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Nguyen v R [2011] NZCA 8; [2011] 2 NZLR 343 (11 February 2011)

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA797/2010 [2011] NZCA 8

BETWEEN TUAN NGUYEN Appellant

AND THE QUEEN Respondent

_CA885/2010

AND BETWEEN THE QUEEN Appellant

AND TUAN NGUYEN Respondent

Hearing: 2 February 2011

Court: Chambers, Ellen France and Randerson JJ Counsel: S D Patel for Mr Nguyen

C A Brook for Crown

Judgment: 11 February 2011 at 1 p.m.

_{JUDGMENT OF THE COURT}

A In CA797/2010 leave to appeal is granted to the Appellant, Mr Nguyen,

_{but the appeal is dismissed.}

NGUYEN V R CA CA797/2010 [11 February 2011]

B In CA885/2010 the Crown as Appellant is granted leave to appeal and the appeal is allowed.

C The result is that the evidence relating to the first incident involving the complainant and H and the evidence relating to the second incident involving the complainant and her stepbrothers (along with the associated evidence about photographs of that activity) is inadmissible at trial.

D Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial.

_{Publication in law report or law digest permitted.}

REASONS OF THE COURT

_{(Given by Randerson J)}

Introduction

[1] These two appeals relate to the admissibility of evidence in a forthcoming trial in the District Court in which the appellant Mr Nguyen faces five counts alleging sexual offending against a 13 year old complainant (D). The relevant events are said to have occurred between 10 June 2009 and 31 July 2009.

[2] Mr Nguyen applied in the District Court for leave under s 44 of the Evidence

Act 2006 to cross-examine D in relation to her sexual experience in late December

2008 or early January 2009 with a teenage boy. We will call this the first incident.

[3] A second application was made under s 344A of the Crimes Act 1961 for an order that certain other evidence be admissible at trial. This evidence related to another incident in late January 2009 when the complainant arranged and took photographs of sexual activity between her two stepbrothers who were aged two or three years at the time. We will call this the second incident.

[4] In separate decisions in the District Court, Judge Sharp refused the application for leave under s 44 in respect of the first incident, but ruled that the evidence relating to the second incident was admissible at trial. ¹

[5] Mr Nguyen has sought leave to appeal against the refusal of the application under s 44 in respect of the first incident while the Crown has sought leave to appeal against the order ruling admissible the evidence relating to the second incident.

Background

[6] At the time of the offending alleged against Mr Nguyen, D’s mother had recently died and she was living with a guardian. Mr Nguyen had been a friend of the family and, in the period June/July 2009, came to stay on various occasions at the guardian’s home. During that period the complainant and Mr Nguyen slept in the lounge on several occasions. It is alleged against Mr Nguyen that he sexually violated the complainant by digital penetration of her genitalia and that he indecently assaulted her in various ways by placing his hand on her genitalia, licking her breasts and kissing her involving the use of his tongue in her mouth. It is also said that he attempted to indecently assault her by trying to get on top of her when she was lying down on a couch.

[7] The allegations have given rise to one representative count of sexual violation by digital penetration; three representative counts of indecent assault; and one count of attempted indecent assault. We record that we raised with counsel the form of the indictment. It appears from D’s statement that she is able to describe at least some separate incidents. The prosecutor should therefore consider amending the indictment to make the specific incidents the subject of separate (non-representative)

_counts.²

¹ _{R v Nguyen DC Auckland CRI-2009-090-010523, 18 November 2010 (Rulings 3 and 4).}

² See Bruce Robertson (ed) on Criminal Law (looseleaf ed, Brookers) at [CA329.10] –

[CA329.13], and in particular R v P [1983] 3 NZLR 587 (CA) and Qiu v R [2007] NZSC 51,

[2007] NZSC 51; 2008] 1 NZLR 1 (SC).

[8] Mr Nguyen denies the allegations. He says that none of the alleged events occurred. The sole issue at trial will be whether the alleged events happened. The outcome will be critically dependent upon D’s credibility.

[9] It is not in dispute that D was the victim of sexual offending sometime in late December 2008 or early January 2009. The offending occurred in a picture theatre on a single occasion. A teenage boy (H) touched D’s genitalia over her clothing, touched her breasts inside her bra and made her touch his penis over his clothes. H admitted the offending and was cautioned.

[10] On 25 January 2009, after the offending by H but before D disclosed it, D took two objectionable photographs of her young stepbrothers performing oral sex with each other at her behest. A few days later the photographs were discovered by D’s father along with a number of other sexually explicit photographs and videos that H had taken of himself and sent to D. D admitted taking the photographs of her stepbrothers and, in doing so, disclosed the offending by H. She was dealt with by way of a family group conference in relation to the photographs that she took. The photographs have since been destroyed but evidence is available as to their content.

The first incident

[11] Both counsel accepted that s 44 of the Evidence Act was the controlling section. It is not in dispute that the evidence relating to the first incident relates directly or indirectly to the sexual experience of the complainant. Any evidence or questioning relating to such matters is prohibited unless permitted by a Judge.³ In considering whether permission should be granted, s 44(3) of the Evidence Act provides:

In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

³ Evidence Act 2006, s 44(1).

[12] Relying on this Court’s decision in R v Morrice,⁴ Mr Patel advanced Mr Nguyen’s application in the District Court on the basis that the evidence was relevant as tending:

(a) to explain D’s knowledge of sexual matters;

(b) to suggest there had been “conscious transference” by D (ie the use of the prior experience with H as a basis for making the complaint against Mr Nguyen); and

(c) to explain a possible motive for making a false complaint.

[13] The Judge rejected all three of these grounds finding there were significant differences between the nature and circumstances of the two sets of offending; the “conscious transference” argument was no more than speculative; there was an absence of any expert evidence on that subject; the admitted offending by H did not challenge the complainant’s credibility; and its admission would be grossly unfair to the complainant.

[14] The protective purpose of s 44 and its statutory predecessor⁵ is well established by decisions of this Court.⁶ The direct relevance test is a strong one.⁷

There must be demonstrated a direct link between the disputed evidence and a matter at issue at trial. It must further be demonstrated that the evidence is of such significance that it would be contrary to the interests of justice to exclude it. In examining this second aspect, regard must be had to the right of the accused to offer an effective defence.

[15] We agree with the Judge, essentially for the reasons she gave, that the test under s 44 of the Evidence Act was not satisfied. First, we consider that a 13 year old girl such as D would have knowledge of the type of sexual conduct of which she complains irrespective of the prior experience of the offending against her by H. Secondly, we agree that the risk of “conscious transference” is no more than

_{speculative. Given the significant differences in the circumstances of the prior}

⁴ _{R v Morrice [2008] NZCA 261.}

⁵ _{Evidence Act 1908, s 23A.}

⁶ _{R v M (2000) 18 CRNZ 368 (CA); R v Clode [2007] NZCA 447 at [16] – [24].}

⁷ R v McClintock [1986] 2 NZLR 99 (CA) at 104.

incident when compared with the offending alleged against Mr Nguyen, we regard it as wholly unrealistic to suggest there is any link of the kind suggested. Thirdly, we are unable to discern any logical connection between the evidence of the prior incident and the suggestion that D has fabricated her complaint against Mr Nguyen. As the Judge said, the position may have been different if D had falsely complained about the first incident. The fact that the truth of the first incident is admitted tends to support D’s credibility, not detract from it.

[16] Finally, we do not consider Mr Nguyen’s ability to offer an effective defence will be compromised by the refusal of leave under s 44. It will still be open to him to submit that D fabricated the complaint against him in response to Mr Nguyen chastising her for taking sexually suggestive photographs of herself on his cellphone and threatening to disclose this to her guardian. The evidence on this point is disputed but that does not prevent the issue being explored by Mr Nguyen at trial.

[17] We note that, in some cases, an issue may arise as to whether the admissibility of evidence of previous sexual experience may engage the veracity rules in s 37 of the Evidence Act. It was held in R v C⁸ that evidence of an admittedly false complaint bearing on whether the current allegations of sexual offending were true was likely to be admitted under s 44 if it would otherwise be admissible under s 37. In such a case, the sexual context would be seen as tangential

to the veracity issue and the focus would be on s 37. Where the truth or falsity of the previous complaints was disputed, the matter would be determined under s 44.

[18] The decision in R v C has been applied in other cases⁹ but has been the subject of academic criticism.¹⁰ The criticism focuses on the suggested failure of the Court to consider s 40(3) and (4) of the Act. We do not need to enter this debate because the truth of the first incident is not in dispute. The evidence does not relate

solely or mainly to D’s veracity in terms of s 40(4). Nor is it relied upon as

propensity evidence. It follows that s 40(3) has no application and the admissibility of the evidence is governed by s 44.

⁸ _{R v C [2007] NZCA 439 at [23] and [24].}

⁹ _{R v W [2009] NZCA 441; R v Morrice [2008] NZCA 261.}

¹⁰ _{Richard Mahoney “Evidence” [2008] NZ Law Review 195 at 207-208; Richard Mahoney et al}

The Evidence Act 2006: Act and Analysis (2^nd ed, Brookers, Wellington, 2010) at 218-220.

The second incident

Do ss 7 and 8 of the Evidence Act apply or is s 44 the relevant provision?

[19] A preliminary point is whether the admissibility of the evidence of the second incident is to be considered under the general provisions of ss 7 and 8 of the Evidence Act or whether the more stringent test under s 44 applies on the basis that the disputed evidence relates to “the sexual experience of the complainant with any person other than the defendant”.

[20] The argument in the District Court proceeded on the basis that the questions were governed by ss 7 and 8. Counsel made the same assumption in argument before us. During the hearing, we raised with counsel the possibility that s 44 applied despite the absence of any physical contact between D and her stepbrothers. We have since undertaken some research on this issue. It transpires that the issue has arisen on at least two occasions in the High Court and two in this Court.

[21] In R v Mallinson¹¹ Baragwanath J ruled in a jury trial that evidence that the female complainant, along with other young women, exposed their breasts in a form of exhibitionism fell within s 44(1) as “sexual experience”. In contrast, in Follas v R¹² Laurenson J held that s 23A of the former Evidence Act was not engaged where the complainant had made numerous comments and gestures of a sexual nature to police officers. The Judge found that some element of participation by another person was required and that mere presence by an unwilling observer did not amount to “sexual experience” with another person.

[22] In R v Kerley¹³ this Court was prepared to accept for the purpose of the appeal (as agreed by counsel) that chatroom discussion of a sexual nature on the internet could fall within the predecessor of the present s 44(1) but did not consider there to be any logical link between this material and the possibility of a false

_complaint.

¹¹ _{R v Mallinson HC Rotorua TO20114, 29 August 2002.}

¹² _{Follas v R HC Tauranga CRI-2004-070-4590, 8 February 2005.}

¹³ R v Kerley CA197/03, 28 October 2003.

[23] Finally, in Sutherland v R¹⁴ this Court held that evidence of grooming of the young male complainant by an older man on an earlier occasion did not amount to sexual experience (the police having decided that the earlier conduct was not criminal in nature).

Evidence of the second incident - discussion

[24] Without expressing any view about the correctness of these decisions, we find that the evidence relating to the second incident did amount to sexual experience by D with another person in terms of s 44(1) of the Evidence Act. Mere observation of sexual activity by others may not be enough but, in the present case, D orchestrated the incident. She procured the two toddlers to undertake the activity in question and then photographed each in turn. Whether or not her conduct in this respect was criminal and irrespective of any evidence of physical contact between the complainant and the boys, it clearly amounted to sexual experience within the meaning of s 44(1).

[25] This finding is consistent with the protective purpose of s 44 which is to prevent the inappropriate blackening of the character of a complainant in the eyes of the jury.

[26] Applying ss 7 and 8 of the Evidence Act, the District Court Judge in the present case ruled that Mr Patel could produce evidence of the content of the photographs of the boys and question D about them. Although considering any link with the allegations against Mr Nguyen to be tenuous, she found it would be unfair to prevent counsel exploring how the discovery of the photographs by D’s father and his concern about them might have impacted upon the truthfulness of her complaint against Mr Nguyen. The Judge expressly acknowledged the lower threshold for admissibility under ss 7 and 8 than that applicable under s 44.

[27] In this Court, Mr Patel submitted that the disputed evidence was relevant to show that D had a motive to make a false complaint against Mr Nguyen. In particular, he submitted it would bolster the proposition that she made up the

_{complaint because of Mr Nguyen’s threat to disclose to her guardian the photographs}

¹⁴ Sutherland v R [2010] NZCA 154.

of herself taken on Mr Nguyen’s cellphone. Mr Patel submitted that this proposition would be significantly stronger if evidence was admitted that she had already been in trouble with her father over the photographs she took of the toddlers.

[28] To the contrary, Mrs Brook for the Crown submitted that any probative value of the disputed evidence was minimal; there would be extreme prejudice to the Crown if it were admitted; Mr Nguyen could mount an effective defence without the evidence; and its introduction would needlessly prolong the hearing.

[29] As a fall-back proposition, Mrs Brook submitted that if the evidence of the second incident were introduced, the Crown would wish to have the evidence of the first incident admitted as well. In particular, the Crown wished to explore the possibility that the second incident was a response to the first and, if necessary, to call expert evidence on that point.

Conclusion on the evidence relating to the second incident

[30] We have concluded that the Crown’s appeal in relation to the evidence of the second incident must be allowed. We are not persuaded in terms of s 44 of the Evidence Act that the evidence is of such direct relevance to the facts in issue that it would be contrary to the interests of justice to exclude it. Put shortly, we see no logical link between the evidence of the second incident and the making of allegedly false accusations against Mr Nguyen. D has always told the truth about the second incident so her credibility could not be attacked on the basis she had made a previous false complaint.

[31] As to the suggestion that the evidence could bolster the suggestion that D made up the complaint because of Mr Nguyen’s threat to disclose the taking of photographs of herself on his cellphone, there was a gap of five to six months between the second incident and the events alleged against Mr Nguyen. We do not see that the evidence of the second incident would provide material support to the proposition Mr Patel seeks to advance at trial.

[32] The Judge also referred to counsel’s submission that the evidence indicated

an unhealthy preoccupation with sexual matters and said this might have some

bearing on D’s credibility. She regarded it as a matter for the jury to consider. While this may be a factor, it is weakened by the gap since it occurred and is outweighed by the risk of the jury placing undue weight on this evidence. We agree with the Crown that the evidence would be prejudicial to the complainant and would inappropriately and unnecessarily blacken her character in the eyes of the jury. In that respect, it would undermine the protective purpose of s 44.

[33] We also accept that the introduction of this evidence would needlessly prolong the trial and that Mr Nguyen would still have the ability to put forward an effective defence for the reasons already advanced in relation to the evidence of the first incident.

Result

[34] Leave to appeal is granted in respect of both appeals. [35] The appeal by Mr Nguyen (CA797/2010) is dismissed. [36] The appeal by the Crown (CA585/2010) is allowed.

[37] The result is that the evidence relating to the first incident involving the complainant and H and the evidence relating to the second incident involving the complainant and her stepbrothers (along with the associated evidence about photographs of that activity) is inadmissible at Mr Nguyen’s trial.

Solicitors:

Crown Law Office, Wellington for Respondent