R v Bourke CA207/06 [2006] NZCA 440 (15 August 2006)

Last Updated: 28 January 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST

_PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA207/06

THE QUEEN

v

JAMES DANIEL BOURKE

Hearing: 18 July 2006

Court: Glazebrook, Chisholm and Wild JJ Counsel: W J Scotter and J A Cowles for Appellant

K J Beaton and J K Verbiesen for Respondent

Judgment: 15 August 2006 at 11am

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted.

B The appeal is allowed to the extent described in [50] hereof.

C Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on internet or other publicly accessible database until final disposition of trial. Publication in

_{law report or law digest permitted.}

R V BOURKE CA CA207/06 15 August 2006

REASONS OF THE COURT

_{(Given by Chisholm J)}

Introduction

[1] The accused, who faces a charge of rape, sought pre-trial leave pursuant to s 23A of the Evidence Act 1908 to cross-examine the complainant about her previous sexual conduct and to adduce evidence on that topic. The circumstances giving rise to the charge are highly unusual and Judge Maze granted leave within defined limits. Leave is sought by the Solicitor-General to appeal to this Court against that ruling.

[2] At the commencement of the hearing in this Court counsel for the Solicitor-General made an oral application to expand the scope of the appeal. Leave to appeal out of time was required. Mr Scotter helpfully indicated that the accused did not oppose the granting of such leave and leave was granted accordingly.

Background

[3] When she made her ruling Judge Maze had before her the evidence presented at the preliminary hearing, an affidavit sworn by the accused on 17 May 2006 and a copy of the statement made by a Mr F to the police on 1 November 2005 (a brief of evidence by Mr F had been presented at the preliminary hearing). No additional evidence was adduced during the pre-trial hearing and the accused was not cross- examined on his affidavit.

[4] On the night of 17/18 September 2005 a party was held at a flat occupied by the complainant and her flatmates. Mr F, a person with whom the complainant had previously been in a brief relationship, attended the party and gave evidence at the preliminary hearing that he went into the complainant’s bedroom at approximately

11.30pm and had sexual intercourse with her. Although the complainant wanted him to stay he decided to go into town with other people who had been attending the

party. But the complainant told him that he was welcome to come back to her room after he had been into town. He indicated, however, that he would not be returning.

[5] The complainant’s evidence was that she became intoxicated during the evening. She confirmed that Mr F spent time with her in her bedroom and although she did not specifically refer to sexual intercourse having taken place, her statement to the police confirms that she had sex with Mr F after they went into the bedroom. The complainant said in her evidence that when Mr F indicated that he was going into town she invited him to come back after the town visit but she did not really expect him to do so because of his indication that he would probably not be returning. For reasons that will be explained later, leave to cross-examine the complainant and Mr F about their sexual activity in the bedroom was not opposed by the Crown. After Mr F left the complainant spoke with some other people in the lounge for a short time before going to bed at approximately 1am. She said that she went to sleep quite quickly.

[6] At approximately 4.30am the complainant was woken by someone on her bed. Her evidence was that it was very dark, she was half asleep and she still felt drunk. She assumed that it was Mr F and she sat up to meet him following which they started kissing and ultimately engaged in sexual intercourse without any words being spoken. After about five minutes they changed positions. She got on top but stopped after a couple of minutes because she was tired and drunk. When the other person said he did not want her to stop she did not detect from his voice that it was not Mr F. He got back on top of her and after about five minutes he asked “Can I come inside you?” to which she responded “Yeah” following which the person she was with ejaculated.

[7] The complainant said that within a short time they resumed sexual activity and after about a minute she said “Let’s not tell anyone about this, I don’t want [A] to find out”. She explained that A is a friend of Mr F’s. After the person responded “Who is [A]?” she realised for the first time that she was not talking to Mr F and began to freak out. She asked the person who he was, and then whether he was Mr M (who she thought would have been the only other male in the house at the time). After he replied “No”, she asked if he was Mr R (who had been at the party

earlier in the evening) to which the person responded “No, it’s Jamie”. When she turned on the light she saw a person she had never seen before and ordered him out of her room. As he was leaving he told her that she was “a player” as if it was some kind of joke.

[8] An affidavit sworn by the accused on 17 May 2006 in support of his s 23A

application outlines his version of the events during the early hours of 18 September

2005. The accused deposed that he met up in town with Mr M, one of the complainant’s flatmates, and walked with him because Mr M’s flat was on the way to his own flat. Because it was raining they decided that he would “crash” at Mr M’s flat for the night rather than walking the extra distance in the rain to his own flat.

[9] Although the accused had never met the complainant he had heard various friends of his talking about her on several occasions and he knew that she had become a flatmate of Mr M. The accused had heard the complainant described as being “incredibly ‘easy’” and someone who loved having sex and “couldn’t get enough”. He had also been told that she would have sex with anyone at any time and that she could always be relied on to make the first move. As they were walking the accused and Mr M joked about the complainant’s sexual reputation and the accused told Mr M that he might “try [his] luck” with her. The accused described this as “drunken talk” and deposed that he did not seriously believe there was the remotest chance he would actually end up having sex with the complainant.

[10] When they arrived at the complainant’s flat the accused asked Mr M to indicate the complainant’s room and when Mr M showed him, he knocked on the door, opened it, switched on the light and went into her room. He maintains that at this stage he was still “winding up” Mr M and expected to be told by the complainant to get out of the room, assuming that she was actually in the room. When he entered the room he saw a person in a large bed covered by a duvet.

[11] The accused asked the person in the bed if he could sleep in her room. When the person said “Yeah” or “Yes” he turned off the light, took off his clothes (which were wet) and climbed into the bed. Contrary to the complainant’s version of events the accused maintains that they did not start kissing at that stage. He said that he

simply lay on the mattress on the far side of the bed. But after he asked if he could have some blankets and the complainant had thrown a duvet over him, she cuddled up face to face with him, started hugging and kissing him and in next to no time they were having intercourse. He deposed that if anyone was taking the initiative more than the other it was the complainant and that “almost from the moment I first penetrated her, [the complainant] started making moaning, “orgasmic” noises, almost screams, which were really loud”. In broad terms the accused’s description of events from that time is consistent with the complainant’s account.

[12] Mr M’s brief of evidence at the preliminary hearing confirms that there was some conversation between the accused and himself about the complainant as they were walking to the flat, although no details were given. He said that after he and the accused arrived at his flat he pointed out the complainant’s bedroom and expected him to be kicked out straight away. Instead he heard “orgasmic screams” only a couple of minutes after the accused went into the complainant’s bedroom and noises of people having sexual intercourse came from the bedroom for approximately half an hour. Another witness confirmed that she heard noises consistent with sexual intercourse a short time after she learned from Mr M that the accused had gone into the complainant’s bedroom.

[13] It also needs to be added that in his statement to the police Mr F had mentioned a matter that was not traversed in his brief of evidence at the preliminary hearing. He said that the complainant was drunk and “very friendly”, and that she became more drunk and friendlier towards him as the night went on. It became apparent to him that she wanted to get together with him and he tried to avoid her. At about 10.30pm he went around the side of the house to go to the toilet. The complainant followed him, made advances, took his pants off and attempted to give him oral sex. Leave to cross-examine the complainant and Mr F about these events was also sought.

[14] Apart from applications for leave to cross-examine that have already been mentioned, the accused sought leave to cross-examine the complainant and Mr F as to their sexual experiences together prior to 17 September 2005. Leave was also sought to cross-examine the complainant about her sexual experiences with a

Mr R and to cross-examine all Crown witnesses and adduce evidence from the accused and any witnesses called by him as to the reputation of the complainant in sexual matters generally.

District Court Ruling

[15] As already mentioned, the Crown supported the application to cross-examine the complainant and Mr F about having sexual intercourse at around 11.30pm on

17 September. This was because it provided an explanation for the complainant’s apparent consent to sexual activity with the accused. However, in all other respects the Crown strongly opposed the accused’s applications.

[16] Judge Maze decided that it was necessary for the jury to hear about the sexual conduct between the complainant and Mr F during the entire evening of

17 September 2005 because she considered it to be part of the res gestae. The Judge noted that the accused’s case was based on consent or, at the very least, the accused’s belief on reasonable grounds that she consented. As the Judge saw it, if the jury only heard about a limited part of the encounters between the complainant and Mr F on 17 September they would be deprived of the opportunity to weigh that evidence and assess its importance with reference to the competing allegations of the Crown and the accused.

[17] Alternatively, Judge Maze considered that evidence about the sexual activity between the complainant and Mr F during the entire evening was of such direct relevance to facts in issue, namely, to the absence of consent by the complainant and absence of belief on reasonable grounds that the complainant consented, that to exclude it would be contrary to the interests of justice. In particular, the Judge considered that it would deprive the accused of an opportunity to corroborate his version of events and to support his denial of any wrongdoing.

[18] For the same reasons the Judge concluded that the accused should be entitled to cross-examine the complainant in a limited way about her earlier sexual relationship with Mr F. The Judge noted that the complainant asserted that she had no idea the accused was not Mr F until some time after they had commenced sexual intercourse. She reasoned that under those circumstances it would be positively

misleading for the jury to hear only about the sexual intercourse between the complainant and Mr F on 17 September 2005. The Judge considered that evidence of the earlier sexual relationship would be important to the jury’s assessment of the complainant’s claim that she was mistaken as to the identity of her sexual partner during the early hours of the 18 September 2005.

[19] Leave to cross-examine about the earlier relationship between the complainant and Mr F was, however, confined to questions about the duration and type of their earlier relationship and the number of times, if any, they had previously engaged in sexual intercourse. Because specific questions had not been provided the Judge reserved leave to revisit the matter should the need arise.

[20] The application to cross-examine the complainant about her previous relationship with Mr R was rejected by Judge Maze. Thus that aspect is not before this Court.

[21] Finally, the Judge considered the accused’s application to cross-examine and adduce evidence about the complainant’s sexual reputation generally. Having noted that the calling of such evidence merely for the purpose of supporting a sexual propensity was prohibited by s 23A, the Judge observed that the most significant issues in this case would be those of consent and belief on reasonable grounds that the complainant had consented. She continued:

The accused’s belief in consent, and any reasonable basis for it, are therefore facts directly in issue. The complainant’s reputation in sexual matters, as understood by the accused, and her reputation on such matters in fact, are therefore both directly relevant to whether the accused had reasonable grounds for believing her actions indicated genuine consent to his advances. Putting the point in the negative, to refuse to permit the jury to know of the complainant’s reputation, when it must be a matter to which the accused must refer for his reasons in thinking he had genuine consent, would deprive them of an opportunity to fairly assess the accused’s claim he believed on reasonable grounds she did consent to his advances.

Leave to question any witness about the reputation of the complainant and sexual matters generally was granted on the basis that the questioning would not extend to particular events.

[22] In summary, the Judge’s rulings were, in her own words:

(i) leave is granted to permit cross-examination of the complainant and Mr. [F] about sexual activity between them at any time during 17 and 18 September 2005;

(ii) leave is granted to permit cross-examination of the complainant and Mr. [F] in limited terms as noted above as to previous sexual relations together;

(iii) leave is declined for asking any witness any questions about any previous sexual relationship between Mr. [R] and the complainant;

(iv) leave is granted to permit limited cross-examination and to call limited evidence of the complainant’s general reputation in sexual matters.

A caveat was added by the Judge to the effect that the granting of leave would not preclude any particular question being disallowed on the basis that they were outside those rulings.

This Appeal

[23] Leave is sought by the Solicitor-General to appeal against ruling (i) to the extent that it authorises cross-examination about events prior to the sexual intercourse between the complainant and Mr F in her bedroom at around 11.30pm on

17 September 2005. The Solicitor-General also seeks leave to appeal against rulings

(ii) and (iv).

[24] Mr Scotter did not oppose the appeal in relation to ruling (ii) and that component of the appeal is allowed accordingly. Thus for present purposes the focus is on ruling (i) to the limited extent mentioned above and on ruling (iv).

Discussion

[25] Under this heading we will address four matters: s 23A of the Evidence Act;

ruling (i); ruling (iv); and directions to the jury.

Section 23A of the Evidence Act

[26] To the extent that it is relevant to his appeal s 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.

...

Before a Judge can be asked to grant an application under this section material setting out the time, place and circumstance upon which the proposed cross- examination is to be based should be placed before the Judge so that the relevance and importance of the questions to be put can be determined in light of that material: R v Uiti [1983] NZCA 38; [1983] NZLR 532 at 535 (CA).

[27] The philosophy behind s 23A has been discussed by this Court on a number of occasions. In R v M (2000) 18 CRNZ 368 it was explained:

[26] Section 23A is intended to prevent the harassment and embarrassment of complainants (of both sexes) by their being asked about their sexual experience with persons other than the accused. It prevents a defendant from bringing before the jury events unrelated to an incident complained of and using them to attack the character of the complainant by portraying her as a person of loose morals who was therefore likely to have consented to sexual activity with the accused, contrary to the complaint. Such a line of questioning, relating to the element of consent, is seen as demeaning of the complainant and unfair. It also demeans the legal process by lowering it in the eyes of the public; the woman, rather than the accused, is seen as being on trial.

We keep these observations in mind when considering whether leave should have been granted in this case.

[28] In broad terms it is contended by the Crown that the Judge erred in two respects: first, she effectively ruled that a suggestion of “easy virtue” is a permissible foundation for leave to be granted under s 23A; second, at the pre-trial hearing there was no evidence before the Judge to establish any foundation for her rulings.

Ruling (i)

[29] According to counsel for the Solicitor-General the Judge erred in law when she considered that evidence of the earlier oral sex encounter between the complainant and Mr F was part of the res gestae or alternatively was of such direct relevance to the issue of consent or belief in consent that the s 23A test was met. In support of that contention counsel submitted: the earlier incident between the complainant and Mr F was not connected in any way to the events involving the accused; the accused was unaware of it when he entered the complainant’s bedroom and it could not therefore form any part of his belief in consent; there is no suggestion of any oral sex between the complainant and accused; and the evidence the accused seeks to place before the jury is nothing more than evidence of the complainant’s general propensity or disposition in relation to sexual matters.

[30] Those propositions are rejected by counsel for the accused. Mr Scotter emphasised that this case is unique because there was a genuine mistake as to identity by the complainant and the accused did not realise that she was mistaken because of what he had been earlier told about her. He noted that the accused would be giving evidence at trial and that focus on the accused’s state of mind was inevitable. Thus the oral sex incident earlier in the evening was important to the accused’s defence because it supported his contention that the complainant had initiated the sexual contact between them. The earlier incident also represented part of a “course of conduct” by the complainant which corroborated the accused’s version of events. Unless that evidence was available to the jury they might be suspicious about the accused’s evidence. Mr Scotter submitted that to deny the

accused the right to explore this issue, which is part of the res gestae, would be to deny the accused’s absolute right to a fair hearing.

[31] Evidence about the sexual encounter between the complainant and Mr F in the complainant’s bedroom at around 11.30pm will, of course, be before the jury. It might be anticipated that this evidence, particularly the possibility of Mr F returning to the bedroom after he had been into town and the complainant giving every manifestation of consent, is likely to support the defence case. Given the availability of that evidence we are unable to accept that evidence about the earlier oral sex incident can be said to have such direct relevance to a fact in issue that to exclude it would be contrary to the interests of justice in terms of s 23A(3).

[32] In our view the earlier oral sex incident does not form an essential part of the narrative surrounding the 11.30 encounter. The 11.30 encounter is perfectly comprehensible without any reference to the earlier incident. To the extent that it might be necessary to determine whether the earlier incident forms part of the res gestae (and we refrain from deciding that point), it could not qualify as such. Moreover, apart from the fact that the earlier incident was unknown to the accused, it was of a different kind and was separated from the alleged offending by several hours. Added to that the 11.30 encounter, which has a much more direct bearing on the alleged offending, intervened.

[33] Overall we believe the earlier oral sex episode is in a similar category to the sexual activities referred to in ruling (ii) which the accused accepted in this Court could not satisfy the s 23A test. It follows that notwithstanding the very unusual features of this case, cross-examination of the complainant and Mr F should not be permitted in relation to their sexual activities prior to the 11.30 encounter in the bedroom. We should make it clear, however, that this ruling is not intended to prevent evidence being adduced that the complainant pursued Mr F at the party, that Mr F was initially reluctant to be involved with the complainant, and that it was the complainant’s initiatives that led to the 11.30 encounter.

Ruling (iv)

[34] Apart from authorising limited cross-examination, this ruling effectively allows evidence about the complainant’s sexual reputation to be adduced from two sources, namely, from the accused and from other people.

[35] In terms of evidence from the accused the Solicitor-General’s position is that the accused has not provided any detail as to the time, place and circumstances of the proposed evidence. The accused has not indicated where he heard the information about the complainant’s reputation, from whom he heard it, or the particular circumstances upon which the information is based. And there is no evidence to suggest that the accused knew of any similar encounter involving the complainant where she had willingly participated in intercourse with a man unknown to her who had entered her bed at night without invitation.

[36] Apart from relying on the absence of any evidential foundation the Solicitor-General maintains that evidence about the complainant’s sexual reputation is not of such direct relevance to the issue of belief and consent that to exclude it would be contrary to the interests of justice; that it is not enough for the accused to simply suggest that he had heard the complainant had previously willingly engaged in sex with others and that he was therefore entitled to rely on that reputation to support his belief that she was consenting; in substance the evidence the accused is seeking to adduce is evidence of a general and unsubstantiated sexual reputation raising an inference as to the complainant’s propensity to engage in casual sex; and comparison with other decisions illustrates that the necessary degree of direct relevance does not exist in this case.

[37] With reference to evidence from other people about the complainant’s general sexual reputation it was again emphasised by Ms Beaton that no statements or briefs of evidence were available to the Judge. She also claimed that evidence as to the complainant’s general sexual reputation known by others cannot meet the s 23A test and that to the extent that the Judge excluded questions about events which may supply the basis for such reputation, a misdirection as to the test of “direct relevance” used in the section is apparent. Concern was expressed that the

ruling effectively opens the door to a “fishing expedition” by the accused for the sole purpose of establishing the complainant was a person of loose morals.

[38] On behalf of the accused Mr Scotter’s response was that the Judge’s ruling reflects the unusual, possibly unique, circumstances of this case and foreshadows a fair but firm and principled control of the evidence at trial. He explained that the accused does not contend that he thought the complainant was consenting because of her sexual reputation. Rather, the accused is seeking to elicit evidence that will corroborate his explanation that it did not occur to him for one moment that when she apparently participated enthusiastically in sexual intercourse, the complainant might be thinking he was someone else because she was behaving in exactly the way that he had been told she behaved with men. Thus, the accused believes the evidence is fundamental to the defence case and its exclusion would be contrary to the interests of justice because the accused would not receive a fair trial.

[39] In resolving these issues we begin with the evidence the accused seeks to give about the complainant’s sexual reputation, as he understood it to be. Speaking in general terms his alleged understanding was that the complainant would have sex with anyone at any time and that she could be relied on to make the first move. To the extent that he seeks to rely on that belief to explain why he had no inkling that the complainant thought he was someone else, this evidence is clearly directly relevant to a fact in issue in the proceeding. The issue is, however, whether its exclusion would be contrary to the interests of justice.

[40] We have reached the conclusion that in the highly unusual circumstances of this case exclusion of the evidence under consideration would indeed be contrary to the interests of justice. Although the accused was not known to the complainant, her evidence indicates that she willingly participated in sexual activity with the accused, albeit in the mistaken belief that he was Mr F. It is obvious that the jury will have to decide whether they are satisfied that the Crown has excluded that the accused reasonably believed that the complainant was consenting to sex with him. Apart from relying on the complainant’s reaction to his presence in her bed, the accused’s explanation is inextricably linked to his understanding of her reputation which, he claims, explained her reactions in his mind. It follows that if the accused was unable

to refer to the complainant’s reputation he would be severely handicapped in his ability to place his defence before the jury.

[41] It is important to emphasise that our conclusion reflects the very unusual circumstances of this case. We have taken into account the proximity of the discussion about the complainant’s reputation to the alleged offending, that the complainant’s flatmate could reasonably be considered a reliable source, that the complainant gave every manifestation of enthusiastic (if sleepy) participation (which would not be unnatural if she thought it was Mr F returning at her invitation) and that the evidence might explain why the accused went into her room in the first place. We consider that Judge Maze’s reasons, as outlined at [21], were expressed too widely.

[42] Within this narrow context the truth or otherwise of the complainant’s reputation on sexual matters is beside the point. Rather than focussing on the truth of the complainant’s reputation, the accused’s explanation turns on his belief coupled with the complainant’s reaction. From his perspective it was the fact that he had heard about the complainant’s reputation that was important, not its truth. And the complainant’s reaction is explicable by virtue of the 11.30 encounter with Mr F coupled with her invitation to Mr F to return to her bedroom after he had been in town.

[43] We are conscious, of course, that the accused’s affidavit provides little information about the source of his belief. All that he indicates is that on several occasions prior to the alleged offending he had heard various friends talking about the complainant and that he had talked about her with Mr M as they were walking to the flat. If the purpose of placing the evidence before the jury was to show that the reputation was true, the absence of information about the source of the allegation would almost certainly have been fatal to the application. However, we accept that there is some corroboration from Mr M, albeit relatively cryptic, about a discussion having taken place with the accused while they were walking home. Nevertheless, while this evidence reduces the risk that the accused is simply concocting an explanation, we do not think that it goes far enough to enable a final ruling to be made at this stage. Consequently the conclusion that we are about to reach is

provisional upon further evidence being provided to the satisfaction of the trial

Judge.

[44] Subject to the provision of such evidence, we accept that Judge Maze was right to permit the accused to give evidence about his belief as to the complainant’s reputation and for Mr M to be cross-examined on that topic. We emphasise, however, that this is for the very narrow purpose of providing a context for the jury to consider the accused’s decision to go into the complainant’s bedroom and the issue of mistaken identity. It follows, of course, that the evidence will have to be confined to matters actually communicated to the accused. Beyond that, and for reasons that we will give shortly, the complainant’s reputation in relation to sexual matters is entirely irrelevant.

[45] On the information currently available we do not see why the evidence needs to go beyond what the accused and Mr M talked about on their way home plus such references to earlier conversations as are absolutely necessary in order to explain the context. However, before the trial Judge can finally determine whether there is a sufficient foundation for the evidence to go before the jury and, if so, the precise scope of that evidence, it will be necessary for a brief to be supplied covering the evidence that Mr M will give about his conversation with the accused as they were walking home (and any earlier conversations with the accused that are necessary to explain that conversation).

[46] In reaching these conclusions we have not overlooked the various decisions of this Court cited by the Crown in which the s 23A threshold was not met, for example, R v McClintock [1986] 2 NZLR 99, R v Daniels [1986] 2 NZLR

106, and R v Padlie & Ors CA209/95 28 November 1995. As was observed in R v McClintock at 103, this subject does not lend itself to hard and fast rules and Parliament has left it to the Courts to work out practical solutions within the general framework which display full sensitivity to the philosophy of the statute. In our view none of the cases that have been cited to us comes even close to the highly unusual circumstances of this case.

[47] Now we turn to the possibility of evidence from others about the complainant’s sexual reputation generally. This is an entirely different proposition. As we see it, the purpose of this evidence would be to support an allegation that the complainant’s reputation was true. There are two fundamental problems with that proposition.

[48] First, the absence of any statements or briefs, or indeed any other information to support the allegation, is fatal to the accused’s application. Unlike the evidence that the accused will be permitted to give in support of his explanation, the evidence from other people would seem to be aimed directly at the truth of the alleged reputation. Without any information at all to indicate the veracity or otherwise of the information, there is no prospect of the application getting off the ground because the Court could not even begin to consider whether the alleged reputation was in any way based on fact. And without that information it would be impossible to assess whether exclusion of the information would be contrary to the interests of justice.

[49] Second, and equally importantly, even if statements or briefs had been available we cannot see how the s 23A threshold could have been met. Beyond the narrow context discussed earlier, the complainant’s reputation in sexual matters is irrelevant to whether or not she consented to intercourse with the accused. There is no suggestion that the complainant was in the habit of having sexual intercourse with men whom she has never met who enter her room in the dark in the middle of the night. Put another way, there is nothing about the circumstances of this case that are capable of distinguishing it from any other case where there is an attempt to rely on a complainant’s sexual reputation generally.

[50] In summary our conclusions in relation to ruling (iv) are as follows. First, subject to the necessary evidential foundation being established to the satisfaction of the trial Judge, the accused will be permitted to give evidence about the complainant’s sexual reputation and to cross-examine Mr M to the extent described at [44] and [45]. It will follow, of course, that the Crown will also be entitled to cross-examine the accused on the evidence given by him. Second, the accused will not be entitled to adduce evidence from other persons about the complainant’s sexual reputation generally.

Directions to the jury

[51] Although it will not be necessary for an elaborate direction to be given, the jury will need to be instructed that the evidence about the complainant’s sexual reputation is irrelevant to whether she actually consented to sexual intercourse with the accused. The jury will also need to be directed that the evidence is only relevant, first, to explain why the accused went into the complainant’s room and, second, in relation to the question whether the accused honestly believed on reasonable grounds that the complainant was consenting.

Outcome

[52] The appeal is allowed to the following extent:

(a) Ruling (i) is modified to restrict cross-examination of the complainant and Mr F to the sexual activity between them in the bedroom at around 11.30pm on 17 September 2005. This includes, of course, any discussion about the possibility of Mr F returning to the bedroom.

(b) Ruling (ii) is quashed. The accused is not entitled to cross-examine the complainant and/or Mr F about their previous sexual relationship.

(c) Ruling (iv): subject to the necessary evidential foundation being established to the satisfaction of the trial Judge this ruling is modified to permit: first, the accused to give evidence about his belief as to the complainant’s sexual reputation to the extent outlined at [44] and [45]; second, the Crown to cross-examine the accused on the evidence that he gives; third, Mr M to give evidence and be cross examined about his discussion with the accused about the complainant’s sexual reputation when they were walking to the flat, again to the extent outlined at [44] and [45].

Suppression orders noted at the commencement of this judgment shall apply.

Solicitors:

Harkness Henry & Co, Hamilton

Crown Law Office, Wellington