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CRUWYS v R [2005] NZCA 126 (26 May 2005)

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CRUWYS v R [2005] NZCA 126 (26 May 2005)

Last Updated: 1 June 2005

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA516/04

THE QUEEN

v

DAVID CRUWYS

Hearing: 26 May 2005

Court: Robertson, Williams and Salmon JJ

Appearances: S D Cassidy for Appellant
E M Thomas for Crown

Judgment: 26 May 2005

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

___________________________________________________________________

REASONS
(Given by Robertson J)

Introduction

[1] This is an appeal against conviction only on the confined ground that there was a miscarriage of justice because the trial Judge refused leave for the appellant’s counsel to cross-examine the complainant in relation to previous non-consensual encounters on an application made under s 23A of the Evidence Act 1908.
[2] Mr Cruwys faced trial on an indictment containing three counts. First, entering a building without authority and with intent to commit a crime in Papakura on 26 December 2003. Secondly, indecently assaulting a girl over the age of 16 years on that date. Thirdly, sexually violating the same person on that date by digital penetration of her genitalia.
[3] He pleaded guilty on arraignment to the charge of indecent assault which involved the touching of the complainant’s legs, breasts and stomach area. He was found not guilty by a jury on the burglary charge and guilty of the sexual violation charge.

Background

[4] The undisputed facts in the case were that the appellant, the complainant and her mother had been at a party. The complainant went home leaving her mother at the party. The appellant later left the party, walked next door, let himself in and walked into the complainant’s bedroom uninvited. He removed the sleeping young woman’s clothes and began fondling her breasts, stomach and pubic hair. The issue was whether, in the course of this, he had also digitally penetrated her.
[5] In the course of trial on 10 November 2004, an application was made for leave under s 23A of the Evidence Act 1908 to examine the complainant about previous sexual experience.
[6] In an oral judgment, Judge Sharp noted that the defence to the sexual violation charge was that there was no sexual connection at all. The application was made on the basis that the complainant was alleging this factor against the appellant because she had transferred a memory of digital penetration from a previous incident of sexual assault to the present incident.
[7] The evidential basis for this approach was a comment made by the complainant to a medical doctor indicating that she had been subject to three non-consensual sexual interludes prior to the matter which was before the Court. No detail was available as to what these involved.
[8] The appellant’s case before the jury conceded that there had been touching in the upper pubic area, and possibly on the outside of the genitals, but there had been no penetration. The argument was to be that the complainant had awoken in the night to find, what her counsel described as, "a man groping her and it had brought back memories of prior abuse." It was argued that, because there had been prior touching which might have involved penetration, she assumed the same was happening again.
[9] The prosecution at the time of the ruling, and the Crown before us, argued that this was merely a fishing expedition, that leave should have been denied and that there was nothing which would meet the stringent tests of the law.
[10] Section 23A provides:

(2) In any criminal proceeding in which a person is charged with a rape offence or is to be sentenced for a rape offence, no evidence shall be given, and no question shall be put to a witness, relating directly or indirectly to:

(a) The sexual experience of the complainant with any person other than the accused; or
(b) The reputation of the complainant in sexual matters, -

except by leave of the Judge.

(3) The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to -

(a) Facts in issue in the proceeding; or ... that to exclude it would be contrary to interests of justice.

Provided that any such evidence or question shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.

[11] The section’s meaning and application are clear. R v McClintock [1986] 2 CRNZ 158, R v Duncan [1992] 1 NZLR 528 and R v Willing (1997) 15 CRNZ 340.

Discussion

[12] Before us, Mr Cassidy contends that because the evidence indicated that the complainant had consumed a substantial amount of alcohol and that the appellant had removed her t-shirt, boxer shorts and underwear without waking her, that when she eventually awoke she was not really sure what was going on and that, in those circumstances, it was reasonably probable that she was mistaken.
[13] We are unable to see why the probative value of that scenario would be enhanced by an inquiry into other sexual encounters. There was no question that this woman was being sexually assaulted. What the jury had to decide was the extent of the interference. There was evidence available that she had initially complained of "rape" at a time when she was very distressed and the jury was able to properly and fully assess whether the appellant’s activities had extended beyond the indecent assault, which he admitted, to include penetrative behaviour.
[14] The proper inquiry in this case could have been carried out without deviating from the clear legislative policy enshrined in s 23A. For the jury, the issue was whether or not there had been penetration. The fact that this woman may have been penetrated in the past in unknown ways does not go to the substance of that inquiry.
[15] We are not satisfied that any miscarriage arose from the Judge’s refusal to grant leave.
[16] The appeal against conviction is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	This is an appeal against conviction only on the confined ground that there was a miscarriage of justice because the trial Judge refused leave for the appellant’s counsel to cross-examine the complainant in relation to previous non-consensual encounters on an application made under s 23A of the Evidence Act 1908.
[2]	Mr Cruwys faced trial on an indictment containing three counts. First, entering a building without authority and with intent to commit a crime in Papakura on 26 December 2003. Secondly, indecently assaulting a girl over the age of 16 years on that date. Thirdly, sexually violating the same person on that date by digital penetration of her genitalia.
[3]	He pleaded guilty on arraignment to the charge of indecent assault which involved the touching of the complainant’s legs, breasts and stomach area. He was found not guilty by a jury on the burglary charge and guilty of the sexual violation charge.

[4]	The undisputed facts in the case were that the appellant, the complainant and her mother had been at a party. The complainant went home leaving her mother at the party. The appellant later left the party, walked next door, let himself in and walked into the complainant’s bedroom uninvited. He removed the sleeping young woman’s clothes and began fondling her breasts, stomach and pubic hair. The issue was whether, in the course of this, he had also digitally penetrated her.
[5]	In the course of trial on 10 November 2004, an application was made for leave under s 23A of the Evidence Act 1908 to examine the complainant about previous sexual experience.
[6]	In an oral judgment, Judge Sharp noted that the defence to the sexual violation charge was that there was no sexual connection at all. The application was made on the basis that the complainant was alleging this factor against the appellant because she had transferred a memory of digital penetration from a previous incident of sexual assault to the present incident.
[7]	The evidential basis for this approach was a comment made by the complainant to a medical doctor indicating that she had been subject to three non-consensual sexual interludes prior to the matter which was before the Court. No detail was available as to what these involved.
[8]	The appellant’s case before the jury conceded that there had been touching in the upper pubic area, and possibly on the outside of the genitals, but there had been no penetration. The argument was to be that the complainant had awoken in the night to find, what her counsel described as, "a man groping her and it had brought back memories of prior abuse." It was argued that, because there had been prior touching which might have involved penetration, she assumed the same was happening again.
[9]	The prosecution at the time of the ruling, and the Crown before us, argued that this was merely a fishing expedition, that leave should have been denied and that there was nothing which would meet the stringent tests of the law.
[10]	Section 23A provides:

(a)	The sexual experience of the complainant with any person other than the accused; or
(b)	The reputation of the complainant in sexual matters, -

[12]	Before us, Mr Cassidy contends that because the evidence indicated that the complainant had consumed a substantial amount of alcohol and that the appellant had removed her t-shirt, boxer shorts and underwear without waking her, that when she eventually awoke she was not really sure what was going on and that, in those circumstances, it was reasonably probable that she was mistaken.
[13]	We are unable to see why the probative value of that scenario would be enhanced by an inquiry into other sexual encounters. There was no question that this woman was being sexually assaulted. What the jury had to decide was the extent of the interference. There was evidence available that she had initially complained of "rape" at a time when she was very distressed and the jury was able to properly and fully assess whether the appellant’s activities had extended beyond the indecent assault, which he admitted, to include penetrative behaviour.
[14]	The proper inquiry in this case could have been carried out without deviating from the clear legislative policy enshrined in s 23A. For the jury, the issue was whether or not there had been penetration. The fact that this woman may have been penetrated in the past in unknown ways does not go to the substance of that inquiry.
[15]	We are not satisfied that any miscarriage arose from the Judge’s refusal to grant leave.
[16]	The appeal against conviction is accordingly dismissed.