[1] Mr Vernon faces trial in the Auckland District Court on five charges of assaulting a female. The assaults are alleged to have occurred over a period of seven months when Mr Vernon and the complainant were in a relationship. The Crown seeks to adduce evidence of four other assaults said to have occurred over the same period which are not the subject of charges.
[2] Mr Vernon seeks leave to appeal against Judge Hubble’s decision to admit the evidence of the four additional assaults. Ellen France J directed that the application for leave to appeal should be heard and determined together with the proposed appeal.

Background

[3] Mr Vernon and the complainant were in a relationship between September 2007 and June 2009. The assaults which are the subject of counts 1 – 5 are alleged to have occurred at the home shared by the couple on 20 September 2008, 27 October 2008, 10 March 2009 and 26 March 2009 and at Maraetai on 19 April 2009. The assaults mainly involved Mr Vernon manhandling the complainant although, in one case, she says he threatened her with a knife and squeezed her around the neck. The complainant says she suffered bruising as a result of the first four assaults and a cut knee and sprained ankle from the last.
[4] The further incidents of which the Crown wishes to adduce evidence are alleged to have occurred on 11 November 2008, December 2008, 4 March 2009 and 2 June 2009. The second of those incidents is said by the complainant to have occurred in Sydney, Australia. The evidence is that on those occasions Mr Vernon:

Twisted the complainant’s fingers.
Punched the complainant on the side of the head and on the left shoulder (in Australia).
Pushed the complainant against the wall.
While driving his car, hit the complainant with the palm of his hand and pushed her leg.

District Court decision

[5] Judge Hubble admitted the evidence on alternative bases. He accepted the Crown’s submission that the evidence was relevant as providing a more complete picture of the relationship over the period with which the charges are concerned. The evidence was accordingly admissible under s 7 of the Evidence Act 2006 (the Act). Judge Hubble said the evidence would not have an unfairly prejudicial effect on the proceeding warranting exclusion under s 8 of the Act, noting that the additional incidents occurred over the same period as the assaults which are the subject of charges and were less serious.
[6] Judge Hubble held that the evidence could also be admitted as propensity evidence under s 43 of the Act, having regard to the frequency of the acts, their connection in time with the alleged assaults and similarities between the further assaults and those which are the subject of charges. Again, he did not see any risk that the further evidence may have an unfairly prejudicial effect.

Appellant’s submissions

[7] Mr Mather submitted the evidence should not have been admitted on either basis. He argued that the further alleged assaults were not relevant to any matter in issue and the evidence lacked the similarity to, or connection with, the alleged offending required to justify its admission as evidence of propensity.
[8] Even if probative on one or both bases, Mr Mather submitted the evidence should be excluded because of its unfairly prejudicial effect. He was particularly concerned that a jury should have regard to the additional incidents, though not proved to the standard of beyond reasonable doubt. He submitted that would be unfairly prejudicial under s 8(1)(a) and s 43(1) and (4) of the Act and would compromise Mr Vernon’s fair trial rights.

Crown’s position

[9] Mr Downs submitted that the evidence was admissible on either of the grounds relied on by the Judge but said the better view is that the evidence is admissible as part of the narrative and necessary to provide context to the direct evidence of the alleged assaults. Relying on the decision of this Court in R v Toia,[1] he said the evidence is descriptive of the partners’ relationship in circumstances in which that relationship will necessarily be under the forensic microscope. He pointed out that it also explains references in the evidence that could otherwise be materially misapprehended. He asserted that the evidence has only limited potential for prejudice and the Judge was right to find that its probative value outweighed any unfair prejudicial effect.

Discussion

[10] The proposed evidence is relevant and admissible under s 7 of the Act provided its probative value is not outweighed by its unfairly prejudicial effect in terms of s 8. It is what is often called relationship evidence, that is evidence of the background to or context in which offending is alleged to have occurred within a relationship. It is relevant because it is necessary to a complete and fairly informed understanding of the direct evidence of the offending.
[11] Such evidence may qualify as propensity evidence as tending to show a person’s propensity to act in a particular way. But that is not its purpose in cases such as the present. It is not adduced to bolster the credibility of the complainant but to ensure that the evidence of the offending itself is seen in its proper context.
[12] The distinction between the two bases on which such evidence may be admitted was explained by William Young J, giving the judgment of this Court, in R v MacDonald.[2] He said:

[14] It is not uncommon for the prosecution to lead evidence of background (or relationship evidence as it is sometimes called) from a complainant which discloses offending by the defendant going beyond what is alleged in the charges the defendant faces. Such evidence does not usually have an independent probative value which buttresses the credibility of the complainant’s core allegations – the usual reason why “true” similar fact evidence is admitted. Indeed, commonly the credibility or otherwise of such evidence is no more or less than the credibility of the complainant’s core allegations which are the subject of charges. Judges allow such evidence to be given not because of the similarity between what is alleged by way of background and the actual offending (although, of course, usually there are similarities) but rather because otherwise the complainant’s evidence as to the alleged offending which is the subject of charges will necessarily be incomplete and perhaps not comprehensible from the point of view of the jury. This is essentially why Judge Lance QC ruled in favour for the admissibility of the evidence.

[13] MacDonald was relied on in Toia where this Court held admissible evidence of previous assaults against the complainant which emerged in the course of cross-examination. Other cases in which evidence of the same general nature has been admitted under s 7 of the Act are R v R [3] and R v Gooch.[4]
[14] We agree with Judge Hubble that there is little risk of unfair prejudice to Mr Vernon if evidence is given of the additional incidents. As the Judge said, the evidence does “not bring anything new or extreme to light”. Mr Mather’s concern that the jury would give weight to the alleged additional offending, though not proven to the standard of beyond reasonable doubt, does not, in our view, give rise to prejudice. On the contrary, had the Crown chosen to bring further charges, Mr Vernon would have been in greater jeopardy. He is now able to make something of the fact that the Crown has chosen not to bring further charges. Further, the introduction of the additional evidence will enable him to rely on evidence that the complainant struck him in the course of two of the additional incidents in order to support an intended defence of self-defence in respect to some of the charges he faces.
[15] We are satisfied that the evidence is properly admissible.

Result

[16] Leave to appeal is granted, but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Toia [2008] NZCA 343.
[2] R v MacDonald CA166/04, 8 April 2005.
[3] R v R [2008] NZCA 342.
[4] R v Gooch [2009] NZCA 163.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/383.html