R v G (CA403/02) [2003] NZCA 430 (26 June 2003)

Last Updated: 9 December 2019

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

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA403/02

THE QUEEN

v

_{G (CA403/02)}

Hearing: 17 June 2003

Coram: Tipping J Heath J Doogue J

Appearances: R M Lithgow for Appellant

B J Horsley for Crown

Judgment: 26 June 2003

_{JUDGMENT OF THE COURT DELIVERED BY HEATH J}

_Introduction

[1] After a trial by jury in the District Court at Wellington on 23 and 24 October

2002, Mr G was convicted on one charge of indecent assault and two charges of sexual violation. The two charges of sexual violation arose, respectively, from allegations of digital penetration of the vagina and rape. All three incidents involved

_{the same complainant.}

R V G CA CA403/02 [26 June 2003]

[2] The incident on which the charge of indecent assault was based occurred on

21 May 2000. The events giving rise to the charges of sexual violation occurred on

4 June 2000.

[3] On the charge of indecent assault, Mr G was sentenced to 6 months imprisonment. On the charges of sexual violation he was sentenced to serve terms of imprisonment of 3½ years and 7 years respectively.

[4] The learned District Court Judge imposed the sentences of 6 months imprisonment and 3½ years imprisonment as concurrent sentences. The term of

7 years imprisonment, arising from the charge of rape, was imposed cumulatively on the sentence of 6 months imprisonment The effective sentence imposed was, therefore 7½ years imprisonment.

[5] Mr G appeals against both conviction and sentence.

Grounds of Appeal

[6] Mr G appeals against conviction on the grounds that the learned District Court Judge wrongly admitted “similar fact” evidence. Criticism is also levelled at the directions given to the jury as to the use of that evidence.

[7] An appeal is brought against the sentence on the grounds that the sentence was manifestly excessive. Particular reliance is placed on the brevity of the alleged conduct.

Outline of Background Facts

[8] The incidents occurred in May and June 2002. Mr G and his then partner lived in a bed-sit at [K]. Mr G’s then partner was in the habit of bringing female friends home to stay the night after they had been out drinking. The women knew each other through their work. When they went out drinking they would often spend a session of between 10 to 12 hours at a hotel.

[9] If Mr G was at home, the friend or friends would sleep on a mattress on the floor. If he was not at home, the female friend (or friends) would, occasionally, share the double bed with his partner.

[10] The complainant was one of two female friends of Mr G’s partner staying at the [K] flat on 21 May 2000. They had been out drinking with Mr G’s partner. The other female friend was Ms L. The Crown case was that the complainant awoke to find Mr G’s hand inside her underpants and fondling her genitalia. When she awoke she swore at Mr G. He immediately got back into bed with his partner. The complainant decided that she would not stay overnight at the [K] bed-sit again.

[11] Subsequently, on 4 June 2000, at the end of a long drinking session with Mr G’s partner, the complainant found that a friend with whom she had arranged to stay the night had already gone home. In those circumstances, she went back to the home of Mr G and his partner. Mr G was not home when his partner and the complainant arrived. The two women were fully clothed. They lay down on the double bed and went to sleep.

[12] Mr G arrived home. He took off clothing from the lower part of the complainant’s body and put his finger into her vagina. The learned District Court Judge, in her sentencing remarks, described the complainant as “half asleep” but realising what was happening. Mr G then put his penis inside her vagina. The complainant, immediately, became fully awake. She objected to what was occurring. When Mr G stood up she saw that he was wearing no clothes.

[13] Mr G wrapped a blanket around himself and went to the bathroom. The complainant’s crying awoke Mr G’s partner. She told Mr G’s partner what had happened. Mr G’s partner confronted him with what the complainant had said to her and told him to go. He said “sorry” to the complainant as he left.

[14] The complainant was [aged in her early twenties] at the time of the incident. She had recently settled in [T], having moved from the [XI].

(a) The Challenged Evidence

[15] The contested evidence which the Crown sought to lead from Ms L arose out of an incident which was alleged to have occurred in April 2000. Ms L’s evidence was that, after returning with Mr G’s partner from a drinking session, she was sleeping on the mattress on the floor. She woke up to find Mr G sitting beside her. He was touching her breasts through her clothing. Ms L told him she would wake up Mr G’s partner. On being told that he got into bed with his partner without saying anything more.

[16] Ms L had also been present at the bed-sit on the night of 21 May 2000 when the complainant alleged she had been indecently assaulted. No objection was taken to evidence given by Ms L as to what she observed on that night or as to her evidence of recent complaint from the complainant. Objection was taken only to evidence involving the earlier incident in April 2000.

[17] Counsel for Mr G at trial objected to the admission of that evidence on two grounds: namely

a) First, that the events described by Ms L could have been purely accidental rather than sexually motivated. In those circumstances the evidence would not be relevant to the charge.

b) Second, that the prejudicial effect of permitting the evidence to be called would outweigh its probative value.

[18] Counsel for the Crown, with reference to R v Mokaraka [2001] NZCA 378; [2002] 1 NZLR 793 (CA), submitted that the evidence was admissible as discrete conduct sufficiently similar to the incidents in issue. She submitted further that the evidence did not need to reach the level of “striking similarity” or a “similarity in the detail of the evidence

... which goes beyond the common place”.

[19] At paras [9]-[11] (inclusive) of her ruling the learned District Court Judge expressed her reasons for holding that the evidence of Ms L was admissible. Her Honour said:

[9] I am satisfied that the evidence of [Ms L] meets the test set out by the Court of Appeal in Mokaraka. It is therefore relevant. It follows that it will be admitted, provided the probative value of the evidence outweighs any prejudice inherent in the knowledge that the accused was capable of such conduct on the discrete occasion. That is a difficult balancing exercise and one which is in the discretion of the trial Judge.

[10] The evidence is probative as to the issues at trial which are (a) a denial of the actus reus and (b) on the later occasion (to which the charges of sexual violation relate) a possible claim that the complainant misinterpreted the accused’s actions when he tried to move her across the bed so that he could get on to it, mistakenly thinking she was his partner.

[11] While the evidence is clearly prejudicial, that prejudice is tempered by the nature of the conduct alleged on the discrete occasion, which is less serious than that covered by the charges, and by a direction to the jury about the use to which the evidence of [Ms L] could be put, if the jury accepted it. Its use would be limited to providing some support for the allegations made by the complainant. Considering those factors, I conclude that the prejudicial effect of allowing in [Ms L’s] evidence does not outweigh its probative value and an order is made admitting it.

[20] In admitting the evidence, the learned District Court Judge relied on the passage from the judgment of this Court in R v Mokaraka at 804 (para [48]). Delivering the judgment of the Court, Fisher J said:

[48] Since Director of Public Prosecutions v P [1991] 2 AC 447 it has been clear that there are no arbitrary limits upon the purposes to which such evidence can be put so long as it is logically relevant to guilt. Nor does there necessarily have to be anything in the nature of a “striking similarity”, “characteristic signature”, or “a similarity in the detail of the evidence of each which goes beyond the commonplace”. To establish relevance all that it is necessary to show is that the existence of evidence that a man has acted in a particular way on the discrete occasion significantly increases the likelihood that he committed the offence alleged on the current occasion. Usually the link will be that conduct on the discrete occasion demonstrates a propensity, and that someone with such a propensity would be significantly more likely to have acted in the manner alleged than a person drawn at random from the community ....

(c) The Jury Directions

[21] In her summing up, the learned District Court Judge explained the evidence of Ms L and the way in which the jury was entitled to use it. The directions were based on R v M [1999] 1 NZLR 315 (CA) at 324.

[22] After referring to the topic of similar fact evidence, Her Honour directed the jury in the following terms:

[40] In this case, you have heard evidence from not only the complainant but also another woman [Ms L]. Both of them say that the accused touched them in a way that was inappropriate, indecent or sexual. Now, there is no charge here in respect of what [Ms L] says happened to her. But you have been able to hear her evidence on the basis that it has been held to be relevant and the Crown submits to you that the actions that each of the two women described are similar, in that it was inappropriate touching in circumstances which were strikingly similar.

[41] Before you may take the evidence of [Ms L] about what happened to her into account, you need to be satisfied about two things. Firstly, you have to decide whether there is a similarity in the two accounts, as to the actions and as to the circumstances in which they say they occurred and secondly, you have to be satisfied that the two women have not got together to collaborate, to concoct false but similar allegations. If you are satisfied about those two things and if you accept the evidence given by [Ms L], then it would be open to you to conclude that her evidence about what happened to her is so related to the evidence that [the complainant] gave about what happened to her, that the evidence of [Ms L] provides support for {the complainant’s] evidence.

[42] In other words, that [Ms L’s] evidence on those matters, when you consider it with [the complainant’s] evidence, points to a pattern of conduct which may reinforce or corroborate what the complainant has told you. If you are not satisfied that there is sufficient similarity between what [Ms L] says happened to her and what [the complainant] says happened to her, to provide that degree of support for [the complainant’s] evidence, then you must guard against any tendency to think along the lines of, “Well, in any event, he has a tendency to behave badly, so he must be guilty”. So guard against that, that would obviously be false logic and it would not be fair to the accused.

(d) Submissions of Counsel on Conviction Appeal

[23] Mr Lithgow (who did not appear for Mr G in the District Court) submitted that the learned District Court Judge misdirected herself in law when admitting the evidence of Ms L. He submits that, unlike Mokaraka, there was no

issue of identity in this case. In Mr Lithgow’s submission, the Judge ought to have considered the allegations by Ms L as a “she said/he said allegation and denial of sexual offences” rather than as probative evidence which could properly support the Crown case based on the complainant’s evidence.

[24] Mr Lithgow submitted that the effect of admitting the evidence was to open the gates in closing addresses to the suggestion that Mr G was “a bad person”, “having also done something” to Ms L. That, in Mr Lithgow’s submission, is precisely the sort of prejudicial evidence which should not be admitted by the Court.

[25] As argument developed it became clear that Mr Lithgow advanced three arguments in support of the conviction appeal: namely,

a) First, that the reasoning of the learned District Court Judge did not support her decision to admit the evidence as relevant to an issue arising at trial. In essence, Mr Lithgow submitted that there was insufficient link between the evidence which the Crown wished to adduce from Ms L and the issues at trial to justify admission of the evidence on grounds of relevance.

b) Second, the learned District Court Judge erred in describing the balancing of probative value of evidence against its prejudicial impact as an exercise which is in the discretion of the trial Judge.

c) Third, the learned District Court Judge failed to direct the jury adequately on the use the jury could make of the evidence of Ms L by;

i) Failing to emphasise, at the outset, that the first question for the jury was whether the evidence of Ms L was credible and reliable; and

ii) Referring to a “pattern” of conduct when all that was involved was a single incident.

[26] For the Crown, Mr Horsley, submitted that the particular combination of facts was sufficient to link the evidence of Ms L to the allegations made against Mr G. Mr Horsley referred to the combination of the sleeping arrangements after the drinking sessions and the presence of Mr G’s partner at the time that the alleged conduct with Ms L occurred. He submitted that that combination of circumstances made it likely that Mr G would be prepared, in the presence of his partner, to take the risk of interfering, sexually, with other women staying in the bed-sit.

[27] Mr Horsley also emphasised that, at the time the learned District Court Judge ruled that the evidence should be admitted, the defences which appeared to be live were a denial that the offending occurred in the manner alleged or a suggestion of misintepretation, by the complainant, of Mr G’s actions. Mr Horsley submitted that the evidence was relevant to the jury’s assessment of those issues.

[28] Mr Horsley further submitted that the direction given to the jury was adequate. While acknowledging that a direction requiring the jury to consider first whether the evidence of Ms L was truthful would have been preferable and would have added emphasis to the direction, Mr Horsley submitted that it was clear from the direction that the jury had to be satisfied Ms L’s evidence was true. He also submitted that while the reference to “pattern” might be seen to put the evidence at too high a level it was clear, in the particular circumstances, that the jury was being asked to focus on one incident alone. Accordingly, the jury direction was adequate.

(e) Analysis of Conviction Appeal Issues

(i) The Relevance Point

[29] So called “similar fact” evidence can be led legitimately for different purposes. For example, it may be relevant to an issue of identity (for example, Mokaraka, which concerned the modus operandi of a recidivist burglar), as support for the truth of allegations made by one person against another (for example, R v M at 323) or, to negative, in advance, a defence of accident or mistake in cases in which accident or mistake, if proved, would constitute a complete defence to the accusation

(as explained in, for example, Makin v Attorney-General for New South Wales

[1893] UKPC 56; [1894] AC 57 (PC) at 65).

[30] As Lord Herschell LC said in Makin at 65:

... it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he has been tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, ... The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.

[31] The Judge was satisfied that Ms L’s evidence was relevant as advance rebuttal of a denial of the alleged indecency or a possible claim of misinterpretation of the actions of Mr G by the complainant: see more generally the passages from the Judge’s ruling set out at para [19] above.

[32] The Crown’s reliance on Mokaraka was not particularly apt. The learned District Court Judge appropriately found the evidence relevant because it tended to support the testimony of the complainant. She did not find the evidence relevant to identity, the issue which arose in Mokaraka. Identity was never in issue given that the incidents all occurred in the proximity of the small bed-sit occupied by Mr G and his partner. There was never any suggestion of a male, other than Mr G, being present.

[33] Mr Lithgow criticised the use of the term “propensity” in para [48] of Mokaraka. When read in context, the reference to “propensity” in para [48] of Mokaraka can be seen as a reference to an unusual combination of facts which, taken together, provided a sufficient evidential foundation to establish a particular modus operandi of a recidivist burglar: see the discussion which preceded that reference at paras [43]-[47] of the judgment. That background also explains the references, in para [50] of Mokaraka to “a comparison between any propensities the discrete conduct might suggest and the propensities to be expected of a person chosen at random from the community”.

[34] Nevertheless, we accept that it is desirable that the use of the term “propensity” be avoided, wherever possible, in describing evidence sought to be admitted as similar fact evidence. Evidence that establishes no more than “propensity” is inadmissible. It carries a connotation of bad behaviour not probative fact. To be admissible the evidence must establish something more than propensity. That additional dimension has two aspects. First, there is the need for the particular combination of facts to be relevant to an issue arising at trial. Second, there is a need for the evidence to be sufficiently probative to outweigh any illegitimate prejudice to an accused arising out of the fact that, necessarily, the evidence will also demonstrate propensity.

[35] Evidence of an accused behaving in a disreputable manner has never been considered sufficiently probative to outweigh its illegitimate prejudicial effect. It is only when the additional dimension provides a sufficient link between the evidence sought to be adduced and the issue arising at the trial that the evidence will be admitted. Even then, the jury must be warned not to use the evidence as evidence of a bad disposition in order, more readily, to infer guilt: generally, see R v M at

320-322 and 324.

[36] In our view, it is preferable for a Judge, when considering an application to adduce similar fact evidence, to state expressly the combination of facts which links the evidence sufficiently to an issue at trial. In this particular case, although the learned District Court Judge did not put the question of relevance in this way, we are satisfied that the combination of:

a) the unusual sleeping arrangements which, not infrequently, followed drinking sessions in which Mr G’s partner indulged with Ms L and the complainant; and

b) the presence of Mr G’s partner in the small bed-sit at the time of the alleged conduct involving Ms L

made it more probable that Mr G would be prepared to take the risk of violating the complainant sexually while his wife was lying in the same double bed.

[37] In our view that combination of facts was properly admissible as tending to corroborate the version of events given by the complainant.

(ii) The Balancing Exercise Point

[38] In R v M this Court emphasised that there were two aspects to admission of similar fact evidence. The first involves the question of relevance: is there a sufficient link between the evidence sought to be adduced and an issue at trial to label the evidence relevant and sufficiently probative? Second, if that is the case, does the prejudicial effect of the evidence outweigh its probative value? See R v M at 320 and 322.

[39] The complaint made by Mr Lithgow is that the Judge treated the balancing exercise as a matter of discretion. Mr Lithgow submitted, rather, it should have been approached purely as a question of judgment.

[40] We agree with Mr Lithgow’s characterisation of the judgment to be formed under the second limb of the test for admitting similar fact evidence. But, we are not persuaded that anything turns on the point.

[41] The evidence was relevant, and therefore admissible, for the reasons which we have articulated. It is important to bear in mind that it is only when the probative weight of the evidence is comparatively small compared with the prejudice against an accused which it may excite in the minds of the jury that this ground of rejection can be invoked: cf R v During [1973] 1 NZLR 366 (CA) at 375.

[42] The evidence in question consisted of a single incident of some brevity. When weighed against the purposes for which the evidence was admitted, we are satisfied that its probative value outweighed its prejudicial effect. We are also satisfied that an adequate jury direction (which the Judge gave) on the topic of “similar fact” evidence could be relied on to remove any risk of the jury using the evidence in an inappropriate way.

(iii) The Summing Up Point

[43] In summing up to the jury, the learned District Court Judge endeavoured to follow the model direction set out in R v M at 324. The ground of complaint is that insufficient emphasis was given to the first inquiry stated in the model direction: namely, that the jury could only use the “similar fact” evidence if satisfied that it was truthful. The model direction goes on to suggest that the jury should be told that if they do not accept the evidence it should be put aside and given no further consideration: R v M at 324.

[44] While it may have been preferable for the Judge to direct the jury by emphasising that issue at the outset of her direction on this topic, we are not satisfied that the Judge erred in the way in which she summed up to the jury. The Judge did tell the jury that:

... if you accept the evidence given by [the complainant], then it would be open to you to conclude that her evidence about what happened to her is so related to the evidence that [the complainant] gave about what happened to her, that the evidence of [the complainant] provides support for [the complainant’s] evidence.

[45] In determining this issue we have borne in mind two further matters. First, counsel for Mr G in the District Court, for understandable reasons, elected not to cross-examine Ms L on the truth of the allegation which formed the basis of the similar fact evidence. No doubt that was done to minimise the impact of the evidence on the jury. Second, the thrust of the defence case, in closing, was that the Crown had failed to prove the elements of the charges beyond reasonable doubt. In those circumstances it was unnecessary for the Judge to emphasise to the jury, anymore than she did, that they must be satisfied that Ms L’s evidence on this topic was true.

(iv) Conclusion

[46] For the reasons we have given the appeal against conviction must fail.

The Sentence Appeal

[47] The issue on the sentence appeal is whether the learned District Court Judge took sufficient account of the brevity of the incidents in sentencing Mr G.

[48] This issue was considered by the learned District Court Judge in the context of a submission made by counsel for Mr G inviting the Court to depart from the normal starting point of 8 years imprisonment for an offence of sexual violation by rape after guilt has been established at a trial: see R v A [1994] 2 NZLR 129 (CA). The particular submission made by counsel for Mr G was that the Court should take into account the brevity of the sexual violations, the fact that there was immediate cessation once the complainant was aware of what was happening and told Mr G to stop. Reference was also made to the decision of this Court in R v Hill (Court of Appeal, CA94/02, 21 October 2002) at para [25].

[49] At paras [15] and [16] of her sentencing remarks the Judge said:

[15] In my view the relevant factors the Court must take into account in sentencing you are these. First, the seriousness of the offending, and that is obviously reflected in the fact that the charges of sexual violation carry a maximum penalty of 20 years imprisonment. It has to be taken into account, and reflected in the sentence, that there was offending on two separation occasions. On the first occasion it was an indecent assault, and on the second occasion the charges of sexual violation occurred. The next matter is that you were aware, after the first occasion, that the complainant did not agree to your touching her sexually. Furthermore, you took advantage of a woman who was both drunk and asleep, and therefore vulnerable.

[16] I take into account that offending was not prolonged and that you stopped when the complainant told you to. I also take into account that there was no violence other than that which is necessarily implicit in acts of sexual violation. The Court must also take into account the profound effects that this offending has had on the complainant. Apart from an apology at the time, there has been no expression of remorse for what you did to this young woman, nor any offer of amends. [our emphasis]

[50] Clearly, the Judge did, in fact, take account of the matters raised by counsel for Mr G. Ultimately, the sentences which the learned District Court Judge reflected her judgment that the primary sentencing goals, in this case, were to hold Mr G accountable for the harm which he had caused to the victim and to denounce his conduct: see s 7(1)(a) and (e) of the Sentencing Act 2002. Having

regard to the totality of the offending an effective sentence of 7½ years imprisonment was imposed.

[51] In R v A Cooke P, for the Court, emphasised that while an 8 year sentence should be regarded as the starting point in a contested rape case, in the end almost everything turns on the facts of the particular case with the consequent need for judicial responsibility in weighing the facts and imposing sentence. Furthermore, R v Hill does not, in our view, support the proposition that the brevity of an incident should be given particular weight. Indeed, at para [25], the Court said:

... Nor is the gravity of sexual offending greatly mitigated by its brevity, sudden cessation and immediate expression of regret.

[52] It is plain that the brevity of the offending was, in fact, taken into account by the sentencing Judge. The sentencing Judge also took account of all other relevant considerations.

[53] The sentences imposed fell well within the discretion available to the sentencing Judge. We can discern no error of principle. There are no factors which the Judge failed to take into account which she ought to have taken into account. Nor did the Judge take into account irrelevant matters. In short, there is no basis on which we can interfere with the sentence imposed. The appeal against sentence must also fail.

Result

[54] For the reasons which we have given, the appeals against both conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington