R v Shral CA208/06 [2006] NZCA 439 (14 August 2006)

Last Updated: 28 January 2014

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [28]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA208/06

THE QUEEN

v

TREVOR WAYNE SHRAL

Hearing: 7 August 2006

Court: Hammond, Rodney Hansen and Ronald Young JJ Counsel: R E Neave for Appellant

D J Boldt for Crown

Judgment: 14 August 2006 at 2.15 pm

_{JUDGMENT OF THE COURT}

1. The appeal is allowed. The rulings made in the District Court are quashed.

2. Order prohibiting publication of the judgment and any part of the proceedings (except the result as set out in [28]) in news media or on

R V SHRAL CA CA208/06 14 August 2006

Internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1] The appellant faces six counts of sexual violation and indecent assault in the

District Court at Timaru. They arise from complaints by two sisters, N and C, aged

14 and 11 respectively at the time of the alleged offending. In addition to their evidence, the Crown wishes to call the appellant’s stepdaughter (M) to give similar fact evidence of alleged offending against her as a 10-year-old in 1988-89. On application made under s 344A of the Crimes Act 1961, Judge BP Callaghan ruled that evidence could be called. The defence appeals against his decision.

Complaints

[2] N and C’s mother began a relationship with the appellant in 2001. He was a frequent visitor to the family home and lived there for a short period beginning in mid-2002. The elder complainant, N, alleges that she was sexually abused by the appellant on two occasions.

[3] The first incident occurred in November 2001 when N stayed the night at the appellant’s home. She claims that while the appellant was watching television with her, he made some suggestive comments. Later that night he came to the living room where she was sleeping on the couch in a sleeping bag. He unzipped the sleeping bag, pulled her underpants down and placed his hand between her buttocks. N says he then inserted his penis into her vagina from behind and moved back and forth about six times. He apologised before leaving the room.

[4] The second incident involving N is alleged to have occurred in July 2002 after the appellant had moved into the family home. N alleges that while she was playing a board game with him, he kissed her, putting his tongue in her mouth, and touched her breast outside her clothing. N disclosed this incident to her mother and a school counsellor. The appellant moved out of the home but continued to visit the complainants’ mother.

[5] The first incident involving C is alleged to have occurred in the first half of

2003 when the appellant was visiting the family home. C says that while her mother was in the kitchen and she was watching television with the appellant in the living room, he invited her to sit on his knee. He then put his hand inside her underpants and inserted his finger inside her vagina. She said he jumped up when her mother came into the room and told C not to tell anybody. The appellant faces alternative charges of sexual violation and indecent assault in respect of this incident.

[6] Sometime later C and her brother were staying at the home of the appellant. She says he insisted that she sleep in his bed. When she was half asleep the appellant pulled down her pyjamas and underpants. She says he made her kneel on the bed and “put his dick up my bum”. The appellant faces a charge of sexual violation by anal intercourse arising out of this incident, although there are indications from the deposition of C, which refers to subsequent pain urinating, that she may have misdescribed an act of rape.

[7] C told her sister, N, of this incident about a week after it happened and, on

N’s advice, C told her mother.

The disputed evidence

[8] The further evidence the Crown wishes to introduce as similar fact evidence concerns allegations made by the appellant’s stepdaughter, M. She is now aged 27. In December 1989 she made a statement to the police alleging she was sexually abused by the appellant over the preceding year. She said it began in October 1988 when she was ten. At the time the appellant and her mother were married and living together. She said the appellant came to her bed when her mother was asleep, kissed

her and touched her genitalia, before getting into bed and raping her. She noticed blood on her underpants the following day.

[9] M says she was raped repeatedly over the succeeding year, usually on a Sunday night after her mother had gone to work. Before raping her he usually kissed her and licked her vagina. She said the last such incident occurred on a Sunday in November when her mother was asleep. She disclosed the offending to her mother after seeking help from the Child Help Line.

[10] Following these disclosures the appellant faced two charges of sexual violation by rape and two of sexual violation by unlawful sexual connection. He was acquitted following a trial before a Judge and jury in 1990. We were not provided with details of the charges and were informed that the Court file relating to the trial has been misplaced.

[11] In the course of the hearing before Judge Callaghan, an issue arose as to the likelihood of collusion between M and the two complainants. For obvious reasons, the Crown did not wish to raise the issue with the complainants themselves but filed a memorandum recording a statement obtained from their mother in which she said she did not become aware of M’s allegations until after the initial complaint by N.

Judge’s decision

[12] The Judge considered first the admissibility of the evidence of each of the two complainants in relation to the charges involving the other. He decided that the evidence relating to the first incident involving N (the indecent assault and rape on the couch) and the second incident involving C (sexual violation by anal connection) showed a significant common pattern, the features of which he identified as:

• Both involved acts of penile penetration.

• Both incidents occurred at the appellant’s home in the absence of their mother.

• They both had the same relationship to him.

• Both were staying overnight.

• Both were approached after their bedtime.

• They were young girls of similar age.

• The appellant pulled down their clothing.

[13] The Judge said the evidence relating to the two incidents was mutually supportive and, in the absence of evidence of collusion, was strongly supportive of the complainants’ credibility.

[14] The Judge decided that the evidence of M was also admissible in relation to the same charges, that is those arising from the incidents which are alleged to have taken place at the appellant’s home. He identified a “significant common pattern” when comparing the evidence of M to that of the complainants. He pointed to the same common features, as set out at [12] above. He acknowledged differences between the allegations of M and the evidence of the complainants. He pointed out that the alleged offending against M occurred in the family home and not at the appellant’s house. He also referred to M being indecently touched and the oral connection which occurred before she was raped but saw this as showing a similar pattern by way of preparatory acts to the indecency which preceded the rape of N.

[15] The Judge considered the implications of the acquittal of the appellant on the charges involving M. He did not see that as a disqualifying factor. He said it would be for the jury to decide what to make of the acquittal. The Judge also said he did not think it would be “unduly unfair” to the appellant to admit the evidence. He said:

When I balance the matter I consider the probative value outweighs prejudice to the accused, and in addition any unfairness.

[16] The Judge decided that M’s evidence should not be admitted for the purpose of the remaining charges. He said there were insufficient similarities in both cases.

He referred to the fact that the two other incidents were said to have occurred in the family home with the complainant’s mother present. There was no penile connection. The Judge also said the absence of common characteristics counted against the evidence of each complainant being admissible in relation to the charge involving the other.

[17] The Judge then made the following rulings:

a) The evidence of N in respect of counts 1 and 2 of the indictment are relevant to and admissible in respect of the evidence relating to count 5 of the indictment involving C, and vice versa.

b) The evidence of M as to being raped by the appellant and oral sexual connection/indecent touching is relevant and admissible in respect of counts 1, 2 and 5 of the indictment but not otherwise

c) No similar fact evidence is admissible for the purposes of counts 3 and 4.

Discussion

[18] The principles governing the admission of similar fact evidence are well established and there is no issue taken with the Judge’s formulation of them. He cited the following passage from R v M [1999] 1 NZLR 315 at 320 (CA):

There can be circumstances where evidence of past conduct can strengthen an inference that the accused has repeated that conduct but there must be some significant additional feature which lifts the evidence above showing only bad character or disposition to offend generally. That will be where some special characteristic or pattern emerges from the evidence, or where there is some underlying unity between the separate events. In those circumstances evidence of the presence of the characteristic or pattern on separate occasions may increase the likelihood that they are linked.

[19] R v M also underlined that in cases such as the present a sufficient factual link between M’s evidence and the evidence of the complainants establishes its relevance to their credibility. The Court said at 322:

There must be a sufficient factual link between the similar fact evidence and the direct evidence of the crime in question. That link is necessary to make the similar fact evidence more probative than prejudicial. It is the strength of the link constituted by the points of similarity, whatever form they take, which is the crucial question. If the evidence is admitted, its probative force comes from that link. This is what makes the evidence relevant to the credibility of the complainant, if that is an issue. It is for the jury to determine whether, and if so to what extent, the suggested link assists the Crown case on the issue to which the link is said to be relevant.

[20] Although the appeal focused on the admissibility of the evidence of M, it is necessary to first say something about the Judge’s conclusions relating to the admissibility of each complainant’s evidence to support the charges concerning the other. We consider this issue should be left to the trial Judge and jury. The counts involving the two complainants are joined in the same indictment. There has been no application for severance which would have required a consideration of whether the evidence of one complainant might support the evidence of the other complainant. Pursuant to a direction in accordance with R v Sanders [2001] 1 NZLR

257 (CA), it will be for the jury to determine whether the similarities relied on warrant using the evidence of one complainant in relation to charges involving the other.

[21] In contrast, the Crown seeks to introduce M’s evidence solely for the purpose of supporting the evidence of the two complainants. It must necessarily be addressed before trial. It is not in issue that the evidence may be admitted, notwithstanding the appellant’s acquittal on the charges involving M. R v Degnan [2001] 1 NZLR 280 (CA) authoritatively determined that an acquittal will not “immunise” an accused against the same evidence when facing similar charges in the future, subject to considerations of fairness (at [33]).

[22] The issue is whether the probative value of M’s allegations against the appellant outweighs any illegitimate prejudicial effect. That requires a consideration not just of similarities in the alleged offending but also of the circumstances in which the offending took place and when.

[23] No issue is taken with the similarities in the offending relied on by the Judge

– penile penetration of girls of similar age to whom the appellant bore parental responsibilities when their mother was absent or asleep. Mr Neave pointed out that

these features are to be found in most cases of sexual abuse in a family setting. It does not follow, however, that the evidence could not have the requisite probative value. Repetition of the commonplace may be of high evidential value, particularly if they are found in incidents which are proximate in time and circumstance. A pattern of behaviour can readily be found. As Fisher J said in R v Tulisi (2001) 18

CRNZ 418 at [20](c):

If a mature accused is alleged to have had improper sexual activity with young girls of a similar age during a similar period and in similar locations, very little more, if any, might be needed before the probative value of a similar fact link would be held to outweigh its prejudice. Conduct of that kind is itself so distinctive, and the chances of its repetition so high, that it will already have substantial inherent probative value without more. Additional behaviour outside the ordinary is not required.

[24] That is not, however, the context in which the evidence falls to be compared in this case. The sexual activity did not take place during a similar period. M’s evidence relates to events which took place some 13-15 years before those which are in issue. Secondly, although there are the common features identified, the earlier offending was of a very different order from what is now complained of. It involved the repeated violation of M over a lengthy period, a very different pattern of conduct from the isolated incidents of which the complainants speak. The evidence could conceivably have had the requisite probative value if the conduct had occurred more recently and in the same setting. But the separation in time and circumstances reduces its probative value.

[25] On the other hand, there is a substantial risk of illegitimate prejudice if the evidence is introduced. As it involves by far the most serious of the allegations made against the appellant, there is a real risk that it would assume disproportionate importance at trial. M’s allegations would be likely to become the primary focus of the trial. If the jury accepted her evidence, convictions would be almost certain to follow.

[26] The potential for unfairness to the appellant is magnified by the historical nature of the evidence. Concerns that the appellant may be hampered in answering M’s evidence were confirmed by the disclosure that the Court file of the 1990 trial cannot, at the present time, be found. The appellant would be seriously

disadvantaged if, for example, he could not access the evidence given by M at the trial.

[27] These considerations take us to the clear view that the evidence of M should not be admitted at the trial.

Result

[28] The appeal is allowed. The rulings made by Judge Callaghan are quashed.

Solicitors:

Crown Law Office, Wellington