SCHOLLUM v R [2019] NZCA 69

SCHOLLUM v R [2019] NZCA 69 [26 March 2019]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.ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESS CPURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011.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 AOTEAROACA723/2018[2019] NZCA 69BETWEEN DYLAN JAMES SCHOLLUMAppellantAND THE QUEENRespondentHearing: 4 March 2019Court: Courtney, Dobson and Brewer JJCounsel: M J English and MER Phillipps for AppellantE J Hoskin for RespondentJudgment: 26 March 2019 at 10 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of name, address, occupation or identifyingparticulars of witness C pursuant to s 202 of the Criminal Procedure Act2011.D Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or otherpublicly available database until final disposition of trial. Publication in lawreport or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Schollum faces trial on one charge of indecent assault. He wishes to(1) adduce evidence from the complainant's sister, C, about her statement to the policethat on the night of the alleged offending Mr Schollum had seen the complainantkissing a man who was not her boyfriend and (2) use that evidence to cross-examinethe complainant on her statement to the police that she had a boyfriend andMr Schollum knew that.[2] Complainants in sexual cases are shielded from questions that go to their sexualexperience with persons other than the defendant. Section 44 of the Evidence Act2006 provides that no such question can be put to a witness except with the permissionof the Judge and "the Judge must not grant permission unless satisfied that theevidence or question is of such direct relevance to facts in issue in the proceeding that it would be contrary to the interests of justice to exclude it".1[3] Judge M E Sharp refused Mr Schollum permission to adduce the evidence.2He seeks to appeal that decision. Under s 217 of the Criminal Procedure Act 2011leave is required to appeal a pre-trial decision.3 As the outcome of this application1 Evidence Act 2006, s 44(2) and (3).2 R v Schollum [2018] NZDC 24110 at [16].3 Criminal Procedure Act 2011, s 217(2)(b).will likely affect the defence Mr Schollum advances, we are satisfied that this appealought to be resolved prior to trial.4 Leave to appeal is therefore granted.The alleged offending[4] The complainant and Mr Schollum were both 19 years old at the time ofthe alleged offending. They had been friends for a number of years but on a platonicbasis. On the evening of 23 September 2017, Mr Schollum invited the complainant tosocialise with him. The complainant, C and C's boyfriend joined Mr Schollum invisiting bars in Auckland. Mr Schollum was the sober driver and he bought drinks forthe complainant who became intoxicated.[5] Eventually, Mr Schollum drove the complainant and the others back to theirhome. The complainant says she told Mr Schollum to leave and she went to herbedroom and lay down on her bed. The complainant's sister and her boyfriend alsowent to bed.[6] Mr Schollum did not leave. He went back into the house after everyone hadgone to bed and went into the complainant's bedroom. He got onto the complainant'sbed and lay on top of her. What happened next is said by Mr Schollum to have beenconsensual and by the complainant to have been against her will. Essentially,Mr Schollum kissed the complainant on her mouth and neck.[7] The issue at trial will be whether the complainant consented to the physicalcontact.The proposed evidence[8] When interviewed by the police, the complainant said: I told him that I didn't want a relationship with him or I didn't have feelingsfor him and, or anything like that and he knew that, and at the time, you know,I had someone, you know, I'm dating someone and he knew that as well.So um I had it in my head that he knew that we were friends and he said thatlike "Yeah, you know, we're friends," I'm like, "Okay," not too bad.4 See Practice Note — R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [13]–[14]; andHohipa v R [2015] NZCA 73, [2018] 2 NZLR 1 at [25]–[31].[9] C told the police that while they were out socialising:[Mr Schollum] had his arms around [the complainant] and was hugging her.I thought this was a bit weird, he had seen [the complainant] hook up withanother guy during the night and he should have known where he stood withher.(emphasis added)[10] C did not say that she saw the complainant "hooking up" with another man.The complainant did not mention the incident described by C in her statement.Nor does Mr Schollum claim to have seen it. For the purposes of the appeal, however,we proceed on the basis that that the incident C described did occur and that she sawit.Appeal[11] In argument, Mr English, for Mr Schollum, said the relevance of the proposedevidence was twofold. First, to show that, whatever reason the complainant had givenfor not wanting to kiss Mr Schollum, it could not have been because she had aboyfriend as she had chosen to kiss a man who was not her boyfriend that night.Secondly, to show that the complainant had dishonestly represented to the police that,because she had a boyfriend, she would not have kissed anyone else.[12] Mr English expressly disavowed any use of the evidence to show consent.The only use would be to impugn the complainant's credibility. Mr English relied onthe decision in Pegler v R in which evidence of the complainant's previoushomosexual experience was permitted for the purpose of impugning his claim to havetold the defendant that he was not interested in sex with him because he had a girlfriendand homosexual sex "wasn't really [his] vibe".5[13] In her decision, Judge Sharp:(a) did not consider that the complainant's statement to the police borethe meaning ascribed to it by the defence;6 and5 Pegler v R [2015] NZCA 260 at [7].6 R v Schollum, above n 2, at [9].(b) in any event, considered the evidence of the sister might constitutean invitation to the jury to infer that, despite having a boyfriend,the complainant kissed another man that night and therefore was morelikely to have consented to sexual contact with the defendant.7[14] We agree with Judge Sharp. The complainant did not say she would not havekissed Mr Schollum because she had a boyfriend. She said that that she did not havefeelings for Mr Schollum, did not want a relationship with him and Mr Schollum knewthat. The fact that she was already in a relationship, which Mr Schollum also knew,was clearly a matter that she regarded as relevant. But she did not go so far as to saythat this was the reason she would not have consented to kissing Mr Schollum.[15] Unlike the facts in Pegler, the complainant's statement does not provide anyfoundation on which the proposed evidence could legitimately be used to impugn hercredibility.[16] We also agree with the Judge that allowing Mr Schollum to cross-examine Cand the complainant in the manner proposed would carry a serious risk of illegitimatereasoning by the jury. As a result, C's statement does not satisfy the statutory test thatit be of such direct relevance that it would be contrary to the interests of justice toexclude it.8Result[17] The application for leave to appeal is granted.[18] The appeal is dismissed.[19] To protect the statutory suppression of the complainant, we make an orderprohibiting the publication of the name, address, occupation or identifying particularsof witness C pursuant to s 202 of the Criminal Procedure Act.7 At [15].8 Evidence Act, s 44(3).[20] To protect Mr Schollum's fair trial rights, we make an order prohibitingpublication of the judgment and any part of the proceedings (including the result) innews media or on the internet or other publicly available database until finaldisposition of trial. Publication in law report or law digest permitted.Solicitors:Public Defence Service, Waitakere, for AppellantCrown Law Office, Wellington, for Respondentbg