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R v Healy HC Auckland CRI 2006-044-6242 [2007] NZHC 1959; [2007] 3 NZLR 850 (1 August 2007)

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ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2006-044-6242}

HAROLD JOHN HEALY

v

_QUEEN

Hearing: 11 July 2007

Appearances: S Lance for Applicant

JC Gordon and LM Marshall for Respondent

Judgment: 1 August 2007 at 3:00 pm

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on 1 August, 2007 at 3:00 pm pursuant to Rule 540(4) of the High Court Rules

...............................................

Registrar/Deputy Registrar

...............................................

Date

Solicitors:

S Lance, Barrister, PO Box 308 Auckland

Meredith Connell, PO Box 2213 Auckland

HEALY V R HC AK CRI 2006-044-6242 1 August 2007

_{Table of Contents}

Paragraph Number

Introduction [1] The evidence of the two complainants [3] Principles to be applied [12] The assessment in this case [30]

_{Similarities and unusual features of the alleged offending} [34]

The accused’s alleged exploitation of his particular position in the community

[34]

Vulnerability of the complainants [36] The age of the complainants [37] The leading off of the complainants [38] Licking and digital penetration [39] Shaking and making noises during sexual intercourse [40] Apologies after intercourse [41] Other matters [43]

Discussion of proportionality [47] Conclusion on severance [55] Name suppression [57] Result [64]

Introduction

[1] Howard John Healy faces six counts of sexual offending relating to two complainants. The trial is set down for the week of 5 November 2007. The particular counts as set out in the indictment are as follows:

(a) Sexual violation of RP by unlawful sexual connection by connection between her genitalia and his tongue (between 1 October 1988 and

30 April 1989);

(b) Sexual violation of RP by unlawful sexual connection by penetrating her genitalia with his finger (between 1 October 1988 and

30 April 1989);

(c) Sexual violation of RP by rape (between 1 October 1988 and

30 April 1989);

(d) Supplying or administering MF a Class A controlled drug (between

3 April 1989 and 31 December 1990);

(e) Sexual violation of MF by unlawful sexual connection by penetrating her genitalia with his finger (between 3 April 1989 and

31 December 1990); and

(f) Sexual violation of MF by rape (between 3 April 1989 and

31 December 1990).

[2] Mr Healy seeks an order severing counts 1 to 3 (involving the complainant RP) from counts 4 to 6 (involving the complainant MF) so that he stands trial on separate indictments pursuant to s 340 of the Crimes Act 1961. He argues that trying all counts together would be unfairly prejudicial. Mr Healy also seeks the continuation of interim name suppression.

The evidence of the two complainants

[3] It is necessary in considering this application to traverse the evidence of the two complainants. The younger complainant, RP, was at the time of the alleged offending 13 or 14 years old. She had moved to the Centre Point community in Albany (known as Centre Point) to join her mother, who was suffering from depression and appears to have had only limited contact with her daughter. Once the complainant arrived at Centre Point she found that there were open showers that had no doors, and only one toilet in the Centre Point community that actually had a door.

Her mother became less and less visible, and she sometimes went for three or four days without seeing her. Communication with her often took place via a notice board. Members were allowed few possessions and there were no locks on the doors. The adults stayed overnight in structures that were known as “long houses”, while the teenagers stayed in “short houses”.

[4] RP found it hard living in the Centre Point community and not seeing her family. She knew the accused, Harold Healy, as a parent and senior member of the Centre Point community. He was actively involved in teenage counselling sessions that took place regularly. Mr Healy was also actively involved with the teenagers at Centre Point. He would take them to sports, and sometimes down to the liquor store to buy alcohol for them because they were underage. Mr Healy would attend Thursday and Sunday teenage meetings, and he was also involved in weekend group sessions for teenagers. Such events involved encouraging the teenagers to become sexually aware, and involved the teenagers taking off their clothes and participating in group touching. Mr Healy at the time was regarded by RP as being approximately

40 years old.

[5] RP alleges that on a Saturday afternoon she was looking at the notice board on her own when she was approached by Mr Healy. He was talking to someone else beside the notice board, but when RP walked past him to move away he took her by the hand. He said to her: “Come on, we both know we want this. You have been looking at me in that way, haven’t you”. She did not know how to reply. She did not know what he meant. He then openly took her by the hand and walked her to one of the long houses. She says that she felt when she saw people watching her going off with Mr Healy that because no one was stopping her, it was seen as “ok” to do so.

[6] He took her to a bed and then started taking her clothes off. Mr Healy also took his clothes off. Then, naked, he climbed into bed and pulled her down beside him. She resisted him and tried to cross her legs. She told him truthfully that she had her period at the time, but he was undeterred by this observation. She crossed her legs and tried to cover herself and was stiff and nervous. However, Mr Healy removed her tampon and proceeded to lick and penetrate her genitals with his

tongue. He also digitally penetrated her. He then climbed on top of her and had sexual intercourse. She says that he was moaning in her left ear throughout quite loudly. He ejaculated and moaned and shuddered. She says that he was shaking and trembling right through the sexual violation. Afterwards when they were both dressing he said to her “I’m sorry”. They then went their separate ways.

[7] The other complainant, MF, first started going to Centre Point when she was four or five years old. Her father, who was having psychological problems, initially started going to Centre Point for therapy. In due course she was moved there and when she was 13 or 14 years old began teenage counselling sessions. She found them preferable to her home circumstances, which she described as totally dysfunctional. There was friction and aggression and both her father and brother were using drugs.

[8] It seems that she and her brother lived there while her parents lived elsewhere. While she was there drugs were introduced into the counselling sessions. Counselling included taking off clothes, standing in front of a mirror and on occasions touching and masturbation. She alleges that Mr Healy was often involved with these sessions. She says that Mr Healy was involved in the distribution of drugs throughout the Centre Point community. MF describes that as part of the Centre Point community lifestyle, it was considered appropriate to agree to have sex when asked for it by men.

[9] Mr Healy allegedly made a number of requests for sex. She says that initially when Mr Healy asked she would make an excuse. One afternoon, when she was about 16 years old, he gave her two LSD tablets, which he put in her mouth. He told her that they should go to a teenage therapy session and that they would need to take drugs before doing so, so that they would take effect by the time they got there. Her memory is indistinct after that but she recalls going to the house of the leader of the Centre Point community, Mr Bert Potter. She was taken to a bed set up in the lounge of that house. She was very affected by the drug and lay down. She did not feel able to move. She then recalls Mr Healy getting into bed with her, and her feeling sick.

[10] Mr Healy began cuddling and kissing her. He lay on top of her and rubbed her breasts. He was hesitant and shaky and “sort of trembly”. He digitally penetrated her and then had sexual intercourse with her. She says that she said “no” seriously a number of times. She felt physically restricted and incapacitated. After having sexual intercourse, during which he grunted, he lay with her for a while. She says that he was “very oral”, licking and kissing her body a lot. Her recollection is that he licked her stomach and breasts, although she has no recollection of his licking her vagina. After concluding sexual intercourse she says he said to her “I shouldn’t have done that should I?” to which she said “No”.

[11] Some days later he wrote her a letter, which is an exhibit. The letter is apologetic in its tone and on its face is an express acknowledgement that sexual intercourse had taken place. It contains phrases such as “I think you must be judging me to be callous and uncaring, a brute that forces himself on young women”.

Principles to be applied

[12] The general provision relating to severance is in s 340 of the Crimes Act 1961, which states that any number of counts for any crimes whatever may be joined in the same indictment. The section provides further, at s 340(3) that the Court may order separate trials on any one or more counts if the Court “thinks it conducive to the ends of justice to do so”. It does not set out any guidelines. The specific issue that arises in this application as it does in most applications to sever counts relating to different complainants, is whether it is necessary and conducive to the ends of justice for allegations of unrelated offending to be tried together. The prosecution will wish to have such counts heard together, to prove a specific propensity on the part of the accused to commit the particular crimes. The defence will wish to have such counts severed, to ensure that the jury will not improperly develop a general prejudicial impression of a propensity on the part of the accused. Therefore, the enquiry into the admissibility of the similar fact or propensity evidence is central to determining whether severance would, under s 340(3), be “conducive to the ends of justice”.

[13] The traditional justification for trying together similar but unrelated counts involving different complainants is that the presentation of similar evidence supports the complainants’ credibility, given the improbability that the similarity between the unrelated complaints can be entirely attributed to coincidence. As Fisher J noted in R v Tulisi (2000) 18 CRNZ 418 at [8], when all else is equal, the greater number of complainants, the more likely it is that the accused is guilty. Further, as was stated in R v Tamehana CA171/03 31 July 2003 at [10]:

Usually such relevance, if it exists, will be found in similarities of fact which tend to prove matters in issue. In some cases the issue may be identity; in others there may be patterns of behaviour which are distinctive or unlikely to occur by coincidence and where testimony about such features or behaviour, said to have occurred at different times and witnessed by different people, must tend, logically, to support the credit of each witness on that issue. The probative value depends on the unlikelihood of fortuitous coincidence in respect of similar features, whether it be the similarity of some feature or the replication of a combination of features.

[14] On 1 August 2007 the Evidence Act 2006 came into force. It will therefore apply to the trial, so it is necessary to approach evidential issues relating to the trial on that basis. The Evidence Act 2006 does not deal specifically with the issue of severance, but s 43 makes detailed provision for the admission of propensity evidence. Section 43 reads:

43 Propensity evidence offered by prosecution about defendants

(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

(2) When assessing the probative value of propensity evidence, the

Judge must take into account the nature of the issue in dispute.

(3) When assessing the probative value of propensity evidence, the

Judge may consider, among other matters, the following:

(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:

(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:

(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters, –

(a) whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and

(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[15] Propensity evidence is itself defined in s 40(1):

40 Propensity rule

(1) In this section and sections 41 to 43, propensity evidence—

(a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b) does not include evidence of an act or omission that is—

(i) 1 of the elements of the offence for which the person is being tried; or

(ii) the cause of action in the proceeding in question.

[16] It is necessary also to place s 43 in its statutory context. Section 7, consistent with the common law, provides that only relevant evidence is admissible, and s 8 contains a general exclusion of evidence, the probative value of which is outweighed by the risk of the evidence having an unfairly prejudicial effect on the proceeding.

[17] Mr Lance for the applicant has argued that the evidence of complainant RP is irrelevant to Mr Healy’s guilt under s 7 in respect of the counts relating to complainant MF and vice versa, and thus severance is necessary. If the evidence is relevant, he argues then that under s 8 and s 43 it is unfairly prejudicial to his client and that the unfair prejudice outweighs its probative value.

[18] Section 43 contains the general probative value versus unfair prejudicial effect test that also applies to all evidence under s 8 of the Evidence Act 2006.

[19] In R v Bull CA313/03 17 November 2003 it was stated by Tipping J at [8]:

It may be helpful to say that, as this judgment has recognised, the ultimate inquiry is always whether the evidence in question is more probative than prejudicial. The word “prejudicial” in this context means prejudicial in an illegitimate way ...

[9] To be admissible, at least in a case such as the present, evidence of similar offending requires a sufficient degree of specific similarity as to timing, circumstances, manner or otherwise, in order to elevate it to the point at which the law will treat it as having acceptable relevance

It was stated in R v Mokaraka [2001] NZCA 378; [2002] 1 NZLR 793 at [47]:

Discrete conduct evidence is relevant if conduct of a particular nature on a discrete occasion would make a fact now an issue in the trial more likely. If relevant in that sense, it will be admitted if the probative value outweighs any prejudice inherent in the knowledge that the accused was capable of such conduct on the discrete occasion.

[20] It can be seen that this is the same test as that now stated in s 43(1), although the word “illegitimate” was used in R v Bull rather than the word “unfair”. Nothing turns on that difference, as the finding of unfairness or fairness or illegitimacy or legitimacy is the outcome of the balancing process required both under the common law and under s 43.

[21] I am grateful to Ms Gordon for the Crown drawing to my attention the fact that in a recent New Zealand Law Society seminar paper, Evidence Act 2006 (NZLS June 200) it was noted that in previous Law Commission drafts of the Evidence Act the adverb “substantially” and later “clearly” qualified the word “outweighs”, and that this adverbial qualification has been deleted in the current draft. It has been suggested by the authors of that Law Society paper that this indicates a dilution of

the common law test, and reference was made to the decision of the Canadian Supreme Court in R v B CR [1990] 1 SCR 717 where it was stated at 732 that the probative value of the evidence must be “so high” that it displaces the heavy prejudice inured by an accused where evidence of prior immoral or illegal acts is presented to the jury. Reference was also made to O’Brien v Chief Constable of South Wales Police [2005] EWCA Civ 1440; [2005] 2 AC 534 where it was observed at 541 that the probative value must outweigh the unfair prejudice “by a considerable margin”.

[22] Such adverbial strengthening of the necessity for the probative value to “outweigh” the prejudice has not been a feature of recent New Zealand decisions. It was noted by the Court of Appeal in Horne v R CA80/94 18 July 1994 that “undoubtedly the present atmosphere towards the admission of similar fact evidence is more relaxed than before the mid-1980s.” Nevertheless, a cautious approach is required. As was stated in R v Accused CA215/94 (1995) 12 CRNZ 500 at 506:

Counts arising from incidents unrelated in time and circumstance are not to be tried together unless evidence as to one is relevant to another to the extent that its probative value outweighs its prejudice effect.

[23] On an overview, I do not consider that s 43 is to be read as a departure from the common law as it stood in 2007. Caution in admitting propensity evidence is still dictated by the use of the phrase “only if” in s 43(1). It is also indicated by s 43(4), which requires that when considering prejudice it is necessary to consider whether the admission is likely to unfairly predispose the fact finder against the defender, and whether the other acts or admissions will be given disproportionate weight. The observation made in R v Bull at [39] still applies, namely that the evidence of the propensity must be highly focused and specific before it can outweigh the heavy illegitimate prejudice inherent in propensity evidence. It is inherent in s 43, and in particular can be discerned from the emphasis on particular detailed circumstances set out in s 43(3) and (4), that a rigorous consideration and analysis of the evidence of probative value is required before propensity evidence is admitted. The combination of all these legislative requirements means that the Crown task to justify the admission of propensity evidence remains no more or less onerous than before.

[24] The burden naturally remains on the Crown, as is indicated by the requirement in s 43(1) that the prosecution can offer the propensity evidence “only if” the probative value requirement is met. It is unnecessary to conclude whether the standard of the balance of probabilities will apply. This has been a controversial issue (see the various approaches documented in R Mahoney “Similar Fact Evidence and the Standard of Proof” [1993] Crim LR 185). The application of a standard of proof is not well suited to an application regarding the admissibility of evidence under s 344A of the Crimes Act 1960, which is conducted on the basis of untested preliminary statements, where no factual matters are capable of actual proof. As stated in R v Leitch [1998] 1 NZLR 420 at 428 in a different context, the Court has to make a judicial decision. There is no need for “any adverbial qualification”.

[25] There is, however, one respect in which the Act changes the law. It directs that collusion is now an admissibility issue for the Judge to consider in assessing propensity evidence under s 43(3)(e). This is a shift from the previous position where save for the clearest cases of collusion, the issue was seen as one for the jury: R v Clark CA306/04 6 December 2004; R v S CA201/95 22 September 1995. There are no allegations of collusion or suggestibility in this case.

[26] The Crown, therefore, must satisfy the Court that the probative value of the evidence outweighs the prejudicial effect, applying the approach set out in s 43.

[27] In a case such as this, evidence of a propensity to commit unspecified sexual offences alone is not enough: R v O [1999] 1 NZLR 347 at 353 (CA). What is needed is evidence that shows features of the offending that are focused and specific, and that when considered as a whole, assuming no collusion, have such logically probative value as to outweigh the inevitable prejudice. The specific factors set out in s 43(3) and (4) are not to be treated as an exclusive checklist; the Judge “may” consider them “among other matters”.

[28] In the end the consideration under s 43(4)(b) must be a proportionality exercise. The Court must balance whether the benefit to the prosecution of the admission of the evidence of the acts or omissions allegedly showing propensity will outweigh the prejudice to the accused that arises from the jury becoming aware of

allegations of past offending. The Court must be alert to the innate circularity of using two unproven statements to bolster the credibility of each, and ultimately it will only allow the propensity evidence (and decline severance) if the Crown has shown that the s 43 balancing test has a result that warrants the admission of the evidence.

[29] Since preparing this decision I have become aware of the decision of Stevens J in R v Russell HC AK CRI 2006-092-11084 19 July 2007. He also has approached the issue of severance on the basis that the existing authorities on propensity apply, and I respectfully agree with this approach.

The assessment in this case

[30] It is first necessary to consider pursuant to s 43(2) the nature of the issue in dispute in relation to which it is sought to admit the propensity evidence. The issue in relation to RP is whether the events she alleges actually occurred. The issue in relation to MF is whether there was consent. I will return to these issues later in the judgment.

[31] I turn to the matters specifically referred to in s 43(3). In considering the probative value of the propensity evidence generally, that is the evidence showing that Mr Healy had a propensity to act in a particular way or to have a particular state of mind, it must be first noted in terms of s 43(3)(a) that there have only been two acts allegedly showing propensity, and that they therefore have not been frequent. In terms of s 43(3)(b) they are not connected in any direct way, save in place (the Centre Point community) and broadly in time (a period of approximately two years and two months). In terms of s 43(3)(c), which focuses on similarity, there are some similarities and I will deal with these in more detail later in this judgment.

[32] Section 43(3)(d) requires a Court to consider the number of persons making allegations against a defendant, and here it is to be noted that there are only two. The more persons making similar allegations, the greater it can be said is the probative value of their evidence, because of the diminishing likelihood as the number of complainants increases of their all being liars. The issue of collusion or

suggestibility referred to in s 43(3)(e) does not arise here. Finally, in terms of s 43(3)(f) there are unusual features of the acts to which I will now refer.

[33] I now propose going through the particular factors that arise in this case which may indicate propensity, putting to one side those which are insufficiently specific to have any particular value, such as the broad alleged facts of sexual intercourse and lack of consent. The factors to be mentioned indicate both similarity (s 43(3)(c)) and unusual features (s 43(3)(f)).

Similarities and unusual features of the alleged offending

The accused’s alleged exploitation of his particular position in the community

[34] The fact that the particular incidents relating to a count arise from the same general background is not in itself necessarily a similar or unusual factor. For instance, if an accused is a school teacher and the events arise in entirely different ways from that background, that is not necessarily of any relevance to propensity. If, however, an accused occupies a particular position and on two or more occasions exploits the advantages of that position to sexually violate a complainant, that can be a matter that goes towards propensity. It can be logically relevant to guilt that an accused allegedly uses a particular position to carry out a particular crime on more than one occasion. It makes it more likely that the complainants are telling the truth. For instance, it was relevant in R v Bull that the accused obtained access to boys through his position as a gym tutor and climbing coach.

[35] Here the accused’s opportunity arose from his position as a senior member of the Centre Point community. Not only was he one of the adults of the Centre Point community, but he was also one of those who was involved in so-called therapy sessions which involved sexual exploration and instruction. His position is confirmed by the brief of a Mr Hedlund who states that he was one of three adults who ran therapy sessions for teenagers. However, even without Mr Hedlund’s evidence (which Mr Lance advises has only been recently received and is challenged), it is clear from the evidence of the two complainants that the accused was allegedly in a senior position in the Centre Point community and in a position to

give directions to the teenagers. This is why, when he directed RP to go with him and he took her hand, she complied. Similarly, in relation to MF, this is why, when the accused gave her two pieces of paper containing drugs and told her to attend a teenage therapy session with him, she went. This is therefore a similar and unusual feature of the complaints.

Vulnerability of the complainants

[36] Both complainants on their statements appear to have come from severely dysfunctional families, who to a considerable extent gave them up to the Centre Point community. RP saw her mother seldom, although her mother was resident at the Centre Point community. MF appears to have been sent to live there while her parents lived elsewhere. Given their age and the emphasis in the Centre Point community on open sexuality, they were highly vulnerable to sexual suggestion and coercion. They were thus obviously susceptible to moves by a dominant senior male to exploit them sexually. This is a further particular similarity.

The age of the complainants

[37] RP was aged 13 to 14 and MF was aged about 16 at the time of the alleged offending. The young age of the complainants is a matter that overlaps with vulnerability, but it is an independent similarity of the two complaints, that teenage girls of this age were chosen by the accused.

The leading off of the complainants

[38] Both complainants report that they were approached by the accused, who then led them through the commune to a then unoccupied part, and that the sexual intercourse took place there. While the places to which they were taken were different, the fact that they were both approached and then led through the community by the accused to a private place within that community with a bed, is a distinct point of similarity.

Licking and digital penetration

[39] RP says the accused licked her vaginal area and inside her vagina. MF does not recall a specific licking of the vaginal area but refers to being licked on her breasts and upper body. Both complainants refer to digital penetration prior to sexual intercourse. Mr Lance points out that such activities are not unique or indeed strikingly similar in the context of a sexual exchange. It would be certainly going too far to say that these are unusual features, but they have a sufficient similarity to have some probative value.

Shaking and making noises during sexual intercourse

[40] RP in her brief describes the accused as shaking and trembling during intercourse. MF refers to him shaking and grunting during intercourse. Mr Lance again makes the valid point that these are not features that are necessarily unusual in relation to sexual intercourse. However, again they are a similar feature which may on an overview have some probative value in establishing propensity.

Apologies after intercourse

[41] The complainant RP reports that after the conclusion of intercourse the accused said while he was getting dressed “I’m sorry”. The complainant MF reports that after the intercourse he said to her “I shouldn’t have done that should I?” On the following day he wrote the letter to her referred to earlier in this judgment, in which he appears to acknowledge forcing himself upon her, and adopts an apologetic tone.

[42] It is significant that immediately after both events Mr Healy used words of apology. This is undoubtedly similar conduct on the part of the accused in respect of each alleged offending, and is also an unusual feature in terms of s 43(3)(f).

Other matters

[43] The Crown has referred to a number of other allegedly similar or unusual features of the evidence of the complainants, which I do not accept can legitimately be weighed in the assessment of probative value. The Crown has suggested that the

liberal sexual atmosphere of the Centre Point community should be regarded as a similarity, but that is really no more than a matter of background, and has no relevance to the issue of propensity on the part of the accused.

[44] The Crown also argued that there was a connection in time between the two complaints. However, the connection between them is so loose and indefinite as to be of little probative value. As shown in the two indictments there is a span of two years and two months, the first set of indictments being from 1 October 1988 to

30 April 1989, and the second set being from 3 April 1989 to 31 December 1990. Indeed, the actual overlap between the two sets of indictments is less than a month. The events could notionally have been over two years apart.

[45] The Crown has referred to the fact that the complainants turned their heads away from the accused during sexual intercourse, but that action does not relate to the accused and cannot be seen as assisting on the issue of the propensity of the accused. It relates to the actions of the complainants, which are irrelevant to propensity.

[46] The Crown has also referred to the fact that Mr Healy took RP to an Auckland Family Planning Clinic on one occasion, and also took MF the day after the alleged violation to a Family Planning clinic in Takapuna for a morning after pill. However, the evidence of RP did not disclose a visit to the Family Planning Clinic in Takapuna following an act of sexual intercourse. That incident could have occurred prior to the alleged sexual intercourse, and cannot safely be said to be related to the issue in dispute. I do not therefore consider that there is a relevant similarity in this evidence.

Discussion of proportionality

[47] Having assessed the specific features of similarity and those which are unusual, it is necessary to carry out an overall assessment and balancing. In the end the unfairness of the prejudice can only be measured by assessing the similarities and other matters referred to in s 43(3) that have real probative value. Only if those

factors display a clear probative value, which outweighs the risk of unfair prejudice, will the evidence be admitted.

[48] I bear in mind the fact that there are only two complainants here. The logic of similar features of offending establishing propensity increases with the number of complainants. The more complainants, the less likely it is that they have made up those similar features. The fact that there are only two complainants here makes it more necessary for the similarities of circumstance and manner to be clear.

[49] Mr Lance makes the point that there are likely to be different defences in respect of each complainant. The defence in relation to the first complainant RP will probably be that the sexual intercourse alleged did not take place at all. As Mr Lance observed, defence counsel cannot commit finally to a particular line of defence, and developments at trial may often dictate the final shape of the defence position. Mr Lance understandably is not able to make a firm commitment on his position, but I accept that at the present time that is the primary focus of the defence. As to the second complainant (where the accused, of course, is faced with the admitted facts set out in his letter of the following day), the defence will not be that the sexual intercourse did not occur, but rather that it occurred with consent. Section 43(2) requires the Court to consider the nature of the issues in dispute, so the proposed defences are relevant.

[50] Mr Lance relies on the case of R v Owen CA147/06 21 June 2006 for the proposition that the different defences should militate against the counts being heard together. He relies on the fact that in that case there were also two complainants, and one defence was based on consent and the other on the basis that there had been no sexual intercourse at all. The Court of Appeal in that case held at [23]:

In the case of J the issue is whether the offending occurred and if it did whether it was the accused. In the case of C the issue is whether the complainant consented. While such a distinction is not, of itself, determinative of an application for severance, it is nevertheless a relevant factor when assessing the pattern of behaviour alleged against the accused and whether there is a sufficient link between the two.

[51] However, while the different defences are relevant to the consideration of severance, they are far from determinative, as was noted in R v Owen. In that case

the Court after analysing the alleged similarities between the briefs of the complainants, found that there were very substantial differences in the circumstances of the two steps of alleged offending: at [27]. The Court found it difficult to see any discernible pattern of detail which gave the individual accounts of the two complainants a distinctive similarity so as to reinforce what each complainant said: at [28].

[52] Here there are distinct similarities between the two acts of alleged offending, already referred to. There is the position of power enjoyed by the accused as a senior member of an intimate community, and the vulnerability of the complainants as junior members of that community. There is the distinctive feature of circumstance, namely the leading away to a private area where there was a bed. There are the particular features of the sexual acts, namely the actions of licking and digital penetration prior to sexual intercourse, and the noises allegedly made by the accused during sexual intercourse. Finally, there is the apology given to each complainant at the conclusion of that sexual intercourse.

[53] Overall it can be said that the two acts of alleged offending appear to be similar and have distinctive features. There is a discernible pattern of details which gives the complainants’ individual accounts a distinctive similarity, so as to reinforce what each complainant says, despite the different defences. The similarities of the RP complaint to the MF complaint, if believed, will be relevant to a defence of consent by MF. They may show that Mr Healy acted without consent in similar circumstances making it more likely that he would do so a second time. In relation to RP, the fact that a similar sexual exchange took place with another vulnerable teenager in a similar way makes it more likely that RP is telling the truth. They are relevant to the central issue in dispute, namely whether Mr Healy sexually violated the complainants, using his position in the community and exploiting their vulnerability.

[54] Moreover, I do not consider that the evidence is likely to unfairly predispose the jury against the defendant. I consider that with adequate warnings to the jury, this will not occur. The same warnings will ensure that the jury will not tend to give disproportionate weight in relation to the verdict to evidence of other acts or

admissions. Section 43(4) reminds a Court of the dangers so often referred to in the admission of similar fact or propensity evidence. In the end the requirements of s 43(4) end with the Court focused on proportionality, because it is only disproportionality which will make the predisposition unfair. Evidence of probative value will always have the effect of predisposing the decision-maker; if it did not, it would have no probative value. In this case I am satisfied that it will be proportionate for a jury to place weight on the propensity evidence because of the logical strength of the similarities and unusual features that I have outlined, and that with appropriate warnings in the summing up, the jury’s reliance on that evidence will not be unfair.

Conclusion on severance

[55] Returning to the general approach dictated by s 43(1) I conclude that the evidence of each complainant has a probative value in relation to issues arising in relation to the other complainant, and that the probative value outweighs the risk that the evidence may have an unfairly prejudicial affect on the accused. It relates to the issues in dispute.

[56] I therefore decline the application for severance.

Name suppression

[57] Mr Healy seeks continuing name suppression. He complains that because of his connection with the Centre Point community in Albany, any publication of his name is likely to receive a high degree of media attention. He submits that such attention could prejudice his opportunity for a fair trial. He lives in a small community and if his name were published his family, he says, will be highly vulnerable. He submits also that the media attention could well impact on his young family and lead to his younger children, who have had no connection to the Centre Point community, being targeted. He also refers to his wife’s elderly parents and their delicate state of health.

[58] Section 140(1) of the Criminal Justice Act 1985 provides that the Court may prohibit publication of names. In R v Liddell [1995] 1 NZLR 538 (CA) at 546-547 it was stated:

In considering whether the powers given by s 140 of the Criminal Justice Act 1985 should be exercised, the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as "surrogates of the public". Departures from the principles are necessary at times to avoid prejudice in pending trials.

[59] The Crown, which opposes suppression, points out that neither complainant supports the applicant’s efforts to have continued name suppression. It also submits that publication of the accused’s name may encourage any other complainants who may read of it, to come forward.

[60] I do not consider the fact that there has been interim suppression to date to be relevant in the exercise of my discretion. The position today is no different in any way relevant to suppression from what it was at the time when the accused first appeared before the District Court.

[61] As is pointed out in Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 at [42], it is usual for distress, embarrassment and adverse personal consequences to arise from criminal proceedings. It can also be observed that it is usual for family members to face inevitable embarrassment and distress. I approach the issue of suppression on the basis that there must be some damage out of the ordinary, and disproportionate to the public interest, for the presumption of open reporting to be displaced.

[62] I do not consider that the factors referred to by Mr Lance place this application in such a category. While it is undoubtedly true that there may be some particular media interest in this case because of the involvement of the Centre Point community, that is a factor relating to the nature of the complaints rather than any feature particular to the accused. The Court has to assume that the media would behave responsibly and not harass the accused’s young children. The fact that the accused has young children or indeed elderly relatives is not unique, and does not in itself mean that publication is disproportionate. There are no particular features

about Mr Healy’s position which warrant the unusual step of name suppression. His position is not out of the ordinary. There are no significant features that displace the presumption of open justice.

[63] I therefore decline to suppress Mr Healy’s name, and record that the interim suppression that has been granted to date does not continue further.

Result

[64] The applications for severance and name suppression are declined.

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Asher J