R v M (CA654/2018) [2019] NZCA 138

R v M (CA654/2018) [2019] NZCA 138 [3 May 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 RESPONDENTPURSUANT TO S 200 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 AOTEAROACA654/2018[2019] NZCA 138BETWEEN THE QUEENAppellantAND M (CA654/2018)RespondentHearing: 1 April 2019Court: Williams, Collins and Toogood JJCounsel: M J Lillico for AppellantC J Tennet and S J Fraser for RespondentJudgment: 3 May 2019 at 3.00 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is allowed.C Order prohibiting publication of the judgment and any part ofthe proceedings (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.D Order prohibiting publication of name, address, occupation or identifyingparticulars of respondent pursuant to s 200 of the Criminal Procedure Act2011.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] The respondent faces seven charges. Four of indecency with a girl under 12and three of sexual violation by unlawful sexual connection with the same girl.1The complainant was between four and six at the time of the alleged offending but isnow an adult. The respondent is her biological father.[2] For the respondent, Mr Tennet sought and was granted leave inthe District Court to put questions to the complainant about separate offending againsther by a man named Graham.2 She says this occurred at the time of, or a little after,the offending by the respondent. The offending by Graham, the complainant allegedin her EVI, happened on the way to Auckland on one occasion at a hostel or boardinghouse where the complainant, respondent and other members of their family werestaying.[3] Section 217(2)(i) of the Criminal Procedure Act 2011 allows the prosecutor,with leave of this Court, to appeal against a decision granting permission under s 44of the Evidence Act 2006. As this evidence is important to the case and should bedealt with prior to trial, it is appropriate for leave to be granted.1 Crimes Act 1961, ss 133 and 128(b).2 R v [M] [2018] NZDC 21440.District Court decision[4] The respondent submitted to the District Court that the jury should have detailsof this alleged offending before it, because the defence will argue that there is a riskof transference — that is that the complainant has transferred in her memorythe offending by Graham to allegations in respect of the respondent. In order to mountthis defence, it was argued, that the jury must have this evidence before it.[5] In the District Court, Judge Sygrove reached the following conclusion:[8] It is a fine line as to whether or not this application should be grantedin my view but I think the jury need to be appraised of all matters, particularlyas they will hear about this person Graham and I think the more they knowabout him, probably the better. Accordingly, the s 44 application is granted.Of course the presiding judge can make any relevant directions in [their]closing and final summing up to the jury to avoid any injustice tothe defendant.[6] It appears from these comments the Judge took the view that evidence aboutGraham was important and necessary context, the absence of which would produceair of artificiality.Submissions[7] The application was made under s 44 and 44A of the Evidence Act. Section 44relevantly provides as follows:44 Evidence of sexual experience of complainants in sexual cases(1) In a sexual case, no evidence can be given and no question can be putto a witness relating directly or indirectly to the sexual experience ofthe complainant with any person other than the defendant, except withthe permission of the Judge.(1A) Subsection (1) is subject to the requirements in section 44A.(2) In a sexual case, no evidence can be given and no question can be putto a witness that relates directly or indirectly to the reputation ofthe complainant in sexual matters.(3) In an application for permission under subsection (1), the Judge mustnot grant permission unless satisfied that the evidence or question isof such direct relevance to facts in issue in the proceeding, or the issueof the appropriate sentence, that it would be contrary to the interestsof justice to exclude it.[8] Section 44A provides as follows:44A Application to offer evidence or ask question about sexualexperience of complainant in sexual cases(3) A party who proposes to ask any question about the sexual experienceof a complainant must make a written application and the applicationmust include—(a) the name of the person who will be asked the question; and(b) the question; and(c) the scope of the questioning sought to flow from the initialquestion.[9] The matters to be traversed in questions of the complainant were provided byMr Tennet in accordance with s 44A(3). They are as follows:(a) that she told the interviewer about both men because she remembers ithappening;(b) why she wanted to go into the police station in relation to both men;(c) whether in relation to Graham, she had discussed this with her motheror other people (again, without eliciting any detail whatsoever);(d) asking whether what she says about Graham is distinct in her mind fromwhat she says about the respondent;(e) after acknowledging that she described two lots of behaviour towardsher, whether she is clear that what she says about the respondent wasdone by him; and(f) whether Graham is responsible for everything she describes in her firstpolice interview by going through items that she attributes tothe respondent and asking her that there is a possibility that was doneby Graham.[10] For the appellant, it is argued that the threshold in s 44 is not met in this case.The Crown argues that contrary to the Judge's conclusion that "the more [the jury]know about [Graham] the better", the offending by Graham will not be heard becausehe has not been charged.3 That is because he has not been found.[11] Secondly, the Crown argues that there is no similarity between the two sets ofallegations. The allegations in relation to Graham are of a one-off opportunistic eventinvolving kissing, fondling, masturbating and an attempted anal penetration.The allegations against the respondent span a two-year period of consistent andpersistent offending ranging from indecent assault to digital penetration. The narrativeinvolves only one event of masturbation. Further, the respondent is well-known tothe complainant as he is her biological father. By contrast she did not know Grahamand never saw him again.[12] Thirdly, the circumstances and context of the two sets of offending are verydifferent: in relation to the respondent, in the South Island, and in relation to Graham,travelling to Auckland. The complainant was fearful and unhappy in relation tothe alleged offending by the respondent but said she was not afraid in relation tothe offending by Graham as he was kind to her and she had (presumably as a result ofthe respondent's offending) been "conditioned" into thinking it "was ok".[13] Mr Tennet in response relied very much on the decision of this Court in R vTunbridge in which leave was granted to put questions to the complainant about sexualoffending by another man disclosed by her at the same time as the disclosures inrelation to the defendant.4 The relevant similar factors were set out in Mr Tennet'ssubmissions as follows:a) the complainant (as here) was making a complaint about another (at[10]);3 R v [M], above n 2, at [8].4 R v Tunbridge [2015] NZCA 456.b) she gave a detailed account of Mr B (see [11]) which was quitedifferent to the allegation involving the respondent;c) as here, the Crown argued that there should be no reference to Mr Bat the trial;d) an important factor was nightmares, which in fact may have related tothe abuse from Mr B (see [18]). The analogy here is that 20 years afterthe event, she complains first of the other man and then of thisrespondent — acts that are said to have happened many years ago;e) exaggeration as to the respondent was a factor at [20];f) in that case, the relationship between Mr T and the complainant waslost because of a separation from his wife. Here the issue is not soclear cut, but, again, the [respondent] broke up with her mother somemany years ago in circumstances of some conflict; andg) finally, at [22], there was the factor — as here — that a jury mightconclude the complainant is telling the truth about sexual offendingbecause she has no other knowledge of sex. In both cases,the complainant was older at the time of disclosure [there] 15. The[Court of Appeal] concluded that "[t]he knowledge that theComplainant was being regularly sexually abused by another man,who was also a family friend at the time, is relevant to the jury'sassessment of this issue" at [22].(Footnotes omitted.)Analysis[14] This is plainly evidence caught by s 44(1) as counsel wish to put tothe complainant matters that relate to her sexual experience with Graham. The Judgehad therefore to be satisfied that the proposed questions are of such direct relevanceto facts in issue in the proceeding that it would be inconsistent with the interests ofjustice to prevent them being asked.[15] As matters currently obtain we cannot agree with the Judge that the risk oftransference is sufficiently live for leave to be granted to put the questions proposed.We do not consider this case is on all fours with Tunbridge.5 In that case the primarydriver of leave was the fact that the child complainant had nightmares in relation tothe alleged offending by the second offender. The risk if that were not able to bepursued in questioning was, the Court found, that evidence of nightmares would5 R v Tunbridge, above n 4.naturally be attributed by the jury to the offending by the defendant in that case.6 Thispossibility had to be removed and the only way to do that was to explainthe nightmares related to someone else.[16] In this case such risk is not present. There is no reason at all for Graham tofeature in this trial unless he is brought up. In that respect we agree with the Crownthat the surrounding narrative does not support the reasonable possibility oftransference without more. The offending is quite distinct in context and to someextent in kind. The complainant has compartmentalised the two offending narrativesin a relatively clear way. Without expert evidence suggesting that transference is a riskit seems to us to be quite speculative. The test in s 44(1) of the Evidence Act istherefore not satisfied.[17] In any event, we think it very likely the content of the EVI in relation toGraham will be unfairly prejudicial to the respondent. We have already mentionedthe fact that the complainant said she saw nothing particularly wrong with whatGraham was doing to her because of the conditioning of the respondent's long-termsexual abuse. But she also recalled a brief exchange between Graham and her fatherwhich she described as follows: they shared a look at each other um before we left the room. And at thetime I didn't know what that meant but when I think back to it I'm like well Ijust remember them looking at each other and the look that [the respondent]gave Graham, I didn't really see Graham's face but it was like, it was a lookof like approval or like, you know, like that it's okay.[18] A jury hearing that evidence is likely to be very prejudicially disposed towardthe respondent, if it is believed. It suggests the respondent was willing to provideother men access to his young daughter. Such prejudice is not relevant to the issues attrial given that Graham is not a defendant. It would by definition be unfair.Result[19] The application for leave to appeal is granted.6 At [18].[20] The appeal is allowed.[21] For fair trial reasons, we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of trial. Publication in lawreport or law digest is permitted.[22] In order to protect the identity of the complainant, we make an orderprohibiting publication of the name, address, occupation or identifying particulars ofthe respondent pursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Appellant