R v K CA295/02 [2002] NZCA 362; (2002) 19 CRNZ 698 (18 November 2002)

Last Updated: 22 July 2018

ORDER SUPPRESSING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985. ORDER PROHIBITING PUBLICATION OF NAME ADDRESS OR PARTICULARS IDENTIFYING THE APPELLANT UNTIL TRIAL. NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA295/02

THE QUEEN

V

[G K]

Hearing:	31 October 2002
Coram:	Blanchard J Hammond J William Young J
Appearances:	H Waalkens and J H M Eaton for Appellant J A Farish for Crown
Judgment:	18 November 2002

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1] This is an application for leave to appeal against pre-trial rulings given in the District Court. In issue are decisions made by the District Court Judge to the admissibility of similar fact evidence and severance.

Factual background

[2] The appellant is a dentist.
[3] He was indicted in the District Court at Christchurch on 11 charges alleging indecencies against nine female patients. He was discharged under s347, Crimes Act in relation to one count. At the time of the hearing before the District Court Judge which resulted in the ruling which is now under appeal, the appellant was therefore still facing ten counts. These counts involved eight complainants.
[4] In the latter part of the 1980s the appellant was practising in two towns; one in Marlborough and the other in Canterbury. Since 1990 he has been practising only in Canterbury.
[5] The indecencies alleged by the complainants fall into one or more of three broad categories of conduct:-

1. Taking advantage of the relative positions of himself as dentist and the patients in his chair to rub his penis or groin against the patients. This practice is known as frottage or frotteurism.
2. Placing the hands of his patients on his penis.
3. In one case, touching a patient’s breast.

[6] The complaints can be divided up in other ways:-

1. By time (with six of the complainants alleging conduct which occurred between 1985 and 1989 and two complainants alleging conduct which occurred in 1999 and 2001).
2. Geographically with the first five of the complaints (in terms of the dates when the offending is said to have occurred) related to events which are said to have occurred in Marlborough and the later three related to events which are said to have occurred in Canterbury.
3. By reference to whether the complainant was sedated at the time of the relevant consultation. Four of the patients had been sedated with hypnoval or a similar drug and four had received only local anaesthetic.

[7] As noted, all the complainants are female. At the time of the alleged offending they ranged in age between 14 and 31.
[8] Complaints about the appellant came to the attention of the Police in Marlborough in April 1989.
[9] A complainant to whom we will refer as “NP” formed the view that the appellant had inappropriately rubbed himself against her while performing a dental procedure. She discussed this with the wife of a Police officer and then with the Police officer himself. The result was that she went back to the appellant for further dental work. This was by arrangement with the Police officer who waited outside the surgery while the work was being carried out. Her evidence at the preliminary hearing was that during this procedure the appellant rubbed his body and in particular his erect penis against her hand. Her response was to jump out of the reclining chair, grab him by the penis and push him up against the wall. She also yelled out to the Police officer who responded by coming into the room. Her evidence at the preliminary hearing was that she still had hold of the appellant by his penis when the Police officer arrived and that she spoke to the Police officer in a way which we interpret as being an invitation to him to establish to his own satisfaction that the appellant’s penis was still erect. The Police officer declined this invitation.
[10] The Police officer’s evidence was broadly consistent with what NP had to say save that possibly due to memory problems associated with the effluxion of time, his description of the details of the situation which confronted him when he entered the room were less graphic than that of NP.
[11] Consideration was given by the Police to prosecuting the appellant in relation to NP’s complaints. In the course of this investigation, complaints from two other women (WP and SH) were also received by the Police. These complaints related to other alleged incidents of frotteurism which were alleged to have occurred in Marlborough in 1987 and 1988. Statements, either in written or notebook form, were taken from the three complainants. The appellant was interviewed at least in relation to allegations made by NP. In the end, however, no prosecution was commenced.
[12] The appellant came to Police notice again in July 1999. This was following a complaint made by LJ (a 30 year old woman). On 15 July 1999 she saw the appellant to have teeth extracted. She was sedated with hynoval (30 milligrams). In the course of the procedures which were carried out that day she also received local anaesthetic. She says that towards the end of the procedure the appellant placed her hand on his penis on three occasions. She complained immediately to her father (who picked her up following the procedures) and, not long after that, telephoned the Police.
[13] The appellant was interviewed on 26 July 1999 about LJ’s allegations. In the course of this interview there was the following question and answer:-

17. Have you ever been complained about, of a sexual nature in the past?

A, No.

In the course of this interview the possibility of hypnoval-induced hallucinations was raised (in fact by the interviewing officer) and the appellant indicated that he was aware that sexual hallucinations are sometimes associated with the use of hypnoval. There was evidence at the preliminary hearing that sexual fantasies or hallucinations sometimes are induced by hypnoval. How commonly this happens is perhaps open to question.

[14] LJ’s complaint did not result, immediately, in the laying of charges. Apparently the Police were concerned that it might not be possible to disprove the possibility that LJ’s complaint was the result of a hypnoval-induced fantasy.
[15] On 23 January 2001 there was a further incident. This involved KL who was, at the relevant time, 22. For the purposes of the treatment she was to have, she took 30 milligrams of hypnoval. Her complaint is that, towards the end of the appointment, she felt the appellant touching her in the area of her breasts on the right side. She also says that the appellant placed her hand on his penis. This occurred on two occasions and, on the second of these two occasions she jumped out of the chair. Her evidence is that she saw his exposed penis. She challenged him and his response was that she was hallucinating. She complained immediately to the receptionist, to her mother and to the Police.
[16] The Police correlated the complaints made by LJ and KL and the appellant was prosecuted in relation to them. Initial publicity associated with this prosecution resulted in WP, NP and SH coming forward. Charges were laid in relation to what they had to say and the result was that there was a preliminary hearing in the District Court at Christchurch on 5, 6 and 7 September last year in relation to the complaints made by LJ, KL, WP, NP and SH. At the same time the appellant was also committed for trial in relation to a further complainant but the charge in relation to this complainant has been the subject of a s347 discharge.
[17] Publicity associated with the preliminary hearing resulted in further complainants coming forward. These complainants were:-

1. RM who alleged indecencies in the period February 1985 to August 1987 occurring at a time when she was young (between 14 and 16) involving the appellant rubbing his penis against her in Marlborough.
2. BP who alleged an indecent assault in Marlborough involving the appellant rubbing his penis against her on 8 October 1987 when she was 26.
3. RP who alleged an indecent assault on her on 28 September 1989 when she was 20, the assault involving her hand being placed on his penis and the incident occurring in Canterbury.

[18] At all times the appellant’s name has been suppressed. It is perhaps noteworthy that the limited particulars of the alleged offending which were published in the newspapers (but without reference to the appellant’s name) were regarded by the complainants who came forward as a result of this publicity, as being sufficiently related to their own complaints to justify their approaches to the Police.

Overview of the case

[19] Dentists might be thought to be prone to allegations of this sort made against the appellant. In part this is because of the necessity to move around, but in close proximity to, their patients. As well, hypnoval and related drugs which are often used by dentists for sedation are believed to produce in some subjects hallucinations of a sexual nature.
[20] The allegations of frotteurism and the allegation by KL in relation to the touching of her breast are likely to be responded to by the appellant on the basis that whatever contact occurred was accidental and misinterpreted by the complainants. It seems likely enough that the appellant could also respond to WP’s allegations by raising the possibility that the complaint was a result of a sexual hallucination induced by the sedative which was administered to her on the relevant occasion.
[21] In the case of each of the Canterbury complainants (RP, LJ and KL) the appellant is alleged to have placed their hands on his penis. The associated charges are therefore not explicable on the basis of an accidental touching. It seems inevitable that the defence will proceed on the basis that these allegations are purely the result of hypnoval-induced sexual hallucinations.
[22] It should be noted that hypnoval does produce amnesia in some patients who will not recall events which occur while they are sedated with that drug.
[23] Given the ready ability of the appellant to explain away individual complaints along the lines just mentioned, no individual prosecution would be likely to succeed unless the Crown could also deploy similar fact evidence in support of it.

The stay granted by the Judge in relation to the counts associated with NP, WP and SH

[24] The District Court Judge stayed the counts associated with NP, WP and SH.
[25] It will be recalled that their complaints came to Police notice in 1989. What troubled the Judge was that the Police file in relation to these complaints had been lost.
[26] The reasons why he was moved to grant stays in relation to the counts associated with these three complainants are expressed in paras [67] and [68] of his ruling:-

[67] I think that a reasonable onlooker viewing the situation would have very serious reservations about the fairness of a trial of a man on discrete accusations of brief ... sexual misconduct occurring thirteen years or so ago where virtually all of the relevant and clearly important documentary evidence no longer exists, and where at the time the police had made a full investigation and had made an apparently considered decision not to prosecute for reasons which are now lost. Accounts of events, by actors in them, taken close to the events themselves, and judgments on those events arrived at by responsible people not long after, have always been regarded as important indicators of the truth or otherwise of later evidence regarding those events.

[68] Notwithstanding the submissions of Miss Farish I am of the clear view that the loss of the file has seriously diminished [K’s] ability to present a defence in relation to Counts, 3, 5, 6 and 7 and that it would be unsafe to put him in peril of conviction on those Counts. They should be stayed.

The approach of the District Court Judge to the admissibility issues

[27] The Judge rightly recognised that the arguments associated with possible severance stood or fell by reference to the view he took as to the cross-admissibility on similar fact principles of the evidence of the complainants.
[28] Having reviewed the facts and the arguments of the parties, the Judge referred to the relevant authorities and stated the general legal principles in a way which is not challenged.
[29] The Judge noted that the essence of a similar fact argument is its tendency to prove:-

... that the hypothesis of innocence requires an acceptance of innocent coincidence which only a credulous mind would accept as reasonably possible

He went on:-

[29] Of course in the accounts by each complainant there are differences. There are however, quite remarkable similarities. These are:

1. All the complainants may be described as young women; the youngest between fourteen and sixteen years of age and the oldest thirty-one years of age. Most of the complainants were in their twenties.

2. All the complainants are female.

3. Each of the complainants was a patient of [the appellant] seeing [the appellant] for dental treatment.
4. Each of the complainants was receiving dental treatment in the dental chair at the time of the alleged indecency.

5. Dental assistants were not present at the time of indecency.

6. With the exception of Count 10 ([KL] – touching breast) all of the complaints involve contact between [the appellant’s] penis and the hand/arm/elbow of the complainant and all appear to involve sexual gratification on the part of [the appellant].
7. A common feature of many of the complaints is [the appellant’s] repeated insistence that the complainant’s arms be placed on the arm of the dental chair so, it is alleged, facilitating his indecent access to the complainant.
8. All the complainants visited [the appellant] for extractions or fillings, and where there was significant pain and/or where the procedures took a significant period of time, medication in one form or another was required – Hypnoval (a sedative) in the cases of [WP, RP, LJ and KL] and local anaesthetics in other cases.
9. With the exception of [WP], all of the complainants appear to have told someone about what had happened within a very short time of the occurrence. The probative value of this feature is that it may be said that what happened was taken seriously and not immediately discounted by the complainant.
10. It does not appear that any of the [Marlborough] complainants know any of the [Canterbury] complainants nor do any of the latter know each other.

[30] No doubt there are, as Mr Eaton submits, many differences but the fact of the matter is that the submission can reasonably and properly be advanced to the jury that [K] used his position as dentist to prey on young women in a vulnerable and recumbent position on his dental chair by rubbing his genital area on their hand/arm/elbow and, depending on his judgment of their sedation, leading to much more explicit indecencies as alleged. The several accounts are highly probative providing a basis for the rejection of any defence of accident, mistake, collusion “cross fertilisation” or hallucination.

[30] In relation to whether the evidence on the stayed counts could be lead in relation to the other counts, the Judge expressed himself shortly:-

My judgment is that evidence on all Counts whether or not stayed is admissible if the Counts which have not been stayed were to be tried separately. There is a distinct commonality of evidence relating to a distinctive course of activity.

Overview of the issues which we must address

[31] It is clear that fundamental issues which must be addressed are as to the cross-admissibility, on similar fact principles, of the evidence of all the complainants in relation to the live charges. Severance could only be warranted in the circumstances of this case if the appellant’s arguments as to the cross-admissibility (or cross-inadmissibility) of the evidence are accepted.
[32] The similar fact arguments raised two questions:-

1. On general similar fact principles, ought the evidence of all complainants to be admissible in relation to each of the live counts? And, if so,
2. Should the evidence of the complainants in respect of whom the relevant counts were stayed nonetheless be excluded?

[33] It is convenient to discuss the case by reference to those two issues.

On general similar fact principles, ought the evidence of all complainants be admissible in relation to each of the live counts?

[34] Mr Eaton accepted that the evidence given by the Marlborough complainants was cross-admissible and, likewise, the evidence of the Canterbury complainants was also cross-admissible. His fundamental contention was that the evidence of the Marlborough complainants was not admissible in relation to the allegations made by the Canterbury complainants and vice versa. In effect, his argument was that there should be two trials, one in relation to the Marlborough complaints and the other in relation to the Canterbury complaints.
[35] He contended that regard “must be had to the defence to be advanced”. In relation to the Marlborough allegations the defence is that such contact as occurred was accidental and there was no indecent intention. In relation to the Canterbury complainants, the defence is that the incidents described did not occur at all and the allegations are the result of drug-induced hallucination. Mr Eaton went on to submit:-

.... that it would be illegitimate to reason that if, some thirteen or so years earlier the appellant deliberately brushed his genital region against a patient’s hand or arm during the course of a dental consultation, it is more likely that the latter and far more serious allegations are in fact true and not hallucinations. There is no sufficient pattern or necessary link. The evidence is not sufficiently probative.

He contended as well:-

In short, the Crown seek to rely on quite distinct and discrete allegations that are comparatively minor and quite uncommon (in terms of allegations of historical sexual offending) to support far more serious allegations (made many years later) that are uncertain because of the sedative issue and which, by reference to typical types of sexual offending, are of a quite distinct nature. The prejudice flowing to the appellant is obvious and substantial. The opportunity for illegitimate reasoning is real and, in a single trial, unavoidable.

Further:-

The ruling of the lower court permits the jury to reason that if [RP, KL and LJ] were not hallucinating that evidence can be used to conclude for example, that during the consultation on 8 October 1987 [in Marlborough], when the appellant on a single occasion allegedly brushed against [BP], he did so deliberately and with indecent intent.

It is respectfully submitted that there is no legitimate basis for a jury [to] reason in that manner.

[36] Mr Eaton also challenged the use by the District Court Judge of the expression “quite remarkable similarity”. He went through the similarities referred to by the Judge one by one and in a critical way.
[37] There are a number of difficulties with Mr Eaton’s argument:-

1. The allegations cannot be as simply divided as Mr Eaton suggested. This is most obvious in relation to the complaint of RP (see para [17] above) which is closely related in point of time to the allegations made by the Marlborough complainants. There must be cross-admissibility between the evidence of the Marlborough complainants and that of RP. But it is also clear (and Mr Eaton accepted this) that the RP complaint is admissible in relation to the counts relating to LJ and KL. So, if there were to be separate trials, the evidence of RP would be admissible at both in relation to the counts relating to all other complainants.
2. Mr Eaton made too much of the differences between the Marlborough and Canterbury complainants and did not recognise the significance of the similarities. Where similar fact evidence is in issue, similarities are more important than dissimilarities, see for instance R v Chronis (unreported CA 317/00, judgment delivered 27 November 2000).
3. We accept that a decision as to the admissibility of similar fact evidence will require an analysis of the issues likely to arise at trial (see the discussion in Cross on Evidence, New Zealand edition, para 13.14). But we do not accept that the admissibility of similar fact evidence necessarily turns on the precise way in which counsel identifies the defences to be advanced.
   Mr Eaton maintained that the defences to be advanced were quite different (accidental touching as opposed to drug-induced hallucination). But both lines of defence argument can fairly be regarded as subsets of the broad contention that the complainants, for different reasons, have erroneously but honestly concluded that the appellant indecently assaulted them. Further, even if the defences were conceptually different, it would not affect the underlying similarities in the offending.

[38] In short, we are of the view that the similarities identified by the District Court Judge are real enough and warrant the admission of the similar fact evidence.
[39] Where the conduct alleged does have a deniable quality, prosecutions are likely to be successful only where a sufficient number of examples can be aggregated and placed before a jury to enable the prosecution to invoke the concept of implausible coincidence referred to by the District Court Judge. The issue in this case to which the similar fact evidence, in our view, is highly probative is whether the accused’s denial of the offences involves the assertion of coincidences which are too implausible to be true.
[40] For these reasons (which are broadly similar to those adopted by the Judge) we are of the view that the evidence for the Marlborough complainants is cross-admissible in relation to the Canterbury complainants and vice versa.

Should the evidence of the complaints in respect of whom the relevant counts were stayed nonetheless be excluded?

[41] In his ruling the District Court Judge concluded that the evidence on all counts, whether or not stayed, is admissible in relation to the other counts.
[42] This issue had apparently been touched on only briefly in argument before the District Court Judge (possibly in Chambers). It seems that counsel recognised that the fact of a stay would not, in itself, result in evidence associated with the stayed charge being inadmissible in relation to the other counts. Because the Judge’s decision as to stays was delivered in the same ruling as his conclusion as to the admissibility of evidence, however, counsel did not address specifically the admissibility of the evidence of WP, NP and SH in relation to the other counts if the counts associated with their allegations were stayed. In particular, counsel for the appellant did not argue in front of the District Court Judge that evidence from complainants which was otherwise prima facie admissible on a similar fact basis ought nonetheless to be excluded as being unfair if the counts referable to those complainants was stayed. But this was the fundamental argument advanced to us by
Mr Eaton in relation to this part of the appeal.
[43] Accordingly, the argument on this point proceeded before us on what was effectively a de novo basis. This is unfortunate. It is at least implicit in the outcome before the District Court Judge that the District Court Judge did not regard it as unfair to permit the Crown to call WP, NP and SH to give similar fact evidence. Because the point was not argued before him, there was no occasion for him to spell out why this was so despite his conclusions that the relevant counts ought to be stayed.
[44] Where the issue is whether criminal activity took place, as opposed to identity, the admissibility of similar fact allegations does not depend upon the jury being satisfied beyond reasonable doubt that allegations in question are true, see
R v Sanders [2000] NZCA 118; [2001] 1 NZLR 257. Further, the fact that the similar fact allegations have themselves been the subject of criminal proceedings which have been resolved in favour of the accused is not, in itself, fatal to admissibility, see for instance
R v Degnan [2000] NZCA 321; [2001] 1 NZLR 280 and R v Shea (unreported CA 221/97, judgment delivered 13 August 1997).
[45] Accordingly, it was common ground before us (as it was before the District Court Judge) that the granting of a stay in relation to any of the charges faced by the appellant would not, in itself, prevent the evidence of the complainant concerned being admitted on a similar fact basis in relation to other counts.
[46] It is also, however, clear that considerations of fairness can arise where the Crown seeks to rely on allegations on a similar fact basis where charges referable to those allegations have been resolved in favour of the accused. The legal position is stated in para [37] of the Degnan judgment:-

Evidence which otherwise qualifies for admission on similar fact principles is not rendered inadmissible at law by reason of the fact that a previous trial based on that evidence has resulted in an acquittal or a stay of proceedings. Such evidence is admissible, subject to the discretion of the Court to exclude it if its admission would be unfair to the accused, or would otherwise result in an abuse of process. To obtain such exclusion the accused must be able to point to some particular feature of the case which requires that outcome against the general admissibility of evidence of this kind.

[47] It will be recalled that the reasons which the District Court Judge gave for granting a stay in relation to the counts associated with WP, NP and SH were as follows:-

[67] I think that a reasonable onlooker viewing the situation would have very serious reservations about the fairness of a trial of a man on discrete accusations of brief ... sexual misconduct occurring thirteen years or so ago where virtually all of the relevant and clearly important documentary evidence no longer exists, and where at the time the police had made a full investigation and had made an apparently considered decision not to prosecute for reasons which are now lost. Accounts of events, by actors in them, taken close to the events themselves, and judgments on those events arrived at by responsible people not long after, have always been regarded as important indicators of the truth or otherwise of later evidence regarding those events.

[68] Notwithstanding the submissions of Miss Farish I am of the clear view that the loss of the file has seriously diminished [the appellant’s] ability to present a defence in relation to Counts 3, 5, 6 and 7 and that it would be unsafe to put him in peril of conviction on those Counts. They should be stayed.

[48] Mr Eaton’s argument is that this reasoning is equally applicable to the Crown’s argument that it can lead on a similar fact basis the evidence relating to the counts which have now been stayed. If it would be unsafe and unfair to lead that evidence in support of counts which are referable directly to it, it is equally unsafe and unfair, on the argument of Mr Eaton, to adduce the same evidence in relation to other counts.
[49] We see the situation as reasonably closely balanced.
[50] Given Sanders, the evidence of WP, NP and SH could be taken to support the Crown case that the appellant committed the other offences irrespective of whether the jury are satisfied beyond reasonable doubt that their evidence is correct. So the issue which their evidence would raise for the jury is not the same as the issue which would have arisen if counts associated with their complaints had not been stayed.
[51] Further, the evidence associated with the counts that have been stayed does seem to us to be very relevant and material to the live counts; this for two broad sets of reasons.
[52] First, the evidence is relevant on the basis of orthodox similar fact considerations:-

1. At a general level there is a difference between eight complainants and five complainants.
2. The effect of excluding the evidence would reduce from four to three the complainants who were sedated with hypnoval or a similar drug at the time of the alleged offending. This is because, on the occasion on which she alleges that she was indecently assaulted, WP was sedated with either hypnoval or a similar drug.
3. Further, in relation to the charges involving frotteurism, there can be no doubt that cases presented by the Crown in respect of RM and BP would be much strengthened if the evidence relating to very similar incidents involving WP, NP and SH were also before the jury.

There may not be a great deal of difference between eight and five complainants or four and three complainants who allege sedation but the last of the points does seem to us to be reasonably significant.

[53] Secondly, the evidence of WP, SH and particularly NP is relevant for reasons relating to the general pattern of events. There was plainly a very dramatic confrontation between NP and the appellant. There was a Police investigation and the appellant was interviewed. The next complaint in chronological sequence is that of RP (who is the first of the Canterbury complainants) whose evidence relates to an incident on 28 September 1989 during a procedure in which she was sedated with hypnoval. Relevant to the pattern are the following considerations:-

1. NP is the last of the frotteurism complainants. The Crown case is likely to be that what the appellant claims were accidental touchings stopped after the confrontation with NP.
2. After the NP incident there are no further complaints in relation to anything which occurred in Marlborough. The Crown argument is likely to be that the appellant would have been alert to the risk that any further offending in Marlborough would have led to a likely correlation of complaints and a prosecution.
3. All complainants after NP relate to incidents in which the complainant was sedated; this providing a deniable quality to the alleged offending which is different from the accidental touching explanation which had been proffered apparently successfully in Marlborough in 1989.

[54] Further, if the evidence of NP, WP and SH is to be excluded, then fairness to the Crown may require the statement made by the appellant on 26 July 1999 to be edited (so as to remove the false denial of prior sexual complaints).
[55] On the other hand, the distinction referred in para [50] above while real, might be difficult for a jury to grasp. Further, even allowing for that distinction, the unfairness argument is still real. It is still unfair (at least to some extent) to allow the Crown to rely on the evidence of those complainants in relation to other charges against the accused. The significance of their evidence against the appellant will depend (at least in part) on the view the jury takes as to the accuracy of their evidence. The Judge, in his conclusion that the relevant counts ought to be stayed, has held that his ability to impeach their evidence has possibly been compromised by the loss of the Police file. This possible loss of ability to impeach evidence is also relevant to the similar fact arguments which the Crown wishes to run.
[56] In those circumstances, we rule that the similar fact evidence associated with complainants in respect of whom the relevant counts have been stayed is not to be led in relation to the live charges.

Disposition

[57] The application for leave to appeal is granted and the appeal is allowed, but only to the extent that we rule that the evidence of WP, NP and SH is inadmissible in relation to the remaining live counts.

Solicitors:
J H M Eaton, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch for Crown