Foster v R

• Jurisdiction: New Zealand
• Judge: Mander J
• Judgment Date: 25 March 2021
• Neutral Citation: [2021] NZCA 90
• Court: Court of Appeal
• Docket Number: CA227/2020
• Date: 25 March 2021

Between

Jamie Anthony Foster

Appellant

and

The Queen

Respondent

[2021] NZCA 90

Court:

Courtney, Woolford, Mander JJ

CA227/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal, Criminal Evidence — appeal against a conviction for sexual violation by unlawful sexual connection and indecent assault — both the appellant and complainant were police officers — right to cross-examine the complainant — evidence of sexual experience of complainants in sexual cases — fair trial rights — cumulative effect of the individual grounds — Evidence Act 2006 — New Zealand Bill of Rights Act 1990

Counsel:

P L Borich QC for Appellant

K S Grau for Respondent

• A The appeal against conviction is dismissed.

• B We make an order under s 202 of the Criminal Procedure Act 2011 prohibiting publication of the complainant's father's name, occupation and any particulars that may lead to his identification, including details relating to his trial and the charges he faced.

• C We make an order prohibiting publication of evidence regarding the complainant and Constable X in [41]–[57] and [98]–[105] under s 205 of the Criminal Procedure Act 2011.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Mander J)

Table of Contents

Introduction	[1]
The appeal	[4]
Background	[7]
Defence case	[17]
[Redacted]	[19]
Discussion	[24]
Decision	[30]
Judge's intervention during DNA evidence	[31]
Discussion	[35]
Decision	[38]
The “flirting issue”: the admissibility of CCTV footage from the kebab shop and outside the McDonald's restaurant; and the evidence of Sergeant Z	[39]
Kebab shop footage	[41]
Discussion	[48]
McDonald's CCTV footage	[53]
Discussion	[56]
Sergeant Z's evidence	[58]
Discussion	[61]
Decision	[65]
Exclusion of hearsay evidence of Sergeant Z	[66]
Discussion	[71]
Decision	[85]
Pressure placed on witnesses: Cross-examination of Sergeant Z on content of Detective Inspector Y's job sheet	[86]
Discussion	[90]
Decision	[97]
[Redacted]	[98]
Discussion	[102]
Decision	[105]
Adequacy of screens	[106]
Discussion	[109]
Decision	[112]
Language used by the complainant	[113]
Discussion	[115]
Decision	[121]
Language used by the Crown in its opening and closing addresses	[122]
Discussion	[127]
Decision	[135]
[Redacted]	[136]
Discussion	[138]
Decision	[146]
Evidence of Mr Foster calling a lawyer	[147]
Discussion	[154]
Decision	[157]
Conclusion	[158]
Result	[160]
Suppression	[161]

Introduction

1 Following a jury trial in the District Court at Auckland before Judge Thomas, Mr Jamie Foster was convicted of sexual violation by unlawful sexual connection and indecent assault. Both Mr Foster and the complainant were police officers who were part of a police contingent deployed to the Waitangi Day commemorations in Northland. After their arrival in Kerikeri all the officers socialised together outside the motel where they were staying.

2 During the evening, Mr Foster allegedly indecently assaulted the complainant after she went into his room to get a drink. The complainant put Mr Foster's conduct down to drinking and she continued to socialise with her colleagues. Some hours later, after retiring for the night to her own motel unit, she awoke to Mr Foster penetrating her genitalia from behind. The Crown's case was that Mr Foster had entered the complainant's room and started to have sexual intercourse with her as she lay sleeping on her bed. The complainant immediately protested and made a complaint.

3 At his trial, Mr Foster's defence was that the complainant had been flirting with him during the night. He had gone to her room at her invitation because they had agreed to meet when they had nearly been discovered after the first incident in Mr Foster's room. He claimed the sexual activity was consensual and there was no penetration. He submitted it only stopped after the complainant suddenly had a change of heart. Mr Foster argued the complainant had lied and falsely accused him in order to protect her job and reputation, and to avoid difficulties for her marriage. Mr Foster now appeals against his conviction.

The appeal

4 An appeal court must allow an appeal if satisfied that there has been an error, irregularity, or occurrence in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected. 1 That requires an assessment of the potential risk of a different outcome arising from the identified error, irregularity, or occurrence, and whether there is a reasonable possibility another verdict would have been reached. 2

5 An appeal court must also allow an appeal if satisfied that an error, irregularity, or occurrence in relation to the trial, has resulted in an unfair trial. 3 The right to a fair trial is a fundamental right. 4 However, the assessment of the fairness of a trial is to be made in relation to the trial overall and “[a] verdict will not be set aside merely because there has been an irregularity in one, or even more than one, facet of the trial.” 5 It is only where the departure from good practice is “so gross, or so persistent, or so prejudicial, or so irremediable” that a trial must be “condemn[ed]” as unfair. 6

6 Mr Foster raised 11 discrete points on his appeal which he submitted individually or cumulatively had resulted in a miscarriage of justice. He claimed these errors either created a real risk that the outcome of the trial was affected or resulted in his trial being unfair. 7 The Crown submitted none of the matters raised gave rise to a miscarriage. Each is addressed in turn in this judgment.

Background

7 Mr Foster and the complainant were members of a policing team based in Waitemata that, together with similar units from other police districts, travelled to Waitangi on 4 February 2019. Members of their unit, together with other officers, stayed at a motel in Kerikeri where they socialised together on the evening of their arrival.

8 Beer was purchased and consumed at the motel. There were drinking games and the atmosphere was lively and social. At around 7 pm, members of the complainant's unit, including Mr Foster, went into town to get dinner from a local kebab shop. They returned to the motel and played a game of touch rugby with members of the other police teams. At around 9 pm, more alcohol was purchased from a local supermarket. Chairs were set out in the motel courtyard where the off-duty officers continued to drink and socialise.

9 Each constable shared a motel room with another officer. The complainant was paired with another female constable and Mr Foster was allocated a room with a male colleague, Constable C. The drinks were stored in Mr Foster's room and from time to time the complainant would leave the circle where they were socialising to get a drink or use the bathroom. During the course of the night, the complainant went for a short swim in the motel swimming pool along with Mr Foster and another constable.

10 At around 12.30 am the complainant went to obtain a drink from Mr Foster's unit. The complainant's evidence was that, as she was retrieving a beer from the fridge, Mr Foster came into the unit and indecently assaulted her. She described Mr Foster putting his hand down her shorts and rubbing her genital area over her underwear. The complainant grabbed Mr Foster's hand away from her groin area, reminded him that they were both married, and left the room to re-join her colleagues. The complainant did not tell anyone. She explained in her evidence that she did not wish to cause a scene and that she put Mr Foster's conduct down to the drinking.

11 After briefly returning to the group, the complainant moved away from the circle of officers she had been socialising with. In her absence a short conversation took place between some of her colleagues. There was evidence that another officer from a different team, Sergeant Z, asked Mr Foster if he had been “fishing”, to which he replied that “all I got was a fucking gumboot” (or “seaweed and a gumboot”). Sergeant Z ribbed him that he had “the wrong body” or “the wrong bait”, to which Mr Foster said, “Oh, if I had [X's] body”, referring to a Constable X. Both parties argued that this exchange, referred to during the trial as the “fishing” or “gumboot/seaweed” conversation, supported their respective cases.

12 After an unsuccessful foray by the group to purchase food from a closed McDonald's restaurant, people began to disperse to their rooms. The complainant, however, sat outside her unit to eat some crackers and drink some water. She was joined by Sergeant Z, with whom she talked for a period before retiring to her room. She got into bed and immediately fell asleep.

13 The motel had a number of security cameras that captured the external areas of the motel, including the courtyard where the officers had been socialising and the motel units. Footage and audio from these cameras was played at the trial. At 2.34 am Mr Foster is recorded on the motel's CCTV footage making his way across the courtyard from his unit and opening the ranch slider of the complainant's room. The complainant's evidence was that she awoke to a painful forced feeling in her vagina. She was lying on her side and it felt like she was being “thrusted from … behind”. As she was awakening she recalled Mr Foster telling her to be quiet with his arm over the top of her, holding her in place. The complainant's evidence was that, upon realising what was happening, she...