R v Lane [2018] NZDC 7912 (23 April 2018)

Last Updated: 2 June 2019

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

IN THE DISTRICT COURT AT WELLINGTON

CRI-2017-085-001166

[2018] NZDC 7912

THE QUEEN

v

[JOSEPH LANE]

Date of Ruling:	23 April 2018
Appearances:	T Bain for the Crown K Pedder for the Defendant
Judgment:	23 April 2018

PRE-TRIAL RULING OF JUDGE J M KELLY

The charges

[1] The defendant, Mr [Joseph Lane], faces two charges:

• (a) Sexual violation by unlawful sexual connection pursuant to s 128(1)(b) and 128B Crimes Act 1961; and
  
• (b) Indecent act with intent to offend pursuant to s 126 Crimes Act 1961.
  

[2] His jury trial is due to commence on 7 May 2018.

R v [JOSEPH LANE] [2018] NZDC 7912 [23 April 2018]

Pre-trial Application

[3] The defendant has applied under s 101 Criminal Procedure Act 2011 for orders admitting at trial evidence relating to two previous unprosecuted police complaints made by the complainant.

[4] The prior complaints relate to:

• (a) The rape of the complainant by a group of men; and
  
• (b) The robbery at knifepoint of the complainant.
  

[5] The defendant wishes to adduce evidence of these prior complaints to challenge the complainant’s veracity. Section 37 Evidence Act 2006 provides that evidence about a person’s veracity may not be offered unless it is substantially helpful in assessing that person’s veracity.

[6] In addition, the prior rape complaint is evidence relating to the complainant’s sexual experience with persons other than the defendant. Section 44 Evidence Act 2006 prohibits the admission of such evidence unless it is of such direct relevance to the facts in issue that it would be contrary to the interests of justice to exclude it.

[7] The Crown opposes the application and submits that the evidence is inadmissible for the following reasons:

• (a) There is no evidential foundation to suggest that the prior complaints were false;
  
• (b) The threshold in s 37 is not met in respect of either prior complaint; and
  
• (c) The evidence of the prior rape complaint falls well short of the standard in s 44.

Previous Police Complaint made on [date deleted]

[8] On [date deleted], the complainant made a complaint to police as recorded in occurrence [details deleted] as follows:

On the evening of [date deleted], I went for a walk along [location deleted]. It was getting late so I started to walk towards an area where there were a lot of lights.

At this stage I did not know where I was. I was also texting my ex-boyfriend whom I had broken up with that day. I think I passed some sports fields at some stage. I passed a bar on a main street. I know it was a bar because of the music. I think it was a dark colour.

As I passed the bar six Caucasian males exited the bar. The males all started to follow me. It was exactly 2149 hours at this time because I text [name redacted] and told him that I was being followed. I started to run and the males ran after me. I dropped my phone as I was running.

The males grabbed me and dragged me into a wooded area. Again, I did not really know where I was. Four of the males held me down while two of the males raped me. I think they used condoms because I remember one of them unwrapping a condom packet. The two males had sex with me vaginally. They then all left.

I got up and found my phone. I then found a [details deleted] bus and went back into town then walked home.

[9] The police occurrence record states that following the complaint the complainant underwent a scoping interview during which she provided police with limited details of the incident. The details were insufficient for attending police to identify the scene or complete inquiries to try and identify the suspects. The complainant refused to accompany police to try and establish the location of the scene.

[10] In addition, following a medical examination, the complainant refused to sign the consent to release the medical notes to the police.

[11] On [date deleted], the complainant advised she did not wish to pursue her complaint and police did not contact her again about the matter as no obvious lines of inquiry existed. The matter was filed.

Previous Police Complaint made on [date deleted]

[12] On [date deleted], the complainant made a complaint to the police that she was robbed at knifepoint. The circumstances of the complaint were recorded in police occurrence record [details deleted] as follows:

At about 0900 hours on [date deleted] 2016 the complainant left her [address] alone and walked to [details deleted]. The walk takes her on average 20 minutes.

She went directly to [location deleted] in the main building of [the school] and spoke with her friends.

After being at [location deleted] for approximately 10 minutes she decided to go to [a shop] situated in [location deleted]. To get there she has walked past [details deleted]. At the bottom, she has turned left.

At the intersection of [two streets] the complainant realised she did not have her wallet and turned around to walk back to the [location deleted] the way she came.

Between the public and exit driveway the complainant was grabbed from behind by a male. The male first put his hands on top of her shoulders, and then brought his right arm in front of her, holding the knife to her stomach.

The offender held her so tight she could not move and dropped her small leather bag. He asked her to count to 10 and when she got to two he picked up the bag and ran off. She turned and ran back to [location deleted]. She last saw the offender at a distance turning from the park into [details deleted].

[13] The police occurrence record records that the [details deleted] was spoken to and that he was sceptical of the complainant as she was not clear on the details and they kept changing. Also, because the route the complainant walked was not a normal or the most direct route to [the shop].

[14] The police occurrence record notes [ a counsellor] spoke to the complainant at approximately 1.30pm on the day. The counsellor says the complainant was vague on the circumstances and timing. The complainant did not mention a knife being involved.

[15] The police occurrence record states the outcome as follows:

There is no CCTV footage or a detailed eye witness description of the offender consequently no offender has been able to be identified.

There is a degree of scepticism around the complainant’s account due to differences in times given to the police and [details deleted] staff; the time delay of two to three hours before telling any adult of what occurred; and that the location is normally busy with members of the public at that time of day.

[16] The police occurrence record also states that it is noted that the complainant has had a similar occurrence file. It is also noted there have been no further reports to the police or [details deleted] of suspicious people or similar type offending in the area. Again, the file was closed.

Current Police Complaint

[17] The summary of facts for the current alleged offending says at about 9.00 pm on [date deleted] the complainant met the defendant in [location deleted]. They were known to each other and had been in a casual dating relationship for approximately two months.

[18] They walked through [location details deleted]. It is alleged the defendant asked the complainant for oral sex but she declined and tried to lead the defendant away to a nearby restaurant to get some food. It is alleged the defendant grabbed the complainant by the arm and instead pulled her into the back corner of a nearby carpark [details deleted].

[19] Once in the corner of the carpark it is alleged the defendant again asked for oral sex and unbuttoned the complainant’s shirt. It is alleged she tried to push him away and leave, however, due to the confined space and the defendant’s larger size she was unable to do so.

[20] It is alleged the defendant then pushed the complainant by the shoulders to her knees on the ground while the complainant told him to stop. It is alleged the complainant managed to get to her feet and on seeing some passers-by tried to call out to them for help. It is alleged the defendant placed his hand over the complainant’s mouth and pressed her back against the ledge so she was confined and unable to move.

[21] It is alleged the complainant tried to bite the defendant’s hand to get free however she was unable to do so. It is alleged the defendant undid his trousers and

grabbed the complainant by the hair to force her to her knees on the ground again. It is alleged by this stage the complainant was sobbing and crying and although she tried to keep her mouth closed the defendant forced his penis into her mouth.

[22] It is alleged the complainant kept trying to push him away and dig her nails into him but would become panicked when she was unable to breath due to the defendant’s penis being in her mouth. It is alleged the defendant then paused giving the complainant time to get to her feet. As she did so he pulled at her bra and removed it from her before forcing her to the ground again by the hair.

[23] It is alleged that as she was on the ground she felt a warm wetness and looked up to find the defendant urinating on her. It is alleged the complainant was then given time to get dressed and shortly afterwards the defendant walked the complainant to her home address.

[24] As I understand the position, the defendant made a DVD statement to the police in which he said the oral sex that night with the complainant was consensual. He said that he did not urinate on the complainant but she was angry as when she knelt down to give him oral sex her knees went in urine that was already on the ground.

Legal Principles

[25] Counsel agree that the Supreme Court decision in Best v R1 is directly on point. Where s 44 may potentially be engaged, as in this case, the Supreme Court described the appropriate approach as follows:

• (a) First, there must be an evidential foundation that the prior complaint was in fact false before it can even be raised before the Judge;
  
• (b) Secondly, if there is such an evidential foundation the complainant should be asked, in the absence of the jury, to confirm whether, or not the prior complaint was false. It is accepted that the questioning can be
  

1 Best v R [2016] NZSC 122.

done by the police and the complainant’s answers adduced by a police job sheet;

(c) Thirdly, taking into account the complainant’s answer but not dependent on it, the Judge must then rule whether the evidence of the prior allegedly false complaint is substantially helpful under s 37 in the particular circumstances of this case;

(d) Fourthly, if the test under s 37 is met there must be a separate assessment of whether it would be contrary to the interests of justice to exclude the evidence in terms of s 44; and

(e) Fifthly, even if the evidence is admitted s 44 may constrain its use, for example, by requiring any cross-examination to focus on the falsity rather than the sexual activity itself.

[26] The Supreme Court also held in Best that it could not be assumed that a prior complaint made to the police was false merely from the fact that charges were not filed. The Court held2:

As to the police deciding not to prosecute, this can be for a variety of reasons unrelated to any view of the falsity or otherwise of the complaint. Even if the police had formed a view on falsity, that would in any event only be an opinion and not determinative as to whether prior allegations should be admitted.

[27] In addition, in Best3 the Supreme Court held the fact that a previous complaint was false is not determinative as to whether the s 37 test is met. False complaints that are remote in time or factually dissimilar from the present allegations; that were isolated incidents; or that were not escalated to (or maintained to) persons in authority may well not be substantially helpful for assessing the veracity of a witness in the present case.

2 At [64]

3 At [73]

[28] Finally, the Supreme Court in Best4 held that s 44 must be separately considered even if the s 37 threshold is met. That is because the test under s 44 is directed to the trial as a whole and in stronger terms than the test under s 37.

Issue to be determined today

[29] It is accepted by both Mr Bain, on behalf of the Crown, and Mr Pedder, on behalf of the defendant, that the question to be determined today is whether there is an evidential foundation supporting the allegation that the prior rape complaint and/or the prior robbery complaint was/or were false.

[30] The Crown accepts following Best that if the Court finds there is an evidential foundation supporting the allegation that one or both of the prior complaints were false then a direction should be made by the Court requiring the police to make the necessary inquiries or to essentially ask the complainant whether either or both of the complaints are false and file and serve a job sheet recording the outcome.

[31] It is accepted that should such inquiries be ordered to be made it will fall to the Court on another day to consider the information contained in that job sheet.

[32] Depending on the answer given by the complainant the Court may then be required to undertake the s 37 and s 44 analysis followed by the application of s 8(1) Evidence Act 2006 which contains the general exclusion provision.

Sufficient Evidential Foundation

[33] Mr Pedder submits that the defence should be permitted to offer evidence to suggest to the jury that it is a remarkable coincidence that the complaint was violently offended against by multiple people on three separate occasions and that she chose not to pursue the two previous complaints made to the police on [dates deleted].

[34] The defence submits that the previous allegations made to the police affect the complainant’s credibility. It is submitted that it is highly unlikely that the complainant

4 At [66]

would have been the victim of three serious violent offences at the hands of multiple men in the circumstances alleged.

[35] The defence submits that the complainant’s lack of reliability in relation to providing necessary details, including simple details such as place, to police on two separate occasions to allow police to properly investigate the previous complaints is relevant to the inference that the complainant is unreliable when making complaints to the police.

[36] With respect, I agree with the Crown that the defence submission that it would be highly unlikely for the complainant to have been offended against three times by strangers is speculative and, regretfully, it may be inaccurate to assert that such frequent victimisation is rare.

[37] I also agree with the Crown submission that being unhelpful to police does not mean the complaint was false. A complainant may have many reasons for not wanting to proceed with a prosecution particularly in cases involving sexual offending. Here the complainant gave a plausible reason for not wanting to pursue the prior rape complaint as recorded in the police occurrence record:

On [date deleted], the complainant was spoken to by [Constable 1] and during that phone call she advised that she did not want to pursue the complaint and just wanted to forget that it had happened. She asked the police to not contact her again about this matter.

[38] I agree with the Crown that there is nothing in the prior rape complaint police occurrence record to suggest that the police were suspicious that the complainant was being dishonest.

[39] The Crown does acknowledge that the police occurrence record notes some scepticism of the complainant’s account in relation to the prior robbery complaint but submits the mere scepticism noted in the police file cannot in itself amount to an evidential foundation of falsity.

[40] Furthermore, the police occurrence record notes there were language difficulties involved which could be an explanation regarding the confused and vague accounts given by the complainant.

[41] Against that I note all three complaints were made within 18 months. Therefore, there is no issue of remoteness in time.

[42] I acknowledge that there are differences in the type of offending in the two previous complaints and differences in the two previous complaints which allegedly involved stranger to the current allegations which involve the defendant who was in a relationship with the complainant at the time.

[43] Another difference is that the prior rape complaint and the prior robbery complaint were vague and lacking in details. Whereas, the complainant has provided sufficient details and co-operated with the police in relation to the current allegations for the defendant to be charged.

[44] There are similarities however in that all three complaints allege offending in public places when members of the public would have been around. This is relatively unusual especially in relation to sexual offending.

[45] At the end of the day, on the information before me at present (which does not include the complainants evidential video interview) I am not persuaded that there is an evidential foundation to support the submission that the prior rape complaint or the prior robbery complaint was false.

[46] However, I grant leave for this issue to be re-visited by the trial judge. It may be that during the complainant’s evidence things emerge that suggest there is an evidential foundation to support the submission that the prior rape complaint or the prior robbery complaint was false.

[47] Of course, should that happen the trial judge will be required to follow the process I have outlined at [25] above.

Decision

[48] For the reasons given I find there is no evidential foundation to support the submission that the prior rape complaint or the prior robbery complaint were false. Therefore, the application under s 101 Criminal Procedure Act 2011 for orders admitting at trial evidence relating to the two previous complaints is declined.

[49] However, I expressly give leave to the trial judge to re-visit this application should further information become available or evidence emerge at the trial which suggests there is a sufficient evidential foundation.

J M Kelly

District Court Judge