R v FARQUHAR [2017] NZCA 95

R v FARQUHAR [2017] NZCA 95 [29 March 2017]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 NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF ANY COMPLAINANTS/ PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESSPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA34/2017[2017] NZCA 95BETWEEN THE QUEENAppellantAND BRYCE ALEXANDER FARQUHARRespondentHearing: 7 March 2017Court: Kós P, Courtney and Williams JJCounsel: H W Ebersohn for AppellantP N Allan for RespondentJudgment: 29 March 2017 at 3.00 pmJUDGMENT OF THE COURTA The application for leave to appeal is allowed.B The appeal is allowed.C The evidence sought to be admitted is admissible.D 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 Williams J)[1] Mr Farquhar is facing three charges of indecent assault. The Crown seeksleave to appeal a pre-trial ruling relating to Facebook messages between Mr Farquharand one of the complainants, exchanged shortly after the time of the alleged offending.The allegations[2] The complainants, A (a boy) and B (a girl), are siblings. A has dyspraxia as aresult of a brain injury incurred at birth, so has intellectual, emotional andcommunication difficulties and is easily led. In November 2011, the complainantsmoved onto on a dairy farm where their father was the manager. At the same time, MrFarquhar, then aged 16, became an employee of the father and moved into a worker'shouse on the property. At the time, A was nine and B was 12.[3] While living on the farm, Mr Farquhar became closely involved with thefamily and participated in their activities. A would visit Mr Farquhar in his quartersand play on his Playstation. It is alleged that during one of these visits, Mr Farquhargrabbed A's hand and requested that A masturbate him. This was interrupted by A'sbrother walking into the room. On other occasions, Mr Farquhar induced A tomasturbate him, and would offer money and food as a reward. This forms the basis ofthe first representative charge of indecent assault.[4] Mr Farquhar was injured and left the workplace in April 2012. However, theclose relationship between him and the family continued. Over the next few years, thefamily moved twice and each time Mr Farquhar came and stayed for a few monthsbefore moving out. He gained the trust of the parents and was allowed to care for Aon a frequent basis.[5] When B was between 12 and 14 Mr Farquhar would visit the family home. Itis alleged that during these visits when no one else was around, he would initiate playfights with B. During this play fighting, Mr Farquhar would intentionally target andgrab her breasts and genitals over her clothing. This forms the basis of the secondrepresentative charge.[6] When A was aged 12 Mr Farquhar often asked and obtained parental consentfor A to visit him at his address and stay overnight during the weekends. It is allegedthat approximately every second week during that time together, Mr Farquhar wouldinduce A to masturbate him. He would be given food and money as a reward. This isthe basis for the third representative charge.[7] Mr Farquhar moved to Australia on 30 October 2015. On 1 November 2015,A turned 13 and was given permission by his parents to set up a Facebook account,allowing him to keep in contact with Mr Farquhar. During this communication andon four separate occasions, A sent photographs of his genitals to Mr Farquhar inexchange for Mr Farquhar loading credit onto his phone account. On 15 November2015, A's mother was going through his phone and found the naked pictures. Thepolice were contacted. Mr Farquhar admitted receiving the photographs, stating hewas like a brother to A and he was only trying to help him out. He denied the allegedindecent assaults.The evidence in question[8] The Crown applied to have the Facebook communications in which A andMr Farquhar discussed A sending naked pictures ruled admissible. The messages werewritten between 8 and 13 November 2015. That is, within a few weeks of Mr Farquharleaving New Zealand. They include an exchange in which it is agreed that A wouldsend Mr Farquhar pictures of his genitals in return for a phone top up. Mr Farquhartold A to send them by text rather than via Facebook. In other messages Mr Farquharcriticised the pictures A sent, saying they were "average" and "pretty much all thesame". In response to another picture he replied "way better".[9] In another exchange, Mr Farquhar stated the "pictures are average", that"you've already had like 3-4 30 dollar top ups it's a bit excessive use get on a plan orsomething." Mr Farquhar advised he did not "have endless amounts of money".[10] A apologised but then texted "Don't forget all the stuff you got me to do atyour house with us 2", Mr Farquhar responded "Yes and was it not paid for with foodmovie etc that I did for you."[11] There were also other sexualised discussions about porn, Mr Farquhar askingif A and his friend "wank off together" and asking A if he would suck his friend off.District Court decision[12] Judge Maze found the following text exchange was admissible:Don't forget all the stuff you got me to do at your house with us 2.Yes and was it not paid for with food movie etc that I did for you.[13] She held that both counsel should prepare an agreed statement of facts to theeffect that the exchange followed from A asking Mr Farquhar for a phone top up. Thatadmissibility finding was not appealed.[14] The Judge considered that the other exchanges were propensity evidence ratherthan direct evidence of the offending. She reasoned:(a) their purpose was to demonstrate that Mr Farquhar's sexual interest inA means that Mr Farquhar is more likely to have engaged in theindecent assaults;(b) but the Facebook communication was initiated by A not Mr Farquhar;and the evidence was of an entirely different kind of sexual activity(sexual gratification from viewing evidence of male genitalia) from thatwhich is alleged (inducing the complainant to masturbate him); and(c) it related to a later time period than that covered by the charges.[15] The Judge further found that, in order to be admissible, propensity evidence inthis context must indicate something more than mere interest in receiving sexualisedimages of a young man in exchange for payments, in order to be admissible. Shereasoned that the sending of sexually explicit images is not uncommon these days, andhas nothing to do with the present charges. This meant its probative value was lowbecause the evidence would not assist the jury to determine whether A's currentallegations were credible or not. But the prejudicial effect, on the other hand, wouldbe high. Accordingly, the other messages were ruled inadmissible.Leave to appeal[16] As this is an appeal against a pre-trial ruling, leave is required.1 For the Crown,Mr Ebersohn submitted that leave should be granted because there is an identifiableerror of law, the evidence is important to the Crown case, the matter cannot be dealtwith adequately by appeal after trial, and the appeal has significant merit.2 Mr Allanfor the respondent opposes leave. Mr Ebersohn is right that the arguments for leaveand the substantive appeal are the same, and we will deal with both matters at the sametime.Submissions[17] Mr Ebersohn submitted that this evidence is not being deployed as propensityevidence at all. Rather, it is direct evidence of an underlying sexualised relationshipbetween Mr Farquhar and A. It therefore goes directly to whether the alleged indecentassaults occurred. That said, Mr Ebersohn submitted that in the end, as this Courtsuggested in R v Derrick-Hardie, the conceptual difference between direct evidenceof the alleged offending and propensity evidence of this type may not matter becausethe admissibility test is essentially the same.3 He further submitted that the evidencegives necessary context to the already admissible evidence and Mr Farquhar'sresponse when confronted with it.1 This appeal was brought under s 217(2)(b) of the Criminal Procedure Act 2011.2 R v Leonard [2007] NZCA 452, (2007) 23 CRNZ 624 at [13].3 R v Derrick-Hardie [2012] NZCA 316 at [11].[18] Mr Allan supported Judge Maze's approach. He submitted that the Crown herewas really relying on coincidence and probability reasoning in a way that castirrelevant aspersions on the character of Mr Farquhar in a way that did not relate tothe particular offending.[19] Turning to the probative value and prejudicial effect assessment, the Crownsubmitted that there could be no prejudicial effect of evidence relating toMr Farquhar's sexual interest in and familiarity with A since any prejudice would, bydefinition, be coterminous with its relevance to the charge. In any event, Mr Ebersohnsubmitted the messages are important as part of the overall factual narrative.[20] For his part, Mr Allan submitted that there was no logical connection betweenthe sending of naked images and Mr Farquhar asking A to masturbate him. The formersaid nothing about the likelihood of the latter, while the irrelevant prejudice toMr Farquhar of being cast as a man attracted to child pornography was significant.Analysis[21] We are satisfied that the text messages are admissible. It is possible to framethem as propensity evidence, though not in the classic collateral similar incident way.We mean that this evidence may be used to suggest that a man with a sexual interestin the complainant might be more likely to indecently assault him. Alternatively, theevidence may be framed as direct evidence going to motive: Mr Farquhar indecentlyassaulted A because he had a demonstrated sexual interest in him. These alternativesare really two sides of the same coin.[22] In addition, as Mr Ebersohn submitted, it is also possible to frame this evidenceas necessary narrative. The admission set out at [12] above is admissible.Mr Farquhar was confronted with this admission in his police interview. In response,he said it was "about the pictures", "only ever the photos" and "always about thepictures. We never, ever did nothing else." This interview will be played to the jury.It makes little sense without the jury also being aware of the fact that the complainantsent photos of himself to Mr Farquhar.[23] However it be framed, as this Court said in Derrick-Hardie and implied inNand v R,4 its relevance must be properly assessed, and its probative value weighedagainst any illegitimate prejudicial effect.5[24] We consider that the Judge was in error in finding that the photos only relatedto Mr Farquhar's apparent interest in images of young men. She found that interestwas too different to the elements of the offence of indecent assault and so it lackedprobative value. This in our view, was, to misunderstand its relevance.[25] The crucial aspect of this evidence is not interest in sexualised images of youngmen, but repeated interest in sexualised images of A. We agree with the Crown thatthis evidence is highly probative. It does not matter that the photos were evidence ofan entirely different activity. What matters is that Mr Farquhar appeared to displaysexual interest in A. If it is believed, it helps to explain why Mr Farquhar would alsobe interested in having A masturbate him.[26] On the other hand, any prejudicial effect of the evidence is in fact co-extensivewith that proposition, so there is no risk that taking it into account will distract the juryinto an irrelevant and/or impermissible reasoning process.[27] We note, finally, the jury will be entitled to use the evidence for the purposesof reaching a verdict, either as propensity evidence or direct evidence going to motive.The jury should be directed on both options.Result[28] The application for leave to appeal is granted. The appeal is allowed. Theevidence sought to be admitted is admissible in Mr Farquhar's forthcoming trial.[29] To protect the respondent's fair trial rights, we make an order prohibitingpublication of the judgment and any part of the proceedings (including the result) in4 Nand v R [2015] NZCA 521 at [55], referring particularly to the judgment of McGrath and WilliamYoung JJ in Mohamed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [90].5 R v Derrick-Hardie, above n 3, at [15]–[16].news media or on the internet or other publicly available database until finaldisposition of trial. Publication in law report or law digest permitted.Solicitors:Crown Law Office, Wellington for Appellant