape you now".The complainant will say further that the accused threatened her in these terms:

He said that he had raped before and that he had raped lots of chicks but that I was the youngest.

The accused stated that they were usually aged between 18 and 20 years of age.

The accused threatened me that if I told he would either kill me before he went to prison or one day eventually he would get released and he would hunt me down.

The accused also stated that he would get a gang of friends to hunt me down and rape me one by one and he stated that they won't just rape me they would stick barbed wire and planks of wood in me and make it a slow and painful death.

[11] In support of the application the Crown had submitted that in a case where consent and the accused's belief in it are in issue, it is essential to the Crown case that remarks which bear so directly on the accused's state of mind and which were so relevant to the wearing down of the complainant's resistance, be before the jury.Defence counsel focussed on the obvious prejudicial effect of the remarks and submitted that if these references were allowed in it would constitute a back-door way of receiving similar fact evidence concerning a prior rape conviction, which the Crown had agreed is not admissible.

[12] Panckhurst J granted the application, noting that he was satisfied that evidence of the remarks was highly relevant in the circumstances of the case, especially to the question of the accused's state of mind.The Judge considered that the fact that an accused is said to have referred to rape in the midst of events that gave rise to the charges must be probative of his intentions.

[13] The Judge concluded by emphasising that a careful direction from the trial Judge as to the treatment of the admissible evidence would be required.He said:

For the avoidance of doubt I add that although I will not be the trial Judge I have made this ruling on the assumption that there will be a firm direction to the jury concerning the use to which this evidence may be put.Were I to preside I would indicate to the jury that it is unknown whether the rape remarks are true or not.Moreover that their truth, or not, is of no relevance anyway.Rather, that evidence of such remarks was allowed because it was an integral part of the relevant course of events and may be treated as of direct relevance to both the complainant's reaction at the time, and to the assessment of the accused's state of mine.The jury would also be told that they should use the remarks only in that way and not speculate concerning why Mr McCreath might have said such things and whether there was a basis in truth for them.

[14] In support of the appeal under this head Mr McCall objected to the inclusion of the statements that indicated that the accused has raped before. Although accepting that the Crown was not seeking to rely on the evidence to be probative of similar offences, he submitted its likely prejudicial effect outweighs its probative value in respect of the central issue of consent.He took the Court to other passages in the depositions evidence that are relevant to the accused's state of mind and to the effect of his statements and conduct on the mind of the complainant.He submitted that these were sufficient without the introduction of the statements inferring previous offending.

[15] We have no doubt the Judge was correct to rule this evidence admissible. While defence counsel may relate the statements to the fact that the accused has a previous conviction for rape, that fact will not be known to the jury. In context the statements objected to that he had raped before and had raped lots of chicks suggest more of a boast of having got away with such conduct rather than as an acknowledgement of a previous conviction.

[16] The statements are directly relevant to the proposed defence that there cannot be excluded consent or belief in consent.They are probative of the state of mind of the accused.That there is other evidence similarly probative is no reason to exclude otherwise admissible evidence.

[17] To the extent that the evidence may give rise to illegitimate prejudice (to be contrasted with legitimate prejudice) the direction proposed by the judge will be sufficient to ensure that the evidence is not used inappropriately.

[18] To permit the accused to challenge the Crown case as falling short of establishing absence of consent or belief in consent while excluding evidence of the statements said to have been made at the time of the alleged offending would be an affront to justice and common sense.

[19] Leave to appeal is refused.

Solicitors

Papprill Hadfield & Aldous, Christchurch, for Applicant

Crown Solicitor, Christchurch