R v B

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J
Judgment Date17 December 2010
Neutral Citation[2010] NZSC 160
Date17 December 2010

[2010] NZSC 160



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

The Queen
B (SC88/2010)

M D Downs and T Epati for Crown

A J Bailey and S G Bailey for Respondent

  • A The appeal is allowed.

  • B The ruling of Judge Farish as to the complaint evidence is reinstated.


(Given by William Young J)


B faces six counts of committing an indecent act on K, a child under 12. At the time of the alleged offending he was in a relationship with K's mother. The alleged offending came to light because of reports made to the Police by two people after they saw what they considered to be inappropriate conduct by B towards K in a park. They did not know either B or K but took a note of the car which B was driving. This led to the Police tracing K and, in mid-March 2009, she participated in an evidential video interview at which she made particular allegations against B. By this time the relationship between B and the complainant's mother had finished.


B was spoken to by the Police in mid-May 2009. During the resulting interview, B acknowledged that there had been some cuddling and dancing between him and K. He also acknowledged some physical interaction with K in the park in the course of the incident which resulted in the report to the Police already referred to. He denied, however, that there had been any indecency. And by way of explanation for K's allegations (which went distinctly beyond what might be involved in innocent but misunderstood cuddling), he claimed that if the allegations had been true she should have said something to her mother or somebody else. He also suggested, at least by implication, that the allegations made by K were associated with the breakdown in the relationship between him and her mother.


On the evidence available to the Crown, K had, in fact, told two of her friends about the offending before the breakdown in the relationship between her mother and B. The Crown accordingly wishes to lead evidence of what K told her friends (“the complaint evidence”).


At issue in the case are s 35( 1) and (2) of the Evidence Act 2006 which provide:

35 Previous consistent statements rule

  • (1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

  • (2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.


The admissibility of the complainant's evidence was the subject of a ruling made by Judge Farish in the District Court. 1 In that ruling she stated that counsel for B had proposed editing out the relevant portions of B's interview. She recorded, however, that counsel (not Mr Bailey) had conceded that the defence at trial will be that K manufactured a false complaint when she was evidentially interviewed. She held that on the facts of B's interview alone there was a challenge to K's veracity based on recent invention and she concluded:

[25] I have come very firmly to the view that here there is a challenge to the veracity of the complainant and it is based on recent fabrication. I do not accept [counsel's] contention that I should simply edit out the accused's statement. On the face of it, even if that statement was not in, I cannot see how it can be suggested to the complainant that this is a made up allegation without it being recent, given the particular facts of the case.


B appealed against this ruling to the Court of Appeal. 2


By the time the Court of Appeal released its judgment, the decisions of this Court in Rongonui v R3 and Hart v R4 had been released. The primary significance of the evidence as to K's complaints to her friends is that they pre-dated the breakdown in the relationship between B and her mother. The evidence as to these complaints thus undermines very directly the cogency of the contention that the allegations were a product of the relationship breakdown. This is very much the way in which Judge Farish had dealt with the issue. But the judgments in Rongonui and Hart established that the s 35(2) “recent invention” exception to s 35(1) goes beyond the circumstances in which previous consistent statements were admissible at common law to rebut an allegation of recent fabrication. In particular:

  • (a) a claim of “recent invention” can extend to a contention that false evidence has been given even where a particular motive for fabrication is not proposed; and

  • (b) a previous consistent statement may (depending on the circumstances) be a legitimate response to such a claim even if the previous consistent statement did not necessarily precede the point in time when any proposed motive might have arisen.


The Court of Appeal allowed B's appeal. It concluded that a “challenge to a witness's veracity or accuracy” made by a suspect in the course of the Police investigation and before a charge is laid does not trigger s 35(2). This conclusion rested primarily on a literal interpretation of the word “witness” by reference to the definition of that word in s 4 of the Evidence Act:

witness means a person who gives evidence and is able to be cross-examined in a proceeding.

The Court reasoned that because K was not a “witness” in that sense either when B was interviewed or at the time of the ruling of Judge Farish, there was not a challenge to her veracity qua witness and thus s 35(2) was not engaged. The Court also considered that important rights under the New Zealand Bill of Rights Act 1990 would not be promoted if a statement to the Police by a suspect might trigger s 35(2) and thus render admissible what would otherwise be inadmissible evidence of previous consistent statements.


For the reasons which follow, we are of the view that the Crown appeal from...

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2 cases
  • Davis v R
    • New Zealand
    • Court of Appeal
    • 18 February 2011
    ...to the Court”. 9 The Court considered this approach was supported by the judgment of the Privy Council in White v The Queen. 10 13 In B v R11 this Court considered a situation analogous to this case in that the trial had taken place before the judgments of the Supreme Court in Hart and Rong......
  • E (Ca366/2010) v R
    • New Zealand
    • Court of Appeal
    • 6 September 2011
    ...on the basis of recent invention. The challenge to the veracity could be by way of questions put in cross-examination to the victim ( R v GKB and Rongonui v R). There was no need for the victim to accept the proposition put to him or her for there to be a challenge for the purposes of s35(2......
1 books & journal articles
  • Subject Index
    • United Kingdom
    • International Journal of Evidence & Proof, The Nbr. 15-4, October 2011
    • 1 October 2011
    ...320R vAshton [2006] 2Cr App R15 . . . . . . . . . . . . 154R vAziz [1996] AC41 . . . . . . . . . . . . . . . . . . . . . .173R vB [2010] NZSC160 . . . . . . . . . . . . . . . . . . . . . 327R vBara Bara (1992)87 NTR 1 . . . . . . . . . . . . . . . 18R vBarlien [2009] 1NZLR 170, CA. . . . . ......

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