R v Reynolds [2017] NZDC 21845 (27 September 2017)

Last Updated: 28 April 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT WHANGAREI

CRI–2017–088–000656

[2017] NZDC 21845

THE QUEEN

v

[DAVID REYNOLDS]

Date of Hearing:	25 September 2017
Appearances:	S Barnaart for the Crown A Fairley for the Defendant
Judgment:	27 September 2017

RULING OF JUDGE D G HARVEY

[1] By application dated 4 September 2017 the Crown have made an application seeking leave to offer evidence of the sexual experience of the complainant from the complainant herself, [witness 1] and [witness 2].

[2] In submissions the Crown submit that evidence in relation to the complainant’s sexual orientation is a matter that falls under s 44(1) Evidence Act 2006 namely evidence of sexual experience of a complainant in a sexual case.

[3] It is the Crown’s submission that s 44 is engaged due to the wording of s 40(1)(a) Evidence Act 2006 which defines propensity evidence to include:

Evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved.

R v [DAVID REYNOLDS] [2017] NZDC 21845 [27 September 2017]

[4] The Crown submits further that pursuant to s 40(3)(b) Evidence Act 2006 propensity evidence about a complainant in a sexual case in relation to the complainant’s experience may be offered only in accordance with s 44 Evidence Act 2006.

[5] In accordance with the majority decision in B v R1 the Crown submits that this is a case where sexual disposition overlaps with evidence of sexual experience and consequently the Crown seek permission from the Court to lead evidence from the complainant as to her sexual orientation. The Crown also seek to lead evidence from [witness 1] as to her knowledge of the complainant’s sexual orientation.

[6] The defence position is that clearly, if the Crown wish to lead evidence of the complainant’s sexual orientation, the leave of the Court is required. It is clear from a call over memorandum filed by the defendant that the defence would have issues with the proposed evidence to be lead from [witness 1].

[7] This Court is clearly bound by B v R. Having said that, it is noted that whilst the Supreme Court refer to difficulties arising and how to categorise disposition evidence it does not appear to have made a final determination. The facts in that case meant that the Court was able to deal with the issue without a specific finding.

[8] The fact that the complainant is a lesbian is, to my mind, simply a statement of fact. I struggle with the concept that the fact that the complainant says she is a lesbian has anything to do either directly or indirectly with her sexual experience with any person other than the defendant. I also struggle with the concept that having the complainant confirm she is a lesbian relates directly or indirectly to her reputation in sexual matters.

[9] I further struggle with the concept that a bland statement of her sexual orientation amounts to propensity evidence. Of course, if a lesbian is involved in a same sex relationship that may well demonstrate a propensity to indulge in sexual behaviour with a person of the same sex. However in this case there is no discussion about the complainant’s relationships it is simply a statement of fact. Whether or not she is in a relationship and whether or not she does in fact engage in sexual activity

1 B v R [2013] NZSC 151

with persons of the same gender is irrelevant and obviously no questions will be asked in relation to that.

[10] The defence has signalled that the issue here is whether or not the sexual contact with consensual. Accordingly the Crown must prove not only that sexual activity occurred but that the complainant did not consent and that the defendant did not have a reasonable belief in her consent. The fact that the complainant is a lesbian is relevant. In my view the Crown must be permitted to lead this evidence as part of its case that not only did the sexual activity occur but that the complainant did not consent.

[11] The evidence of [witness 1] is somewhat different. On my reading of her evidence she does not say that there was an actual discussion with the complainant about her sexual orientation. Even had there been, it is difficult to see how that conversation would be relevant unless the defendant was part of the conversation. If the Crown were able to establish that there was a discussion about the complainant’s sexuality and that the defendant was present at the time of that discussion then, it may well be relevant to the issue of whether the defendant believed on reasonable grounds that the complainant was consenting to his advances.

[12] As the evidence at present stands I am of the view that the Crown may not lead [witness 1’s] evidence about those discussions unless the defence challenge the complainant’s statement that she is a lesbian. Were such a challenge be made then I am of the view that [witness 1’s] evidence would become admissible as it would seem that she has known the complainant for a long time and is in a position to say that as a result of her association with the complainant she is able to confirm her sexual orientation.

[13] I am of the view that the evidence proposed to be called from the complainant by the Crown relating to her sexual orientation does not engage s 44. However if I am wrong in that I then grant permission pursuant to s 44(1) as I am satisfied that the evidence in question is of direct relevance to the facts in issue and it would be contrary to the interests of justice to exclude it.

D G Harvey District Court Judge