R v Bull [2003] NZCA 263; [2004] BCL 58 (17 November 2003)

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA313/03

THE QUEEN

v

RICHARD GEOFFREY BULL

Hearing: 22 October 2003

Coram: Keith J

Tipping J

McGrath J

Appearances: W C Pyke for Appellant

B J Horsley for Crown

Judgment: 17 November 2003

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] This application for leave to appeal from a pre-trial ruling in the High Court concerns severance and similar facts.The applicant, Mr Bull, has been indicted on 15 counts involving sexual offending against three teenage boys.We will refer to them as C1, C2 and C3.There are 12 counts involving C1, one count involving C2 and two counts involving C3.On Mr Bull’s behalf, Mr Pyke sought severance in respect of the counts involving C1, largely on the basis that in that case the allegations include sexual violation, whereas in respect of C2 and C3 the allegations are of indecencies falling short of sexual violation.

[2] Mr Bull owned and operated a climbing gym in Hamilton.He befriended each of the complainants and the friendships extended to offering them massages, trips to the movies and climbing trips away from the gym.Indecencies are alleged to have occurred with all of them, extending in the case of C1 to sexual violation by oral and anal connection.Mr Pyke was inclined to accept that if the allegations of offending against C1 had been confined to offending short of sexual violation, the pattern of conduct allegedly displayed by Mr Bull’s behaviour would have justified a single trial with the evidence of each complainant relevant and admissible to support the credibility of the other complainants.That must indeed be so.

[3] Despite Mr Pyke’s careful analysis of individual differences, the overall pattern of Mr Bull’s alleged offending demonstrates sufficient specific similarity between the cases to make the evidence clearly more probative than prejudicial.The coincidence of each of the three complainants giving similar accounts of Mr Bull’s modus operandi, with no suggestion of collaboration, strongly suggests that each complainant is telling the truth and is reliable in his account of what happened to him.

[4] Each of the complainants was aged between 14 and 15 years and had an interest in rock climbing.They were each attending Mr Bull’s gym.He is said to have fostered a friendship with each and, when he had established a degree of trust, he initiated sexual contact with them under the guise of giving them a massage.Three of the four boys contend that Mr Bull complimented them about their physiques.Each of them was taken on climbing trips to the same destination.A fourth boy of similar age, S, alleges that Mr Bull attempted to foster a friendship with him and offered him massages in circumstances similar to those recounted by the others.Matters actually progressed no further with him.

[5] The Judge in the High Court had no difficulty in finding that subject to proper direction the evidence of each complainant was admissible on the counts involving the others.Hence he declined severance.He did not consider the fact that C1 alleges sexual violation as well as lesser indecencies made any material difference.Mr Pyke challenged that view but we cannot accept his argument that as regards C1 the evidence of the others becomes prejudicial to the point of exclusion because C1 additionally alleges sexual violation.It is relevant to note that Mr Bull’s foreshadowed defence, at least so far as his statement to the police indicates, is that none of the alleged offending occurred.He denies he committed any of the physical acts alleged against him.It must in these circumstances be highly relevant to the credibility of each complainant and in particular to the credibility of C1 that, independently, the other boys make similar allegations against Mr Bull and in very similar circumstances.C1 is entitled to the support of C2 and C3 when the jury are assessing his credibility against Mr Bull’s denial that anything improper took place.

[6] The jury should be warned of course that C2 and C3’s evidence, and indeed the evidence of S, is relevant solely to what they make of C1’s credibility.The allegations made by C2 and C3 involving lesser offending than sexual violation, must not be used as directly probative of C1’s allegations in that respect or indeed generally.The evidence of the other complainants and S is, however, relevant to C1’s credibility.It would be a strange coincidence if, quite independently, each of the other boys made such similar allegations.What the jury must not do is to assume that simply because each of the other boys alleges lesser indecencies, C1 must be right when he complains of sexual violation.While bearing in mind the relevance of the evidence of the other boys to C1’s credibility, the jury must still carefully consider whether they are satisfied to the necessary degree that C1’s evidence is honest and reliable in relation to sexual violation and indeed generally.This approach to the necessary jury direction is of course simply a more specific focus on the sexual violation dimension.It is appropriate generally to the evidence of the other complainants and S when the jury are considering the counts in relation to each particular complainant.

[7] With the giving of the appropriate jury directions there will be little residual risk of illegitimate prejudice to Mr Bull.That small residue is substantially outweighed by the strongly probative nature of the evidence in issue in relation to the credibility of each complainant.In short, the evidence is more probative than prejudicial.This, as we mention below, is the ultimate touchstone.It is therefore conducive to the ends of justice (s340(3) of the Crimes Act 1961) to have the counts tried together.More accurately perhaps, it is not conducive to the ends of justice to sever the counts in relation to C1.Justice to the complainants, and C1 in particular, requires a joint trial.There is no such injustice to the applicant in a joint trial to outweigh the injustice that would be caused to C1 if his allegations were required to be dealt with in what, in present circumstances, would amount to an artificial vacuum.

[8] The learned High Court Judge expressed concern, in an addendum to his judgment, at what he perceived to be inconsistencies in the authorities in this Court.This is not an appropriate occasion to re-examine the law in this area or the various authorities, of which there are now a large number.We simply observe that something of a mystique seems to have developed in relation to the jurisprudence and terminology concerning similar facts and the evidence of prior misconduct.It may be helpful to say that, as this judgment has recognised, the ultimate inquiry is always whether the evidence in question is more probative than prejudicial.The word “prejudicial” in this context means prejudicial in an illegitimate way; ie. by inviting or suggesting a process of reasoning which the law does not allow.Evidence which is legitimately prejudicial to the accused is probative evidence.To be probative or legitimately prejudicial, the evidence must be relevant in the sense of logically tending to prove a fact or facts in issue.The law takes the view, however, that logic must have its limits when determining what amounts to legally acceptable proof.Evidence which to a logician may be regarded as probative of a fact in issue is, on policy grounds, not always acceptable to the law as proof of that fact.Hence evidence which proves no more than offending of a generally similar kind on another occasion is not legally probative of the facts of the instant case.

[9] To be admissible, at least in a case such as the present, evidence of similar offending requires a sufficient degree of specific similarity as to timing, circumstance, manner or otherwise, in order to elevate it to the point at which the law will treat it as having acceptable relevance.The reason is that the law has always been anxious to guard the accused against the natural reaction of a lay jury that if the accused has committed the same sort of crime on another occasion, he is the more likely to have done so on the instant occasion.To a logician that might be so but the inherent dangers of allowing such a process of reasoning renders it legally unacceptable.But if there can be discerned in the events of the other occasion or occasions a cogent enough link to the allegations now in issue such that general similarity is elevated to sufficient specific similarity, the law takes the view that the evidence has, or is at least capable of having, the necessary legal relevance to allow it to go to the jury for its assessment.

[10] The Judge of course has the obligation of explaining to the jury the use which they can properly make of the evidence and the use to which it may not be put.Thus in assessing whether “similar fact” evidence should be admitted the Judge must always seek to identify what feature or features of the events which occurred on the other occasion or occasions give those events sufficient specific similarity to the instant allegations to constitute the necessary legal relevance.If the necessary specific feature or features cannot be identified in a way which can clearly be put to the jury as being the basis upon which they are entitled, if they accept the evidence, to regard it as probative, there must necessarily be doubt as to whether the evidence qualifies for admission.

[11] The appropriate reasoning process in a case of similar facts of the present kind, where there is no question of identification and the issue is whether the conduct alleged occurred at all, is sometimes only imperfectly addressed in summings-up and rulings.The probative force of similar fact evidence in these circumstances is not as direct proof, in the sense that if the accused has behaved in a certain way on another occasion, he must have done so on the occasion now under consideration.That approach, from which the jury should be guarded, involves at least the difficulty of where and how the jury starts in its consideration of the facts.Rather the probative force of the similar fact evidence lies in the support which it gives to the credibility of the instant complainant because of the unlikelihood, absent collaboration, that the relevant specifics of that complainant’s allegations have been manufactured when the accused is said or can be shown to have behaved in that specific way on another occasion.In considering these issues it does not much matter whether one speaks in terms of mere propensity not being enough, whereas specific propensity is enough, or uses other terminology.That is of less importance than demonstrating a clear appreciation of the permissible reasoning process and bringing it home to the jury.

[12] For the reasons given in the first part of this judgment, we are satisfied the learned High Court Judge correctly declined to order severance of the counts relating to C1.The application for leave to appeal is therefore dismissed.

Solicitors:

Crown Law Office, Wellington