R v ARMITAGE [2017] NZCA 63

R v ARMITAGE [2017] NZCA 63 [17 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.ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF C AND WPURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.NOTE: 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 ZEALANDCA502/2016[2017] NZCA 63BETWEEN THE QUEENAppellantAND PETER LINDSAY ARMITAGERespondentHearing: 20 February 2017Court: French, Mallon and Duffy JJCounsel: K S Grau for AppellantC M Ruane for RespondentJudgment: 17 March 2017 at 3.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is allowed.C C's allegations are admissible as propensity evidence on the chargesinvolving G.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.E Order prohibiting publication of names, addresses, occupations oridentifying particulars of C and W pursuant to s 202 of the CriminalProcedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Mr Armitage was charged with alleged indecencies against three complainants— C, W and G — said to have occurred between 31 and 40 years ago.1 JudgeBrian Callaghan in the District Court granted a stay of the charges involving C and W.2The Crown then applied to lead C's allegations as propensity evidence atMr Armitage's trial on the charges involving G. The propensity application wasdeclined by Judge Farish.3 The Solicitor-General now seeks to appeal against thatdecision.1 He faced four charges of indecent assault on a boy under 16 in relation to C (Crimes Act 1961,s 140(1)(a), maximum penalty 10 years' imprisonment) which alleged offending from 1977 to1979 and 1983–1986; one charge of indecent assault on a girl under 16 in relation to W(s 133(1)(a), maximum penalty 10 years' imprisonment) which occurred between 1977 and 1980;and six charges of indecent assault on a boy under 16 in relation to G (s 140(1)(a)), five of theseoccurred between 1977 and 1980 and one between 1977 and 1982.2 R v Armitage [2016] NZDC 1567.3 R v Armitage [2016] NZDC 16999.The allegationsG's allegations[2] G is now in his forties. The police formally interviewed him about the allegedoffending in November 2014. The alleged offending occurred in the late 1970s toearly 1980s when he was between eight and 13 years old. He described Mr Armitageperforming oral sex on him, fondling his genitals while he was in bed or on a tractorand masturbating him using soap as a lubricant. He described this taking place overthe course of three visits to Mr Armitage's farm. Mr Armitage told him to keep it asecret. G first disclosed the allegations to his former wife, who then told his mother,when he was 23. G told his second wife about this offending after they married andshe encouraged him to contact the police.C's allegations[3] C is also in his forties. He is not connected to G in any way. The policeapproached C in the course of investigating G's allegations, having learnt fromMr Armitage's wife of allegations previously made by C and W.[4] C was formally interviewed in December 2014. He described staying atMr Armitage's farm in school holidays when C's mother worked at the farm collectingeggs. C helped Mr Armitage to feed the chickens. After this Mr Armitage would layC on a feed cart and masturbate him. This happened many times. SometimesMr Armitage put rubber bands on C's testicles before masturbating him. SometimesMr Armitage used soap as a lubricant. On one occasion, when Mr Armitage's wifewas away, he laid C on a bed and masturbated him. Mr Armitage told C it was theirbig secret. He bought C lollies. C thinks he was about five when it started.[5] This came to an end when C's mother stopped working for Mr Armitage.However, when C was about 14 or 15, Mr Armitage paid C to cart hay and drive atractor on his farm. Mr Armitage masturbated C in a shed. On another occasion, Chad driven to Mr Armitage's farm in a car that he owned. C thought he was 15 at thistime. On this occasion C ejaculated when Mr Armitage masturbated him. C wenthome very embarrassed because he made a mess on Mr Armitage. He never returned.[6] C told his mother of the allegations when he was 16 or 17. His mother wasangry and went to the police. C, however, did not want to do anything about it. Cthought the police investigated at the time it but nothing came of it. He was still ateenager and embarrassed. After this he kept it quiet. He later told his wife, had somecounselling and thought this was the end of it until the police approached him in 2014.W's allegations[7] The police also interviewed C's sister, W, in December 2014 as part of theinvestigation into G's allegations. W said when she was around six years oldMr Armitage would place her on his lap and rub her genitalia. She could not rememberwhether he got her to touch his penis. He told her it was their secret and not to tell herparents. W thought that something else had happened in a barn area, possiblypenetration by his penis, but she could not be sure. She thought she was about five orsix years old at that time. W remembered the police telling her and C, when she wasa teenager, the only way they could "get" Mr Armitage was if they took him to court.W did not want to do this. She did not want to acknowledge the offending in her headand nor did C. Nothing further happened because they did not want to takeMr Armitage to court.Mr Armitage's account[8] Mr Armitage is in his early seventies. He denies all of the allegations.[9] He was formally interviewed by the police on 1 December 2014 following G'scomplaint. G first stayed at Mr Armitage's house when he was around 10 years old.Mr Armitage suggested G may have dreamt the abuse. He said C's mother had madea complaint to police about alleged abuse of C and W. The police had made him attendcounselling but did not charge him. He said he had always been concerned about thesize of his penis, which he considered to be smaller than normal.[10] Mr Armitage was formally interviewed for a second time on 26 February 2015following C and W's interviews. He confirmed the police had previously interviewedhim about their allegations. He had told the police at the time that he undid C's pantsand looked at his penis two or three times to compare size. The police required himto attend the STOP programme.4 He was subsequently advised the matter would notbe pursued. He said he had also looked at G's penis. He denied any other sexualactivity with C, W or G. He suggested the complaints by C and W had been made inthe context of their parents' bitter marriage breakup. He said their mother had toldhim that her husband had touched W's breasts and that C was interfering with W.Police records of C and W allegations[11] The police endeavoured to find records of the allegations made by C and Wwhen they were teenagers. No records were found. Inquiries were also made of sevenpolice officers who worked in the relevant area. One of them vaguely rememberedthe complaint but did not work on the investigation and could not recall who had. Theother police officers had no recollection of the matter.Stay decision[12] Mr Armitage applied for a stay on all charges. Judge Brian Callaghan granteda stay on the C and W charges.5 His reasons were as follows:(a) It was likely that C and W had made statements to the police that wererecorded in some formal manner.6 As there was now no record of thoseallegations it was impossible for the defence to ascertain whether theydiffered from the present allegations.(b) As credibility would be the major issue at the trial, there would beconsiderable prejudice to Mr Armitage's defence of the C charges innot being able to compare the earlier complaint.(c) The prejudice was more significant in relation to W's allegations. Thiswas because W's December 2014 allegations mingled events sherecalled with beliefs that Mr Armitage may have done more. Her4 A rehabilitative programme for sex offenders.5 R v Armitage, above n 2, at [38].6 If this occurred around 1986/1987 (as C recalled) C would have been 16 or 17 and W would havebeen 14 or 15. If the police had spoken with C and W around 1991 (as Mr Armitage recalled) Cwould have been around 21 and W would have been around 19. Regardless of the exact date, bothC and W would have been of such ages that they could have made and signed statements.memory would be a significant issue at trial and could not be testedagainst what she said at the earlier time.(d) The delay in bringing the charges would cause problems for the defencebecause some witnesses had since died, but their evidence was not ofan essential nature and did not give rise to such prejudice as to stand inthe way of a fair trial.(e) There was unfairness in now reopening allegations when the informalprocess, which involved counselling via the STOP programme, hadbeen carried out and Mr Mr Armitage was told there would be nofurther action.7 On its own this was not decisive of the outcome.(f) The loss of the police file meant that Mr Armitage could not receive afair trial on the C and W allegations.(g) The unfairness and substantial prejudice to Mr Armitage could not beovercome.[13] The Judge refused a stay on the G charges. While the pre-charge delay wasquite lengthy, the prosecution had proceeded reasonably efficiently since thecomplaint had been made. The possible witnesses, who were no longer available, wereunlikely to have given particularly relevant or cogent evidence on whether the allegedacts occurred. The Judge would be required to give a warning as to delay and memory.There was nothing to suggest that Mr Armitage suffered from any age-relatedcognitive dysfunction. The Judge concluded that Mr Armitage could receive a fairtrial on these allegations.Propensity decision[14] Following the stay decision, the Crown applied to admit C's allegations aspropensity evidence on the G charges. Mr Armitage opposed the application on the7 The Judge considered this situation had some similarities with the current police diversion scheme.The recent complaints from C and W arose because the police spoke with them again in 2014.They were not originated by C and W.same basis as he had sought the stay. He contended the finding that he could not obtaina fair trial on C's allegations must also apply to whether he could mount an effectivechallenge to C's evidence.[15] Judge Farish considered the probative value of C's evidence to G's allegationswas high. There was a high degree of unusualness in that both complainants wereyoung boys, soap was used as a masturbatory aide, and the offending occurred inspecific locations such as the hen house. The offending was similar. The risk ofcollusion was low.[16] In determining whether there would be unfair prejudice, the Judge reviewed anumber of cases.8 In doing so she made the following comments:(a) the age of the charges, the fact that so many potential witnesses weredead and the absence of the original police file or any other record ofthe allegations made at the earlier time amounted to significantprejudice;(b) C was now a mature witness whereas he would have been an adolescentif his allegations had gone to trial when they were first made; and(c) C's allegations ran the risk of derailing the trial and would forceMr Armitage to defend them in a roundabout way.[17] The Judge summarised her conclusion as follows:9The Crown's attempt to get Mr W's allegations admitted as propensityevidence seems to me to be an attempt to get the original charges heard, butby way of the 'back door'. The reasons for which Judge B P Callaghan stayedthe W Charges remain very much alive; Mr Ruane cannot mount an effectivedefence for Mr Armitage without the presence of witnesses who are now dead,and without the original file and communication from police to Mr Armitage.Judge Callaghan found that the W charges could not progress to a fair trial;nothing has changed since his decision that would mean that the W allegationscould be fairly heard in Court as propensity evidence.8 Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298; Blackburn v R [2011] NZCA 365; RPG v R[2015] NZCA 275 and Thomas v R [2011] NZCA 443.9 R v Armitage, above n 3, at [58].This appeal[18] A stay of charges does not preclude the admission of propensity evidencefounded on the same allegations. As a full court of this Court said in R v Degnan "if evidence resulting in a prior acquittal is admissible at law the same position mustapply, if anything more strongly, in the case of a stay."10 A Court's decision that it isunfair to place a defendant at risk of conviction does not inevitably mean it is unfairlyprejudicial to adduce the allegations as propensity evidence at his trial on differentcharges.[19] In this case Judge Brian Callaghan considered there was some unfairness inrequiring Mr Armitage to defend allegations when a decision had been made to dealwith them informally at the time they were made. It does not, however, follow that itis unfair to allow these allegations to be adduced at trial as circumstantial evidencesupporting G's allegations.[20] C's allegations are admissible as propensity evidence if the probative value ofthe allegations is not outweighed by the risk of unfair prejudice.11 As Judge Farishaccepted, the probative value of C's evidence is high. It involves allegations ofunusual conduct which is similar in kind, place and circumstance to that alleged by Gand where there is no suggestion of collusion between C and G. The key issue istherefore whether the high probative value of the evidence is outweighed by unfairprejudice arising because the defence cannot cross-examine C on any differencesbetween his present allegations and what he alleged at the earlier time.12[21] Mr Armitage's counsel submits there is unfair prejudice. He submits it is morelikely no formal complaint was ever recorded than that a police file was opened butlost. He submits it is inconceivable the police would not have opened a file if theallegations had been of a similar nature and seriousness to the December 2014allegations. The allegations made at the time must therefore have been of a low level10 R v Degnan [2001] 1 NZLR 280 (CA) at [36]; see also Fenemor v R, above n 8; T(CA199/2014) vR [2014] NZCA 364 (before trial) and T (117/2015) v R [2015] NZCA 572 (following trial).11 Evidence Act 2006, s 43.12 Contrary to Judge Farish's view, Judge Callaghan did not grant the stay in part because of the ageof the charges and many potential witnesses were dead: R v Armitage, above n 2, at [38]. Nor didhe grant the stay because C would now be a mature witness or because Mr Armitage would haveto give evidence.or so general that it was not worthwhile opening a file in contrast with the December2014 allegations. He submits that because the police failed to adequately documentthe complaint in the first place it is now difficult, if not impossible, to cross-examineC on the inconsistencies.[22] We do not accept this submission. It is a matter of record that, until relativelyrecent times, police response to sexual allegations was inadequate in a significantnumber of instances.13 It is not safe to conclude the police would have opened a fileif C's allegations were as detailed and serious as they now are. Nor can it be said thatit is more likely the police did not open a file than that the file was lost. We simply donot know. There may have been no material inconsistencies to explore had the policeadequately documented and/or kept the original complaint. Moreover, if there is anevidential basis at trial for suggesting that the earlier complaint must have been aboutless serious conduct, that can be put to C at trial. It follows that it is speculative toconclude the absence of any record of C's original allegations gives rise to prejudicebecause any inconsistencies cannot be explored in cross-examination.14[23] In declining the propensity application, Judge Farish was also concerned thatC's allegations would derail the trial and force Mr Armitage to defend them in somedetail.15 C's allegations are, however, similar in kind, place and circumstance to G'sallegations. They are therefore not allegations that will overwhelm the trial of G'sallegations. Nor will they make it inevitable that Mr Armitage will have to giveevidence. He has already provided a response to the allegations in his policeinterviews and we understand from the Crown that these interviews will be adducedas part of the Crown case.[24] We conclude the high probative value of C's allegations is not outweighed bythe risk the allegations will have an unfairly prejudicial effect on Mr Armitage in thetrial on the charges involving G. C's allegations are admissible propensity evidenceat the trial.13 See, for example, Independent Police Conduct Authority Inquiry into Police Conduct, Practices,Policies and Procedures Relating to the Investigation of Child Abuse: Part II (February 2011).14 As was the case in Fenemor v R, above n 8, at [19].15 R v Armitage, above n 3, at [52].Result[25] The application for leave to appeal is granted. The appeal is allowed. C'sallegations are admissible as propensity evidence on the charges involving G.[26] 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.[27] We make an order prohibiting publication of names, addresses, occupations oridentifying particulars of C and W pursuant to s 202 of the Criminal Procedure Act2011.Solicitors:Crown Law Office, Wellington for Respondent