R v Spencer CA228/04 [2004] NZCA 370 (22 July 2004)

Last Updated: 25 April 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA228/04

THE QUEEN

v

JOHN PHILIP SPENCER

Hearing: 22 July 2004

Coram: McGrath J Goddard J Heath J

Appearances: P M Keegan for Appellant
B J Horsley for Crown Judgment: 22 July 2004

JUDGMENT OF THE COURT DELIVERED BY HEATH J

Introduction

[1] Mr Spencer stands indicted on six counts. In summary, they are:

1. Count 1: Breaking and entering a dwelling at New Plymouth on 26 April 2003 with intent to commit a crime therein.

R V JOHN PHILIP SPENCER CA CA228/04 [22 July 2004]

2. Count 2: Indecent assault, also on 26 April 2003, of a named male complainant through touching in the area of the groin.

100. Count 3: On or about 27 April 2003 breaking and entering a dwelling in New Plymouth with intent to commit a crime therein.

4. Count 4: Indecent assault of a second named male complainant on or about 27 April 2003 by attempting to touch his genitals.

5. Count 5: On or about 27 April 2003 stealing a pair of Valco board shorts.

6. Count 6: Between 1 February 2003 and 30 April 2003 stealing two pairs of boxer shorts.

[2] The trial is scheduled to commence in the District Court at New Plymouth on 28 July 2004.

[3] On 10 March 2004 Judge Bidois ruled admissible, on an application under s344A Crimes Act 1961 (the Act) evidence of the following facts:

1. On 13 August 2000 Mr Spencer assaulted a named male with intent to commit sexual violation.

2. At the same time he committed burglary.

100. Mr Spencer pleaded guilty to both offences.

4. The evidence of the nature of the offending.

[4] Mr Spencer seeks leave to appeal against Judge Bidois’s ruling. An allied question arises as to whether leave to appeal ought to be granted out of time. Having regard to the conclusion we have reached, we propose to address the merits of the application and leave to one side any question arising from the timing of the appeal.

The District Court Judge’s decision

[5] The approach taken by Judge Bidois was set out at paras [28] and [29] of his judgment as follows:

[28] It is agreed that, the Court is required to engage in a two step enquiry:

(i) Is the evidence sought to be adduced relevant?

(ii) If the evidence is relevant, does its probative value outweigh its prejudicial effect?

[29] In assessing the relative strength of probative value and prejudicial effect, it is accepted that there are five discrete enquiries for the Court:

(i) What is the probative value of the evidence to be adduced?

(ii) What is the prejudicial effect?

(iii) Is the prejudicial effect legitimate or illegitimate?

(iv) Can the residual (or illegitimate) prejudicial effect be cured by giving the jury a standard direction about the limits to which ‘similar fact’ evidence can be used?

(v) If not, does that residual prejudice outweigh the probative value?”

[6] The Judge, taking the view that identity was likely to be the live issue at trial, applied observations of this Court in R v Mokoraka [2001] NZCA 378; [2002] 1 NZLR 793. At para
[67] Judge Bidois said:

[67] ... Given the nature of the allegations and the fact the accused has offended in a similar way on a previous occasion significantly increases the likelihood that he was the person who entered the property and acted in the way complained of.

[7] Focusing on the similarities in evidence the Judge took the view that aspects of the alleged offending were “strikingly similar” to past proven conduct: in particular, entry onto a property at night, entry into a dwelling, the commission of sexually motivated behaviour on males and the wearing of a disguise.

[8] The Judge admitted the evidence as relevant to identity, holding any prejudice resulting was legitimate and could be dealt with by limiting the Crown to
leading essential facts relating to an armed entry onto the property, entry into the dwelling, commission of a serious sexual assault on a young male person and the circumstances of apprehension coupled with a firm direction as to how such evidence should be used. On that basis the Judge held that the evidence ought not to be excluded on the ground that the prejudicial value outweighed its probative value.

Competing submissions

[9] Mr Keegan, for Mr Spencer, informs us that Mr Spencer has abandoned any defence of identity, notwithstanding the fact that alleged alibi witnesses have been interviewed by the Police. Mr Keegan now has written instructions from Mr Spencer that his defence will proceed on the following premises:

1. In relation to the charges involving the first named complainant, that he was at the complainant’s home in New Plymouth on the night of 26 April 2003 and that any sexual activity with that named complainant was consensual.

2. In relation to the second named complainant, that he was present in the dwelling on 27 April 2003 but that no sexual activity of the type alleged took place.

[10] Mr Keegan submits that the change in focus of the defence justifies exclusion of the evidence. His submission rests on the proposition that there is diminished probative value in the evidence if consent is the defence to the first of the charges of indecent assault. Mr Keegan informs us that should the evidence be admitted, it will be done through an admission of facts made under s369 of the Act in accordance with the draft made available to us.

[11] Mr Horsley, for the Crown, submits that notwithstanding the change in position the evidence remains relevant. He referred us to another decision of this Court, R v G (CA403/02, 26 June 2003) at paras [36] and [37]. We also add a reference to the subsequent decision of this Court in R v Bull (CA313/03, 17 November 2003) at paras [9]-[11].

Decision

[12] For the purpose of this decision we assume that identity, commission of the alleged acts and consent will all be in issue at trial. Commission of the alleged acts will also include a reference to intent. Mr Spencer, having changed his position on presence, may yet do so again. Out of an abundance of caution the application needs to be dealt with on all three bases.

[13] In our view, the Judge was right to admit the evidence on the ground that it demonstrated that Mr Spencer had acted in a similar way in the past and that the pool of potential male offenders likely to commit sexual offences on males of the age of the complainants in the course of a home invasion of this type might justifiably be regarded by the jury as very small. In our view the Judge was entitled to take that view based on the principles enunciated in Mokoraka.

[14] While the Judge took the view that the evidence was relevant to identity, it is equally relevant to questions of intent to break and enter and consent (to the sexual activity) having regard to the circumstances in which the Crown alleges the offences to have been committed, and to the question whether activity of this type occurred at all, so far as the second named complainant is concerned.

[15] We agree with the Judge and with counsel for the Crown that admissibility of the evidence can be dealt with properly through directions from the Judge as to the issues on which it might be used and how it might be used.

[16] In our view the combination of circumstances alleged, namely

1. A night entrance into a dwelling,

2. Breaking and entering a dwelling,

100. The occurrence of similar sexual activity with males of a similar age, and

4. The wearing of a disguise

tend to corroborate the version of events given by the two complainants in this case. In our view any prejudice is capable of ready resolution through directions from the Judge. Accordingly, the evidence was properly admitted.

Result

[17] For those reasons, the application for leave to appeal against the pre-trial ruling is dismissed.

Solicitors:

Reeves Middleton Young, New Plymouth for Appellant Crown Law Office, Wellington