L v R

• Jurisdiction: New Zealand
• Judge: Glazebrook J
• Judgment Date: 21 April 2015
• Neutral Citation: [2015] NZSC 42
• Docket Number: SC 28/2014
• Court: Supreme Court
• Date: 21 April 2015

Between

L (SC 28/2014)

Appellant

and

The Queen

Respondent

[2015] NZSC 42

Court:

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

SC 28/2014

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction on a representative charge of indecent assault — the appellant challenged the judge's failure to give a warning under s122(1) Evidence Act 2006 (EA) as to inconsistencies in the complainant's evidence — the second ground of appeal related to directions as to how the appellant was to give evidence in relation to a payment he made to the complainant and its connection to his son's illness — defendant had been charged with three counts of indecent assault relating to alleged offending in 1991 — 1993 — there were significant inconsistencies in the complainant's evidence — effect of the lapse of time on the defendant's ability to defend the charges — defendant wished to introduce evidence of his son's illness to explain his actions in relation to some of the events — issues as to whether evidence was being introduced to gain sympathy or show good character and whether evidence that had been refused to be admitted as propensity evidence could then be used — whether the trial Judge should have given the jury a warning, under s122(1) EA — whether the defendant should have been allowed to give evidence as to his son's illness and in his own words.

Counsel:

A N Isac and J L W Wass for the Appellant

B J Horsley and Y M Moinfar for the Respondent

• A The appeal is allowed and the conviction is quashed.

• B There is to be no retrial.

JUDGMENT OF THE COURT

REASONS

(Given by Glazebrook J)

Background

1 Mr L was convicted, after a jury trial in the District Court at Palmerston North before Judge Morris, of one representative charge of indecent assault against a boy aged between 12 and 16 years. 1 He was acquitted on two further charges. Mr L's case in relation to each count was that the alleged acts had not occurred and that the complainant was either lying or unreliable in his account. All of the charges arose out of conduct that was alleged to have taken place almost 20 years ago.

2 Mr L's appeal against conviction was dismissed by the Court of Appeal on 30 May 2013. 2

3 On 8 August 2014, this Court granted Mr L leave to appeal on the following questions: 3

• (a) whether the trial Judge should have given the jury a warning, under s 122(1) of the Evidence Act 2006, concerning the complainant's evidence; and

• (b) whether the Court of Appeal was wrong to conclude that no miscarriage of justice arose from the Judge's ruling as to the manner in which Mr L could give evidence of a payment he had made to the complainant.

Background

4 The events giving rise to the charges were alleged to have started when the complainant was 13 years old. Mr L had been engaged to assist with a drama production at the complainant's school (we will call this “ Production A”). The complainant was involved in the lighting for that production. He alleged that, when he and Mr L were together in a ‘genie’ (a crate at the top of a lighting ladder) during rehearsals, Mr L would press his erect penis into the complainant's lower back. This was the basis for the first count.

5 The defence called evidence that a genie was not used during Production A. When this proposed evidence was put to the complainant, he accepted that it could

be “a pretty fundamental problem” with his allegations and that “if there's no genie ladder in the school hall in 1991 then … [he] can't have been sexually abused in it”. The Crown conceded in its closing address that a genie was not used in Production A as the school did not possess one at the time and that therefore the offending in relation to count one could not have occurred during that production. 4 Mr L was acquitted on count one

6 As to the second (representative count) the Crown case was that the alleged offending on a genie occurred on a number of other occasions during other local theatre company productions between 1 January 1991 and 23 December 1992. 5 This count was amended during the trial to extend the end date of the alleged offending from 23 December 1992 to 4 April 1993 6 to cover a local theatre company production (we will call this “ Production B”), which took place in March and April 1993 when the complainant was 15.

7 The alleged offending on a genie during Production B had not been mentioned by the complainant in his police interview and evidence in relation to that production came up for the first time in court. 7 Mr L was acquitted by majority on this count.

8 The third count (and the one on which Mr L was convicted) was a representative charge arising from the complainant's allegations that Mr L frequently drove him home from rehearsals and productions. This count originally covered the same time period as the second count and was also amended during the trial to extend the time period so that this count also covered the period 1 January 1991 8 and 4 April 1993.

9 As to the details of the alleged offending while being driven home, the complainant alleged that Mr L would place his hand on his thigh progressing to his groin area, then touch the waistband of his trousers with his fingertips. This was accompanied by sexualised language. There were some inconsistencies in the complainant's police interview as to whether Mr L actually touched his genital area. For example, in his police interview he said that Mr L “tried” to make contact with his genitals and that “if I had pubic hair then his thumb would have been in contact with it”. When asked directly by the police interview whether Mr L had touched his genitals through clothing the complainant said “Well that's, yeah well, yes and no”. 9

10 The complainant also offered conflicting evidence as to where he was living during Production B. His evidence in chief was that he was living at one address but he accepted in cross-examination that in October 1992 he had moved to another address. In her evidence in chief, the mother of the complainant indicated that she was “99% positive” that Mr L only dropped the complainant off to the first address and that to her knowledge Mr L did not drop off the complainant to the second address.

11 In early 1993 the complainant moved to another town. He and Mr L did not meet again until the complainant was 19 or 20. In his police interview, the complainant said that he had telephoned Mr L to ask why Mr L had done those things to him and “fucked my life”. They then met and Mr L gave him $500 and a letter that was “along the lines of an apology”, which the complainant destroyed almost immediately 10 as he “carried a lot of shame” and “it was very private”. The complainant's evidence in court was largely consistent on this point.

12 Mr L's evidence was that he had seen the complainant again at a petrol station and that, shortly after that, the complainant had telephoned asking for money. He

denied that the letter was a letter of apology. 11 Instead, Mr L said in his evidence that the conversation and letter contained three things: that Mr L did not admit any wrong doing; that Mr L was helping the complainant out on a one-off basis because the complainant was under financial and emotional stress; and if he did return for more money, then Mr L would go to the police. In his evidence, Mr L said that he had kept a copy of the letter and that he filed it with his financial records for his business, but it was destroyed after seven years

Procedural history

13 The complainant did not make a complaint to the police until 2008, following an altercation with his employer during which he linked his behaviour at work to his alleged abuse. The complainant explained in his police interview that he had “reached breaking point”. Charges were not laid by the police until 22 June 2010.

14 In 2011 there was an application to admit propensity evidence in Mr L's trial from another alleged victim (CB) 12 of Mr L. This had been dismissed by Judge Lynch on 26 July 2011. 13 An appeal to the Court of Appeal against that ruling was dismissed. 14 In that judgment the Court of Appeal expressed concern about delay, suggesting that the Executive Judge in Palmerston North take all possible steps to allocate a priority fixture for the trial to be heard in 2011. 15 As a result, a trial date was allocated in January 2012.

15 In November 2011, the Crown applied to adjourn the trial in order to enable an application for joinder following a further complaint made by another alleged victim (DI) in October 2011. Despite Mr L's objection, the January 2012 fixture was vacated to permit a hearing on the Crown's joinder application and a fresh trial date was set for August 2012.

16 In July 2012, the application for joinder was heard. This of necessity involved considerations relating to propensity evidence. On 27 July 2012, the Court provided the result of the hearing to counsel (with reasons to follow). The s 347 application with regard to the first two charges in relation to DI was granted and the remainder of the charges (apart from one) were stayed. 16 The Judge indicated that, but for the stay, she would have accepted the Crown's propensity and joinder arguments. 17

17 Some confusion appears to have arisen as to whether this meant that the evidence of DI could, despite the stay, be called as propensity evidence in Mr L's trial. 18 In the course of a telephone conference, the Judge indicated that “the same difficulties the accused would have in defending the matter, that related to the stay, would exist just the same in relation to the defence's [Mr L's] ability to defend it as propensity and I had assumed that one would go with the other”. 19...