HORTON v R [2021] NZCA 82

HORTON v R [2021] NZCA 82 [19 March 2021]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 AOTEAROACA571/2019[2021] NZCA 82BETWEEN DARRYN MICHAEL HORTONAppellantAND THE QUEENRespondentHearing: 1 December 2020Court: Goddard, Lang and Hinton JJCounsel: W C Pyke for the AppellantJ E L Carruthers for the RespondentJudgment: 19 March 2021 at 3.00 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Hinton J)[1] On 19 July 2019, at the conclusion of a trial before Judge Snell and jury in theDistrict Court at Rotorua, Mr Horton was convicted of one charge of abduction forsexual connection,1 five charges of sexual violation by unlawful sexual connection,21 Crimes Act 1961, s 208: maximum penalty 14 years' imprisonment.2 Sections 128(1)(b) and 128B(1): maximum penalty 20 years' imprisonment.two charges of sexual violation by rape,3 and one charge of assault with a weapon.4He had earlier pleaded guilty to one charge of supplying methamphetamine.5Mr Horton was sentenced to 14 years' imprisonment with a minimum non-paroleperiod of seven years.6[2] Mr Horton appeals against his conviction. He initially appealed against hissentence but abandoned that appeal before the hearing.[3] Mr Horton says a miscarriage of justice resulted from the Judge declining hisapplication to cross-examine the complainant about her previous convictions forshoplifting and other dishonesty offending. The Crown says the Judge's decision isconsistent with authority.The trial[4] The charges arose from a weekend Mr Horton spent with the complainant,whom he had not previously met. The weekend came to an end when she threw herselffrom a car he was driving. The complainant said she had been kidnapped, drugged,and raped by Mr Horton. He said all their interactions were consensual.[5] The complainant had arrived at Mr Horton's address in Tokoroa on Friday,16 March 2018 in the company of a second woman, a mutual acquaintance of theappellant and complainant. After a while, the mutual acquaintance left, leaving thecomplainant alone with Mr Horton. The complainant said it was at that point thatMr Horton, while holding a firearm, told her to "get in the bedroom". She describedbeing raped by Mr Horton eight times and twice being made to have anal intercoursewith him without her consent during the following days. She said that throughout theweekend, Mr Horton injected her with methamphetamine to subdue her and handledknives and firearms in front of her in a menacing fashion.3 Sections 128(1)(a) and 128B(1): maximum penalty 20 years' imprisonment.4 Section 202C: maximum penalty five years' imprisonment.5 Misuse of Drugs Act 1975, s 6(1)(c): maximum penalty life imprisonment.6 R v Horton [2019] NZDC 19913.[6] At times during the weekend, the complainant travelled around withMr Horton, including on Sunday, 18 March 2018 when they went to a pharmacy inTokoroa to buy a syringe. She said that Mr Horton watched her constantly, and thatshe had nowhere to go if she tried to run away.[7] According to the complainant, the following Monday, 19 March 2018,Mr Horton agreed to take her home to Taupo but changed his mind when they werehalfway there and reached for a gun that was sitting in the car. At this point she threwherself from the moving car. This drew the attention of passing motorists.[8] At trial, the Crown called evidence from the complainant; the mutualacquaintance; the passing motorists who had stopped to help her; a pharmacist whosepharmacy she was taken to after exiting the car; a doctor who medically examined her;and the constables who investigated her allegations. Footage was shown of Mr Hortonand the complainant at various places they had been together over the weekend anditems produced from Mr Horton's home, which the Crown said were consistent withher version of events.[9] Mr Horton gave evidence. This was, consistent with his initial policeinterview, that the complainant had asked to stay for the weekend and then let herselfinto his bed on the second night. He said she was the one who initiated intercourseand that they had (vaginal) intercourse on only one occasion, which stopped after thecomplainant expressed discomfort. He accepted that on one occasion he had assistedthe complainant in injecting herself with methamphetamine when she had troublefinding a vein.[10] In support of Mr Horton's version of events, the defence called evidence fromwitnesses who said they had visited his house over the weekend and saw him havinga pleasant time with a woman. The defence also pointed to the CCTV footage of thevisit to the Tokoroa pharmacy on the Sunday, and text messages sent by thecomplainant during the weekend in which she said she was having a good time.[11] In his evidence, Mr Horton said he had no idea why the complainant decidedto throw herself from his car. The defence contended that the complainant was anunreliable witness. She had not been keeping up with her medication and had beentaking methamphetamine, and these were the causes of her unreliable recollection andher behaviour in throwing herself from the car.[12] In cross-examination, the complainant accepted that she was on prescriptionmedication at the time and had smoked methamphetamine with the mutualacquaintance before she met Mr Horton. However, she denied having lied in herevidence, including when she said that Mr Horton had been watching her the wholetime. As to the text messages saying she had been having a good time that weekend,her response was that she had lied in those messages because of the weaponsMr Horton had sitting around the house.[13] In summary, there was a clear conflict between the evidence of Mr Horton andthe complainant as to the weekend's events. While there was other available evidence,the complainant's evidence formed a substantial part of the Crown's case at trial.Ruling under appeal[14] Before trial, the defence filed an application to cross-examine the complainanton her previous convictions. It is not in dispute that evidence of those convictions isveracity evidence, such that s 37 of the Evidence Act 2006 (the Act) applies.[15] The complainant, who was 56 years old at trial, had 24 previous convictionsfor dishonesty offending that extended over a period of 35 years from 1980 to 2015.Two were for theft as a servant and theft by a person in a special relationshiprespectively. The first of those was entered in 1985 in respect of conduct in 1980, andthe second in 2005. The other 22 convictions (entered between 1992 and 2015) werefor one charge of receiving stolen property (in 2006) and the rest for shoplifting andtheft, all of amounts under $500.[16] Mr Edward, Mr Horton's trial counsel, submitted that allowing evidence of theprevious convictions would substantially help the jury in assessing the complainant'scredibility. He said that her reliability and credibility were the key issues at trial, suchthat the jury's assessment of her veracity was crucial.[17] The application was heard on 15 July 2019. In his Ruling (No 1), the Judgefocused on the most recent 10 years of the complainant's criminal record, noting thefive convictions entered in this period were "all very minor dishonesty offences" andthe last was three years before she laid this complaint.7 He agreed with the Crown thatevidence of these convictions would not assist the jury in determining thecomplainant's propensity to tell the truth in respect of the allegations she was makingagainst Mr Horton. Even if regard was had to the complainant's full record, the Judgeconsidered such evidence:8 is not substantially helpful in assessing the complainant's veracity on whatare significantly different issues and matters that are quite separate and distinctfrom that type of offending.[18] The Judge therefore dismissed the application. He added that, even if he had"thought that there was some limited assistance for the jury in terms of an assessmentof veracity from these matters", the limited probative value of the evidence in thatrespect would have been outweighed by its prejudicial effect, rendering it inadmissiblepursuant to s 8 of the Act.9[19] As a consequence, evidence of the complainant's prior dishonesty convictionsdid not form part of the defence's challenge to her credibility at trial.The appeal[20] Counsel for Mr Horton on appeal, Mr Pyke, submits that the Judge's rulingwas in error and was based on an incorrect appreciation of the case law.[21] Mr Pyke submits that the totality of the complainant's history for dishonestyoffending ought to have been considered by the Judge, rather than concentrating onthe minor shoplifting and theft offending of the last 10-year period. He says that thecomplainant's significant number of convictions for dishonesty at regular intervalsover a prolonged period leading down to three years before trial is clearly relevant toan assessment of her credibility, as it discloses a habitual propensity for dishonesty on7 R v Horton [2019] NZDC 13928 (Ruling 1 of Judge Snell) at [7].8 At [11].9 At [13].her part. Particularly where the jury heard it being put to the complainant by thedefence that she had lied on a number of occasions, Mr Pyke said it would have beenof substantial help to the jury to have heard evidence of her dishonesty convictions.[22] For the Crown, Mr Carruthers says the Judge's decision was consistent withseveral decisions of this Court, including the recent decision in Ieremia v R, whichconfirm that evidence of minor dishonesty convictions such as shoplifting, howevernumerous and frequent, is not substantially helpful to a jury in assessing the veracityof a complainant making serious allegations of sexual abuse.10 As to the two otherconvictions for theft as a servant, Mr Carruthers submits evidence of those would nothave substantially helped the jury either because nothing is known of thecircumstances and the sentences imposed (to come up for sentence if called upon andcommunity work) suggest this was petty offending of its kind. Moreover, he submits,these are historic offences.Discussion[23] Section 37 of the Act provides, so far as is relevant:37 Veracity rules(1) A party may not offer evidence in a civil or criminal proceeding abouta person's veracity unless the evidence is substantially helpful inassessing that person's veracity.(3) In deciding, for the purposes of subsection (1), whether or notevidence proposed to be offered about the veracity of a person issubstantially helpful, the Judge may consider, among any othermatters, whether the proposed evidence tends to show 1 or more ofthe following matters:(b) that the person has been convicted of 1 or more offences thatindicate a propensity for a lack of veracity:(5) For the purposes of this Act, veracity means the disposition ofa person to refrain from lying.10 Ieremia v R [2020] NZCA 17 at [47]. Counsel also referred to Key v R [2010] NZCA 115 at [57].[24] The Judge, and the appeal before us, proceeded on the basis that evidence ofthe complainant's dishonesty convictions is veracity evidence, that is it goes to thequestion of whether she has a disposition "to refrain from lying" in terms of s 37(5).We note there is some room for doubt on this point. As this Court observed in Key,offending such as petty theft and shoplifting is not revealing of a person's propensityto tell the truth.11 While theft is a dishonesty offence, it is one that can easily beaccomplished without any lie being told. It follows that evidence of convictions fordishonesty offences does not necessarily bear on a person's disposition to refrain fromlying. Relevant in this regard is the Evidence Amendment Act 2016 which substitutedthe phrase "offences that indicate a propensity for a lack of veracity" in place of"offences that indicate a propensity for dishonesty or lack of veracity" in s 37(3)(b),aligning it with the focus under s 37 on a person's veracity in the narrow sense definedin s 37(5).12 That amendment supports the view that not all offences involvingdishonesty bear on an assessment of veracity.[25] Nonetheless, there are a number of decisions that proceed on the basis thatdishonesty convictions, even those where no "lie" inheres in the fact of conviction,may be treated as convictions indicating a lack of veracity.13 We therefore turn to thepoint that was the focus of the argument before us, which is whether evidence of thecomplainant's criminal history would have been substantially helpful to the jury inassessing her veracity, as required by s 37(1).[26] As Mr Carruthers submits, it is clear from recent decisions of this Court thatevidence of minor dishonesty convictions for shoplifting and theft, such as those thatform the bulk of the complainant's criminal history, is unlikely to satisfy thesubstantial helpfulness test in a case like this. As the Court said in Ieremia, evidenceof such a history of offending, "no matter how frequent is not strongly probative if atall of a complainant's propensity to lie when giving evidence on such a seriousmatter".14 The same point was made in Key: "we do not agree that offending such as11 Key v R, above n 10, at [57].12 Evidence Amendment Act 2016, s 12(1).13 See for example Carter v R [2016] NZCA 629 at [47]–[55]; and R v Katipa [2017] NZHC 2169at [8]–[14].14 Ieremia v R, above n 10, at [47]. We understand French J, writing for the Court, to have beenreferring to the substantial helpfulness criterion in s 37(1) of the Evidence Act 2006 when shedescribed the evidence as not being "strongly probative if at all".petty theft and shoplifting is revealing of [an] offender's propensity to tell the truthwhen giving evidence".15[27] Ieremia, the more recent of these two cases, involved serious historic sexualoffending. All four complainants had histories of dishonesty offending, comprisedmainly of convictions for petty theft and shoplifting. Three of these were quiteextensive histories going back over several decades to the complainants' youth and intwo cases, down to a few years before the trial. Some of the complainants also hadconvictions for burglary, theft as a servant, conversion, and using a document forpecuniary advantage.[28] This Court considered most of the convictions to be "not relevant" to anassessment of the complainants' veracity, being from "too long ago".16 The Court was"troubled" by a comparatively recent conviction of one complainant (S) for havingsigned a timesheet on another's behalf causing loss of over $5,000 as that involved anactual recent lie, saying its admissibility was "debatable".17 However, in thecircumstances of that case, given the other complainants had earlier made similarcomplaints against the defendant to the police, and the defence case was that they had"acted like a pack" in conspiring to lie, the Court considered that evidence of thatconviction would not have been substantially helpful. Alternatively, the Court was notpersuaded that evidence of the convictions might have reasonably impacted on theverdicts.18[29] Ieremia was the subject of a further appeal to the Supreme Court.The admissibility of the complainants' previous convictions as veracity evidence wasone of the grounds on which leave was granted.19 Ultimately the veracity ground wasrejected and the appeal was allowed on another ground.20 The Supreme Court did notdetermine whether evidence of the previous convictions was admissible as veracityevidence. The veracity ground was rejected on the basis that no application had in factbeen made to cross-examine on those convictions, and that omission did not give rise15 Key v R, above n 10, at [57].16 Ieremia v R, above n 10, at [39].17 At [50].18 At [50]–[51].19 Ieremia v R [2020] NZSC 60.20 Ieremia v R [2020] NZSC 143 at [88]–[89].to a miscarriage of justice. The Supreme Court also considered that there was noreasonable possibility that evidence of the conviction of S would have changed theresult.21 The Supreme Court did not express a view on the relevance of minordishonesty offending as veracity evidence, apart from observing that an application tocross-examine the complainants on those convictions would have been less likely tosucceed than an application to cross-examine S on her conviction "given that manywere minor offences such as shoplifting or petty theft and were also old".22[30] We agree with the view expressed by this Court in both Ieremia and Key thatevidence of a witness' prior convictions for minor dishonesty offending, such asshoplifting and petty theft, is generally unlikely to be substantially helpful to assessingthe witness's veracity when giving evidence. Clearly some evaluation is required ineach case, as indeed occurred in Ieremia and Key. As is often said, context isimportant. Relevant factors include the nature and seriousness of the convictions(particularly if any falsehood is disclosed), the age of the convictions, any overallpattern of offending, and the circumstances of the trial (that is, the particular way inwhich issues of veracity arise). Also relevant can be evidence of extenuatingcircumstances related to the convictions (such as significant material hardship on thepart of the complainant) as that bears on the extent to which the conviction illustratesa wider propensity to lie.23[31] Evaluating the circumstances of this particular case, we agree with the Judgethat the evidence of the complainant's history of minor shoplifting, theft, and receivingoffending, albeit that history is fairly extensive and sustained, would not havesubstantially assisted the jury in assessing her veracity. As Katz J noted in R v Chase,such evidence does not logically tend to bear on a complainant's veracity when givingevidence "about being violently assaulted and raped",24 especially where, as here, theprevious convictions do not disclose in and of themselves the past telling offalsehoods.25 Given this limited degree of relevance, evidence of those convictions isnot substantially helpful.21 At [71]–[87].22 At [83].23 R v Chase [2016] NZHC 2665 at [44].24 At [44].25 This, we note, is really the same logic animating our doubts as to whether evidence of such[32] The same is true of this complainant's convictions for theft in a specialrelationship/as a servant. As Mr Carruthers submits, based on the sentences imposed,these were apparently minor offences of their kind. Moreover, they are historic.Unlike S's conviction in Ieremia, which had been shown to involve actual falsehood,these offences do not necessarily disclose a pertinent tendency to lie. While theft asa servant involves an abuse of trust, it does not necessarily involve falsehood. In thatrespect, the simple fact of such a conviction is as equivocal in terms of disclosinga propensity to tell lies as a conviction for shoplifting. This reinforces our view thatthese offences and her conviction history overall have little real relevance to anassessment of the complainant's veracity, and thus are unlikely to have beensubstantially helpful.[33] For these reasons, we do not consider the Judge erred in dismissing theappellant's application to cross-examine the complainant on her conviction history.It follows that no miscarriage of justice has occurred.Result[34] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondentconvictions can properly be considered veracity evidence, tending to indicate as it does that suchevidence is not in fact evidence about a person's "disposition of a person to refrain from lying".