R v M HC Wanganui CRI-2008-083-101 [2009] NZHC 381 (1 April 2009)

Last Updated: 1 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

_{CRI-2008-083-101}

THE QUEEN

v

M

Hearing: 31 March 2009

Counsel: H C Mallalieu for Crown

D M Goodlet for Accused

Judgment: 1 April 2009

RESERVED JUDGMENT OF DOBSON J (On s 344A application for inclusion of evidence)

[1] Mr M is facing a charge of sexual violation of the complainant, with whom he was living at the time, by unlawful sexual connection occasioned by the introduction of a kitchen whisk held or manipulated by him into the complainant’s anus.

[2] The charge relates to conduct alleged to have occurred between 30 November and 15 December 2007. It appears that in early 2008, as a result of difficulties in their relationship, the complainant required Mr M to move out. The events

_{leading up to that request included conduct on or about 29 December 2007 in which}

R V M HC WANG CRI-2008-083-101 1 April 2009

Mr M assaulted the complainant and indecently assaulted her, to which charges he has pleaded guilty.

[3] After Mr M had moved out, in early January 2008 he engaged in numerous email communications with the complainant, apparently intended to urge her to have him back. Part of the content of these emails to the complainant revisited the events that had occurred on the night to which the sexual violation charge relates. The couple had an evening out of drinking and dancing. When they were delivered home, the complainant was disinclined to stay at home but instead wanted to go to another house they had passed in their street on the way home, and at which there appeared to be a party in progress. It appears the complainant has no clear recollection of what occurred at the party. She appears, after the event, to have an impression that she participated in sexual activity with a number of men at the party, excluding Mr M . It appears they went home together, and the next morning she woke to discover a kitchen whisk lodged in her anus.

[4] In the discussions between the couple shortly after that night as to what may have occurred and how it occurred, the notion was discussed that at least the complainant’s, and possibly Mr M ’s, drinks had been spiked at the party. Mr M was very uncomfortable with the complainant’s conduct, indicated he was disgusted by it, but wanted to put the incident behind them.

[5] In early January 2008, Mr M accessed images from a pornographic movie in which a female participant bore what is apparently a strong resemblance to the complainant. On 5 January 2008, he attached four images taken from the pornographic movie, cropped and transformed from colour into black and white so as to increase the likeness between the complainant and the woman portrayed in the images, and emailed them to the complainant. In a subsequent email on 7 January

2008, he sent one further image of the same activity to the complainant.

[6] The text of another email on 5 January 2008, sent immediately before that conveying the images, gave an explicit account of the complainant’s conduct during the evening in question, and in particular the sexual activities described by Mr M as occurring at the house down the road from where they were living. That email

admits the actus reus of the sexual violation charge in terms implying that the complainant consented to that occurring.

[7] The Police interviewed Mr M on 11 January 2008, at which time the sexual violation charge had not been raised. There, he admitted that he had falsely represented to the complainant that it was she in the images he had sent her. He explained that it was all done in an attempt to win back her affection by demonstrating the extent of his loyalty to her, notwithstanding the nature of what she had done with other men. Mr M has been charged with blackmail in relation to threats to disclose these images to others, and has pleaded guilty to that charge.

[8] The Crown argues for the admissibility of these images on the remaining charge on the basis that their use by Mr M constituted a lie as to the circumstances in which the sexual violation occurred. An indication of opposition to their admissibility has provoked the present application under s 344A of the Crimes Act 1961.

[9] Mr Mallalieu submits that the images have considerable probative value in challenging Mr M ’s claim that either the complainant did consent to the sexual violation, or that in the circumstances at the time it was reasonable for him to believe that she did so consent. In essence, the Crown intends to submit that this first reconstruction of what occurred depended on a lie. The jury should know that, to allow it to assess whether the subsequent reconstruction (once Mr M was charged with sexual violation) also involved him lying about the complainant’s consent to the conduct in question.

[10] This situation is different from many cases in which the Court has to consider the admissibility of photographs, classically taken by the Police to record the scene of the crime or a reconstruction of it. An authority cited by the Crown on the present application was R v Wen Hui Cui CA333/05 20 June 2006. In that case, the defence had objected unsuccessfully to the prosecution adducing photographs that showed how a homicide victim’s throat had been cut by the accused. The Court of Appeal upheld the decision on their admissibility, treating the photographs as directly and highly relevant to the partial defence of provocation and to the defence of self-

defence. The Court of Appeal accepted that what was conveyed by the photographs could not have adequately been conveyed to the jury by other means. The Court of Appeal did recognise that photographs revealing the gruesome features of a crime may be excluded if the Court considers they will prejudice the jury against the accused to an extent out of proportion to their probative value. That test for exclusion is now reflected in s 8 of the Evidence Act 2006.

[11] Mr Mallalieu argued that the images here are highly probative because they demonstrate, in a way that a description of their contents could not adequately convey, the extent to which the accused was prepared to go in attempts to assert that the conduct in issue had been consented to by the complainant. He also argued that any prejudice arising from the jury thinking the worst of the accused because of his preparedness to use such images could not be unfair prejudice, because it was all his own conduct, and not something that others had done to bolster the case against him. He had been prepared to use them in a deceitful way to persuade the complainant she consented to events she had no sufficient recollection of, and that was directly relevant to the credibility of his consistent claim that she had actually consented to the sexual violation.

[12] For Mr M , Ms Goodlet argued that the images do not have probative value. Mr M misrepresented the source of the images in the course of reconstructing the full extent of the consensual activity that occurred for the purpose of pursuing a reconciliation. His ground of defence raised to a charge of sexual violation only became an issue after this dialogue between the complainant and the accused. Ms Goodlet argues that the connection that the Crown seeks to draw between these two facts is illogical. The Court is required to give directions to a jury about a finding of lies established in respect of matters other than the elements of a particular offence. Consistently with this, Ms Goodlet argued that the jury would give disproportionate weight to the graphic impact of the pornographic images. At least subconsciously, that would suggest an unsubstantiated parallel between the misrepresentation in using the images, and the alleged lie that the complainant consented to the conduct involved in the sexual violation charge.

[13] I am not persuaded that this distinction deprives the images of probative value. At the very least, the fact that images of this type were sent in the circumstances in which they were is a relevant part of the context of the relationship between the complainant and the accused. Resort to what the accused did with the images in his 5 and 7 January 2008 emails is most likely relevant to the jury in evaluating whether his defence of consent to the sexual violation is credible.

[14] Undoubtedly the fact that the images were sent is relevant and that fact may have considerable probative value for the Crown in testing the defence of consent. However, the specific content of the images does not have any distinct probative value, standing on its own. Counsel should be able to agree a factual description of what the three images in the 5 January 2008, and one image in the 7 January 2008, email communications show. There is no issue that Mr M intended the complainant to believe the images were of her. He had cropped the images as originally available to him and removed colour from them to enhance the prospect of that misrepresentation being successful. Nor is there an issue that he resiled from the misrepresentation when interviewed by the Police, but at a time before the prospect of a sexual violation charge had been raised.

[15] On this analysis, additional and potentially dramatic impact that the pornographic images would have on members of the jury is gratuitous in a sense that would undoubtedly have a prejudicial effect on the conduct of Mr M ’s defence.

[16] I am not persuaded that that prejudice is not “unfair” merely because the images result from the accused’s own voluntary conduct. One of the uses he intended to make of the images at the time led to the blackmail charge to which he has now pleaded guilty. Ms Goodlet accepted that it will be extremely difficult, and probably impossible, for the jury not to know that the misrepresented use of the pornographic images constituted an element in a blackmail charge to which Mr M had pleaded guilty. The fact that the images are the work of the accused rather than of, say, a Police photographer, should not deprive the accused of a balanced evaluation under s 8 of the Evidence Act as to whether the prejudicial effect of their introduction on the remaining charge would nonetheless be “unfair”.

[17] I have accordingly come to the view that, on the nature of the issues surrounding consent as they are presently predicted at the trial, the images are inadmissible, provided counsel can agree on a factual description of what they convey which is to be used in substitution for their production at the trial.

[18] All rulings given under s 344A of the Crimes Act are necessarily provisional, and are capable of being reviewed by the trial Judge. That is an important factor in the decision I have reached here. The first prospect for it being revisited is obviously if counsel are unable to agree on a set of words to describe what the images convey. Secondly, it is unrealistic to expect the argument at this stage to accurately capture all the nuances of matters that may be put to the jury. In this regard, I note that the Crown does not propose to adduce a small number of emails in response from the complainant to Mr M , in the period between 6 and 7 January 2008. The first of those would tend to suggest that the complainant thought she was portrayed in the images, but shortly thereafter closer inspection of them led to a protest that it was not her in the images, and that they had been “doctored”. If aspects of the complainant’s contribution to these exchanges does arise, then a reconsideration of the relevance of the content of the images, rather than the fact of their having been transmitted, would obviously arise.

Summary

[19] Accordingly, I rule the images attached to the emails sent by Mr M to the complainant on 5 January 2008 at 12:35:04 and on 7 January 2008 at 23:05:06 to be inadmissible.

Dobson J

Solicitors:

Crown Solicitor, Wanganui for Crown

Debbie Goodlet, Wanganui for Accused