R v ERIHE [2016] NZCA 176

R v ERIHE [2016] NZCA 176 [4 May 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.PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA109/2016[2016] NZCA 176BETWEEN THE QUEENAppellantAND FREDERICK SOLOMON ERIHERespondentHearing: 2 May 2016Court: Kós, Courtney and Gilbert JJCounsel: M J Lillico for AppellantK C Bailey for RespondentJudgment: 3 May 2016 at 2.30 pmReasons: 4 May 2016 at 4.30 pmJUDGMENT OF THE COURTA Extension of time to file notice of application for leave to appeal is granted.B Leave to appeal is granted.C The appeal is dismissed.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 Kós J)[1] This prosecution has had a tortuous history. Before us it became apparent thatthe appeal is premised on a misunderstanding of the judgment below. A resultsjudgment dismissing the appeal was issued because retrial is imminent.1Background[2] The respondent was charged originally with 27 counts of sexual and otheroffending against eight female relations. The offending is alleged to have occurredbetween 1969 and 2010.[3] We were informed that the issue of propensity evidence was resolved on thebasis that there would be a single trial and that the evidence of each complainant was(subject to trial Judge direction and at least in part) cross-admissible propensityevidence in relation to counts concerning other complainants. The exact details of thatneed not concern us here.[4] One of the complainants, A, was to give evidence not only of abuse againstherself (the subject of six of the 27 counts) but also direct evidence of abuse againstone of her sisters. In addition her evidence would potentially be admissible propensityevidence in the case of other complainants.[5] Unfortunately on 26 February 2015 A died. The Crown applied to admit herevidence (comprising, primarily, an evidential video interview given at age 10 and awritten police statement given at age 14)2 as hearsay evidence, pursuant to s 18 of theEvidence Act 2006.1 R v Erihe [2016] NZCA 168.2 The judgment below incorrectly records her age at the time at 16.[6] On 2 July 2015 Fogarty J delivered the judgment from which the present appealhas been brought by the Crown.3 The judgment commences by considering s 18. Itthen records that the evidential video interview (when A was 10) is cogent and wouldhave been difficult to cross-examine upon had A still been alive. There were howevera number of inconsistencies as between that statement and the later one made when Awas 14. In addition a third sworn statement made when A was 18 contained anadmission that she had fibbed about a boy at her school having sexually abused her,stating "I probably just wanted some attention". This would have been importantmaterial for defence cross-examination.[7] The judgment then turned to the implications of the hearsay evidence aspropensity evidence. At [18] the judgment stated:So, in cases like this where there are a number of complainants all makingsimilar complaints of abuse by the same man, the jury is allowed to identifypropensity by examining similar conduct alleged by different complainants.The result is that the very multiplicity of similar complaints of itself bothestablishes the propensity and, from that, the jury's confidence that individualcharges are proved beyond reasonable doubt. In such cases, cross-examination of the complainant is critical if there is to be any chance of thedefendant escaping conviction on an individual charge.[8] The Judge then turned to s 8 of the Evidence Act. He noted that it was reliedon by the defence in its opposition to the Crown application. He also noted that"s 18(1)(a) does not qualify s 8".4 The judgment concluded that A's evidence wouldbe prejudicial in relation to all charges faced by the respondent, and not just thoseconcerning A. The Judge said:5Accordingly, by application of s 8, the hearsay evidence must be excluded asits probative value is outweighed by the risk that the evidence will have anunfairly prejudicial effect on the remaining charges.[9] The Judge also said:6[23] This reasoning addresses the admissibility of A's complaints in a trialon all of these charges. I have not considered whether or not her hearsayevidence would be admissible in a separate trial based on alleged offendingagainst her (5 charges).3 R v Erihe [2015] NZHC 1514.4 At [22].5 At [24].6 The reference in the quotation to "5 charges" should be to six.That point was repeated at [25].[10] In the event the Court elected to sever trials and proceed to trial on 20 (ratherthan 21) counts not involving abuse against A. It did so without her hearsay evidenceeither as direct evidence in the case of her sister or propensity evidence in the case ofall remaining complainants.[11] The trial resulted in two convictions (for performing an indecent act on a girlunder 12) and a single acquittal. The jury was unable to agree on the remaining 17counts. A retrial was directed. It is due to commence on 9 May 2016.[12] In February 2016 the Crown applied to lead evidence of the two August 2015convictions as propensity evidence at the retrial. It also applied again to admit A'sevidence as hearsay evidence. Thomas J granted the former application. She deniedthe latter one on the basis that there had been no material change in circumstancessince Fogarty J had declined to admit that evidence.7Present applications[13] In March 2016 the Crown applied for leave to appeal Fogarty J's judgment of2 July 2015 under s 217 of the Criminal Procedure Act 2011. It did not appeal that ofThomas J. It also sought an extension of time under s 220(3). We are satisfied in thecircumstances that it is appropriate to grant the extension sought.[14] The proposed appeal grounds assume that Fogarty J had refused to admit A'sevidence as hearsay under s 18. And that, in doing so, the Judge had erred.Submissions by both counsel focused on s 18 and authorities applying it.[15] The present applications and proposed appeal were set down for hearingtogether before a Court comprising French, Asher and Williams JJ on 12 April 2016.However that Court identified a number of difficulties on the material before it. Itissued a minute.8 Amongst other things it asked:7 R v Erihe [2016] NZHC 144.8 R v Erihe CA109/2016, 14 April 2016.Is the purpose of adducing the hearsay statements to use them as propensityevidence in respect of the other complainants or in relation to just the deceasedcomplainant or both?Was there any evidence before the High Court Judge regarding thecircumstances in which the hearsay statements were made?[16] Further inquiries were needed. As a result the applications and appeal camebefore us instead.Discussion[17] This appeal has miscued. It has proceeded on the basis that there was anadverse ruling for the Crown under s 18. First of all, that premise is incorrect.Secondly, the real basis of Fogarty J's adverse ruling was s 8, rather than s 18.[18] We consider that Fogarty J's decision authoritatively decides that the evidenceof A did meet the threshold for admissibility under s 18. But for that conclusion, therewould have been no need for the Judge to go on to consider the position under s 8.Ultimately, as the passage quoted at [8] above makes clear, the Judge's decision isbased on s 8. Had the Judge not reached that conclusion, then we would haveconcluded A's evidence met the s 18 threshold.[19] We also consider that the Judge's s 8 analysis proceeds on the basis that A'shearsay evidence would be led as both direct and propensity evidence at a single trialof all charges. That was the nature of the trial due to commence three weeks after thejudgment.[20] We do not consider that Fogarty J's judgment authoritatively resolves theapplication of s 8 in the different situation (which the Judge was not confronting)where the charges are severed. Paragraphs [23] and [25] of the judgment make clearthat a different s 8 analysis might apply if the trial was confined to charges concerningA alone. The judgment is not clear as to what the position would be in the event of asevered trial concerning the other complainants only. Nor does it deal with the presentsituation where the evidence of the two convictions at trial may, following thejudgment of Thomas J, also be led as propensity evidence.[21] The appeal before us is therefore mispremised. It assumes an adverse rulingunder s 18. That is a misconception, albeit one shared by both sides. This Court isnot in a position to deal with the quite different question of the receipt or exclusion ofA's evidence under s 8 in the forthcoming retrial not involving alleged offendingagainst A without a relevant ruling (and proper argument arising from that ruling).[22] A's evidence has been found to meet the s 18 threshold. If the Crown wishesto rely on it in the more limited retrial commencing next week, it should makeapplication to the trial Judge for that evidence to be admitted under s 101 of theCriminal Procedure Act.[23] For the avoidance of any doubt, we repeat that we do not consider the judgmentof Fogarty J to have resolved admissibility in that new context. Necessarily, nor hasthe judgment of Thomas J.Result[24] Extension of time to file notice of application for leave to appeal is granted.[25] Leave to appeal is granted.[26] The appeal is dismissed.[27] An order is made prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or other publiclyavailable database until final disposition of trial. Publication in a law report or lawdigest is permitted.Solicitors:Crown Law Office, Wellington for AppellantThomson Wilson, Whangarei for Respondent