B (Sc12/2013) v R

JurisdictionNew Zealand
JudgeElias CJ,McGrath,Glazebrook,Arnold JJ,Arnold J
Judgment Date19 December 2013
Neutral Citation[2013] NZSC 151
Docket NumberSC 12/2013
CourtSupreme Court
Date19 December 2013
BETWEEN
B (SC12/2013)
Appellant
and
The Queen
Respondent

[2013] NZSC 151

Court:

Elias CJ, McGrath, William Young, Glazebrook, and Arnold JJ

SC 12/2013

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction following jury trial on one count of sexual violation by rape — at the same time appellant was found not guilty of a charge of sexual violation by oral connection arising out of the same incident and concerning the same complainant — appellant said that he had been invited to complainant's house on a pretext and the ensuing sexual activity had been consensual — trial Judge excluded evidence that allegedly showed complainant had previously invited someone to her house on the same pretext and had been wearing nightclothes at the time and that this had made the witness feel uncomfortable — whether proposed evidence was barred by s44(2) (evidence of sexual reputation of complainants in sexual cases) or s44(1) Evidence Act 2006 (evidence of sexual experience of complainants in sexual cases) — whether evidence of sexual disposition could be led at all — whether evidence of previous incident was relevant to defence of consent — whether the two verdicts were inconsistent, making the conviction on the rape charge unsafe.

Counsel:

R M Lithgow QC and N Levy for Appellant

M D Downs and K A L Bicknell for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT
REASONS

Elias CJ

[1]

McGrath, Glazebrook and Arnold JJ

[33]

William Young

[110]

Elias CJ
1

The appellant was convicted after jury trial in the District Court of one count of sexual violation by rape. At the same time he was found not guilty of a charge of sexual violation by oral connection arising out of the same incident and concerning the same complainant. The appellant's appeal to the Court of Appeal was dismissed. 1 He appeals further to this Court on two grounds. First, he says the trial Judge wrongly excluded evidence relevant to his defence of consent. Secondly, he says that the two verdicts were inconsistent, making his conviction on the rape charge unsafe.

Background
2

The charges arose out of events after the appellant visited the complainant at her home at night. The complainant and the appellant and their respective partners were known to each other. Earlier in the evening both had been drinking at a pub in the small settlement where they both lived.

3

The complainant left the pub at about 9.30 pm and went home where she changed into her nightwear. She discovered a dead mouse in a trap in the kitchen. The complainant dislikes handling mice and usually asks someone else to do so. She telephoned the pub to try to persuade her daughter, who was there, to come to the house to remove the mouse. The daughter refused. The complainant said that the appellant had then turned up at the house, saying he had come to dispose of the mouse. The appellant said the phone had been passed to him at the pub (the daughter said it was possible, although she could not recall giving the phone to the appellant) and that the complainant had asked him to come to the house to deal with the mouse.

4

The evidence was that after the appellant had disposed of the mouse, he and the complainant sat outside smoking and then went back into the house and sat on a couch. The complainant said that the appellant pushed her down, took off her underpants and licked her vagina before raping her. The appellant, who had been drinking for some hours, when interviewed by the police said he could not recall the sexual activity. At trial however he acknowledged the sexual connection but said that it had been consensual. (He explained his statement to the police that he could not remember as having been made because he had been unable to contact his lawyer and did not want to make any statement until he had done so but did not want to appear uncooperative.)

5

The appellant said that the complainant, in asking him on the telephone to come to deal with the mouse, had said it would be worth his while to do so and that after the mouse had been disposed of she asked him to stay on and made it clear she wanted to have sexual intercourse with him. The complainant, who acknowledged being affected by alcohol but said it did not affect her recollection of what happened, denied consensual sexual activity. She said that “it all happened so fast” that she could not remember aspects of what happened but that she was pushing the appellant and telling him to stop.

6

As soon as the appellant left, the complainant sent a text message asking her daughter to come over to the house. When her daughter arrived, the complainant, who was very upset, complained of the sexual violation.

The excluded evidence
7

At the trial, counsel for the appellant, Mr Davison QC, advised the Judge that he proposed to call a man who would give evidence that some months previously he had been at the same pub in the middle of the day when the complainant had telephoned him and asked him to come to her house to block a hole through which mice were entering the house. When he arrived at the house the witness was uncomfortable to smell alcohol on the complainant's breath and to find her in her nightwear. No sexual contact eventuated.

8

Counsel advised the Judge that the evidence was being called as a basis for the inference that the mouse issue was a “pretext” that the complainant had previously employed to “attract or encourage a male to be with her … in the privacy of her home and in circumstances where she was dressed in a manner that might have indicated a willingness to engage in sexual activity to some degree or other”. He said that the evidence was probative because of its similarity to the events in issue and that it was necessary to enable the appellant to offer an effective defence.

9

The explanation given by counsel for the appellant indicated that the evidence to be called related to the complainant's propensity to behave in a certain way. Under s 40(1)(a) of the Evidence Act 2006 “propensity evidence” is defined as:

… evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved …

10

Under s 40(3)(b), propensity evidence “about … a complainant in a sexual case in relation to the complainant's sexual experience may be offered only in accordance with section 44”. Section 44 provides:

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 put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

  • (2) In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.

  • (3) In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

11

The Judge ruled that the proposed evidence was inadmissible. 2 He doubted its relevance 3 but, in any event, considered that it was evidence that either went to the complainant's sexual reputation or was evidence relating to the sexual experience of the complainant with someone other than the appellant. 4 In the end, the Judge seems to have treated it as evidence of the sexual experience of the complainant with someone other than the appellant. He decided, under s 44(3) of the Evidence Act, that it was not contrary to the interests of justice for it to be excluded. 5

12

On appeal, the Court of Appeal considered that the evidence went to the reputation in sexual matters of the complainant, and so was excluded by s 44(2). 6 It had accordingly been unnecessary for the trial Judge to consider under s 44(3) whether the evidence should be admitted (as would have been necessary if it had

been evidence of sexual experience of the complainant with a man other than the appellant). 7
13

In this Court, Mr Lithgow QC for the appellant argues that the evidence did not engage s 44 on either basis because its relevance was simply to indicate that on another occasion the complainant had asked a man into her house to deal with mice. The evidence was said to be relevant to the complainant's denial that she had invited the appellant to her house for the same purpose.

14

On the basis of the explanation given by trial counsel, the proposed evidence was relevant to a pretext used on another occasion by the complainant to get another man to her house in circumstances indicating preparedness to engage in sexual activity. That seems the only purpose of seeking to call evidence from the witness as to the way the complainant was dressed and his discomfort and impression that she was signalling her willingness to engage in sexual activity.

15

I consider that this basis for admission was to raise the propensity of the complainant to seek sexual opportunity in her home through the excuse of dealing with mice. As such, I consider it was evidence that was inadmissible under s 44(2) because it was evidence “that relates directly or indirectly to the reputation of the complainant in sexual matters”. Its purpose was to raise a foundation on which the jury would be invited to reason from the reputation sought to be established by the propensity evidence. Such reputational evidence is excluded by the legislative judgment that it is impermissible reasoning which is also deeply...

To continue reading

Request your trial
10 cases
  • Wiley v R
    • New Zealand
    • Court of Appeal
    • 24 February 2016
    ...no practical distinction between an unreasonable verdict and one that could not be supported having regard to the evidence. See also B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [66], [69] and [105]–[106]: an inconsistent verdict argument is to show that a jury's guilty verdict ......
  • S v R
    • New Zealand
    • Supreme Court
    • 20 December 2018
    ...also generally been seen as “a safeguard against the arbitrary or oppressive enforcement of the law by the government”. 77 Further, in B (SC 12/2013) v R, the majority of the Court acknowledged that juries sometimes apply “their innate sense of justice” by convicting on one count and acquit......
  • P v The Queen
    • New Zealand
    • Court of Appeal
    • 11 September 2018
    ...conviction may be regarded as unreasonable and liable to be set aside under s 232(2)(c) of the Criminal Procedure Act 2011. 5 In B (SC12/2013) v R, the Supreme Court, discussing the nature of factual inconsistency (where the verdicts cannot stand on the evidence adduced as opposed to legal ......
  • Wilson v R
    • New Zealand
    • Court of Appeal
    • 25 May 2020
    ...doubt in respect either of consent or reasonable apprehension of 11 12 13 14 MacKenzie v R (1996) 190 CLR 348 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at At [68(d)]. Above n 11, at 367. consent in respect of the first charge but not the second, particularly since CP described he......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT