Fenemor v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeTipping J
Judgment Date21 October 2011
Neutral Citation[2011] NZSC 127
Date21 October 2011
Docket NumberSC 60/2011

[2011] NZSC 127



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

SC 60/2011

Warren Bruce Fenemor
The Queen

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

C L Mander and H R B Stallard for Crown

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.

Held: Although the Evidence Act 2006 (“EA”) did not deal specifically with prior acquittal evidence it was axiomatic such evidence must be relevant in terms of s7 EA (fundamental principle that relevant evidence admissible) and be within the definition of propensity evidence under s40(1) EA (propensity rule — propensity to act in a particular way). That being so the prosecution could offer prior acquittal evidence but only in terms of s43(1) EA (propensity evidence offered by prosecution about defendants — probative value outweighs risk of unfairly prejudicial effect). If its probative value outweighed any prejudicial risk, it was admissible. As Parliament had thereby provided that prior acquittal evidence was admissible if the prosecution could satisfy the requirements of s43(1), there was no room for an absolute exclusionary rule as argued for by F.

In considering the extent of any unfair prejudicial effect on the defendant, the judge should examine whether the fact that the propensity evidence was prior acquittal evidence gave rise to any, or any additional, unfair prejudice and whether that additional dimension affected the overall balance between probative value and unfair prejudice. If the prior acquittal evidence was not admissible in terms of s4(1), even without the acquittal dimension it could not be led. If the propensity evidence would otherwise be admissible, the judge had to consider the acquittal dimension and decide if it altered the balance. Any prejudice resulting from the fact of an earlier acquittal must be unfair prejudice. There was always some prejudice to a defendant in having to assess the same allegations a second time. But there had to be something about the circumstances of or leading to the acquittal which gave rise to prejudice that was unfair.

There was no need for the court to consider whether, leaving aside the acquittal dimension, the evidence in question was admissible in terms of s43(1) as leave had not been given to mount a general challenge to that conclusion. The decision in this case was therefore not be taken as a factual precedent for the application of s43(1) to propensity evidence generally. The question was whether the acquittal dimension in the circumstances of this case led to evidence being excluded on the basis that overall the prejudicial effect of the evidence outweighed its probative value.

F's approach to whether he should give evidence could not have been influenced by the acquittal dimension. He would have been faced with the same issue if the propensity evidence had led to a conviction or had not given rise to any charge. The time dimension too had no logical relationship with the acquittal. The fact that A had not given evidence and therefore could not be cross-examined had not derived in any way from the earlier acquittal and could not amount to prejudice. The prior acquittal evidence was not of such a nature that it might have disabled the jury from properly focusing on the key issues.

B's evidence in 1997 had included a videotaped evidential interview which was no longer available by the time of F's trial in 2010. F's argument that it had caused an unfair prejudice because B's evidence as a young girl and as a woman much later could not be compared was problematic because the claimed prejudice did not derive from the acquittal dimension. That was a matter of speculation because it was equally possible the video could have been to F's disadvantage. It was also speculative that had the judgment of the earlier trial been available it would have supported F's contention that there was something about the acquittal that made it unfairly prejudicial to allow the prior acquittal evidence to go before the jury. Evidence might take on a greater probative value when viewed in conjunction with other evidence of the same kind.

Nothing relating to the acquittal had been identified as giving rise to any unfairness to F in the prior acquittal evidence being led.

Appeal dismissed.

  • 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.


( Given byTipping J)


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.


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.


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 Degnan2 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

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.


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.


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...

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