T (CA165/2018) v R [2018] NZCA 303

T (CA165/2018) v R [2018] NZCA 303 [13 August 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 IN LAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA165/2018[2018] NZCA 303BETWEEN T (CA165/2018)AppellantAND THE QUEENRespondentHearing: 5 June 2018Court: Cooper, Whata and Thomas JJCounsel: A J Maxwell-Scott and S R Lack for AppellantB D Tantrum and J V Barry for RespondentJudgment: 13 August 2018 at 12.30 pmJUDGMENT OF THE COURTA The appeal is allowed.B We direct that the evidence identified in the District Court judgment andthis judgment as the category 2 and category 3 evidence is inadmissible atthe appellant's trial.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The appellant has been charged with sexual violation by unlawful sexualconnection contrary to s 128(1)(b) and s 128B of the Crimes Act 1961. There werealso two charges under s 194(b) that being a male he assaulted a female. Although thelatter two charges remain in the Crown charge notice, they are now time barred and atthe trial the Crown will seek that the appellant be discharged on those charges.1Nevertheless, it wishes to lead the evidence which supported those charges at the trialas well as other evidence said to be admissible on a propensity basis.[2] The respondent's pre-trial application concerned the following propensityevidence:(a) Evidence of a previous conviction of the appellant on 16 June 2017 forinjuring a recent domestic partner with intent to cause grievous bodilyharm and contravention of a protection order (category 1).(b) Evidence of an alleged assault by the appellant against C,the complainant in the present case. This was a single punch to the headthat is said to have occurred at some point prior to the alleged sexualoffending (category 2). The timing of this event was unclear.1 The offending is domestic in nature and dates back to 4 November 2007: the 10-year limitationperiod that was contained in s 10B of the Crimes Act 1961 applies to these charges by virtue ofs 19(2) of the Interpretation Act 1999, notwithstanding the repeal of s 10B by the CrimesAmendment Act (No 4) 2011.(c) Evidence said to show a general tendency of the appellant to bephysically violent towards C during the course of their relationship(category 3).(d) Evidence that the appellant had forced the complainant throughviolence to provide sexual services to other men for payment(category 4).[3] Judge Ronayne granted the respondent's application in respect of each categoryof evidence referred to in [2].2 The appellant has sought leave to appeal againstthe decision insofar as it admitted the evidence referred to in as categories 1 to 3 above.However, insofar as the category 1 evidence is concerned, counsel for the respondent,Mr Barry advised at the hearing that following confirmation of admissions thatthe appellant will make about physical assaults he committed against C, the Crown nolonger seeks to lead the evidence. The appellant does not seek to appeal againstthe order ruling admissible the evidence in category 4: Mr Lack explained the defenceaccepts that the evidence is admissible, but does not accept the events describedoccurred. We do not discuss that evidence further.[4] That leaves for consideration the evidence categories 2 and 3 (the "propensityevidence"). The appellant claims that the District Court Judge erred in defining theissue in dispute as being the complainant's veracity. Further, it is said that the Judgeerred when determining that the proposed evidence had a probative value in relationto the issue in dispute. The appellant submits that since he accepts that he directedphysical violence against the complainant on the day of the alleged offending, the issuein dispute is simply whether or not the alleged sexual violence occurred.The propensity evidence does not establish a tendency for the appellant to commit actsof sexual violence, that being the only issue in dispute at the trial. Any limitedprobative value is outweighed by the unfairly prejudicial effect of the evidence.2 R v [T] [2018] NZDC 5981 [District Court judgment].Background facts[5] On 4 November 2007, C complained to the police that in an assault on that daythe appellant struck her two or three times on the right side of her face and ear. At thetime she stated that she did not wish to proceed with any complaint. She made nomention of any alleged sexual offending. However, on 29 September 2016, she againapproached the police and stated that she wished to make a complaint of assault basedon the events of 4 November 2007, and also complaining that the appellant hadsexually violated her by penetration of her anus with his penis.[6] During an evidential video interview she referred to assaults that had occurredprior to 4 November 2007; these assaults constitute the propensity evidence.Her allegations included a specific assault said to have occurred while she and theappellant were travelling in a vehicle with the appellant's brother and his partner.C claimed that the appellant inferred she was observing the driver of the vehicle(another male) in a sexual manner, and reacted by punching her in the head (thecategory 2 evidence). Further, she claimed that the appellant would become jealousand punch her "maybe once every two weeks", depending on "what was happeningand his mood really " (the category 3 evidence). She attributed these attacks to hisalleged use of methamphetamine or possible mental illness.[7] The allegations which gave rise to the current charge of sexual violation (andthe two charges of male assaults female) were summarised by the Judge as follows:3The index offending is said to have occurred on 4 November 2007 whenthe defendant and his then partner, the complainant, [C], were at his sister'shouse at an Auckland address. The defendant is alleged to have becomeparanoid about [C's] fidelity. He verbally threatened her, took her to abedroom and punched her about the face two or three times and pushed herface down onto a bed. He then anally penetrated her with his penis.The complainant eventually fled out onto the road. There she was askedby the defendant's sister to return to the house on the assurance thatthe defendant would not continue to do what he had been doing, so shereturned. The defendant then took her back to the bedroom, shut the doorand hit her about the head and face. She then fled the property again andcalled the police.3 At [3].District Court judgment[8] The Judge was satisfied that all of the evidence he was asked to consider fellwithin the definition of propensity evidence in s 40(1)(a) of the Evidence Act 2006(the Act).4 He considered that it all showed a "propensity to offer violence against adomestic partner".5 There was also a demonstrated "propensity for jealousy and angerleading to serious violence against the partner".6 He held that the essential issue inthe trial would be whether the allegations made by the complainant regarding physicalassaults and sexual violation were true.7 In determining whether the propensityevidence had probative value in relation to the "central issue of veracity and reliabilityof the complainant",8 the Judge considered the various considerations set out in s 43(3)of the Act. Having done so, he concluded:9The propensity evidence is admissible as a proper response to the defendant'sclaim that she has fabricated the allegation of anal rape and assault in theindex offending. It illustrates the implausibility of the coincidence thatthe defendant has not only offended in a very similar way againstthe complainant on other occasions and another woman but has now beenfalsely accused of similarly offending again against the complainant[9] The Judge accepted that the evidence would be prejudicial, however heconsidered this was largely a reflection of its highly probative nature.10 Its admissionwould not unfairly predispose the factfinder against the appellant when accompaniedby appropriate judicial direction.11[10] In advancing the appeal, Mr Lack submitted that the Judge erred bydetermining that the relevant issue in dispute was to be broadly categorised asthe complainant's veracity — whether the complainant's account with respect tothe alleged sexual violation and surrounding assaults on the day should be accepted.[11] He noted that in the written and oral submissions in the District Court,the appellant had accepted that the physical assaults on the day of the alleged4 At [27].5 At [27].6 At [27].7 At [29].8 At [30].9 At [31].10 At [33].11 At [36].offending had in fact occurred. They were supported by the independent andcorroborative evidence of the police officers who attended on the day of the incidentin November 2007, when they noticed the complainant's injuries. C had in additionreported the physical assaults to the police officers when the complaint was first made.However, she had not then referred to any alleged sexual violation.[12] Mr Lack submitted that the appellant's concession that violence had occurredmeant that the relevant issue at the trial was whether or not the sexual violation hadoccurred as alleged, as opposed to a "broad-brush" assessment of the complainant'scredibility. The issue should have been refined in accordance with observations ofthis Court in cases such as Freeman v R and M (CA198/2010) v R.12 In Freeman v R,this Court observed:13[21] In deciding whether to admit propensity evidence, the Judge shouldidentify as precisely as possible the issue in dispute in the case to which thepropensity evidence is adduced.[13] In M (CA198/2010) v R, a case involving an application for joinder, the Judgehad defined the issues in general terms with reference to the credibility ofthe complainants and whether the Crown could prove its case. While acceptingcredibility issues would arise, this Court held the issues in dispute were capable offurther refinement and had that extra step been taken, the Judge's ruling wouldprobably have been different.14[14] Mr Lack submitted that once it was determined the Judge had failed properlyto refine the issue in dispute, then it is clear the proposed propensity evidence did nothave an appropriate probative value. The fact that the appellant has a tendency to bephysically violent towards an intimate partner does not mean that he was more likelyto commit an act of sexual violence against C. In fact, there was no previous historyof sexual violence in what was otherwise appropriately categorised as a lengthycriminal history.12 Freeman v R [2010] NZCA 230; and M (CA198/2010) v R [2010] NZCA 219.13 Freeman v R, above n 12.14 M (CA198/2010) v R, above n 12, at [30].[15] Mr Lack submitted that the "relatively tenuous" probative value ofthe evidence meant that the prejudicial effect of the evidence would outweigh theprobative value. That was particularly so with respect to the category 1 evidenceconcerning serious and unpleasant offending against a different partner, whichoccurred some 10 years after the offending alleged against C. Mr Barry's concessionconcerning the category 1 evidence makes it unnecessary to discuss that issue further.[16] With respect to the evidence in categories 2 and 3 Mr Barry submitted thatthe Judge was correct to define the relevant issue as the complainant's credibility.The jury would need to decide whether the sexual violation occurred and it wouldtherefore be necessary to decide whether she was telling the truth.15 The appellant'sacceptance of the physical assaults did not materially alter the issue in dispute.[17] Mr Barry submitted that the Judge was right to conclude the evidence waspropensity evidence, showing a propensity for jealousy and anger leading to seriousviolence against C. Mr Barry argued this was in turn relevant, in the case of bothcategories of evidence as showing a propensity for jealousy about C's possible interestin other men and responding with gratuitous violence. It was behaviour of anextremely controlling nature, indicating the dynamic of the appellant's relationshipwith C.[18] The probative value of the evidence would be in meeting an anticipated attackon C's credibility as a consequence of the delayed reporting of the incident of sexualviolation. In November 2007, when the events were alleged to have occurred, shecomplained only about the physical assault and not the sexual assault. The complaintabout the physical assault was itself quickly withdrawn. In 2016, when she advisedthe police of the sexual offending she said she did not refer to the sexual violationbecause she loved the appellant at the time. Mr Barry submitted that the dynamic ofthe relationship between the two would be highly relevant to her explanation forthe delay.15 As in Utatao v R [2017] NZCA 162 at [22].[19] Mr Barry conceded that the category 2 and 3 evidence has little probative valueon a "similar fact" basis, rather, he seeks to rely on the category of propensity evidencerecognised in the minority judgment in Mahomed v R, namely:16The propensity evidence may have important explanatory value, as bearing onthe background or relationships between those involved in or affected by thealleged offending.[20] Mr Barry also relied on statements in Mahomed to submit that the category 2and 3 evidence was not "extraneous to the alleged offending" and so would not beportraying the defendant as being generally of bad character.17 The appellant alreadyaccepts that there was violence used against C during the index offending and in thecontext of the category 4 evidence. Admitting the category 2 and 3 evidence in thesecircumstances was unlikely further to prejudice the appellant materially, let alonecause unfair prejudice.Decision[21] We do not consider that the category 2 and 3 evidence should be admitted.[22] The principal basis upon which the Crown contends it should be admitted is inresponse to an anticipated attack on C's credibility because of her delayed complaint.However, the Crown points to no narrative which suggests that C delayed hercomplaint out of a fear of violence. On the contrary, C herself says that she did notcomplain about the sexual violation at the time because she loved the appellant. In thecircumstances, while C's credibility will be an issue in the case, the category 2 and 3evidence will not have probative value. Consequently, there is nothing to put in thescales to weigh against the inevitable prejudice that would result from the evidencebeing called.[23] It is not strictly necessary to say more to dispose of this appeal. However, andit is perhaps a corollary of the conclusion just expressed, we have difficulty in fittingthe category 2 and 3 evidence into the concept of propensity evidence of the16 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [90(b)]; endorsed in Taniwha v R [2016]NZSC 121, [2017] 1 NZLR 116 at [65].17 Mahomed v R, above n 16, at [57(d)]."relationship" kind addressed by the minority in Mahomed v R. As was explained inthat judgment, the kind of evidence that the judgment contemplated in this category isevidence which has important explanatory value, which is perhaps relevant to establishhostility or necessary to properly understand an interconnected series of events.A further possibility is that the evidence may be relevant for reasons of coincidence,such as the inherent implausibility of a young child receiving a number of accidentalinjuries.18 In cases other than the coincidence cases, the Court said:19the wrongfulness of the defendant's conduct will usually be so closelyconnected to the core elements of the case against the defendant as to leavelittle scope for unfair prejudicial effect.[24] We do not think that can now be said of the category 2 and 3 evidence. Had theappellant continued to deny the physical assaults associated with the sexual offending,the position would be different: as former instances of occasions when physicalviolence followed and was caused by concerns about C's fidelity, the category 2 and3 evidence would have been relevant to prove the assaults. However, the appellant'sconcession means that it is not necessary for that purpose. On the other hand, thecategory 2 and 3 evidence does nothing to prove the sexual violation, because theevents it described did not result in or follow sexual offending. The concession aboutthe physical assaults on 4 November 2007 has altered the complexion of the case fromthat which was before the District Court Judge.[25] For the reasons we have addressed, the appeal must be allowed.Result[26] The appeal is allowed.[27] We direct that the evidence identified in the District Court judgment and thisjudgment as the category 2 and category 3 evidence is inadmissible at the appellant'strial.18 At [90(a)]. This is not such a case.19 At [90].[28] In order to protect the appellant'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 a law report or law digest is permitted.Solicitors:Meredith Connell, Auckland for Respondent