Fenemor v R

• Jurisdiction: New Zealand
• Judge: Tipping J
• Judgment Date: 21 October 2011
• Neutral Citation: [2011] NZSC 127
• Docket Number: SC 60/2011
• Court: Supreme Court
• Date: 21 October 2011

Warren Bruce Fenemor

and

The Queen

[2011] NZSC 127

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 60/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal regarding admission of propensity evidence where that evidence was led in a previous unrelated trial and the appellant was acquitted (prior acquittal evidence) — appellant convicted of indecent assault against a seven year old girl — Crown called two women who gave evidence that appellant had indecently assaulted them — appellant acquitted of charge in relation to one of those women — whether propensity evidence could be used where that evidence was used in a previous trial which resulted in an acquittal — if admissible, whether evidence should have been excluded on the basis it was unfair or unduly prejudicial since it had earlier been held insufficient to support a conviction.

Counsel:

G J King, B Paradza and L S Collins for Appellant

C L Mander and H R B Stallard for Crown

JUDGMENT OF THE COURT

• A The appeal is dismissed.

• B Mr Fenemor is to report to the Community Probation Service no later than 2 pm on Friday 28 October 2011.

REASONS

( Given by Tipping J)

Introduction

1 The appellant, Mr Fenemor, was found guilty of indecently assaulting a seven-year-old girl (A) during the course of giving her a guitar lesson at her home in 2008. His appeal against conviction was dismissed by the Court of Appeal. 1 He now appeals to this Court on issues concerning the admissibility of propensity evidence called by the Crown at his trial. The conduct which gave rise to the conviction was recorded by means of a concealed video camera set up by A's parents. Her mother had become suspicious after she interrupted an earlier lesson and had seen Mr Fenemor quickly move his hand from between A's legs. The video recording showed Mr Fenemor kneeling on the floor in front of A, supporting the guitar on her lap. At one point all four fingers of his right hand went underneath A's skirt and rested for about four minutes on or near the top of her legs. A did not give evidence, but the recording was played to the jury.

2 The Crown also called two young women, M and B, who were former pupils of Mr Fenemor. They each independently said that he had touched their genitalia over their clothing during the course of lessons which took place in 1997 and 1998. Mr Fenemor was charged at that time in relation to B but not in relation to M. M, however, gave propensity evidence at the trial where B was the complainant. This was a summary trial before a Judge alone and Mr Fenemor was acquitted on the charge of indecently assaulting B. No record of the Judge's reasons could be found some 12 years later in 2010 when Mr Fenemor was tried on the charge of indecently assaulting A.

3 The appeal to this Court raises two related questions. The first is whether relevant propensity evidence may be led by the Crown in spite of that evidence having previously been led at a trial which resulted, as here, in an acquittal. The appellant's contention is that despite the decision of the Court of Appeal to the contrary in R v Degnan 2 there is or should be an exclusionary rule rendering evidence of the kind in question inadmissible in law. The second issue is whether, even if evidence of the kind in question is admissible in law, the particular evidence in this case should have been excluded on the basis that it was unfair or unduly prejudicial to the appellant to admit it in the face of its having earlier been held insufficient to support a conviction. These issues must be resolved under the

Evidence Act 2006. It is convenient for present purposes to describe the kind of propensity evidence with which this case is concerned as “prior acquittal evidence”

The Evidence Act 2006

4 Understandably the Act does not deal specifically with prior acquittal evidence. It is axiomatic that such evidence must be relevant in terms of s 7 of the Act and must be within the definition of propensity evidence set out in s 40(1). That being so the prosecution may, by definition, offer prior acquittal evidence about the defendant, but only if, in terms of s 43(1), it has a probative value in relation to an issue in dispute which outweighs the risk that it may have an unfairly prejudicial effect on the defendant. If its probative value does outweigh any such risk, prior acquittal evidence is admissible. If the converse applies, it is inadmissible. That, of course, is the position with all propensity evidence.

5 Parliament has thereby provided that prior acquittal evidence is admissible if the prosecution can satisfy the requirements of s 43(1). There is therefore no room for an absolute exclusionary rule such as the appellant seeks. Parliament has effectively endorsed the approach taken by the Court of Appeal in Degnan on condition that s 43(1) is satisfied. In this respect prior acquittal evidence is no different from other propensity evidence. In Degnan a five-member Court of Appeal held that prior acquittal evidence was admissible in law, subject to the discretion of the trial judge to exclude it if its admission would, in the circumstances of the particular case, be unfair to the accused or would amount to an abuse of process.

6 The Law Commission, whose work formed the basis of the Act, was well aware of Degnan and made no suggestion that what it decided should be altered; indeed, in a related report, the Commission supported the Court of Appeal's conclusion. 3 There is also nothing in the legislative history suggesting that Parliament considered the approach taken in Degnan was unsatisfactory. Hence, it is

appropriate to conclude that, when enacting the Evidence Act, Parliament was generally content with what Degnan decided and wished it to continue as part of the law of evidence which was now being codified

Application of s 43(1)

7 It is necessary to consider next the application of s 43(1) when prior acquittal evidence is under consideration. Section 43(3) sets out various matters under lettered paras (a) to (f) which, “among other matters”, the judge may consider when assessing the probative value of propensity evidence. None of these matters, except perhaps para (e), which deals with collusion or suggestibility, can logically be affected by the evidence being prior acquittal evidence. Section 43(4) sets out two matters which the judge must consider “among any other matters”, when assessing the prejudicial effect of propensity evidence on the defendant. Those matters are:

• (a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and

• (b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

8 When a judge is considering the extent of any unfair prejudicial effect on the defendant, the judge should examine whether the fact that the propensity evidence is prior acquittal evidence gives rise to any, or any additional, unfair prejudice. To the extent that it does, the judge should consider how that additional dimension affects the overall balance between probative value and unfair prejudice. Of course if the prior acquittal evidence is not admissible in terms of s 43(1), even without the acquittal dimension, it cannot be led. It is important to make this point because it must not be assumed, simply because the acquittal dimension itself does not give rise to unfair prejudice, that the prior acquittal evidence will therefore be admissible. If, however, the propensity evidence would otherwise be admitted, the judge must consider the acquittal dimension and decide whether it alters the balance. Adopting this approach will assist in properly determining what, if any, bearing the acquittal dimension truly has on the assessment required by s 43(1).

9 In carrying out that evaluation the focus will be on whether it is unfair to expect the defendant to respond again to the evidence in question in light of the fact that it was not regarded as sufficient to result in a conviction on the earlier occasion. An example given in Degnan of when that might be so is a case where a defence of alibi was successfully raised against the earlier charge. This example was first given by Lord Hobhouse in R v Z, 4 a case upon which the Court relied in Degnan. 5

10 It is important to be clear that any prejudice resulting...