HART v R [2016] NZCA 349

HART v R [2016] NZCA 349 [22 July 2016]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 ANY NAMED WITNESS UNDER18 YEARS OF AGE PROHIBITED BY S 204 OF THE CRIMINALPROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA187/2016[2016] NZCA 349BETWEEN SHAUN HARTAppellantAND THE QUEENRespondentHearing: 22 June 2016Court: Cooper, Lang and Peters JJCounsel: C D Bean for AppellantB H Dickey for RespondentJudgment: 22 July 2016 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Hart, faces one charge of blackmail of the complainant, C.1Mr Hart has pleaded not guilty to the charge and is to go to trial in November 2016.[2] Mr Hart seeks leave to appeal a pre-trial ruling of Judge Menzies in the Hamilton District Court in which the Judge ruled that the Crown could adduce, as propensity evidence, evidence of conduct similar to that alleged by C.2 There is no substantial opposition to leave and we grant it accordingly.Background[3] Mr Hart and C met through the online dating site Qeep, which apparently is a site on which the exchange of sexually explicit communications is common. Mr Hart and C also communicated and exchanged photographs via Snapchat. Mr Hart is said to have requested, and C to have provided, photographs of her breasts and vagina. It is then alleged that Mr Hart asked C to provide more explicit photographs and/or videos and that he threatened to post or publish online the images that C had already provided if she did not do so. C complied, sending about 20 photographs and 20 videos in total. C was 18 at the time3 and Mr Hart 17, a detail on which counsel for Mr Hart relies in this appeal.[4] C subsequently went to the police and the charge followed.Proposed propensity evidence[5] The evidence that the Crown has been permitted to adduce as propensity evidence is from two other young women, S and B.41 Crimes Act 1961, s 237(1).2 R v Hart [2016] NZDC 5315.3 According to the Crown's submissions.4 At [40] the Judge declined to allow the Crown to adduce evidence of social media"conversations" between Mr Hart and others as it might overwhelm the jury and because itsprobative value did not outweigh the unfair prejudice that might arise.[6] S's evidence is expected to be that Mr Hart contacted her on Facebook in early 2014, when she was 14 and Mr Hart 15 or 16. S's evidence will be that sheprovided compromising photographs of herself to Mr Hart after he threatened to disclose private information about her unless she did so. Mr Hart then threatened to disclose those photographs if she did not send more, which she did.[7] B is expected to say that she accepted Mr Hart's friend request on Facebook. At Mr Hart's request, and relying on his promise to delete them, B sent Mr Hart photographs of her breasts and vagina. B will also say that Mr Hart then threatened to post some or all of those photographs online if she did not provide further photographs, which she did, and perform oral sex on him, which she did not.[8] B reported the matter to the police. The matter was addressed at a family group conference convened under the Children, Young Persons, and Their Families Act 1989. B was 14 at the time and Mr Hart 16.[9] No charges were laid against Mr Hart in respect of either of these series of events.Pre-trial ruling[10] The Judge accepted that S and B's evidence tended to show a propensity on Mr Hart's part to:5... blackmail young females over social media into providing explicit images of themselves by threatening them with wider exposure of explicit images earlier provided by them if they [did] not comply with his demands.[11] The Judge also held that the evidence was of probative value in relation to an issue in dispute in the proceeding, namely identity; that is, whether Mr Hart was the person with whom C had communicated.6 The events involving S, B and C were proximate in time (all within the previous 18 months or so) and the threatening andnegotiating of "deals" with the young women was unusual.75 At [17] and [34].6 At [35].7 At [31]–[33].[12] The Judge rejected the submission for Mr Hart that the probative value of the evidence did not outweigh the risk that it might have an unfairly prejudicial effect.8The Judge considered that any risk in that regard could be met by an appropriate direction to the jury.9Discussion[13] We agree with the Judge that the evidence tends to show that Mr Hart has the propensity to act in the way the Judge identified. In each instance Mr Hart is alleged to have obtained at least one compromising image and threatened to publish it if another image were not provided. That is what C alleges occurred in this case.[14] Before us, counsel for Mr Hart submitted that the probative value of S andB's evidence is not high because of material differences between the circumstances concerning them on the one hand and those concerning C on the other. These differences were said to be that:(a) Mr Hart was a young person (that is, younger than 16) and S and B were aged 14 at the time of the alleged incidents concerning them, whereas he was 16 or 17 and C was 18 at the time of the alleged offending against her; and(b) communications on Facebook are different to communications on Qeep. Facebook is not routinely used for communications of anexplicit sexual nature, whereas (on the basis of counsel's submission)such communications are routine on Qeep.[15] We do not accept that these differences affect the probative value of the evidence.[16] The probative value of the evidence is greater because of the confined period of time in which it is said to have occurred. This is not a case where there has been a8 Evidence Act 2006, s 43(1).9 Hart, above n 2, at [39].lengthy period between one incident and another.10 Moreover, as the Judge said, the conduct is similar and unusual. Any differences between the nature of communications on Facebook and on Qeep are beside the point.[17] Nor do we accept counsel's submission that it would be unfairly prejudicialto Mr Hart to adduce evidence of events which are said to have occurred when he was a youth. Again, the closeness in time between the events is an aspect of what makes the evidence probative. As the Judge said, an appropriate direction will meet any risk that the jury may engage in improper reasoning.Result[18] We dismiss the appeal.[19] For fair trial reasons, we make an order prohibiting publication of this judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.Solicitors:Bean Law, Hamilton for AppellantCrown Solicitor, Auckland for Respondent10 Stark v R [2015] NZCA 90 at [13].