R v Nicol [2020] NZDC 8558 (14 May 2020)

Last Updated: 12 March 2022

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IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2017-085-000604 [2020] NZDC 8558

THE QUEEN

v

HARRISON STUART NICOL

Date of Ruling:	14 May 2020
Appearances:	J O’Sullivan for the Crown J Gwilliam for the Defendant
Judgment:	14 May 2020

PRE-TRIAL RULING OF JUDGE P A H HOBBS

[1] The defendant, Mr Harrison Nicol, is to face retrial on one charge that, on or about 19 November 2016, he sexually violated the complainant by raping her. During the first trial, issues arose that potentially engaged ss 37 and 44 Evidence Act 2006.

R v HARRISON STUART NICOL [2020] NZDC 8558 [14 May 2020]

There has, since the first trial, been a history in relation to the rulings made at the first trial and what, if any, further rulings needed to be made for the retrial.

[2] I think it fair to say that since the first trial, and as a result of further discussion between counsel and the Court, the outstanding issues have been refined to be those concerning ss 44 and 25 of the Act. I do not intend to canvass in any detail the history of these matters. If necessary, they can be gleaned from the various decisions and memoranda completed by Judges over the course of this matter.

[3] I do, however, note that on 3 February of this year the matter came before me to determine the issues raised under s 44 and in relation to expert evidence. After a lengthy discussion with counsel the issues were refined and that hearing adjourned on the understanding or in the hope that counsel could reach agreement in relation to the extent of questions to be asked of the complainant that required an order from the Court under s 44 Evidence Act and in relation to the expert evidence. I indicated to counsel at the time that if agreement could not be reached, the matter could be brought back before me in the hope of finalising any outstanding issues. That has occurred today.

[4] In relation to the s 44 issues, it is relevant to note that the complainant has, on a previous occasion, alleged that a previous abusive partner sexually violated her while she was asleep or unconscious. It is that previous incident that has essentially given rise to issues under s 44 Evidence Act.

[5] The relevance of that evidence was treated somewhat differently in the first trial than as now proposed. On its own, the evidence that the complainant has previously accused another man of having sexual intercourse with her while she was asleep or unconscious would not meet the heightened relevance test under s 44 Evidence Act, and would be, on its own, inadmissible unless it was accepted that the previous allegation had been false, which is not the case.

[6] The previous incident becomes relevant for two reasons. One, the complainant admits to suffering from sleep paralysis, a condition which is explained by what is now agreed expert opinion evidence to be contained in a s 9 admission. Of particular

relevance is the expert opinion that sleep paralysis typically falls into three categories, two of which have particular relevance.

[7] The first being a sensed presence or intruder hallucinations in which the person feels they are being subjected to a physical or sexual assault by an evil or threatening individual. The second being incubus hallucinations in which the person might feel someone or something pressing down uncomfortably, even painfully, on their chest or abdomen, or trying to choke them.

[8] The second reason for the relevance of this evidence in conjunction with the first is the fact that the complainant, following the alleged incident with the defendant, sent a group chat message to a flatmate, or flatmates, in which she described stumbling to the bathroom, not realising the defendant was up and telling him to leave. The complainant says in that message, “It did not register at one point what had happened, I thought I was just drunk and had a flashback to my bad ex.”

[9] These two pieces of evidence combined mean the defence must be allowed, in the interests of justice, to explore the possibility that, as a result of her sleep paralysis, the complainant has in fact had a flashback or hallucinations of the type described by the expert, confusing the events with her former partner with the defendant, bearing in mind that the defendant was in the complainant’s bed as a friend at her invitation.

[10] As I understand it, that general proposition that the evidence of that nature is admissible under s 44 is agreed by the Crown. What counsel have not been able to finalise or agree on is the exact nature or number of questions to be asked of the complainant. I indicated to counsel that I would give guidance as to the questions that could be asked, and I now do so. However, I make clear that it may be that Mr Gwilliam might want to refine the questions or alter them in some way. If that were to occur, then approval from the trial Judge would be required.

[11] I offer these questions as an indication of what I think is both necessary and appropriate, taking into account s 44 Evidence Act. Question 1, “Did a previous partner sexually violate you while you were asleep?” Question 2, “Do you suffer from sleep paralysis?” Question 3, refer the complainant to the expert evidence, in

particular the two categories of sleep paralysis referred to in the s 9 admission at paragraphs 8, 1 and 2. Question 4, “Did you send the following group chat to flatmates following this alleged incident?” (Refer to the group chat message). Question 5, “Is what you are describing in relation to the defendant in fact an hallucination or a flashback to what occurred with your ex-partner due to your sleep paralysis?”

[12] Again, as I have noted, it may be that Mr Gwilliam wishes to refine or potentially expand that line of questioning. However, at this point it is my view that those questions are what is required to establish the defence theory, and also to comply with the provisions of s 44 Evidence Act. Ultimately, the questions will be a matter for the trial Judge.

[13] This brings me to the expert opinion evidence. Helpfully, counsel have agreed a s 9 admission. That admission essentially includes common ground in relation to sleep paralysis between the defence expert and the Crown expert. There remains one outstanding issue that the parties cannot agree. Mr Gwilliam had, before today’s hearing, wanted an additional reference or evidence included in the s 9 admission, namely the inclusion of the following words contained in the defence expert’s statement, “A study has shown that this can lead to false but sincere accusations of sexual assault.” (Obviously referring to sleep paralysis).

[14] The Crown objects to the inclusion of that statement. The Crown submits that it is not substantially helpful to include reference to one study of this kind and that ultimately it is a matter for the jury to decide whether or not this is indeed a false accusation resulting from the sleep paralysis the complainant suffers from.

[15] Following discussions with counsel, Mr Gwilliam now seems content with the Crown position. In my view, reference to this one study is not substantially helpful and, indeed, it is a matter for the jury to decide whether or not this is a false complaint as a result of sleep paralysis.

[16] Already included in the agreed summary of facts are the three categories of sleep paralysis. The first two clearly give the defence a foundation, based on the expert evidence, to suggest that this may have been such a false complaint, and the reference

to this singular study takes the matter no further. As I have said, in my view it is not substantially helpful and is ultimately a matter for the jury.

Judge PAH Hobbs

District Court Judge Date of authentication: 20/05/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.