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R v Ismail [2015] NZHC 2162 (8 September 2015)

Last Updated: 31 December 2018

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.45 pm on the 8^th day of September 2015

Solicitors: Luke Cunningham & Clere, Crown Solicitors, Wellington McWilliam Rennie, Wellington

R v ISMAIL [2015] NZHC 2162 [8 September 2015]

Table of contents

The applications [1]
The background [2]
The stay application [6]
(a) The grounds of the application [6]
(b) The publicity [8]
(c) Counsels’ submissions [14]
(d) Discussion [25]
The s 147 application [44]
Admissibility of evidence [51]
(a) Defendant’s DVD interview [52]
(b) The 111 call [57]
(c) Propensity evidence [63]
(d) The complainant’s interview [71]
Mode of evidence application [82]
Result [88]

The applications

[1] The defendant is due to face trial on 30 November 2015 on one charge of burglary, one charge of assault with intent to commit sexual violation, and an alternative charge of indecent assault. There are three pre-trial applications:

(a) an application by the defendant for a stay of proceedings;

(b) an application by the defendant under s 147 of the Criminal Procedure Act 2011 for discharge on the charge of assault with intent to commit sexual violation; and

(c) an application by the Crown under s 101 of the Criminal Procedure Act 2011 for an order that specific items of evidence are admissible at trial.

The background

[2] The Crown case is that on Friday, 9 May 2014, the complainant was walking to a dairy near her home when she saw an Asian male apparently watching her. She walked home just as it was getting dark. She was alone at home as her flatmates were
out. She went into her bedroom and began watching a movie on her laptop computer. About half an hour to an hour after arriving home she heard a knock on her bedroom door which was slightly ajar. She said “come in” or words to that effect and a man whom she recognised as the man she had seen outside the dairy entered, not wearing trousers or underwear. She told him to get out and he grabbed her by the shoulders. She screamed and there was a struggle. She ran to the kitchen, grabbed a knife, and was able to force him out of the house and lock the door. She ran to her bedroom, grabbed her telephone, locked herself in the bathroom and called the police. In the course of that call, her flatmate’s boyfriend arrived. Both he and a neighbour who had been alerted by the noise saw a man outside the flat. They both spoke to him. Police arrived and located the defendant on the path leading from the complainant’s house.

[3] The defendant was arrested and appeared in the District Court the following morning. He is a Malaysian national who was posted to the Malaysian High Commission at the time. He had diplomatic immunity from prosecution under the Vienna Convention on Diplomatic Relations 1961 (the Vienna Convention). Following diplomatic exchanges between New Zealand and Malaysian officials, diplomatic immunity was not waived and the defendant left New Zealand.

[4] In July 2014, the case attracted a great deal of media interest lasting several weeks. It mainly concerned the circumstances surrounding the defendant’s diplomatic immunity and his departure from New Zealand, and the political and diplomatic implications. There was considerable media commentary. The complainant applied for her name suppression to be lifted. She was interviewed on TV3.

[5] Ultimately, diplomatic immunity was waived by Malaysia and the defendant did not oppose his extradition to New Zealand to face charges.

The stay application

(a) The grounds of the application

[6] The Court has power to stay criminal proceedings in two circumstances:

(a) where it is impossible for the defendant to receive a fair trial; and
(b) where allowing the trial to take place would undermine public confidence in the integrity of the criminal justice system.¹

[7] The defendant bases his application on the extent and nature of the publicity and comment which this case has attracted. In doing that, he relies upon both these grounds.

(b) The publicity

[8] A fuller description of the publicity to which I have briefly referred is necessary. The matter began to receive prominent media attention in late June. The first item to which the defendant refers is a report on the Stuff website posted on 1 July 2014. That reports an apparent difference between the Malaysian Government and the New Zealand Government over the circumstances in which the defendant had left New Zealand with diplomatic immunity in place. The circumstances at the time were briefly described by Collins J in a judgment of 2 July 2014 allowing an appeal against the granting of interim name suppression to the defendant.² The extent of the political and media attention which the case had then received is illustrated by the fact that the Malaysian Foreign Minister held a press conference on 1 July 2014.

[9] During the media attention which continued into early July, the complainant applied to the District Court to lift her name suppression, under s 203(4) of the Criminal Procedure Act 2011. Suppression was lifted with effect from 8.30 pm on 9 July 2014.³ In the course of his decision lifting name suppression, Judge Davidson said:

[5] However, one observation from my part is simply this: that the applicant and any media organisation that may wish to report on the matter are urged to respect the second respondent’s fair trial rights, which I believe are under jeopardy.

[10] That evening, 9 July, the complainant appeared at her request on TV3’s “3^rd Degree” programme and was interviewed on screen. In the course of that interview, she described having found out how the defendant had left New Zealand. She

¹ R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806 (CA) at [48].

² Fairfax New Zealand Limited v Ismail [2014] NZHC 1525.

³ Billingsley v New Zealand Police (Minute) DC Wellington CRI-2014-085-5323, 9 July 2014.

expressed views critical of the Minister of Foreign Affairs, stating that she expected but had not received a personal apology from him. She expressed the view that the Malaysian Foreign Minister should resign. She also spoke critically of the role of the Prime Minister, and expressed an adverse view of his reaction to the matter. She expressed the view that New Zealand society and culture normalises and trivialises and in some ways condones rape and sexual violence. She agreed with the interviewer’s description of her as a feminist and an activist. She expressed compassion towards the family of the defendant, describing them as also victims. The complainant also expressed her views in a document written by her, posted on the TV3 website, which the presenter invited viewers to read.

[11] Following the interview with the complainant, and on the same evening, TV3 interviewed Ms Louise Nicholas, a prominent spokesperson and advocate for victims of sexual offending. Ms Nicholas commented on the complainant’s statement about a rape culture in New Zealand, and on the complainant’s case, in terms sympathetic to the complainant’s position.

[12] The media coverage also included items which cast the defendant in an unfavourable light, particularly about the manner of his departure from New Zealand, and suggestions that the defendant had psychological issues.
[13] There were numerous other media items over the following days and weeks. The defendant refers to over 60 items, the vast bulk of which are dated between 1 July and 4 August 2014.⁴

(c) Counsels’ submissions

[14] Counsel for the defendant submits that the combined effect of the comments, particularly those from the complainant and her family, was to create a firm impression in the public’s mind that there had been a sexual assault, of which the complainant was the victim. Counsel submits that the references to her qualities as a person only served to enhance her credibility in the public mind. He submits that comments of various influential members of the public reported in the media reinforced that impression. He submits that Ministers of the Crown and Members of Parliament made widely reported comments on the case and that almost without exception their comments assumed that there had been a sexual attack. Counsel points out that there was a frequent use of the term “victim” by persons whose comments were reported in the media. This would have served to reinforce the view in the public’s mind that the complainant was the victim of a crime that had in fact been committed.

[15] Counsel submits that the impression created in the public’s mind, that an offence had been committed, would have been further reinforced by the manner in which the media dealt with the defendant’s departure from New Zealand. He was portrayed as having “fled” the country under the cloak of diplomatic immunity, thereby suggesting a consciousness of guilt. He was also repeatedly referred to as a “disgraced Malaysian diplomat”.

[16] Counsel for the defendant submits that as a result of all of these matters to which I have briefly referred, and which are set out in more detail in counsel’s submissions, the complainant has been placed in a position where she has a distinct advantage over the defendant in the proceedings. He submits that the result has been

4. That range includes an item from the New Zealand Herald headed “Diplomat Case: a father’s ire”, with a date of 24 October 2014 in the bundle produced. The New Zealand Herald website dateline for that item is 3 August 2014. An item from that same website with the same date reporting comments by the complainant’s grandmother appears to date from late September 2014.

to significantly prejudice the proceedings, as jurors can be expected to sympathize with the complainant to the defendant’s disadvantage.

[17] The defendant submits that the complainant and others have brought about a situation where it is now impossible for him to have a fair trial and that the proceedings must be stayed on that ground.

[18] He further submits that the proceedings should be stayed on the grounds that allowing the trial would undermine public confidence in the criminal justice system. Mr Stevens says:

The proceedings must also be stayed on the basis that to allow the trial to take place would undermine public confidence in the integrity of the criminal justice system. A trial in circumstances where the complainant and her supporters, as well as others, have, by their actions, poisoned the well of justice, so as to give the complainant as the primary witness a distinct advantage over the defendant, could only offend the community’s sense of fair play and propriety and undermine public confidence in the administration of justice.

[19] In support of that submission, Mr Stevens refers to additional features. For example, he submits that the complainant has, by taking part in the 3^rd Degree interview and in her “essay”, taken on the role of an activist and has thereby limited her scope to make any concessions that she should properly make as a witness. He submits that by politicising the case in that way, the complainant has introduced a political dimension into the case that may influence the jury’s approach to it. He submits that there is a risk that jurors who are concerned about issues of violence, especially against women, may, because those issues have been linked to the case through the politicisation of it, be influenced by a perceived need to ensure the system responds to those concerns, to an extent that prevents them objectively assessing the evidence. He submits there is a real risk that this issue may determine the trial. He submits that there is also a real risk that the alleged failings of the Government and the shortcoming in the handling of the diplomatic immunity issue may, because those issues have been linked to the case through its politicization, influence the outcome. He submits that a juror with a bias towards or against any particular commentator on this issue may be influenced by the position adopted by commentators. Counsel submits:

These risks exist because of the actions of the complainant in politicizing the case. It is not in the public interest that a person who is the primary witness in a case should introduce political issues into the case. This in itself has the potential to both undermine the right to a fair trial and undermine public confidence in the administration of justice.

[20] The defendant submits that the complainant’s election to proceed with an interview with TV3, broadcast during prime time viewing, together with the other circumstances of that publicity, including the “essay” written by her and publicised by TV3, and the publicity given to the support from Ms Nicholas, cumulatively demonstrates an indifference to the defendant’s fair trial rights such that to allow the trial to take place would undermine public confidence in the integrity of the criminal justice system. Counsel submits that the risk to public confidence in the integrity of the criminal justice system is exacerbated by the complainant having taken the step of going on television in the face of the warning by Judge Davidson of the risk to the defendant’s right to a fair trial from publicity. Counsel notes that the complainant stood by her decision to go public despite criticism that the interview could prejudice fair trial rights. He submits that both the complainant and Ms Nicholas, and also TV3, demonstrated an indifference to the defendant’s fair trial rights. Counsel also submits that TV3 sought to portray the complainant in a favourable light, including a “makeover” of her appearance for the television interview. Counsel submits that the intended purpose, and effect, of the steps taken by the complainant and TV3 was to show the complainant in a favourable light and achieve for her an advantage in the litigation.

[21] Mr Burston for the Crown submits that a fair trial remains possible, despite the high level of media attention the case has attracted. He submits that the pre-trial publicity is neither so damaging nor so prejudicial that a fair trial has been rendered impossible. He notes that by the time of trial on 30 November 2015, around 18 months will have passed since the height of the pre-trial publicity. He submits that the adverse effects of publicity, if any, will have largely dissipated by that time. He submits that despite the publicity there is little in the public domain about the underlying factual allegations. He submits that aside from the references to the defendant fleeing, the complainant has not blackened the defendant’s character. He submits that there is unlikely to be a dispute at trial that the defendant entered the complainant’s address without her permission, naked from the waist down. In that
case, the reference to the complainant as a victim is not inappropriate, even if the defendant maintains that she was not the victim of an assault with intent to commit sexual violation.

[22] Counsel for the Crown also submits that the references to the defendant’s psychiatric condition cannot be properly evaluated until the crystallisation of the issues at trial. I was informed from the bar that the defendant’s counsel has sought a psychiatric report, which is to be made available to the Crown. The content of that report may influence the trial issues.

[23] Mr Burston further submits that any rapport the complainant has established with the public does not warrant the exceptional step of a stay. He submits that the case is not dissimilar to R v Rickards, a case in which Ms Nicholas was the complainant.⁵ Ms Nicholas also waived her statutory entitlement to the non- publication of her name, and there had been extensive and nationwide publicity extending to all branches of the media. A fair trial was nonetheless deemed possible.

[24] The Crown further submits that this case falls well short of that class of cases where continuation of the proceedings would undermine public confidence in the criminal justice system, and contains none of the hallmarks of conduct that warrant a stay. Counsel submits that it is questionable whether the complainant’s own conduct can be used as a basis to seek stay of the proceedings on the ground of abuse of process. Counsel submits that the interests of justice weigh overwhelmingly in favour of continuation of the proceedings, and that public confidence in the justice system would be undermined if the Court were to stay the proceedings and preclude determination of the charges on their merits.

(d) Discussion

[25] I address first whether the publicity which this case has received is such as to make it impossible for the defendant to receive a fair trial. The starting point is the right to a fair trial affirmed by s 25(a) of the New Zealand Bill of Rights Act 1990. That is fundamental. The right of an accused person is to a trial before a jury free of

⁵ R v Rickards HC Auckland CRI-2005-063-1122, 28 November 2005.

bias and pre-conception, whose decisions will be based only upon facts that have been proved in evidence, adduced in the course of the trial in accordance with recognised rules and procedures of a Court of law.⁶ The question is whether as a matter of practical reality the extent and nature of the pre-trial publicity has been such as to create a real risk, as opposed to a remote possibility, of interference with a fair trial.⁷

[26] What is required on an application for stay based on prejudice to fair trial rights from pre-trial publicity is a fact-specific examination of the publicity which has occurred, and its potential implications for the issues which will or are likely to arise at trial, to determine whether, in the light of all the relevant publicity, in all its aspects, there is a real risk that the trial of those issues will be prejudiced.

[27] The necessary evaluation is very case-specific, both as to the nature and extent of pre-trial publicity, and the trial issues. Only limited assistance can be derived from a discussion of other cases. There are however two cases, each with some similarity to this case, which are particularly relevant.

[28] The first is R v Harawira.⁸ The appellants had been convicted on charges arising out of attacks on a committed patient at the Māori Health Unit known as the Whare Paia at Carrington Hospital in Auckland, where the appellants all worked. One of the appellants had a high public profile, and there was considerable publicity about the case before trial. The extent of that publicity was relied upon on appeal. The appellants asserted that there was a miscarriage of justice by virtue of adverse pre-trial publicity. The Court addressed the pre-trial publicity in these terms:⁹

We were supplied with some 50 extracts from newspapers circulating widely in the Auckland area and in other parts of New Zealand, together with TV scripts, and also witnessed a video screening of her entering and leaving the District Court on a number of occasions during the course of the trial, accompanied by a factual commentary. This material amply reflected the controversy in which Mrs Harawira was embroiled and we have no doubt that it opened the way to a polarisation of opinion throughout much of New Zealand, and more particularly in the area of immediate concern around Auckland.

⁶ Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 (HC) at 47 per Eichelbaum CJ.

⁷ At 56 per McGechan J.

⁸ R v Harawira [1989] NZCA 107; [1989] 2 NZLR 714 (CA).

⁹ At 728-729.

The great bulk of the press cuttings submitted to us covered the two months immediately following the assaults, when the controversy was at its peak. While of necessity those allegations assumed importance in the confrontation with the Hospital Board, the publicity took place against the background that none of the accused admitted the assaults had occurred, or that they were responsible, and nowhere in the articles was there any direct assertion that they were. Nor was the evidence or the question of their guilt or innocence discussed. However, there were references to reports of this and other assaults at the Unit. At its worst, we think this material would have left an impression that the accused may well have assaulted the complainant. But such a result seems no more adverse to them than that generally produced by the publication of depositions in any serious criminal trial.

Our system of justice operates in an open society where public issues are freely exposed and debated. Experience shows that juries are quite capable of understanding and carrying out their role in this environment, notwithstanding that an accused may have been the subject of widespread debate and criticism.

[29] The Court of Appeal held that there was no miscarriage of justice by virtue of adverse pre-trial publicity. The Court expressed some concern about one item from that material. That was a newspaper article published about six weeks before the trial (the bulk of the material having been published many months before the trial). That article was described by the Court as presenting “an overall picture of a family committed to violence and confrontation”.¹⁰ The Court gave that article particular consideration, but in the end was satisfied that it did not result in an unfair trial.

[30] The second case is R v Rickards.¹¹ In that case, as in this, the complainant, Ms Nicholas, had waived her statutory entitlement to non-publication of her name. Randerson J described the pre-trial publicity in these terms:

[75] I was presented with four Eastlight folders of media clippings and transcripts relating to the allegations made by Ms Nicholas against the three accused and other related material. I have also viewed video footage of three television programmes (two on 21 March 2004 and the other on 31 March 2004). As well, I have viewed a video containing excerpts from television news items in 2004 and a DVD containing a clip from a television news item on 31 May 2005.

[76] There can be no doubt that the pre-trial publicity since January 2004 has been extensive and nationwide. It has extended to all branches of the media including television, radio and the print media. A striking feature has been the willingness of the complainant Ms Nicholas to speak publicly about her allegations and to appear on nationwide television describing her experiences in detail. That is most unusual for a case involving allegations of sexual offending and, in the experience of counsel and the court, is probably

¹⁰ At 729.

¹¹ R v Rickards, above n 5.

unique. In general, the coverage of Ms Nicholas’ allegations has been treated sympathetically and she has been filmed and photographed with her family and animals on the small farmlet where she now resides.

[77] Much of the reporting has been sensationalised and has involved the repeated use of the emotive expression “pack rape” to describe the allegations against the three accused. The alleged use of a baton on Ms Nicholas has also been widely published. That aspect of the allegations was accentuated by a former woman police officer coming forward and suggesting that her baton might have been used on Ms Nicholas. The police have since discounted that possibility but television footage of a police baton and interviews with the former officer were publicised. A counsellor giving advice to Ms Nicholas has also seen fit to give media interviews indicating that she believes the allegations made by Ms Nicholas.

[31] Randerson J referred to the high public interest both in the trial proceeding and in the right of the accused to receive a fair trial. He was not persuaded that it had been established that pre-trial publicity would preclude a fair trial.

[32] In this case, the vast majority of publicity relied on by the defendant will be almost 18 months old and all will be over 12 months old at the time of trial. The likelihood that any potential jurors would have a sufficiently detailed recollection of the content of that publicity, to give rise to the risks to which the defendant refers, seems remote.

[33] The ability to access published material through the Internet means the possibility that potential jurors might have accessed the items more recently than the time of publication cannot be excluded. However, the possibility is not sufficient to give rise to serious concern. To the extent that it is a matter of concern, counsel for the defendant could request the trial Judge to ask jury panellists who have a specific recall of any publicity, or who have recently accessed any publicity, to identify that when called.

[34] But even if time has not diminished the risk arising from the publicity, I do not consider that the features of the publicity complained of would preclude a fair trial. The references to the complainant as a “victim” are capable of being met by a direction, if that is thought appropriate by the trial Judge. So too are the references to the defendant having fled the country, and any implications of guilt which any juror familiar with the publicity might otherwise take from such references. Mr Burston
advised that the Crown will agree to an admission under s 9 of the Evidence Act 2006 as to the circumstances of the defendant’s departure from and return to New Zealand.

[35] I address the complainant’s actions in participating in a television interview and publishing her written material through the station’s website on the second limb of this application. Dealing specifically with the risks which her actions may pose to a fair trial, I do not accept the submission that her self-description as an activist in relation to attitudes to sexual violence gives rise to a significant risk that her evidence at trial may be distorted in the way counsel suggests. Nor do I consider that her statement and actions are likely to enhance her credibility. Indeed, they may well provide material for cross-examination as to the complainant’s credibility.

[36] For these reasons, I do not consider that the pre-trial publicity may prejudice a fair trial, to an extent which justifies a stay.

[37] The second basis of the stay application is that allowing the trial to take place would undermine public confidence in the integrity of the criminal justice system.

[38] The first issue on this aspect is whether actions by the complainant, TV3, or others of whose conduct the defendant complains, is relevant conduct which may be taken into account under this limb of the test for a stay. In Moevao v Department of Labour Richardson J said:¹²

It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.

[39] The Court went on to say:¹³

¹² Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 481.

¹³ At 482.

The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.

[40] The first passage cited is not specific as to the persons whose conduct, in using the Court’s processes, may be relevant. The second passage refers to the prosecutor, and those responsible for law enforcement. All of the other cases to which I was referred involve acts on the part of the prosecution, or some person exercising a public function.¹⁴ The concern is with conduct by which the processes of the Courts are being used for ulterior purposes or to cause improper vexation and oppression.¹⁵

[41] On that basis, I consider that the actions of the complainant and TV3 in particular, and the other persons who have commented on the case, are not amenable to consideration under this limb of the stay jurisdiction. Their conduct is not capable of undermining public confidence in the criminal justice system, as they are not part of that system. The Courts have power under the law of contempt to discipline persons outside the criminal justice system for conduct which improperly affects the Court’s processes. A stay under the second limb is not an appropriate remedy for such conduct. In this case, any risk to which the actions complained of may give rise is a risk to the defendant’s fair trial rights in this case, not a risk to public confidence in the integrity of the criminal justice system. I have taken the matters relied on under this limb into account in my consideration of the first limb. Under that limb, I have considered both the nature and extent of the publicity, and the possible effect of the actions of the complainant and TV3, on the defendant’s right to a fair trial. They do not require separate consideration under the second limb.

14. R v Antonievic, above n 1; Warren v Attorney-General for Jersey [2011] UKPC 10, [2012] 1 AC 22; Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA); R v Golding (2002) 19 CRNZ 435 (CA).

¹⁵ Fox v Attorney-General, above n 14, at (14).

[42] For these reasons, the application for a stay is dismissed.

[43] At the hearing, I made an interim order prohibiting publication of the proceedings, including the fact of the hearing. I advised that I would review the extent of that order in this judgment. An important part of my reasons for refusing the stay is that the extensive publicity about this case is now quite old. It would be most unfortunate if the case were now to receive publicity, which might lead to the repeat of some of that earlier publicity, or raise the risk that potential jurors might access archived material. To minimise that risk, I consider it appropriate to continue the prohibition, covering not only the content of the hearing, but also the fact of it. I therefore make the order set out in the heading of this judgment.

The s 147 application

[44] This application relates to the charge of assault with intent to commit sexual violation. The ground of the application is that a properly directed jury could not reasonably convict the defendant on this charge, on the evidence. The defendant submits that it would not be reasonable on the evidence for a jury to draw the inference that the defendant, at the time of the alleged assault, intended to sexually violate the complainant.

[45] The principles to be applied on this application are well settled. They are set out in Parris v Attorney-General¹⁶ and R v Flyger.¹⁷ The Court must take the Crown’s case at its highest and examine the evidence in terms of adequacy of its proof of the offence, if the evidence is accepted by the jury. Where the Crown case is dependent on inferences, the focus is on whether the evidence establishes facts that are capable of supporting those inferences. If the facts are capable of supporting an inference, it is for the jury to determine whether that inference should be drawn.

[46] Mr Stevens submits:

11. It is not possible to infer from this evidence an intent to commit sexual violation. A conclusion that sexual violation was the defendant’s intent would be purely speculative and based on no sound foundation.

¹⁶ Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [8].

¹⁷ R v Flyger [2001] 2 NZLR 721 (CA) at [13].

His intent, on the prosecution evidence, could just as readily have been to engage in sexual activity short of that required for there to be a sexual violation – that is activity other than penetration of the complainant’s genitalia with his penis or other than activity which amounts to sexual connection.

12. It is just as possible, on the prosecution evidence, that the defendant’s intention was to kiss and or cuddle the complainant, or to lie with her on the bed, or to touch her breasts, bottom or genitalia short of penetration or to engage in other sexual activity short of sexual connection, or that his intention was not sexual at all.

13. There is nothing in the prosecution evidence to indicate one intention over the other. In these circumstances a verdict which was based on a speculative conclusion of an intention to sexually violate would be irrational.

[47] The Crown evidence, if accepted, will establish that the complainant, who was alone, saw the defendant outside the dairy, and his actions caused her to notice him. He followed her on the 10 to 15 minute walk home, without the complainant noticing him. After at least half an hour, the defendant entered the complainant’s bedroom. He was not wearing any trousers or underwear on his lower body. When the complainant remonstrated with him he grabbed her and used sufficient force to leave four bruises on her forearm, red marks and the minor abrasion or abrasions to both hands. The complainant had to push him out of the bedroom.

[48] That evidence, if accepted, clearly supports an inference that the defendant intended some form of non-consensual physical contact of a sexual nature. It is capable of supporting an inference that the intended sexual contact was a form of sexual connection amounting to sexual violation. Whether that inference should be drawn or not is a question for the jury.

[49] The fact that the conduct may also be consistent with an inference that something less than sexual connection was intended is not a basis for withdrawing the charge from the jury. The jury will be directed that they should not speculate or guess, but should draw an inference only if that is a logical deduction from the facts they find established. Whether or not the inference should be drawn is an issue for the jury.

[50] The application for discharge is accordingly dismissed.

Admissibility of evidence

[51] The third application is the Crown’s application under s 101 of the Criminal Procedure Act 2011 as to the admissibility of four items of evidence which the Crown proposes to call and which the defendant submits are not admissible.

(a) The defendant’s DVD interview

[52] The defendant was arrested outside the complainant’s house on the night of the incident and taken to the police station. After he had been processed and informed of his rights, he was asked whether he was willing to give a statement on DVD. He said he was, and at around 10 pm that evening, the constable began the interview. She recorded the usual formalities and again informed the defendant of his rights including his right to speak to a lawyer. After that was done, about 10 minutes into the interview, the defendant advised that he wished to speak to a lawyer. The interviewing officer made arrangements to contact a lawyer and was out of the interview room for some time, leaving the defendant alone, with the camera running. When a lawyer was contacted, the defendant left the room to speak to the lawyer in an adjacent room and on his return said that he did not wish to continue the interview. The interview then ended. The total recording spans about 43 minutes, of which the defendant was in the room for about 33 minutes.

[53] Counsel for the defendant submits that the interview contains no admissions and is therefore inadmissible, because s 27 of the Evidence Act 2006 is not engaged. Mr Burston submits that the recording is admissible evidence of the defendant’s demeanour and his mental state on the evening of the alleged offending, because the interview demonstrates that the defendant’s mental state was such that he was capable of understanding and responding appropriately to questions, and that he was aware of and able to exercise his right to consult a lawyer and his right to silence. The Crown submits that the interview is directly relevant in that the defendant’s mental state will be a live issue at trial and the interview provides the best evidence of the defendant’s state on that evening.
[54] It is not a requirement of s 27 that the statement contain an admission.¹⁸ The section applies to every spoken assertion by the defendant of any matter in the interview. The essential question is whether anything said or the way it was said in the interview is relevant to an issue at trial. There is no statement which is directly relevant to an issue. The defendant’s statements in the interview may be indirectly relevant if what is said or the way it is said has a tendency to prove or disprove anything that is of consequence to the defendant’s mental condition at the time of the offending, if that is put in issue at trial. The recording is the best available evidence of the defendant’s demeanour and mental state on the evening of the incident.

[55] It is not possible at this stage to decide whether the evidence is relevant in that way, because the trial issues are not yet sufficiently clear. Counsel for the defendant submits that a determination as to the admissibility of the interview is best deferred until trial. He submits that towards the end of the Crown case, at the point the interview would normally be played, the extent to which the appellant’s mental state is in issue will be apparent.

[56] I have reached the conclusion that it is not possible to determine admissibility at this stage. The assessment will have to be made by the trial judge. I therefore decline to rule on this aspect of the Crown application.

(b) The 111 call

[57] The Crown proposes to introduce into evidence the recording of the 111 call which the complainant made on the evening of the incident.

¹⁸ R v Green [2009] NZCA 400 at [12]; Kendall v R [2012] NZCA 5 at [16].

[58] Mr Burston submits that the 111 call is an admissible part of the events in issue. Counsel refers to Rongonui v R¹⁹ and R v Accused²⁰ and submits that the 111 call was a spontaneous utterance by the complainant while her ordeal was still continuing: an anguished response to pressure without risk of fabrication. Counsel relies on R v Pennell,²¹ and Janif v Police,²² and submits that at the time of the call the complainant was still in fear of the defendant, whom she reasonably believed had tried to rape her. Counsel acknowledges that the alleged assault had ended but submits that the event was still continuing as the defendant was at the time of the call still outside the complainant’s door and arguably the alleged burglary had not ended. The Crown further submits that the 111 call was very proximate in time to the alleged assault, in that the complainant called police as soon as she had locked the door and fled to the bathroom.

[59] The defendant submits that the 111 call is inadmissible because it is a previous consistent statement of the complainant, and therefore inadmissible under s 35(1) of the Evidence Act 2006. Counsel for the defendant submits that the relevant trial issue will be what happened in the complainant’s room. He submits it cannot be assumed that the defence case will involve a challenge to the veracity of the complainant’s evidence, so the issue of whether s 35(2) is engaged should be deferred until trial. He submits that to be admissible as part of the events in issue, a statement must be a spontaneous utterance accompanying the relevant events. He submits that it must be part of the events, and that it is not enough to be closely associated with the events. He submits that the events in issue had ended when the defendant was expelled from the house. There was then no assault continuing, the defendant was not then on the premises with intent to commit a crime, and it makes no difference that he was still on the property outside the house at the time. Counsel submits that R v Accused,²³ R v Pennell,²⁴ and Janif v Police²⁵ are distinguishable on the facts, in that the 111 call was

¹⁹ Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23.

²⁰ R v Accused (CA17/97) (1997) 14 CRNZ 565 (CA).

²¹ R v Pennell [2003] 1 NZLR 289 (HC).

²² Janif v Police [2014] NZHC 2753.

²³ R v Accused, above n 20.

²⁴ R v Pennell, above n 21.

²⁵ Janif v Police, above n 22.

not part of the events as they unfolded. The case is therefore analogous to the evidence excluded in Rongonui v R.²⁶

[60] Counsel further submits that even if the 111 call were held relevant as part of the events at issue, it should nonetheless be excluded under s 8 on the basis that its illegitimate prejudicial effect outweighs its probative value. He submits that its probative value will be limited to demonstrating that the complainant was upset at the time of the call, a fact which Mr Stevens submits will not be an issue at trial. He submits that the prejudice is substantial because the call is emotionally charged and hearing it would have a pronounced impact on the jury disproportionate to its limited probative value. He further submits that references by the complainant to the defendant having tried to rape her are unfairly prejudicial.

[61] I consider that the 111 call is a spontaneous utterance accompanying the relevant events. When the call was made, the complainant had locked herself in the bathroom, after the defendant had left the house and she had locked the door. Her actions in locking herself in the bathroom indicate that she did not consider that the incident was over and there was no danger that the defendant might return. It is in those circumstances unrealistic to treat the 111 call as having occurred after the relevant events and as reporting a near past event rather than accompanying and being an explanatory part of that event, in terms of the distinction made in Rongonui v R. The fact that the complainant was clearly distressed during the call is an aspect of the probative value of the evidence, and does not give rise to any illegitimate prejudice. The references by the complainant to the defendant having tried to rape her will be assessed by the jury in the light of all the evidence. The trial judge will be able to give a direction on the point if that seems to the judge to be needed, in the circumstances of the trial.

[62] I rule that the 111 call is admissible.

²⁶ Rongonui v R, above n 19.

(c) Propensity evidence

[63] The Crown seeks to call, as propensity evidence, evidence from a woman who on the day before the relevant events was walking by herself down a small side street in central Wellington when she observed a person she subsequently identified as the defendant standing on the corner. As she walked past him he said something to her which she did not hear. He began to walk behind her and she went into a store, thinking he would keep walking. While she was in the store she noticed he had gone around the corner and was looking through the shop window at her. She went to an area of the store which the defendant could not see through the window for about five minutes, and when she saw that he had gone, she left the store. She crossed the road and not long afterwards noticed that a car had stopped next to her. The defendant was driving, he had the front passenger window down, and he tried to talk to her. He motioned with his hand for her to get into the car. He was speaking but she had earphones on and could not hear what he said. She kept walking and he drove into a parking bay. She crossed the road and went into a store to get away from him.

[64] The Crown submits that this evidence is relevant propensity evidence because it tends to show that the defendant has a propensity to observe, follow and make persistent and uninvited sexual advances upon unknown lone young women he encounters in a public setting, undeterred by the fact they do not reciprocate his attentions. The Crown submits that the evidence is directly relevant to an issue in dispute, namely whether the defendant did in fact follow the complainant home before subjecting her to unsolicited advances of a sexual nature or whether, instead, the defendant’s version of events that he was invited to the complainant’s home is truthful.

[65] The Crown further says that the evidence is relevant, not only as propensity evidence but as background or narrative evidence. Mr Burston submits that the defendant’s mental state is in issue and that his behaviour the day prior is directly relevant to an assessment of his mental state, particularly where that behaviour relates to interactions with young females. He submits that the evidence gives an insight into his mental state the day prior to the alleged offending. He submits that the evidence demonstrates that although the defendant was behaving in an odd manner, he was not visibly disorientated, nor did he appear dazed or confused. Mr Burston submits that
ultimately the probative value of the statement as background evidence will hinge on what is disclosed in the psychiatric report which the defence has ordered, and which is to be shared with the Crown.

[66] Counsel for the defendant submits that the propensity evidence cannot be linked in any way to the issues which will have to be determined at trial. He refers, by way of analogy, to the decision of the Court of Appeal in Malaeulu v R.²⁷ Counsel submits that the evidence falls well short of satisfying the threshold definition of propensity. He further submits that even if that threshold was met, the limited probative value would be outweighed by the risk of an unfairly prejudicial effect, in that there is a risk that the jury would be distracted of what the defendant intended in the incident with the proposed witness, and the necessary proportionality would be lost. It would also distract the jury from the real issues at trial. He submits there is a real risk of the evidence predisposing the jury against the defendant.

[67] The defendant’s original explanation to police was that the complainant invited him into the house after they had earlier been to a movie together. He left when the complainant got angry. Counsel for the defendant indicated that the defence will accept that this explanation was untrue. It will not be in issue that the defendant entered the complainant’s house unlawfully, and that he entered her bedroom after having removed his trousers and underwear.

[68] If that is the situation at trial, then I am satisfied that the evidence is not admissible as propensity evidence. Such evidence must tend to show a person’s propensity to act in a particular way or to have a particular state of mind, relevant to the issues at trial. If the defendant’s actions up to the time of his entering the complainant’s bedroom were in issue at trial, then I consider that this evidence would show a tendency to act in the way in which the Crown alleges that he did up to that time. But if that is not in issue, then the evidence does not show a tendency to have a particular state of mind which is relevant to whether the defendant intended to commit sexual violation.

²⁷ Malaeulu v R [2013] NZCA 121.

[69] But, while the evidence is not admissible as propensity evidence, the evidence of his interaction with the proposed witness on the preceding day may well have direct relevance. A pattern of behaviour in the period leading up to an incident can be relevant.²⁸ Whether that is so here depends upon the nature of any issue which the defence may raise about the defendant’s mental state at the time of the incident with the complainant. That can be decided only in the context of the trial. The exact shape of the issue will not become apparent until after the psychiatric report has been obtained. The possible relevance of the proposed evidence on this issue can only be determined by the trial judge.

[70] For these reasons, I rule that the proposed evidence is not admissible as propensity evidence. I rule that its possible admissibility as directly relevant to the mental state of the defendant is an issue to be determined by the trial judge.

(d) The complainant’s interview

[71] It was common ground at the hearing before me that the evidence-in-chief of the complainant would be given by means of a pre-recorded evidential interview conducted on 14 May 2014.

[72] I address the mode of evidence in the next section of the judgment. At this stage I deal with the Crown’s application on the basis on which it was addressed by both counsel, namely that the evidence-in-chief will be given by means of the pre- recorded interview. Five passages are objected to. The objection is that the passages comprise speculation and conjecture as well as expressions of opinion, and is irrelevant.

[73] On page 11 of the transcript, at the end of a quite lengthy statement describing the defendant and his facial expressions and appearances when he was in her room, the complainant said:

... whatever, um, but when he, just thinking back, um, when I think back to that, that to me says that he knew exactly what he was doing, um, and he, it wasn’t just, um, someone not understanding, he knew exactly what he wanted to do and he, yeah, really was intent on doing it.

²⁸ R v Gooch [2009] NZCA 163 at [37].

[74] I do not consider the passage is inadmissible on the grounds relied on. To the extent that the complainant’s description is an expression of opinion, it is directed to communicating what the witness saw or otherwise perceived, admissible under s 24. It is not speculation or conjecture: rather it is a statement of the complainant’s perception. Further, it is not appropriate to isolate that passage from its much longer context. Much of the whole passage is of a similar nature. If the passage objected to was to be excluded, then it would be necessary, as counsel for the Crown submits, to exclude a more extensive passage, otherwise the effect of the deletion would be to remove part but not all of the complainant’s description, in a way which would distort her communication of what she saw or perceived. I consider that the passage objected to should, with one exception, not be deleted.

[75] That exception is the final words, “and he, yeah, really was intent on doing it”. Those words go directly to the issue which the jury must determine. One of the dangers of opinion evidence is that the opinion of a witness may be given undue weight. For this reason, care is necessary where expert opinion evidence deals with an ultimate issue. Similar care is needed in this context, where the defendant’s intention will be a crucial issue for the jury to determine. Because the witness expresses a view about the defendant’s intention, based on her perception, going to that ultimate issue, there is a risk of an unfairly prejudicial effect. I accordingly rule that the words I have identified are to be deleted.

[76] The second passage objected to, at page 13, comes in a description by the complainant of what she could see of the defendant’s genitals. Having described what she saw she went on to say:

TB ... But to me it was, um, it scared me a lot more the, just everything about him rather than that. That was a big sign obviously but really when I think back the fact that I saw that, the fact that it doesn’t, the fact, what I, yeah, like I said the, the kind of intent, the like pre- planning of it it’s really scary but like that’s not, it’s not like, I don’t know, I’m more freaked out by the intent ...

SA Mm.

TB ... and the pre-planning and stuff and the, yeah.

[77] I consider that the reference to intent and pre-planning goes beyond a description of what was necessary to enable the complainant to describe what she saw or perceived. It expresses an opinion as to the defendant’s intent, which is a crucial jury issue, so for the reasons I have given, I consider that it should be excluded. I rule that this passage is to be deleted.

[78] The next passage is at page 25. After the complainant had given her narrative account, and the interviewer had questioned her to draw out further detail, a seven minute break was taken. When the interview resumed, the interviewer asked, in a very open ended way, whether there was anything that the complainant wished to elaborate on. The whole of page 25 contains the complainant’s response to that invitation. That process is common in interviews of this kind. However, where evidence is given orally in Court, it would be unusual to have in examination in chief a lengthy answer to an open ended question of that nature. Counsel for the Crown acknowledges that part of it should be deleted. In the circumstances, and having regard to the need to ensure that the defendant is not disadvantaged by the mode of giving evidence-in-chief, I rule that the whole of page 25 is to be deleted.

[79] The next passage is at page 32. The complainant gave a lengthy answer to a prompting question about the voice she heard at her bedroom door. She said:

... which I assume was to kind of throw me off, get more time to control the situation which, you know, just to make it seem like a normal (inaudible) so, yeah.

[80] I consider that passage goes beyond what is necessary to communicate to the jury what she perceived, so that they may form a view of the defendant’s purpose. It expresses the complainant’s opinion on that issue. I rule it is to be deleted.

[81] The final passage is the top half of page 35. It comes at the end of the interview, and is, like the passage at page 25, a response to an open ended opportunity to add anything further. For the reasons given in relation to that passage, I rule that it is to be deleted.

Mode of evidence application

[82] At the hearing, I raised with counsel the need for an application under s 103 of the Evidence Act for directions as to the way in which the complainant’s evidence is to be given. The Crown has subsequently filed an application seeking directions that the complainant’s evidence-in-chief be given by way of evidential video interview, and for her to give the remainder of her evidence while in the courtroom but from behind a screen so she is unable to see the defendant. The grounds of the application are that the witness wishes to give her evidence in this way; and directions are necessary to reduce the stress on the witness; and fairness can still be ensured if the witness gives evidence in this way.

[83] Counsel for the defendant consents to an order allowing the complainant’s evidence-in-chief to be given by the evidential video interview. He opposes the application that the remainder of her evidence be given from behind a screen.

[84] In the light of the defendant’s consent to the evidence-in-chief being given by evidential video interview, I accept that the grounds in s 103(3) are made out, to the extent of permitting that direction to be given.

[85] For the remainder of the evidence, I must consider whether there should be screening in place. It would be unusual, when the s 103 considerations lead to the conclusion that it is appropriate to direct that evidence-in-chief be given by video interview, not to make some provision under s 103 for the remainder of the evidence. I have not had to consider the s 103 matters in depth, because of the consent as to the mode of evidence-in-chief. Accepting the assessment of both counsel that the mode proposed is justified by the s 103 considerations, I take the view that it is also appropriate to direct screening.

[86] I consider that the defendant’s right to a fair trial will not be prejudiced by extending the s 103 directions to cover the whole of her evidence. A direction will be necessary about the giving of evidence-in-chief by video, and there will be no prejudice if that is extended to a direction about screening.
[87] I direct by consent that the evidence-in-chief of the complainant be given by video interview, I further direct that the remainder of her evidence be given while in the courtroom but unable to see the defendant.

Result

[88] The application for a stay is dismissed.

[89] The application for discharge on the count of assault with intent to commit sexual violation is refused.

[90] The application under s 101 of the CPA is answered as described in [56], [62], [70], [75], [77], [78] [80] and [81].

[91] The mode of evidence application is answered as described in [87].








A D MacKenzie J