R v Davis [2013] NZHC 2080 (15 August 2013)

Last Updated: 26 December 2014

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-016-884 [2013] NZHC 2080

THE QUEEN

v

_{RICHARD JAMES DAVIS}

Hearing:	15 August 2013
Counsel:	S B Manning for Crown A J S Snell for Defendant
Judgment:	15 August 2013

JUDGMENT OF THE HON JUSTICE KÓS (Section 344A application)

[1] The defendant is an osteopath. He faces trial on charges of sexual violation by unlawful sexual connection and indecent assault of a number of his female patients.

[2] There will be two trials. The first, which is to begin on Monday 26 August in the High Court at Wellington, will involve ten complainants. The indictment (as amended) charges 11 counts of sexual violation and 13 of indecent assault. These events are all said to have occurred between 22 December 2009 and 2 April 2012. That is, apart from one count which charges that the defendant committed indecent

_{assault on complainant H between 1 June 2004 and 30 June 2005.}

R v DAVIS [2013] NZHC 2080 [15 August 2013]

[3] The Crown case is that the unlawful acts occurred during the course of treatment of the complainants. The unlawful acts are said to have been done for non- therapeutic reasons, motivated by sexual gratification. They were not consented to by the complainants because they were not aware of the nature and quality of the defendant’s touching.

Present application

[4] The Crown applies under s 344A of the Crimes Act 1961 for an order that the admitting evidence of access to pornographic websites, from a laptop computer owned by the defendant, proximate to times when the defendant was seeing patients (the contested evidence).

[5] The proposed witnesses are:

(a) Remmer Cornelis Meijer, a digital forensic analyst at the New

Zealand Police Electronic Crime Laboratory; and

(b) Detective Temaru Anderson, a detective with the Gisborne CIB.

[6] Detective Anderson has done a comparison between the access times to websites identified by Mr Meijer and appointment times for clients shown in the defendant’s 2011 diary. No 2012 diary was available for comparison. The evidence is that the websites were of a pornographic nature. Detective Anderson’s analysis shows that websites were accessed on work days around the times that the defendant was treating patients.

[7] The Crown does not seek to lead evidence:

(a) of such website access outside normal office hours;

(b) detailing the name or content of the particular websites, other than specifying they are sites which depict “explicit adult consensual sexual content”;

(c) naming clients, other than complainants, seen by the defendant on the days when the websites were accessed. It follows that the Crown does seek to lead evidence of website access by the defendant around appointments with patients other than the complainants.

[8] This application is opposed by the defendant.

Crown submissions

[9] The Crown says that the contested relevant essentially in two ways.

[10] First, it is relevant to the defendant’s state of mind when touching the complainants in the places that he touched them. Mr Manning submits that the fact that the defendant was accessing explicit sexual material from a laptop in a work area, on days and at times when he was treating patients, must be relevant to determining the defendant’s state of mind when he touched the complainants. He submits that the evidence of accessing pornography around the time of patient contact is probative of the fact that the defendant’s touching was motivated by sexual gratification.

[11] Secondly, it is relevant to respond to a likely line of cross-examination of the complainants suggesting that they are mistaken as to the sexualisation of the contact, and the touching was instead purely therapeutic. Mr Manning submits that exclusion of the evidence would remove a significant indicator supportive of the complainants’ interpretation of the touching, and supportive of their credibility. That would be unfair to those witnesses in terms of s 6(c) of the Evidence Act 2006. In argument, Mr Manning stressed that the Crown submission is not based on temporal nexus between website access and offending. Rather the nub of the submission is that complainants are far more likely to be correct in inferring that touching was sexually motivated if the jury knows that the defendant was “crossing the threshold” to access pornography websites around the time that he was seeing patients generally.

[12] In terms of s 8, the Crown submits that the probative value of the evidence is strong, intending to show the defendant’s state of mind being focused on sexual rather than professional contact, and supporting the complainants’ accounts that

touching was intimate and sexual rather than therapeutic. In contrast, the Crown suggests there is nothing overwhelmingly prejudicial about the defendant viewing consensual adult pornography on his laptop. That it describes as “legal and unexceptional behaviour”. Accessing pornography during work hours is not creditworthy, but it is not, the Crown says, of itself unfairly prejudicial. The Crown suggests that what will be prejudicial in this case is the complainants’ evidence. And evidence that a drawer in on the defendant’s office contained vibrators and women’s undergarments. The evidence of website access would add little prejudice to that. The jury would not see the content of the websites, or their names.

Defence submissions

[13] The defence says there is nothing unlawful about viewing pornography. There is nothing specifically illegal or deviant which would be unusual and attain any high probative value (such as on a propensity basis – which is not being advanced by the Crown). The defence notes that only one of the access dates coincides with charges in the indictment. There access was about two hours after the appointment. The websites seem to be accessed at times where there are both male and female patients coming in to see the defendant. Access appears to have occurred at the time that the defendant was in fact treating a male patient. As Mr Snell puts it, there must be real issues as to whether, therefore, it was the defendant accessing the websites.

[14] Despite the fact that viewing such sites is said by both sides to be legal and unexceptionable, Mr Snell submits that this evidence would be significantly prejudicial, over and above the other admissible evidence in this case.

Discussion

[15] I would accept that evidence tending to show that the defendant had accessed pornographic websites in close temporal proximity to the times at which he is alleged to have committed sexual offences against the complainants might be relevant. Close temporal proximity will implies separation of not more than two to three hours. Probably in advance of, or during, the appointment. Probably, also, uninterrupted by other appointments. Access of that proximity would be relevant to

the defendant’s state of mind. That is, whether he was sexually motivated at the time of touching the complainants. It might also be relevant in terms of s 6 (fairness to complainants). But that is really the same thing put another way. That is, that the touching occurred for sexually-motivated, rather than therapeutic, reasons.

[16] Where access does not meet that temporal proximity requirement, I do not think it can be relevant. And to the extent it is marginally relevant, then it is outweighed by the consideration of unfair prejudicial effect under s 8. The Crown submissions accept that in relation to after-hours access. As Mr Manning puts it:

Where the evidence to show that the accused was accessing pornography in his private space, outside of office hours, then the Crown would not seek to rely upon it.

If after-hours access from home is not admissible evidence, then it is difficult to see how in-hours access, from the office laptop, is admissible where not temporally proximate to events complained of.

[17] The location of the computer cannot be the determining feature. That point is reinforced in this case by these considerations. First, the defendant’s consulting rooms are a part of his house. Albeit in a distinct part of the building. Secondly, we are dealing with a laptop, rather than desktop computer. So its location within the consulting rooms at all times is by no means certain.

[18] Nor can access around times the defendant is seeing patients generally be determinative of relevance. In the mixed professional/residential context of the defendant’s premises, it is not necessarily demonstrative of risk-taking behaviour. Mr Manning called it “crossing a threshold”, but I am not sure how that characterisation helps. The fact that the laptop has been used to access these websites proximate to appointments with patients who have not complained (and who are of both genders; all the complainants are female) does not really assist the jury form a view as to the defendant’s motives when, on other quite separate occasions, he touched those patients who did complain.

[19] There are three occasions only in the proposed schedule which coincide with complainants. And only one that coincides with a complaint:

(a) On 25 July 2011 pornographic websites were accessed at 10.04 am and 10.06 am. The defendant’s appointment diary shows that he had appointments for male patient M at 10.00 am, female patient B at

10.45 am and complainant O at 11.30 am. The indictment presents no charge against the defendant in relation to complainant O relating to events on that day. There are five counts concerning O. They concern three dates: 3 May 2011, 4 August 2011, and 20 December 2011. There is no allegation of misconduct by the defendant on 25 July

2011.

(b) On 20 October 2011 a pornographic website was accessed at 4.52 pm.

The defendant’s appointment diary shows that he had appointments with complainant L at 1.00 pm, male patient C at 2.30 pm and female patient B at 5.15 pm. This time the defendant is charged in relation to that appointment with L.

(c) On 26 October 2011 a pornographic website was accessed at 11.47

am. The defendant’s diary shows appointments for male patient B at

11.30 am, male patient C at 12.15 pm and complainant L at 1.00 pm. There is no allegation of misconduct by the defendant on 26 October

2011.

[20] The access that occurred on 20 October 2011 was not in my view sufficiently temporally connected with the treatment of complainant L to be relevant. It was more than two hours after that treatment, followed the treatment of a male patient and was just before the treatment of another female patient, B. Had there been a complaint by B, for instance, my view would have been different.

[21] I am not, therefore, persuaded that the contested evidence has a tendency to prove or disprove anything of real consequence to the determination of the

_proceeding.¹

¹ Evidence Act 2006, s 7(3).

[22] As to the inquiry under s 8, both the Crown and the defendant take the stance that access by a professional man to pornographic websites, while not creditworthy, is not unlawful. I suppose that much is obvious. The most prejudicial evidence in this case (albeit entirely admissible) is that of the complainants themselves. There is also the drawer of sex toys and undergarments, which has not been the subject of any application for exclusion.

[23] Mr Snell goes on to submit that the additional prejudicial effect of the contested evidence “is significant”. It is not quite clear why that is the case. But I accept that this behaviour, if sheeted home to the defendant, is discreditable. It is that appreciation which has led the Crown not to seek to lead evidence of after-hours access to such sites. Even though those may be more proximate to the appointments that have led to these charges. The probative value of the evidence is little more than negligible. That very limited probative value is outweighed by the modest prejudicial effect of the evidence.

Result

[24] The application is dismissed. The contested evidence may not be admitted at trial.

Stephen Kós J

Solicitors:

Crown Solicitor, Napier