Foster v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeMander J
Judgment Date25 March 2021
Neutral Citation[2021] NZCA 90
Date25 March 2021
Docket NumberCA227/2020

[2021] NZCA 90




Courtney, Woolford, Mander JJ


Jamie Anthony Foster
The Queen

P L Borich QC for Appellant

K S Grau for Respondent

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

The issues were: whether the Judge erred in refusing F to cross-examine the complainant on the content of a conversation that occurred after the alleged offending and whether the Trial Judge erred by prohibiting F from questioning the complainant and adducing evidence about her conduct towards him and other officers on the night.

The Court held that the trial Judge erred in prohibiting F from questioning the complainant about the content of a conversation that occurred in the motel unit. Evidence of what occurred between F and the complainant in the motel unit at the time of the alleged offending or shortly thereafter was inherently of potential probative value. A defendant was entitled to put their version of what occurred to the complainant in the witness box and, indeed, was obliged to do so if the defendant intended to give evidence about the matter. The details MF sought to put to the complainant did not have the probative value for which he contended. However, any unfairly prejudicial effect was not of such a degree that it should have prevented the complainant being asked about F's version of this part of the conversation. A judge must be cognisant of the right of the defendant to offer an effective defence when making such an assessment. However, the error had not created any real risk of the outcome of the trial being affected or resulted in an unfair trial.

The trial Judge had made a number of rulings that engaged s44 Evidence Act 2006 (“EA”) (evidence of sexual experience of complainants in sexual cases). The nature of the complainant's interactions with other officers that night had no bearing on how the complainant and F were conducting themselves with each other, nor on any state of belief that he may have had regarding issues of consent. The leading of questioning and evidence regarding interactions between the complainant and other officers carried the risk of inviting the type of illegitimate inference which s44 EA was intended to avoid.

None of the grounds either individually or in combination had resulted in a miscarriage of justice. There was not a reasonable possibility that other verdicts would have been reached, any errors had not resulted in F's trial being rendered unfair.

The appeal against conviction was dismissed.

  • 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.


(Given by Mander J)

Table of Contents



The appeal




Defence case








Judge's intervention during DNA evidence






The “flirting issue”: the admissibility of CCTV footage from the kebab shop and outside the McDonald's restaurant; and the evidence of Sergeant Z


Kebab shop footage




McDonald's CCTV footage




Sergeant Z's evidence






Exclusion of hearsay evidence of Sergeant Z






Pressure placed on witnesses: Cross-examination of Sergeant Z on content of Detective Inspector Y's job sheet












Adequacy of screens






Language used by the complainant






Language used by the Crown in its opening and closing addresses












Evidence of Mr Foster calling a lawyer













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.


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.


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

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


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


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.


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.


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.


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.


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...

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