R v G [2014] NZHC 2658 (29 October 2014)

Last Updated: 18 August 2017

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR PARTICULARS OF WITNESSES.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-004-1289 [2014] NZHC 2658

THE QUEEN

v

_G

Hearing:	28 October 2014
Counsel:	G Hollister-Jones and S Christensen for Crown T Cooper and G Burns for Defendant
Judgment:	29 October 2014

_{JUDGMENT OF FOGARTY J}

This judgment was delivered by me on 29 October 2014 at 2.15 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

_{Solicitors: Ronayne Hollister-Jones Lellman, Rotorua}

R v G [2014] NZHC 2658 [29 October 2014]

Introduction

[1] There are two pre-trial applications for orders or directions as to admissibility of evidence in this case. One is by the Crown as to admission of evidence relating to physical violence on the part of the defendant in the context of a trial where the charges are predominantly of sexual violence.

[2] The second application is by the defendant for admission as to prior sexual experience of one of the complainants, in order to elicit evidence from the complainant that the defendant had physically assaulted the male with whom she had an involuntary sexual experience.

Summary of the Crown case

[3] The defendant faces 50 charges. One, male assaults female; two assaults on a child; 28 indecencies with a girl under 12 years; 10 indecencies with a girl 12 16 years; 2 assaults with intent to commit sexual violation; 3 rapes; and 4 sexual violation by unlawful sexual connection. There are nine complainants.

[4] The complainant A is the defendant’s sister-in-law as he had married her older sister. She was six or seven years old when the alleged sexual offending against her by the defendant started. The Crown case is that it continued until she was approximately 12 years old.

[5] Complainant B is the defendant’s first child, his biological daughter.

[6] The Crown applications to lead evidence of violence come from the witness statements of complainant A and complainant B.

[7] The evidence sought to be led by the Crown relate to allegations of violence in the household of both complainants, including allegations of violence by the defendant, and is sought to be admitted as evidence relevant under s 7 of the Crimes Act 1961 (the Act) and whose probative value is outweighed by the risk that the

evidence will have an unfairly prejudicial effect, by s 8 of the Act, and it being video recorded video evidence admissible by way of s 106 of the Act.

[8] It is a feature of the Crown case that there were no complaints by the victims at the time.

[9] Whether or not the witnesses are challenged at the trial as not having complained, the reasonable apprehension of the Crown is that the jury will want to know why there were no complaints.

[10] The Crown summary of facts records that complainant A, another complainant (her older sister, complainant C), complainant B and another complainant D will give evidence of being warned by the defendant not to complain and/or that they were intimidated by the defendant.

[11] Not all evidence of violence, threatened or actual, on the part of the defendant is challenged as being inadmissible under ss 7 and 8.

[12] In respect of complainant A, the first challenge is to evidence that she gives that her mother, S who died in 2012, had suffered violence from her husband, the defendant. It includes reporting S, the mother, saying to complainant A, “G’s just beaten me up”, that being much later when she was old enough to have her own boyfriend.

[13] In respect of complainant B, she tells the story of how she was in bed when S and the defendant (recall he is her father) were having a party. During that night another man came into her room and interfered with her. She went out into the lounge telling her father and her father got up, took the guy out and beat him up really badly.

[14] She told the story in the context that she could not understand why her father beat up the man as her father was touching her. She also gives evidence that her father was violent to her mother in front of her, including seeing her father strangling

her mother on the couch, her mother being petrified that she might be shot by her father.

[15] The Crown wants all this evidence in except the evidence of the stranger assaulting complainant B and then being beaten up by the defendant.

[16] The Crown argument is that the Court should follow the decision of the Court of Appeal in the case of Perkins v R.¹

[17] Although that decision does not refer to ss 7 and 8, counsel agreed that the Court was applying ss 7 and 8. The appellant Perkins was appealing against conviction of six counts of sexual violation and five counts of assault with a weapon. The complainant was his former partner.

[18] Other misconduct by the defendant to the victim was allowed in by the Court of Appeal, not on the basis that it was propensity evidence but, rather, that it showed a general atmosphere of violence. Paragraphs [21], [26] [28] of the judgment read:

[21] So also where violence erupts in the familial context the underlying family dynamics are relevant to explain why and in what context alleged incidents occurred, and the effect of them. This may be particularly so where the violence is across the board in a family, and/or when there is sexual abuse. In this respect as was stated in the minority decision in Mohamed:²

[26] We accept the Crown submission that it was important to the Crown case to show that there was a general atmosphere of violence to all those in the household emanating from Mr Perkins. It set the background for what the Crown claimed was the unwilling acquiescence to sex on the part of the complainant, who on past experience knew that if she declined she would be assaulted.

[27] This is not propensity evidence that falls within the category of orthodox similar fact evidence. Rather it is what is sometimes called relationship evidence. The evidence is allowed in not because of the similarity between what is alleged by way of background and the actual offending (although there are similarities) but rather because otherwise the complainant’s evidence as to the alleged offending which is the subject of charges will be necessarily incomplete and perhaps not comprehensible from

¹ _{Perkins v R [2011] NZCA 665.}

2. Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [57], [58] and 93. We refer to the minority decision on directions as the majority decision did not deal with these.

_{the point of view of the jury.}³ _{It was said of relationship evidence in R v}

MacDonald:⁴

The relevance of the relationship evidence in terms of its narrative significance was obvious – so obvious that the point went without saying. In that context we do not think it matters that the Judge did not explain this to the jury. He certainly did make it clear to the jury that they had to focus on the period covered by the charge.

[28] In this case, if the Judge had tried to explain the value of the evidence as showing the background to the relationship there was a danger of stating the obvious and giving it judicial emphasis. This is likely to have been more damaging to Mr Perkins’ case than leaving it as background without particular emphasis. An orthodox propensity warning was not required as this was not put forward as propensity evidence. The general warnings against prejudice were sufficient.⁵

[19] Part of the context of this application is there is other evidence by complainant A that the defendant had threatened to harm her older sister or her mother if she had ever disclosed the sexual offending. Ms Cooper, for the defendant, does not oppose all of this evidence but proposes the evidence of the later event, after the period of alleged offending, when she was living in another property and her mother came around asking to stay because “G’s just beaten me up”. She submitted that evidence was gratuitous and not directly related to the offending against complainant A.

[20] I consider that that evidence is borderline relevant under s 7 and definitely prejudicial under s 8. There would be a risk of an unfair trial were it admitted. It is excluded under s 8 as having an unfairly prejudicial effect on the criminal offending.

[21] For the same reason I also exclude the statement that G knew that

complainant A’s father was violent to her mother.

[22] In summary, I allow the evidence of violence by complainant A except the narration of the beating up of S when complainant A was about 17 and had moved back to Whakatane and, secondly, the evidence of violence of her father towards her

_{mother in the context of saying that the defendant knew about that. It follows that}

³ _{See the discussion in R v MacDonald CA166/40, 8 April 2005 at [14].}

⁴ _{At [23]}

⁵ See the minority decision in Mahomed v R, above n 2, at [92].

the passages underlined in the transcript attached to the application are inadmissible and need to be deleted.

[23] I turn to the challenges to the evidence of complainant B. She is the defendant’s daughter. She gives evidence that the defendant, her father, was violent towards her mother. The Crown submit that such evidence provides context and a coherent account for complainant B to be afraid of her father.

[24] For the defendant, Ms Cooper takes objection to the strangling incident as being disproportionately prejudicial.

[25] I agree that the strangling evidence is unfairly prejudicial. There is ample evidence of a violent household without using this potentially contestable evidence. One keeps in mind that the mother, S, has died.

[26] Applying s 8, I exclude the evidence of attempted strangulation appearing in the transcript of the interview on 31 October 2013 at pages 17 and 18. Also the threatening to shoot on page 19.

Crown’s s 44 application

[27] In the interview of 18 October, complainant B gives evidence of being molested by a strange man during a party in her home. She gives it in the context of her father then beating the man up. This is evidence that the Crown seeks to exclude. Section 44 of the Evidence Act 2006 provides:

44 Evidence of sexual experience of complainants in sexual cases

(1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

(2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.

(3) In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the

issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

(4) The permission of the Judge is not required to rebut or contradict evidence given under subsection (1).

(5) In a sexual case in which the defendant is charged as a party and cannot be convicted unless it is shown that another person committed a sexual offence against the complainant, subsection (1) does not apply to any evidence given, or any question put, that relates directly or indirectly to the sexual experience of the complainant with that other person.

(6) This section does not authorise evidence to be given or any question to be put that could not be given or put apart from this section.

[28] The Crown relies on subss (1) and (3). The Crown accepts that the evidence would not be advanced by the defendant in any way to undermine the reputation of the complainant, as provided for in subs (2). Rather, the Crown argues that it is not of sufficient relevance to the facts in issue to be admitted.

[29] The Evidence Act, of course, is an attempt to codify the common law, although it changes it to some extent. The learned editors of Adams on Criminal Law consider the former law still has some application. The common law developed means of preventing alleged victims of sexual offending being cross-examined as to their sexual reputation without very good reason. Normally the attempt was to show that the woman complainant was promiscuous and so is likely to have consented.

[30] I am satisfied that here the Crown is seeking to apply s 44 for a purpose never contemplated by Parliament.

[31] In the case of R v Clode⁶ the Court said:

It is important to emphasise that in every case the starting point is that the accused must have a fair trial and must not be precluded from putting things that are necessary to his or her defence.

[32] This, of course, is a point emphasised in s 8. The Court also said:

Section 44 of the Evidence Act (and its predecessors) were enacted to prevent entirely reprehensible and inappropriate blackening of the characters of particular women complaints by directly or indirectly “tarring” them in

⁶ R v Clode [2007] NZCA 447.

the eyes of the jury. It was not, in terms, intended to preclude or somehow truncate the advancement of a full defence which is otherwise open to an accused.

[33] This evidence is plainly important to the defendant’s defence. The application under s 44 is granted. The consequence is that the passages in the interview of 18 October discussing these events and the subsequent beating up of the man by the father are admissible.