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The Queen v Baruzayne [2006] NZCA 311 (17 November 2006)

Last Updated: 28 November 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA280/06

THE QUEEN

v

PIERRE BARUZANYE

Hearing: 25 October 2006

Court: Robertson, John Hansen and Goddard JJ

Counsel: P H H Tomlinson for Appellant
M A Corlett for Crown

Judgment: 17 November 2006 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Goddard J)

Introduction

[1] The appellant was convicted on one charge of rape by a jury in the District Court at Auckland and sentenced to seven years’ imprisonment. He appeals against conviction on the single ground that a miscarriage of justice occurred because Judge Johns at trial declined to grant him leave under s 23A of the Evidence Act 1908 to cross-examine the complainant about a sexual encounter she had earlier the same evening.
[2] This had been with the appellant’s female flatmate and involved kissing and lovebites to the complainant’s neck. The complainant and the Crown accepted that bruises visible to the complainant’s neck had occurred during this sexual encounter but alleged that other bruises on her chest and stomach were later caused by the appellant when he raped her.

Background facts

[3] The complainant, who worked with the appellant’s flatmate, came to his house with the flatmate for an after-work function. The appellant and his partner went out during the evening and when they returned at 5.00am found the complainant asleep on the couch in the living room. She had apparently become unwell after consuming too much alcohol. After speaking with the complainant, the appellant and his partner gave her some Panadol and a drink of water and she went back to sleep. Later she awoke to find the appellant naked, pinning her down with one arm across her chest and forcing his penis into her vagina. He also sucked her on the chest area causing bruising. The complainant said she managed to push him off and he left the room, whereupon she immediately gathered up her clothes and car keys and left the house. When she got into her car she telephoned her employer and told her what had happened and then drove to her boyfriend’s place where she also told him what had happened. The Police were called and a complaint was made.
[4] During the course of her Police interview the complainant candidly described her earlier sexual encounter with the appellant’s female flatmate and said that the marks on her neck were the result of that and not the result of the rape by the appellant.
[5] The appellant initially denied having had any sexual contact with the complainant. Subsequently, DNA analysis confirmed that traces of semen taken from her vagina were four million million times more likely to have come from the appellant than from any other unrelated male selected at random from the population. At trial his defence became consent.

The application

[6] Leave was sought to cross-examine the complainant about her earlier sexual activity with the appellant’s female flatmate on the following grounds, as recorded by Judge Johns:

[15] Mr Tomlinson sought leave to cross-examine the complainant on the encounter with [the flatmate]. He advised the Court that the accused would give evidence and say that the encounter with the complainant was consensual and occurred not on the couch, as she claimed, but by the door to the toilet. His evidence would be that she instigated the sexual conduct and that he did suffer some sexual dysfunction, in that he had difficulty obtaining an erection and that he ejaculates very quickly if penetration is able to be gained.
[16] In relation to the marks on the complainant around her chest area, the accused denies that he was responsible for these, the inference being that they were caused as a result of the earlier sexual encounter.
[17] In support of the application, Mr Tomlinson submitted as follows:

(1) The love bites on the neck of the complainant are identical to the marks on the complainant’s chest. He submitted that it would be an amazing coincidence that they occurred as a result of two separate encounters, the first encounter with [the flatmate] and the second encounter with the accused. He would be submitting to the jury that, clearly, all the marks on her neck and chest were caused at the same time by the same person.
(2) That there was a reasonable possibility that intercourse with the accused was instigated by the complainant to reassert her heterosexuality after the homosexual encounter with [the flatmate].
(3) There is a reasonable possibility that she then cried "rape" because she had to explain the love bites to her boyfriend on her neck and chest.

[7] Judge Johns declined however to permit cross-examination of the complainant as to the nature of the encounter between her and the flatmate, on the grounds that any such reference was irrelevant to what took place some hours later between the appellant and the complainant. The Judge noted that the Crown would lead evidence from the complainant that the bruises or lovebites on her neck were not the result of the alleged rape and was prepared to permit cross-examination of the complainant to establish that the marks on her neck had come from a different encounter. However, having regard to the application of the s 23A principles in decisions such as R v McClintock [1986] 2 NZLR 99 (CA) and R v Uiti [1983] NZCA 38; [1983] NZLR 532, the Judge found cross-examination as to the identity of the person who gave the complainant the bruises was of no direct relevance to the facts in issue and thus did not satisfy the s 23A(3)(a) criterion.

The trial

[8] At trial Mr Tomlinson cross-examined the complainant to establish that when she got up on the morning of the rape and went to work she did not have any marks on her neck, and that she was not suggesting that the appellant had caused the lovebites on her neck. He asked:

On the Saturday morning when you got up, what I would call love bites in photograph one and photograph two, this is Saturday the 20^th, weren’t there were they?...No.
And you are not suggesting that Pierre caused the love bites on your neck are you?...No.

[9] The jury were thus aware that the complainant had had a sexual encounter that same day with someone other than the accused. Mr Tomlinson was then able to put it to her that she had fabricated the allegation of rape to explain the bruises to her boyfriend. This he did in the following manner:

These lovebites on your chest, I’m suggesting to you that they happened at an earlier time, difficult to explain to your boyfriend wouldn’t that be?....Yeah.

[10] Mr Tomlinson’s subsequent cross-examination of the complainant’s boyfriend also served to establish that she had not been with him the night prior to the alleged rape and that he was not responsible for any of the marks on her body.
[11] Although Mr Tomlinson did not put it squarely to the complainant that she had falsely accused the appellant of rape, it is clear from the following passage of Judge Johns’s summing up that this was the basis upon which the defence was put to the jury in closing:

She, of course, he said, had to explain the fact that she’s got these lovebites on her neck and her chest to what he described as her somewhat unsympathetic boyfriend, and they may well have prompted her to describe what happened as rape.

Section 23A of the Evidence Act

[12] Section 23A provides:

23A Evidence of complainant in cases involving sexual violation

...

(2) In any [case of a sexual nature], 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
(b) The issue of the appropriate sentence,--
as the case may require, that to exclude it would be contrary to the 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.

[13] In McClintock this Court said about s 23A:

It is implicit in the section that a question or evidence is not to be permitted merely because it is in some way relevant. At a trial it must have such direct relevance to facts at issue that to exclude it would contrary to justice. That is a strong test.

Discussion

[14] The first limb of the "proper and plausible defence" about which Mr Tomlinson submitted cross-examination of the complainant about her earlier encounter with the flatmate was relevant, was the defence’ theory that the complainant may have subsequently engaged in (or indeed initiated) consensual sexual intercourse with the appellant for the purpose of reasserting her heterosexuality. However, such a theory is entirely speculative in the absence of any evidence of an expert or factual nature to support it. Certainly such a theory could have no foundation in the complainant’s evidence, in light of her strenuous denial that sexual intercourse with the appellant was consensual. It is inevitable that cross-examination on the issue would have resulted in an emphatic denial that she had engaged in consensual sexual activity with him in order to reassert her heterosexuality.
[15] Judge Johns was right to decline the application as not being relevant to whether the sexual intercourse prima facie established by DNA analysis was consensual or not.
[16] The second limb of the defence case, that the complainant fabricated her allegation of rape to explain the lovebites on her neck to her boyfriend, was able to be explored at trial, as Mr Tomlinson did. The jury was well aware that the complainant had had a sexual encounter with someone other than her boyfriend prior to the rape and therefore the ruling enabled the second limb of the defence to be advanced within the appropriate boundaries. However, the identification of the person who gave the complainant the lovebites, or the nature of that encounter, was not directly relevant to the issue of fabrication and was rightly excluded.
[17] As this Court said in McClintock above, the test provided by s 23A is a "strong one" so that any question or evidence relating to the sexual experience of the complainant with a person other than the accused "must have such direct relevance to facts and issues that to exclude it would be contrary to justice". The present case does not meet that stringent test.

Conclusion

[18] The appeal is dismissed.

Solicitors:
P H Tomlinson, Auckland, for Appellant
Crown Law Office, Wellington

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[3]	The complainant, who worked with the appellant’s flatmate, came to his house with the flatmate for an after-work function. The appellant and his partner went out during the evening and when they returned at 5.00am found the complainant asleep on the couch in the living room. She had apparently become unwell after consuming too much alcohol. After speaking with the complainant, the appellant and his partner gave her some Panadol and a drink of water and she went back to sleep. Later she awoke to find the appellant naked, pinning her down with one arm across her chest and forcing his penis into her vagina. He also sucked her on the chest area causing bruising. The complainant said she managed to push him off and he left the room, whereupon she immediately gathered up her clothes and car keys and left the house. When she got into her car she telephoned her employer and told her what had happened and then drove to her boyfriend’s place where she also told him what had happened. The Police were called and a complaint was made.
[4]	During the course of her Police interview the complainant candidly described her earlier sexual encounter with the appellant’s female flatmate and said that the marks on her neck were the result of that and not the result of the rape by the appellant.
[5]	The appellant initially denied having had any sexual contact with the complainant. Subsequently, DNA analysis confirmed that traces of semen taken from her vagina were four million million times more likely to have come from the appellant than from any other unrelated male selected at random from the population. At trial his defence became consent.

[10]	Mr Tomlinson’s subsequent cross-examination of the complainant’s boyfriend also served to establish that she had not been with him the night prior to the alleged rape and that he was not responsible for any of the marks on her body.
[11]	Although Mr Tomlinson did not put it squarely to the complainant that she had falsely accused the appellant of rape, it is clear from the following passage of Judge Johns’s summing up that this was the basis upon which the defence was put to the jury in closing:

[14]	The first limb of the "proper and plausible defence" about which Mr Tomlinson submitted cross-examination of the complainant about her earlier encounter with the flatmate was relevant, was the defence’ theory that the complainant may have subsequently engaged in (or indeed initiated) consensual sexual intercourse with the appellant for the purpose of reasserting her heterosexuality. However, such a theory is entirely speculative in the absence of any evidence of an expert or factual nature to support it. Certainly such a theory could have no foundation in the complainant’s evidence, in light of her strenuous denial that sexual intercourse with the appellant was consensual. It is inevitable that cross-examination on the issue would have resulted in an emphatic denial that she had engaged in consensual sexual activity with him in order to reassert her heterosexuality.
[15]	Judge Johns was right to decline the application as not being relevant to whether the sexual intercourse prima facie established by DNA analysis was consensual or not.
[16]	The second limb of the defence case, that the complainant fabricated her allegation of rape to explain the lovebites on her neck to her boyfriend, was able to be explored at trial, as Mr Tomlinson did. The jury was well aware that the complainant had had a sexual encounter with someone other than her boyfriend prior to the rape and therefore the ruling enabled the second limb of the defence to be advanced within the appropriate boundaries. However, the identification of the person who gave the complainant the lovebites, or the nature of that encounter, was not directly relevant to the issue of fabrication and was rightly excluded.
[17]	As this Court said in McClintock above, the test provided by s 23A is a "strong one" so that any question or evidence relating to the sexual experience of the complainant with a person other than the accused "must have such direct relevance to facts and issues that to exclude it would be contrary to justice". The present case does not meet that stringent test.