DENNIS RANGIAHO HOHUA v R [2017] NZSC 124

DENNIS RANGIAHO HOHUA v R [2017] NZSC 124 [21 August 2017]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE SUPREME COURT OF NEW ZEALANDSC 59/2017[2017] NZSC 124BETWEEN DENNIS RANGIAHO HOHUAApplicantAND THE QUEENRespondentCourt: Elias CJ, William Young and OʼRegan JJCounsel: N Levy for ApplicantP D Marshall for RespondentJudgment: 21 August 2017JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] Mr Hohua was convicted of sexual violation (digital penetration) of thecomplainant and sentenced to a term of imprisonment of three years and five months.1His appeal to the Court of Appeal failed.2 He now seeks leave to appeal to this Court.[2] The Crown case at the trial was that Mr Hohua was present at a party at thehouse at which the complainant lived. Mr Hohua was 45; the complainant was 20.The complainant went to bed alone around 4 am. Some time later Mr Hohua came1 R v Hohua [2015] NZDC 24012 (Judge Hastings).2 Hohua v R [2017] NZCA 89 (Kós P, Courtney and Williams JJ).into her room uninvited and offered her cannabis. She said she declined and told himto leave, which he did, and she went to sleep. She says she woke a few hours later tofind Mr Hohua vigorously inserting his fingers into her vagina and kissing her neckand breasts. She could not say whether Mr Hohua had also raped her because she hadno recollection of this.[3] Mr Hohua's version was that, contrary to what the complainant said, she hadagreed that he would come back to her room with cannabis. He had done so and aftera period of talking there had been consensual sexual intercourse.[4] Mr Hohua was charged with both rape and digital penetration, but convictedonly on the latter. The Court of Appeal's analysis was that the jury believed thecomplainant's version of events and rejected Mr Hohua's. Hence he was convictedonly on the count in respect of which she was able to give her own account of whathappened.3[5] Mr Hohua applied to lead evidence of a previous incident involving thecomplainant. That incident occurred three years earlier when the complainant was 17and involved another man (X) who was older than her and suffered from Tourette'ssyndrome. The complainant's version of events was that X had harassed her at a partyat a rural venue and had forcibly dragged her into a tent that he had pitched on theproperty and raped her. X said the complainant had consented to sex after she hadmade strong advances to him on the dance floor. X's version of what happened on thedance floor was largely corroborated by five eye-witnesses. But there were no eye-witnesses to what happened inside the tent. The complainant made a complaint to thepolice but they decided not to prosecute.[6] The application to call evidence relating to the earlier incident was declined bythe District Court, relying on the Court of Appeal decision in Best v R.4 The Court ofAppeal in the present case upheld the refusal to admit this evidence, applying thisCourt's decision in Best v R.53 At [27].4 R v Hohua [2015] NZDC 21842 (Judge Tuohy); Best v R [2015] NZCA 159.5 Best v R [2016] NZSC 122, [2017] 1 NZLR 186.[7] The application for leave does not seek to challenge the District Court andCourt of Appeal decisions. In effect it asks this Court to consider a differentapplication from that made in the District Court and upheld in the Court of Appeal.Mr Hohua wishes to argue that he should have been permitted to call evidence of whathappened on the dance floor in the earlier incident, but not in relation to the sexualencounter that occurred inside the tent. The argument is that this would not lead to thedifficulties caused by the "he said/she said" situation dealt with in this Court's decisionin Best v R, because it would involve evidence of eye-witnesses to the events thatoccurred on the dance floor as well as the evidence of the complainant and X.[8] We are not satisfied that the point the applicant seeks to raise meets the test forthe grant of leave by this Court.6 We agree with the submission for the respondent thatit is artificial to have evidence about one part of the incident involving X, but not thesexual encounter that prompted her complaint to the police. The reason for admittingevidence of an earlier false complaint is to provide a basis for a submission that thecomplainant has a history involving false complaints of sexual assault. What theapplicant seeks to argue is that a jury should hear evidence that would found asubmission that the complainant has on a previous occasion embellished her versionof the exchange that occurred before a sexual encounter that, on her evidence, wasrape and on the accused man's evidence was not. We see that as different in characterfrom evidence that a complainant has made a false complaint on a previous occasion.Whether the proposed evidence would be substantially helpful is doubtful and would,in any event, be a matter of assessment that raises no point of principle. Nor do wesee any appearance of a miscarriage if leave is not granted.[9] We dismiss the application for leave to appeal.Solicitors:Crown Law Office, Wellington for Respondent6 Senior Courts Act 2016, s 74 and Supreme Court Act 2003, s 13.