HYLTON v R [2018] NZCA 110

HYLTON v R [2018] NZCA 110 [23 April 2018]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA56/2018[2018] NZCA 110BETWEEN ADAM ANTHONY HYLTONAppellantAND THE QUEENRespondentHearing: 1 March 2018Court: Brown, Brewer and Collins JJCounsel: G J Newell for AppellantJ C Pike QC for RespondentJudgment: 1 March 2018 at 4.00 pmReasons: 23 April 2018JUDGMENT OF THE COURTA The appeal is allowed.B The matter is remitted back to the District Court for reconsideration.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] On 1 March 2018, we gave a Results Judgment in this appeal.1 We allowedthe appeal and remitted the matter to the District Court for reconsideration. We nowgive our reasons.The appeal[2] The appeal was against a ruling by Judge Field2 that propensity evidence couldbe led by the Crown at the appellant's trial on charges of assault with intent to commitsexual violation and indecent assault.3[3] The evidence sought to be led by the Crown related to a complaint madeagainst the appellant in 2016 by another complainant, P. Charges were laid but P wentto Canada and the police became aware of text messages she had sent to a friend whichcould be taken to materially contradict her complaint. Further, the friend gave astatement on 3 November 2016 as to her contact with P immediately after the eventscomplained of which could also be said to materially contradict P's complaint. Giventhe absence of P in Canada, and the discovery of this less than helpful material, thepolice sought to withdraw the charges against the appellant. However, the appellantwas instead discharged under s 147 of the Criminal Procedure Act 2011.[4] Judge Field was told of the s 147 discharge but although he made reference tothe text messages there is no indication he knew of the friend's statement.[5] The reason we allowed the appeal is that Judge Field was never given theevidence the Crown sought to adduce at trial. All that the Judge had was a copy of thetranscript of P's original electronically recorded interview with the police, which tookplace on 31 October 2016.[6] It follows that the Judge could not make an assessment of the probative valueof the propensity evidence because he did not have the propensity evidence. For the1 Hylton v R [2018] NZCA 32.2 R v Hylton [2017] NZDC 124.3 The trial was scheduled to commence on 12 March 2018, hence the need for a Results Judgment.same reason, he could not assess the prejudicial effect of the evidence on theappellant.4[7] The Crown should have given Judge Field up-to-date witness statements (oragreed accounts) of the witnesses the Crown would, if permitted to do so, call toestablish the propensity. This would have enabled the Judge to make the evaluationsrequired by s 43 of the Evidence Act 2006. For example, he could not assess whetherthe trial of the appellant on the charges he faced might not be overtaken, to theillegitimate prejudice of the appellant, by what could amount to a full-blown trialwithin the trial to establish P's complaint (whatever that might still have been).[8] For these reasons, the Judge's decision could not stand and reconsideration wasnecessary.Result[9] The appeal is allowed.[10] The matter is remitted back to the District Court for reconsideration.Solicitors:Kevin McDonald & Associates, Auckland for AppellantCrown Law Office, Wellington for Respondent4 Section 43 of the Evidence Act 2006 requires an assessment of the probative value of propensityevidence weighed against the risk that the evidence may have an unfairly prejudicial effect on thedefendant.