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Bishop, Stephanie; McDonald, Elisabeth --- "What's in an Issue? The Admissibility of Propensity Evidence in Acquaintance Rape Cases" [2011] CanterLawRw 12; (2011) 17 Canterbury Law Review 168

Last Updated: 20 May 2013

W HAT’S IN AN ISSUE? THE ADMISSIBILIT Y

OF PROPENSIT Y Ev IDENCE IN ACqUAINTANCE R APE CASES

Stephanie Bishop and Elisabeth McDonald^*

I. Introduction

The passage of the Evidence Act 2006 (the Act) represented the most significant overhaul of New Zealand’s evidence laws in approximately one hundred years. Among the myriad of reforms was the attempt to codify the notoriously complicated common law rules relating to similar fact evidence. The term “similar fact”, however, was replaced with the term “propensity evidence”,¹ or more specifically “propensity evidence offered by prosecution about defendants” (section 43 of the Evidence Act 2006). Despite the change in terminology, the legislative intent was not to depart from the common law in any significant way,² but was intended to clarify and codify the common law principles relating to “similar fact” evidence.³

The codification, however, has been somewhat controversial. Debate has focussed on whether the propensity provisions “lowered the bar”, allowing the admission of evidence that would previously have been excluded.⁴

Further, immediately following the reforms there was a tendency of the courts to avoid classifying evidence under the propensity provisions, in much the same way as there was a noted reluctance to classify evidence as “similar fact” under the common law rules.⁵ A recent review undertaken by the Law Commission, however, has concluded that the provisions overall appear to be “working”.⁶

* Stephanie Bishop is a solicitor at Luke Cunningham & Clere, the Wellington office of the Crown Solicitor. This work was initially undertaken for her LLM at Victoria University of Wellington and prepared for this publication in May 2011.

Elisabeth McDonald, Associate Professor of Law at Victoria University of Wellington

1 Evidence Act 2006, s 40(1).

2. Richard Mahoney and others The Evidence Act 2006: Act and Analysis (2nd ed, Wellington, Brookers, 2010) at 187 [Act and Analysis]. The authors refer to the leading authority pre- reforms of R v Holtz [2002] NZCA 323; [2003] 1 NZLR 667 (CA).

3 New Zealand Law Commission Evidence Volume 1: Reform of the Law (NZLC R55 1999) at

[175] [Reform of the Law].

4 See Christopher Stevenson “Propensity Evidence: What has Changed? Some Preliminary

Questions” (New Zealand Law Society, Criminal Law Symposium, 2008) at 23.

5 See Richard Mahoney “Evidence” [2008] NZLR 195. See also R v Te Pania [2007] NZCA

429 at [10]-[11]; R v Walker [2007] NZCA 558; R v Broadhurst [2008] NZCA 454; R v Gooch [2009] NZCA 163; R v R (CA403/2008) [2008] NZCA 432. The approach to the admissibility of “background” or “narrative” evidence (by applying ss 7 and 8 rather than s

43) has now been questioned by the Supreme Court in Mahomed v R [2011] 3 NZLR 145, [2011] NZSC 52 at [63]–[67].

6. Letter from Sir Geoffrey Palmer to Hon Simon Power “Regarding the Evidence Act Review: Operation of the Veracity and Propensity Provisions” (1 April 2010), on file with the authors.

168

The Law Commission’s recent examination of section 43 followed their report in 2008 that concluded that no reform was necessary until the Act had been in operation for a longer period of time.⁷ The reason the Commission had been asked to examine the issue of admissibility of a defendant’s previous convictions, or bad character, was a result of a series of high profile cases. In the mid-1980s a number of young women in the Bay of Plenty claimed they were gang-raped by three police officers. Although complaints were made at the time, no action was taken until a journalist highlighted the issue in

2004.⁸ In March 2006, the three men were acquitted of raping one of the women, Louise Nicholas. Public concern about the case initially centered on the fact that the jury was not told that two of the defendant had been convicted of raping another of the young women and were both serving their sentences in jail for that offence at the time of the trial.⁹

As the Law Commission has concluded that no reform of section 43 is currently required, it is timely to consider whether the decision not to admit the previous convictions in the historical rape allegation case would be the same under the Evidence Act 2006. In other words, in an acquaintance rape scenario¹⁰ - the most difficult cases in which to get a conviction, and where it is unlikely that the defendant has relevant prior convictions - would a prior conviction be admissible to assist the resolution of an issue in the case? The answer to the first part of this question is that it depends on the issue.

The precursor to the balancing test between probative value and prejudicial effect in section 43(3) and (4) is the identification of “the issue in dispute”. Analysis of sexual offending cases in which section 43 has been applied indicates that, when the issue in dispute is whether the complainant consented or whether the defendant had reasonable belief in consent, prior convictions for similar sexual offending will rarely be admitted. Although such evidence has been admitted in acquaintance rape cases where the issue is consent, we argue that this is either due to imprecise or inaccurate framing of the issue or the questionable linking of the evidence to an issue. We argue that if the issue is incapable of being more precisely framed than that of the inherently broad issue of consent, then it is difficult for previous convictions to be admitted.

7. New Zealand Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character (NZLC R103, 2008) at iv [Disclosure to Court].

8 See also L Nicholas and P Kitchin Louise Nicholas: My Story (Random House, Auckland,

2007).

9 NZPA “Police Sex Trial: What the Jury Never Knew” (1 March 2007) New Zealand Herald

<www.nzherald.co.nz>. This article was published a year after the trial in which Louise Nicholas was the complainant and following a trial involving another complainant (B) and the same three defendants in February 2007. There were extensive suppression orders surrounding these trials, which were not lifted until after the conclusion and acquittal of all defendants: See R v Rickards HC Auckland CRI-2005-063-1122, 1 March 2007. This was the minute rescinding the suppression order.

10 We have chosen to use the term “acquaintance rape” as acquaintance scenarios mainly involve this type of offending. It should be noted, however, that such offending could include other types of sexual violation.

Our analysis of these cases draws primarily on the Court of Appeal’s statement in Freeman v R¹¹ as to the importance of defining the issue “as precisely as possible”.¹² If the analysis is correct it will remain difficult for the prosecution to offer propensity evidence about the defendant in acquaintance rape cases where the issue is consent in the absence of denial on the part of the defendant or the addition of another issue in dispute to which the evidence then becomes relevant. Given that consent or reasonable belief in consent will be the issue in most cases of this nature, the concern voiced by the public in

2006 may well not have been appropriately addressed by section 43. In order to reach this conclusion we begin this article by examining the operation of section 43 and then move on to analysing “acquaintance rape” cases. Our analysis demonstrates both the importance of proper identification of the issue in dispute, but also the impact of that identification on admissibility rulings in such cases.

Our research also indicates that even where the issue is precisely defined, evidence of a previous conviction or other misconduct will not be admitted unless it is sufficiently similar to the allegations in the later trial. This reliance on similarity means it is highly unlikely that in any acquaintance rape cases where the sole issue is consent or belief in consent will evidence of previous convictions be admissible. Consequently we recommend that further research be undertaken to identify and explore possible reform options in this particular context.

II. Propensity Provisions Under the Act

One objective of the Evidence Act 2006 was to reduce the uncertainty that existed at common law.¹³ Indeed, shortly after the Act was passed, the Court of Appeal in R v Healy¹⁴ held that, while it may be necessary in some circumstances to refer back to the common law, the starting point for an assessment of propensity evidence is the words of the Act.¹⁵ Sections 40 and 43, relating to evidence offered by the prosecution about a defendant, establish a two-tiered test. First, the evidence must be classified as propensity evidence.¹⁶ Second, the evidence will be considered subject to a balancing test, largely codifying the fundamental test that existed under the common law rules, namely; whether the probative value of the evidence outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.¹⁷

11 Freeman v R [2010] NZCA 230.

12 Ibid, at [21].

13 Healy v R [2007] NZHC 1959; [2007] 3 NZLR 850 (HC) at [54].

14 R v Healy [2007] 23 CRNZ 923, [2007] NZCA 451.

15 Ibid, at [46] and [48]. This has been cited and approved of extensively. For example see R v Beazley [2009] NZCA 283; O v R [2010] NZCA 194; R v Mataira [2008] NZCA 323; Vuletich v R [2010] NZCA 102 at [24]; R v Edwards [2009] NZCA 82 at [21].

16 Evidence Act 2006, s 40(1). There has been some debate as to whether s 43(1) is different from the more traditional test in s 8(1) – see the discussion in Mahomed v R, above n 5, at [61]–[67].

17 Evidence Act 2006, s 43. See Richard Mahoney (ed) Adams on Criminal Law – Evidence

(online looseleaf ed, Brookers), at EA43.04 [Adams on Criminal Law – Evidence].

Section 40 sets out what evidence can correctly be classified as “propensity evidence”, triggering the subsequent sections. If evidence does not satisfy the classification criteria of propensity evidence, then its admissibility will be determined under sections 7 and 8.¹⁸ Propensity evidence is defined as:¹⁹

[E]vidence 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.

It therefore casts a “wide net”; not only capturing evidence of a person’s propensity to act in a certain way, but also of their state of mind.²⁰ The deliberate terminological move from “similar fact” to “propensity”, as noted in Healy, rejects the common law position that evidence showing a propensity is not admissible as similar fact evidence.²¹ Examples of evidence that have been classified as falling within this definition include evidence of: possession of specialist tools which would assist in the commission of an offence;²² evidence of a prior instance of neglect of the victim in the context of a charge of failing to provide the necessities of life;²³ previous unlawful sexual conduct;²⁴ and evidence relating to a separate charge.²⁵ This appears to be consistent with the trend developing prior to the 2006 reforms, as noted by the Court of Appeal,²⁶ towards admitting a broader range of similar fact evidence.²⁷ Once it has been established that the evidence can properly be classified as propensity evidence, it then must pass through the balancing test contained in section 43. Section 43(1) provides that in order for propensity evidence to be admitted, the probative value of the evidence must outweigh “the risk that the evidence may have an unfairly prejudicial effect on the defendant.” Section 43 provides the mechanisms for determining this balancing exercise. It is prescriptive, but not exhaustive, and provides a number of factors that a judge may take into account in determining the probative weight of the evidence.

18 Mahoney and others Act and Analysis above n 2, at EV40.02.

19 Evidence Act 2006, s 40(1)(a).

20 Mahoney Adams on Criminal Law – Evidence, above, n 17, at EA40.02(2). See also Mahomed v R, above n 5, at [2].

21 R v Healy, above n 14, at [52] per Ellen France J.

22 R v Cooper [2007] NZCA 395.

23 R v Mahomed [2009] NZCA 477.

24 R v Healy, above n 14.

25 R v Nairn HC Wellington CRI-2006-085-7140, 16 April 2008.

26 R v Horne CA 80/94, 18 July 1994, cited in Law Commission Disclosure to Court, above n 7, at [2.36].

27 New Zealand Law Commission Disclosure to Court, ibid. See also R v F CA 227/94, 28

March 1995; R v J CA 525/94, 24 April 1995; R v Jones (2003) 20 CRNZ 583 (CA) at [22];

R v M [1998] NZCA 268; [1999] 1 NZLR 315. See also Boardman v Director of Public Prosecutions [1975] AC

421 (HL) at 442. See also New Zealand Law Commission Evidence Law: Character and

Credibility: A Discussion Paper (NZLC PP27, 1997) at [237] and [240].

At the outset, in determining probative weight, section 43(2) provides that “when assessing the probative value of the evidence, the judge must take into account the nature of the issue in dispute.”²⁸ In Freeman the Court of Appeal stressed that in determining whether to admit propensity evidence, the judge should “as precisely as possible” identify the issue in the case for which the evidence is adduced.²⁹ The Court then observed that, where the issue is broad, there is “often greater judicial reluctance to admit evidence of similar offending (particularly if there is only one such other incident) than where the issue in dispute is defined more narrowly.”³⁰ The Court stated that evidence that reveals no more than a propensity to commit similar types of offences to the one alleged, will often be inadmissible due to the inevitable prejudice, “particularly so where the characteristics of the offending in question are unremarkable.”³¹ An example of narrowly defining the issue can be found in Hudson v R³² in which the Supreme Court upheld the Court of Appeal’s finding that the propensity evidence was relevant only for the limited purpose of showing the defendant’s tendency to react with extreme violence when in a jealous state.³³

Once the issue is identified, section 43(3) then sets out a number of factors which the court may take into account in order to assess the probative value of the evidence. These factors reflect the common features of the common law³⁴ and include: frequency, connection in time, similarity, the number of complainants, an assessment of whether that number could be as a result of collusion or suggestibility and the extent to which the evidence is unusual.³⁵

Sections 43(4)(a) and (b) provide that, when assessing the prejudicial effect of evidence, the judge must consider whether the admission would “unfairly predispose” the fact-finder against the defendant and whether the fact-finder will give disproportionate weight to the evidence.³⁶ These factors are not exhaustive but, unlike the section 43(3) factors, are mandatory.³⁷ Thus, this section provides for an analysis of the presumed inevitable prejudicial effect.³⁸

Once the probative value and risk of prejudice of the evidence has been ascertained, the judge must then perform the balancing exercise as required by section 43(1).³⁹ The Act does not, however, provide any guidance as to how a judge is to actually perform this section 43(1) weighing up process.⁴⁰

28 Evidence Act 2006, s 43(2).

29 Freeman v R, above n 11, at [21]. This could include, for example, the credibility of the complainant or whether the defendant is guilty. See also R v Stewart [2010] 1 NZLR 197, [2008] NZCA 429 at [16].

30 Freeman v R, above n 11.

31 Ibid.

32 Hudson v R [2011] 3 NZLR 289, [2011] NZSC 51.

33 Ibid, at [57].

34 Mahoney and others Act and Analysis, above n 2, at 173.

35 Evidence Act 2006, ss 43(3)(a)–(f ).

36 Ibid, s 43(4).

37 R v Sharma [2009] NZCA 23 at [17]. See also Mahoney Adams on Criminal Law – Evidence, above n 17, at EA43.08.

38 Mahoney Adams on Criminal Law – Evidence, ibid.

39 Ibid, at EA43.09.

40 R v Stewart, above n 29, at [17]. The Court of Appeal cites Mahoney and others Act and Analysis, above n 2, at 183. See also R v RM HC Napier CRI-2008-041-819, 14 July 2008 at [56].

If a judge decides that evidence has sufficient probative value, directions must be given to the jury in order to address any unfair prejudicial effect the evidence may have.⁴¹

III. Propensity Evidence and Cases Involving Sexual

Offending

Consent or reasonable belief in consent forms the basis for the defence in the majority of acquaintance rape cases.⁴² A study undertaken for the Ministry of Women’s Affairs⁴³ has specifically looked at attrition rates of sexual offence cases in the criminal justice system; determining the proportion and type of cases that begin but do not continue through the criminal justice system.⁴⁴ Interestingly, the study found that, where reported, there is a high prosecution rate where the complainant and the defendant are family members or current or ex-partners.⁴⁵ However, whilst there is a high conviction rate for family members, it is low for current and ex-partners.⁴⁶

A reason offered for this low conviction rate is, inter alia, the difficulties in proving lack of consent.⁴⁷ Where the defendant is an acquaintance, rather than a partner or family member, there is also a high attrition rate and a low conviction rate.⁴⁸

Our research has considered a selection of post-Evidence Act reform High Court and Court of Appeal decisions that involve a determination of the admissibility of propensity evidence where the charges relate to sexual offending. Over sixty cases of sexual offending from the introduction of the

2006 Act up until May 2011 involved a decision about the admissibility of propensity evidence. This sample includes those cases involving determinations of severance or joinder of charges that naturally involve a determination of whether the evidence relating to the separate charges is admissible as propensity evidence.⁴⁹ Fifteen of these cases were acquaintance rape scenarios where the charge was laid under section 128 of the Crimes Act 1961 and the issue was, or could have been, consent or reasonable belief in consent.⁵⁰

41 See R v Stewart, above n 29, at [52]; R v Beazley, above n 15. Note that the minority of the Supreme Court in Mahomed v R, above n 5, at [94]–[95] doubted the helpfulness of the seven-stage process determined in R v Stewart.

42 Graeme Panckhurst “Consent in Rape: An Elusive Concept” in J Bruce Robertson (ed) Essays on Criminal Law (Brookers, Wellington, 2004) at 182. See Crimes Act 1961, s 128(2) for the elements of the crime of sexual offence or rape.

43 Ministry of Women’s Affairs Restoring Soul: Effective Interventions for Adult Victim/ Survivors of Sexual Violence (Wellington, 2009).

44 Ibid, at [4.1].

45 Ibid, at [4.3, Table 4].

46 Ibid.

47 Ibid, at [4.3].

48 Ibid.

49 See M (CA198/10) v R [2010] NZCA 219 at [28].

50 These cases relate to charges that have been laid pursuant to Crimes Act 1961, s 128. It must, however, be noted that these are preliminary findings and are based primarily on appeal cases as opposed to decisions at trials.

We now explore how the courts are dealing with evidence of previous convictions or past conduct under the propensity provisions where the issue is, or could be, consent or reasonable belief in consent, beginning with a discussion of Freeman.

As noted above, precise issue identification is essential to the propensity evidence analysis. While there are a number of factors in section 43(3) that affect the probative weight of evidence, sufficient relevance to the issue is primarily determinative of its admissibility.⁵¹

In Freeman, where the Court of Appeal stressed the importance of the precise framing of the issue,⁵² the allegations involved sexual offending by the appellant against the complainant, the 21 year-old sister of the appellant’s partner. The offending allegedly occurred under circumstances where the partner was either in the house or could return home at anytime.⁵³ This was an appeal against conviction and the defence at trial had been that the touching had been consensual.⁵⁴ The proposed propensity evidence was that of a friend of the appellant’s partner. She alleged that one evening, after all three had been drinking together, she had fallen asleep beside the appellant’s partner and awoke to find the appellant having intercourse with her.⁵⁵

Judge McKegg, the trial judge, had framed the issue for the jury as being whether the appellant had a tendency to act sexually inappropriately and non-consensually with young women.⁵⁶

The Court of Appeal criticised the way in which Judge McKegg formulated the issue for the jury; finding that it was more in line with summing up directions given prior to the Act. The Court’s criticism was that this was “in effect a general propensity to offend sexually.”⁵⁷ The Court of Appeal then refined the issue to be whether the appellant would risk engaging in non-consensual sexual activity with someone connected to his partner in circumstances where the partner was sometimes present and “where there was every likelihood of a complaint by his victim to his partner.”⁵⁸ The Court held that the propensity witness evidence of similar non-consensual sexual activity with someone associated with his partner, while his partner was in the house had probative value in “indicating indifference on the part of the appellant to the risks of both complainant and any adverse reaction from his partner.”⁵⁹

The framing of the issue as broadly as it was in the High Court is logical; the fact that the defendant had non-consensual sex on another occasion is clearly relevant to the issue of whether the defendant has a propensity to have non-consensual sex. However, the objection of the Court of Appeal in Freeman was that the framing of the issue in this broad way means the evidence offered demonstrates the defendant’s “mere propensity” to behave

51 Evidence Act 2006, s 43(2).

52 Freeman v R, above n 11, at [21] and [25].

53 Ibid, at [2]–[6].

54 R v Freeman DC Nelson CRI-2008-042-2921, 17 November 2009 at [3].

55 Freeman v R, above n 11, at [8].

56 Ibid, at [24].

57 Ibid.

58 Ibid, at [22].

59 Ibid.

or offend in this way. Hence, for such evidence to be admitted, it must relate to a precisely framed issue so to ensure that it demonstrates more than a mere propensity to offend sexually.⁶⁰ This approach in Freeman, to the requirement of precise issue identification, has been endorsed in subsequent cases.⁶¹

These next sections explore, from the sample of fifteen cases, decisions concerning the admissibility of previous or other conduct or convictions⁶² which involve, or could involve, the issue of consent or reasonable belief in consent.

A. Where the Primary Issue is Identified as Being Consent or Reasonable

Belief in Consent

In four of the fifteen cases, the main issue was whether there was consent or reasonable belief in consent. In light of the approach in Freeman, if the issue is identified broadly as being reasonable belief in consent, then evidence of the fact that the defendant has committed a similar offence on a prior occasion should be inadmissible as it is “mere propensity” evidence. In order for such evidence to become admissible, the issue needs to be more precisely framed so as to remove it from the realm of being classified as mere propensity. In all four of these cases the propensity evidence offered was deemed relevant. It is, however, argued that the reasoning of the court in the first three cases was questionable as to whether the evidence offered was in fact relevant to the issue. In only one of these cases (Healy) was the evidence admitted or joinder ordered.

The Court of Appeal in Vuletich v R⁶³ held that where the issue is reasonable belief in consent, then the evidence must demonstrate a propensity to disregard or to be indifferent as to whether there was consent.⁶⁴

In this case, the appellant appealed against a decision to join the trials of two complainants on the basis of a propensity evidence analysis.⁶⁵ The first complainant’s evidence occurred in the context of a brief relationship and related to numerous events that allegedly took place in Auckland involving forcible entry into the complainant’s home, sexual violence and rape. The evidence relating to the second complainant allegedly took place in Paihia and related to one occasion in a backpackers hostel where the defendant allegedly got into bed with the second complainant while she was sleeping and digitally penetrated her.

60 Ibid, at [21] and [25].

61 See Vuletich v R, above n 15; M (CA198/10) v R, above n 49; R v AJS HC Tauranga CRI-

2010-070-2263, 10 March 2011 at [29]; R v LSN HC Auckland CRI-2010-092-2216, 13

December 2010 at [68]; R v C (CA352/10) [2010] NZCA 614 at [34]; S (CA40/11) v R [2011] NZCA 124; R v Barnett HC Rotorua CRI-2010-063-0780, 21 April 2011; R v Faamoana HC Auckland CRI-2010-009-2190, 18 May 2011.

62 The Court of Appeal in R v Mata [2009] NZCA 254 at [45] held that propensity evidence could include evidence subsequent to the alleged offending. See also Solicitor-General v Rudd [2009] NZCA 401; R v N HC Nelson CRI-2008-042-4268, 8 October 2009.

63 Vuletich v R, above n 15.

64 Ibid, at [36].

65 See R v Vuletich DC Auckland CRI-2009-090-1074, 26 January 2010.

Glazebrook J was of the view that in the District Court, Judge Sharp had made too broad an assessment in framing the issue as the credibility of the complainants.⁶⁶ Rather, the Court held that, while the main issue differed in respect of the separate complainants,⁶⁷ the issue of “whether Mr Vuletich indulged in sexual acts without consent and without reasonable belief in consent” is the same in respect of both sets of offending.⁶⁸ At this “general level”, it was held that the separate evidence would support the other and the fact that Mr Vuletich may have acted without consent would make it more likely for the other offences to have occurred.⁶⁹

The appeal against the joinder of the charges was, however, successful. While noting that the focus is to be on the similarities,⁷⁰ Glazebrook J found the dissimilarities in this case were significant and, conversely, that the similarities were “[...] relatively minor or relatively common place in the context of sexual offending generally.”⁷¹ Following an assessment of section 43(4), it was held that the evidence of the first complainant would undoubtedly be prejudicial and there was a risk that the jury would not take account of these different circumstances and would give inappropriate weight to the evidence.⁷² The Court of Appeal held that joinder was inappropriate on that basis.⁷³

The approach in Vuletich was followed in M v R where the Court of Appeal reversed an order joining charges relating to two complainants.⁷⁴ The first complainant (A), who had previously been in a relationship with the defendant and still shared a flat, alleged that the appellant had come into her bedroom, intoxicated, wearing only his underpants. He allegedly climbed on top of her, groped and partially undressed her before he carried her into the living room and had sex with her “from behind”.⁷⁵ The second complainant (B), who was a friend of the defendant, alleged that after she had been drinking she went to stay at her friend’s (D) house and, after texting the defendant asking him to pick her up and take her home, fell asleep next to D. B alleged that the appellant came into the bedroom intoxicated, climbed into bed behind B, began to touch her, digitally penetrated and raped her. D left the room and the defendant continued having sex with B. The appellant told the police that he thought he was having intercourse with D, with whom he had had a previous relationship.⁷⁶

In accordance with the decision in Freeman, the Court of Appeal set about re-framing the issues more precisely. In respect of complainant A, where the appellant denied the rape and asserted that there was a sexual relationship at

66 Vuletich v R, above n 15, at [31].

67 The issue relating to the Auckland complainant was consent and equivocation and in relation to the Paihia complainant, was the issue of whether the sexual violation occurred or whether it was accidental.

68 Vuletich v R, above n 15, at [35].

69 Ibid, at [35] and [36].

70 Ibid, citing R v Mataria, above n 15, at [27].

71 Vuletich v R, above n 15, at [38(c)(iii)].

72 Ibid, at [42]–[44].

73 Ibid, at [50].

74 M (CA198/10) v R, above n 49.

75 Ibid, at [3]–[5].

76 Ibid, at [10]–[14].

the time, the issue was framed as whether the events did happen as alleged and, if so, whether the defendant believed on reasonable grounds that there was consent.⁷⁷ In respect of complainant B, where the defence was mistaken identity, the Court held that the issue was whether the defendant believed “on reasonable grounds that he was having sex with D and that she was consenting.”⁷⁸

In terms of the section 43(3) analysis, the Court of Appeal found nothing remarkable about any of the similarities between the evidence that had been given weight by Judge Roberts in the District Court.⁷⁹ The Court further noted that they did not provide a “proper foundation for the jury to reason that the appellant’s defence involves an implausible coincidence that two women would wrongly accuse him of similar conduct.”⁸⁰ Therefore the Court concluded, noting that its decision was in line with Vuletich v R, the proposed propensity evidence would also be inadmissible on the basis that the probative value was outweighed by its prejudicial effect.⁸¹ Further the Court determined that the fact that there was a distance in time of two and a half years between the alleged offences, where there was none in Vuletich, rendered it an even stronger case for severance.⁸²

Along with seeking joinder of the complainants, the Crown had also sought to adduce propensity evidence from another witness (PL). She would give evidence that the defendant had come into her bedroom at night but had left after she had screamed and repeatedly told him to leave.⁸³ The Crown sought to lead this evidence to demonstrate a propensity to “call unannounced, under the influence of drink, and to enter to bedrooms of sleeping women.”⁸⁴ Judge Roberts had framed the issue as being one relating to the credibility of the complainants and whether the Crown could prove its case.⁸⁵ The Court of Appeal found that, due to the fact that there was no suggestion that anything occurred in the bedroom, the evidence of PL was “inherently light in probative value, but heavy in unfair prejudice”.⁸⁶

Further, the Court could not see how the evidence of PL could be considered probative of the issues of whether the alleged offence occurred or whether there was reasonable belief in consent. The evidence was therefore deemed inadmissible.⁸⁷

Vuletich and M v R raise two points of interest. First, the Court of Appeal’s framing of the issue does not seem to be consistent with Freeman. Framing the issue as to whether there is a propensity to disregard consent (Vuletich) or whether the defendant believed on reasonable grounds that they were consenting (M v R) is open to criticism as simply being another way

77 Ibid, at [31].

78 Ibid, at [32].

79 Ibid, at [36].

80 Ibid, at [37].

81 Ibid, at [38].

82 Ibid, at [41].

83 Ibid, at [24]–[25].

84 Ibid, at [26]. In support, the Crown relied on Tohu v R [2010] NZCA 23.

85 Ibid, at [30].

86 Ibid, at [42].

87 Ibid.

of phrasing the expressly rejected “tendency to act inappropriately and non- consensually”. However, some difference in approach may well be consistent with the fact that these are severance decisions, not admissibility decisions. Conversely, these cases highlight situations where the court may be unable to more precisely define the issue than that of consent or reasonable belief in consent.

Second, these cases demonstrate how, even in the rare occasion where the evidence is deemed relevant to the issue of reasonable belief in consent, this is only one element indicating its probative value. The evidence may still fail the test of admissibility (or joinder) should, in other respects, its probative value be considered low. The courts in both Vuletich and M v R relied upon the Court of Appeal decision of Healy, perhaps explaining why the Court of Appeal similarly found that evidence of other sexual conduct was relevant to the specific issue of reasonable belief in consent. However, both cases demonstrate how, no matter how the issue is defined, if the circumstances between incidents are not sufficiently similar, evidence of previous convictions will not be admitted.

The third case, Healy, has been extensively cited as the authority for the principle that the starting point for the determination of admissibly of propensity evidence is the words of the Act.⁸⁸ The Court of Appeal’s approach

as to admissibility in this case, however, appears to have been largely ignored.

This case involved two complainants (P) and (F) who alleged indecent assault and rape by the defendant who was a counsellor at the Centerpoint Community where both of the complainants were living.

The accounts of both complainants involved significant similarities regarding the nature of the sexual activity. The appellant appealed partly on the basis that in the High Court, Asher J was wrong to find that evidence of the fact that the appellant had raped on a previous occasion had any bearing on the issue of whether he believed on reasonable grounds that the complainant consented.⁸⁹ In support, the appellant’s counsel referred to an Australian High Court decision of Phillips v R,⁹⁰ decided prior to the 2006 reforms. The High Court in Phillips determined that, in cases involving multiple complainants alleging sexual offending, the evidence of one complainant that they did not consent does not have probative value as to the issue of whether another consented.⁹¹ It is suggested that this reasoning is in line with Freeman in that such evidence would demonstrate a “mere propensity” to offend. In Phillips, however, the High Court admitted the evidence (although emphasizing the need for caution in the use of such evidence) on the basis that it demonstrated the “improbability of similar lies”.⁹² The Court of Appeal in Healy rejected Phillips with surprisingly few

88 R v Healy, above n 14, at [46].

89 Ibid, at [57].

90 Phillips v R [2006] HCA 4; (2006) 225 CLR 303.

91 Ibid, at [46].

92 Ibid, at [39].

reasons other than that Phillips was decided prior to the implementation of the Act and had rejected propensity reasoning in favour of probability reasoning.⁹³

The Court appears to have accepted the issue as being that of consent and concluded, upholding Asher J’s decision, that “[t]he evidence of other allegedly non-consensual offending could be propensity evidence”.⁹⁴ In support of this the Court noted that there are a number of cases where similar fact evidence was admitted where consent or reasonable belief in consent was in issue “albeit without a great deal of analysis as to the basis for this.”⁹⁵ The Court may have been indicating that there may be occasions where evidence of other non-consensual conduct is admissible where the issue is identified as being about consent or belief in consent. However, such a possibility may well no longer be permissible in most cases as a consequence of the Court’s later approach in Freeman.

R v Faamoana⁹⁶ provides an example of a decision that follows the reasoning in Freeman. In this case, involving allegations that Faamoana sexually violated his 16 year-old niece between 2005 and 2007, the Crown made application to offer propensity evidence of the defendant’s previous conviction for rape in 1995. Brewer J, noting Vuletich, determined that the issue needed to be more precisely framed than that of “credibility” of the complainant.⁹⁷ Thus the issue was identified as being consent or reasonable belief in consent.⁹⁸

Brewer J held that the evidence was propensity evidence in that: ⁹⁹

[...] on a general level it tends to show the defendant’s propensity to commit sexual acts without a belief in consent or indifference as to whether or not there is consent. It also shows a propensity to threaten his victims.

However, following an analysis of the section 43(3) factors, His Honour declined the application, holding that the probative value of the evidence was low.¹⁰⁰ This was primarily based on the dissimilarities between the offending, the distance in time between the offending and the lack of unusual features to link the offending.¹⁰¹ His Honour, referring to Freeman, noted that, in the absence of any unusual features to link the two sets of offending, evidence that “merely suggests a propensity” to engage in non-consensual sexual acts “[...] is of low probative value, since that is a factor almost always present where there are allegations of rape.”¹⁰²

93 R v Healy, above n 14, citing Phillips v R, above n 90, at [39].

94 Ibid, at [67].

95 Ibid, at [68].

96 R v Faamoana, above n 61.

97 Ibid, at [11].

98 Ibid.

99 Ibid, at [10].

100 Ibid, at [12].

101 Ibid, at [13].

102 Ibid.

B. Where the Evidence Relates to Other Issues and/or is Precisely Framed

Two of the fifteen cases provide examples of how the more precise framing of an issue, separate to that of reasonable belief in consent, has allowed for the admission of propensity evidence. Freeman, which has been canvassed in detail, is an example of precise issue identification that can lead to the admission of propensity evidence.

In Tohu v R,¹⁰³ the complainant (X) alleged that the defendant entered her home uninvited and made unwanted sexual advances leading to touching and eventually attempted intercourse.¹⁰⁴ The defence was signalled to be that X was known to the defendant and that all sexual activity was consensual.¹⁰⁵

The propensity evidence offered was that of another witness (Y) who would give evidence that the defendant, who was known to her, entered her house uninvited while she was sleeping. She would give evidence that she woke up to him entering her bedroom and he then approached her and put his hand over her mouth. Nothing unlawful eventuated and Y drove him home.¹⁰⁶

Another witness (Z) could give evidence that one evening she heard a noise which sounded like a window being removed from her laundry and called the Police.¹⁰⁷

The propensity evidence was offered by the Crown to prove a tendency of the defendant to enter the homes of women who live alone, without consent.¹⁰⁸ In response to the appellant’s argument that Judge Harvey was wrong to admit the evidence,¹⁰⁹ the Court of Appeal stated that this argument misunderstood the nature and purpose of propensity evidence and found that:¹¹⁰

[t]he evidence is not designed to be relevant to the broad issue of consent [but rather relevant to] determining the conflict of evidence about how he came to be at the complainant’s house [...]

The purpose of the propensity evidence was to demonstrate a tendency as proposed by the Crown and is relevant as it will assist the jury in its determination of a fact in issue; the circumstances in which the defendant came to be inside X’s home.¹¹¹

These cases demonstrate that where there are unique features that are readily identifiable specific to the offending, it is much easier for the court to precisely frame an issue and ultimately admit the evidence when there is sufficiently similar behaviour. However, it is unlikely in most acquaintance rape cases for there to be identifiable unique features. The previous sexual encounters may be similar but not unique. It is perhaps easier in cases

103 Tohu v R, above n 84.

104 Ibid, at [4]–[6].

105 Ibid, at [7].

106 Ibid, at [8]–[9].

107 Ibid, at [11]. The Crown also sought to lead evidence from Z of an incident three weeks earlier whereby a man named “Rex”, the defendant’s first name, came to her house at 10pm and told her that his Aunty had previously lived there.

108 Ibid, at [8].

109 Ibid, at [17].

110 Ibid, at [21].

111 Ibid.

involving young complainants as that factor, in itself, has been held to be an unusual factor, thus justifying a more precisely framed issue of, for example, whether the defendant has a propensity to engage in sexual acts with young people in specific circumstances.¹¹² It follows, that it is easier for a court to assess the probative weight of evidence. For instance, in the High Court decision of R v Barnett,¹¹³ Potter J held that the evidence of a previous conviction that purported to demonstrate a tendency of the defendant to engage in inappropriate sexual conduct with young vulnerable females lacked the specificity required by this case and was not evidence of a propensity of the defendant to engage in rape or kidnapping or repetitive sexual offending against young vulnerable females.¹¹⁴

The following cases are decisions where the courts, due to the nature of the defence or the circumstances of the alleged offending, were able to identify an additional issue or define one more precisely.

C. Where the Issue is Something Other Than Consent or Reasonable Belief in Consent or is More Precisely Framed

Where the issue is identified as being something other than reasonable belief in consent, particularly when the evidence relates to a denial of the allegations, it appears there are more opportunities for the court to admit evidence of other convictions or misconduct.

1. Where the issue relates to denial that the events occurred

Six of the fifteen cases involved a denial that the events occurred. Accordingly, in two of these cases, the issue was defined as whether the defendant did commit the alleged offending. In the remaining four cases, however, where two decisions refined the issue more precisely, the remaining two broadly defined the issue as being the “credibility of the complainant”. These cases suggest that where the defence is denial, then evidence of other conduct or convictions appear to be readily admissible in order to demonstrate that the defendant has a propensity to commit such offences or behave in such a way.¹¹⁵

In R v Sharma¹¹⁶ the 20 year-old complainant alleged that the defendant, while driving her from Hastings to Mount Maunganui, indecently touched, digitally penetrated her and forced her to touch him.¹¹⁷ All of this occurred while the defendant was driving. The propensity evidence offered was in the form of a previous conviction relating to an incident where the defendant offered to drive the 16 year-old complainant home, stopped the car in an

112 See for example, R v AJS, above n 61, at [36] where the High Court re-framed the issue to be “whether the respondent has a propensity or proclivity to subject young female blood relatives of his wife, living under his protection in his household, to unwelcome sexual activity when they are sleeping at night,” or S (CA40/11) v R, above n 61, at [29] where the issue is framed as whether the appellant “would offend against young relatives when an opportunity arose to do so.”

113 R v Barnett, above n 61.

114 Ibid, at [34].

115 See for example Solicitor-General v Rudd, above n 62; R v Cooper, above n 22; R v RM, above n 40.

116 R v Sharma HC Rotorua CRI-2008-063-3826, 30 November 2009.

117 Ibid, at [5]–[10].

orchard, climbed on top of her, bit her breasts and digitally penetrated her.¹¹⁸

The issue before the court, due to the defence of denial, was whether the events occurred.¹¹⁹ Venning J held that evidence of the previous offending and conviction had significant probative value in relation to the issue.¹²⁰

His Honour found that this offending demonstrated a propensity to offend against women half the defendant’s age and taking control of them while they were in his car.¹²¹

In R v Franklin,¹²² the complainant alleged that following a night of drinking with the defendant, she went to lie down due to feeling dizzy. She alleged that the defendant followed her and went away when she told him to stop but woke later to find the defendant on top of her. Again the defendant “backed off ” when she told him to stop, but later woke to find the defendant having sex with her and, despite her protestations, he would not stop.¹²³ Chisholm J identified the issue as “whether or not the defendant raped the complainant.”¹²⁴ The propensity evidence the Crown wished to offer was a previous conviction for rape.¹²⁵ The events relating to the previous conviction involved a similar situation whereby the defendant was socialising with a very intoxicated complainant. The complainant subsequently went to bed and woke up with him having sex with her.¹²⁶ The Court found the previous conviction to be admissible propensity evidence on the basis of the similarities of the two separate events.

While the issue in Franklin clearly lacks the desired precision, it is suggested that “whether the defendant raped the complainant” would not necessarily be inaccurate if the defence was denial and, arguably, a more precise framing of the issue for a propensity analysis is not necessary in such a case. The difficultly is that, due to the fact that this was a pre-trial hearing where the defendant had not made any statement to the police, the defence and thus the issue at the pre-trial hearing was not clear.

2. Where the issue is framed as credibility of the complainant

Interestingly, two of these cases, where denial was quite clearly the defence and thus should have assisted with the framing of the issue, the issue was framed as being the credibility of the complainant. This is despite the express disapproval of the broad framing of such an issue by the Court of Appeal in Freeman and Vuletich. For instance, in W v R¹²⁷ the appellant appealed against his conviction and sentence in respect of a charge of sexual violation and unlawful sexual connection with a 13 year-old boy in 2008.

118 Ibid, at [14]–[19].

119 Ibid, at [26].

120 Ibid, at [31].

121 Ibid.

122 R v Franklin HC Christchurch CRI-2009-061-537, 30 October 2009.

123 Ibid, at [4].

124 Ibid, at [26].

125 Ibid, at [20].

126 Ibid, at [21].

127 W (CA591/10) v R [2011] NZCA 135.

The offending involved the appellant performing oral and anal sex and three indecent acts on the boy on three distinct occasions while they were working and living in close proximity. At trial, evidence of a previous conviction for two counts of sexual violation of a 14 year-old boy in similar circumstances was admitted as propensity evidence. The appellant had denied the allegations, thus Heath J had framed the issue at trial as whether the propensity evidence indicated a tendency to engage in sexual activity with young boys.¹²⁸ The basis of appeal therefore was restricted to a challenge of the accurate application of the balancing test between the probative value against the unfair prejudicial effect.¹²⁹ The Court of Appeal, in ultimately dismissing the appeal, noted that “the critical issue concerned the credibility of the complainant.”¹³⁰ The Court then went on to state that the as the appellant had denied the offending and indicated (in his video interview) that he would not act in that way towards someone of that age, the propensity evidence “goes directly to that issue”.

In R v LSN,¹³¹ Keane J framed the issue as credibility of the complainant¹³² despite expressly referring to Freeman and noting the precise framing requirement.¹³³ His Honour also noted that where the issue is broadly framed, the evidence is unlikely to be admitted.¹³⁴ LSN involved five charges of sexual offences by the defendant against his partner of eighteen months. The Crown sought to lead propensity evidence of a prior conviction in 2009 for two assaults on the complainant. Keane J framed the issue as being the complainant’s credibility and that the Crown wished to rely on the fact that the defendant had assaulted the complainant on a previous occasion to establish that the complainant’s evidence is “more likely to be true”.¹³⁵

Despite the broad framing of the issue, Keane J determined that its admission was justified on the basis of propensity reasoning.¹³⁶

Arguably there is nothing necessarily incorrect with the reasoning in W v R and LSN in that, the same end point would have been achieved whether the issue was framed as being credibility or whether the defendant committed the offence. It is suggested, however, that this is significant and there is a reason why the Court of Appeal in Vuletich warned against framing issues in such a way. Credibility is always going to be in issue in sexual offence cases and propensity evidence, and, if admitted, will usually enhance the complainant’s credibility. But it is clear, in accordance with Freeman, that the more broadly defined the issue, the harder it will be to admit propensity evidence.¹³⁷ Further, defining this issue in such a way focuses on the complainant, whereas propensity evidence should focus on the defendant

128 R v W HC Gisborne CRI-2010-016-278, 27 August 2010.

129 W (CA591/10) v R, above n 127, at [9].

130 Ibid, at [13].

131 R v LSN, above n 61.

132 Ibid, at [73].

133 Ibid, at [68].

134 Ibid, at [69].

135 Ibid, at [58]–[59].

136 Ibid, at [74].

137 Freeman v R, above n 11, at [21]. See also R v LSN, above n 61, at [69]–[70]; R v AJS, above n 61, at [36].

and whether the defendant has a certain propensity to act in a particular way or to have a particular state of mind. By not precisely framing the issue, there is potential to either not allow the admission of otherwise admissible evidence or, equally as problematic, allow for the admission of evidence that is not of sufficient probative weight.

The preferable way to approach propensity evidence where the main issue is identified as being credibility is to follow the approach of the Court of Appeal in Kiwi v R.¹³⁸ Kiwi involved an appeal against a pre-trial decision of Judge Rollo to join numerous counts of sexual violation in respect of two complainants on the basis of a propensity evidence analysis. The Court of Appeal noted that much will turn on the credibility of the complainants but then went on to identify individual issues in respect of each complainant. In respect of complainant B, the issues were whether the events happened at all and in the way alleged and whether she consented to the sexual activity or there was reasonable belief in consent. In respect of complainant W, the issue was whether the defendant penetrated W’s vagina without consent. Thus, the latter, being a “whether he did it” issue, allowed the Court to find that evidence of his actions of how he acted to complainant B was relevant and probative.¹³⁹ The Court ultimately dismissed the appeal holding that to require separate trials would be “artificial and not conducive to the ends of justice.”¹⁴⁰

Similarly, in R v C,¹⁴¹ the defendant faced trial on charges of raping the complainant, who suffered from a mild intellectual disability and was a friend of the defendant’s wife. The Crown sought leave against a pre-trial ruling excluding evidence of a previous conviction for rape of another woman who was also a friend of the defendant’s wife and suffered from an intellectual disability. With express reference to the issue precision requirement from Freeman,¹⁴² the Court of Appeal found that the central issue at trial would be the complainant’s credibility and reliability.¹⁴³ This was due to the fact that the defendant’s statement to the police had indicated denial of the events and suggested that the complainant had fabricated the account in an attempt to “get back” at him and his wife. The Court however then went on to note that there would likely be an issue as to the plausibility of the complainant’s account.¹⁴⁴ Therefore, akin to the framing of the issue in Freeman, the Court ultimately found that the evidence of the previous conviction was strongly probative in that, coupled with the risk that the defendant faced in light of the close proximity of his wife to the complainant, it “tends to demonstrate that the defendant has a propensity to offend sexually against young women with mild intellectual disabilities [...]”¹⁴⁵

138 Kiwi v R [2011] NZCA 78. This approach is also adopted in R v AJS, above n 61, at [29].

139 Kiwi v R, above n 138, at [22].

140 Ibid, at [23].

141 R v C (CA352/10), above n 61, at [34].

142 Ibid.

143 Ibid, at [37].

144 Ibid, at [38].

145 Ibid, at [39].

D. Where Issues Intermingle

Three of the fifteen cases involved issues that were intermingled or included alongside the issue of reasonable belief in consent. These cases demonstrate that, where this occurs, particularly where one of the issues relates to a denial of the events, there are more opportunities for the admissibility of evidence of other convictions or conduct. In R v Vertongen,¹⁴⁶ the appellant faced charges relating to four separate complainants alleging historical sexual offences, including rape. The alleged offending occurred while all of the complainants, as well as the appellant were either young children or teenagers. The appellant sought severance of the charges relating to the first complainant (AC) to be severed from the other three due to the differences in the nature of the offending and difference in time.¹⁴⁷ The defence in relation to all complainants was a denial of the allegations.¹⁴⁸

In addition, in respect of one of the complainants, while the defence had not yet been disclosed, the appellant had raised the issue of consent by alleging that consensual sex had occurred on one occasion. ¹⁴⁹ In conducting a section

43(3) analysis, the Court emphasised the significant similarities between the complainant’s accounts and attached little weight to the differences noted by the defendant.¹⁵⁰ The Court found that only the fact of AC’s age could pose a risk of illegitimate prejudice, but this was reduced by the fact that the defendant was the same age.¹⁵¹ Thus the Court found that the probative value outweighed its prejudicial effect and refused to sever the charges.¹⁵²

Similarly, R v Stewart¹⁵³ provides an example of numerous allegations of historic rape and other sexual violence where the defendant denied all incidents except one when the complainant was 16 or 17-years old.¹⁵⁴ The issues thus involved a mixture of consent and whether the events occurred. Propensity evidence was offered in the form of two friends of the complainant (A) and (B) who could give evidence as to contemporaneous sexual comments and touching by the defendant. The Court of Appeal upheld the High Court’s ruling that complainant A’s evidence was admissible as propensity evidence, and complainant B’s was directly relevant to the issue that there was a pre- existing relationship between the complainant and the defendant.¹⁵⁵

In R v Alden¹⁵⁶ the High Court was faced with determining an application for severance of charges between two complainants and an application for the admission of propensity evidence in the form of two previous convictions for sexual crimes. The first complainant (LS) was a friend of the defendant.

146 R v Vertongen [2008] NZCA 320.

147 Ibid, at [3]. The first complainant alleged offences occurred while the complainant and the defendant were both young children whereas the other complainants were teenagers at the time of offending.

148 Ibid, at [18].

149 Ibid, at [18] and [30].

150 Ibid, at [32]–[33].

151 Ibid, at [38].

152 Ibid, at [39] and [41].

153 R v Stewart, above n 29.

154 Ibid, at [3].

155 Ibid, at [26].

156 R v Alden HC Palmerston North CRI-2010-054-1873, 1 October 2010.

She alleged that she fell pregnant when she was seventeen and that, after her partner left her, she was raped and indecently assaulted by the defendant on a number of occasions in mainly public places.¹⁵⁷ The second complainant (BP) was a friend of the defendant’s daughter and alleged that, when she was fourteen or fifteen, he indecently assaulted and raped her.¹⁵⁸ The defendant pleaded guilty to the indecent assault but denied any other offending.¹⁵⁹

The proposed propensity evidence was in the form of two previous convictions relating to two other complainants (MS) and (CH). In respect of MS, the defendant had been convicted of indecent assault following allegations that, while watching a video, he put his hands inside MS’s clothing and touched her vagina.¹⁶⁰ In respect of CH, a friend of the defendant’s daughter, the conviction related to offending one evening, when CH was 16, when the defendant indecently assaulted her by way of touching and digital penetration.¹⁶¹

Ronald Young J identified the issue in respect of LS to be whether the activities were consensual or whether there was reasonable belief in consent.¹⁶²

In respect of BP, the defendant denied the allegations and therefore the issue was simply whether the events did occur as described by BP.¹⁶³ Ronald Young J undertook a detailed analysis of the section 43(3) factors and concluded that the essence of the allegations of both complainants was that the defendant “sexually offended against two vulnerable teenage girls who were known to him.”¹⁶⁴ His Honour then went on to note that the “pattern or similarities the jury will be invited to consider by the Crown relate to both the question of whether the event happened and the issue of consent.”¹⁶⁵

Equally, LS’s evidence was relevant to the issue relating to BP’s allegations in that, if a pattern of conduct is established, then “it is a pattern of non- consensual sexual assaults.”¹⁶⁶ Therefore, noting that this would require careful explanation by the trial judge, His Honour found the evidence of both LS and BP to be mutually supportive propensity evidence.¹⁶⁷

In respect of the other proposed propensity evidence of MS and CH, Ronald Young J found that the evidence of previous convictions was admissible primarily on the basis of the significant similarities that existed between the events in respect of all of the complainants.¹⁶⁸ Ronald Young J concluded that any prejudice that may result from admission could be overcome by clear directions from the trial judge.¹⁶⁹ Further, that the fact that the evidence related to a previous conviction increased the probative

157 Ibid, at [4]–[11].

158 Ibid, at [16].

159 Ibid.

160 Ibid, at [13].

161 Ibid, at [14].

162 Ibid, at [25]. This related to all of the counts relating to LS, other than the count relating to anal rape; which the defendant denied.

163 Ibid, at [27] and [45].

164 Ibid, at [33].

165 Ibid, at [46].

166 Ibid.

167 Ibid, at [49].

168 Ibid, at [55].

169 Ibid, at [65].

value of the evidence due to the fact that the jury would not be faced with the distraction of deciding whether the defendant had committed the other offending.¹⁷⁰

There was, in addition, further propensity evidence offered in the form of evidence from the defendant’s ex-wife (BA) who would give evidence that the defendant was violent, would constantly “badger” her for sex and have rough intercourse with her, despite her protestations.¹⁷¹ This evidence of BA was found to be inadmissible due to the “marked differences” in the evidence from the other propensity evidence.¹⁷² The Court also noted that the fact that this evidence was not in the form of a previous conviction, increased its prejudicial value.¹⁷³

E. When is Propensity Evidence Admissible in Acquaintance Rape Cases?

In accordance with Freeman, precise issue identification is fundamental to an assessment of the admissibility of propensity evidence about the defendant offered by the prosecution. Precise framing of the issue not only allows for relevant propensity to be admitted, but also properly allows for the evidence to be excluded if it simply demonstrates a mere propensity of the defendant to offend. The precise identification of an issue is important as it has significant bearing on an assessment of whether the probative value of the evidence outweighs its prejudicial effect. If the evidence is relevant to a precise, narrowly defined issue, then its probative value increases. It follows that, if the issue is too broadly framed, its probative value is lower and it is more difficult for evidence to be admitted.

Analysis of the appeal cases post-2006 reform has revealed that it is not only rare for propensity evidence to be offered in acquaintance rape cases, but also that, where the issue is framed as consent or reasonable belief in consent, there are limited options for admitting evidence of other conduct or convictions. Of over sixty sexual violation cases post 2006 reform where propensity evidence is in issue, only fifteen cases involve an acquaintance rape scenario where an issue is or could be consent or reasonable belief in consent.

Only four of the cases in the sample identify the main issue as being consent or reasonable belief in consent. In all four of these decisions, the propensity evidence was held to be relevant to that issue. In only one of these cases (Healy) was the evidence held to be admissible propensity evidence, justifying a joinder of the charges.

While the courts in these decisions expressly refer to the need to as precisely as possible define the issue, the issue is still framed as one of consent or reasonable belief in consent. It appears that the reason for this is due to the fact that the courts were unable to more narrowly define the issue in the absence of further information about the likely issues at trial. For instance, in Vuletich, M v R and Faamoana, the decisions all highlighted the dissimilarities or lack of characteristics unique to the propensity evidence and

170 Ibid.

171 Ibid, at [17].

172 Ibid, at [52].

173 Ibid, at [65].

current alleged offending. Thus, it could be that the Courts were constrained in their ability to refine the issues any further than consent or reasonable belief in consent.

As stated in Freeman, evidence of previous non-consensual conduct is simply evidence of a “mere propensity” to offend generally. Evidence of the fact that the defendant has offended sexually on another occasion is not sufficiently relevant to the broad issue of consent or reasonable belief in consent with regard to another complainant. The above analysis demonstrates that if the court is incapable of refining the issue in a more precise manner (which may be through the identification of unusual or unique characteristics linking the other conduct or conviction to the current offending) or identifying other issues to which the evidence may be relevant to, then it is unlikely that the evidence will be admitted. Further, Vuletich, M v R and Faamoana demonstrate that, even in the rare occasion that propensity evidence has been held to be relevant to and probative of the broad issue of consent or reasonable belief in consent, it may still fail the test of admissibility on the basis of the dissimilarities or lack of unique features between the propensity evidence and the current offending, pursuant to a section 43(3) analysis. Further, admission of such evidence appears to be even more difficult in cases where the evidence is of previous or other misconduct as opposed to previous convictions.¹⁷⁴

Two of the cases, Freeman and Tohu, are illustrative of situations where

the court has been able to define the issue with more precision than that of consent or reasonable belief in consent, allowing for the admission of the proposed propensity evidence. This is clearly not a simple exercise however and is entirely dependent on the evidence available. Further, Freeman was determined post-conviction where the issues are undoubtedly more readily identifiable. Pre-trial applications do not have the benefit of this clarity and, in some cases, the defence may not have been disclosed or could be less than clear; leaving the judge to make an assumption as to what the issues may be at trial. For instance, in Vertongen, the judge noted that the defence in relation to one of the complainants had not yet been disclosed.¹⁷⁵ This difficulty of issue identification may be addressed by the enactment of the Criminal Procedure (Reform and Modernisation) Bill 2010, which will

require a defendant to give notice pre-trial as to the nature of the issues in dispute.¹⁷⁶

On the other hand, where the issue is identified as something other than reasonable belief in consent, such as whether the defendant committed the acts as alleged (for example, when the defence is denial or identification), then proof of the fact that the defendant has committed such an act on another occasion can logically and more readily be admitted to prove that the defendant has a propensity to commit such offences or where the issue is framed more precisely. Six of the fifteen cases involved a denial that the events occurred. Whilst two of these cases (W v R and LSN ) questionably

174 See R v Alden, above n 156, at [65] where the High Court discussed the admissibility of the allegations made by the defendant’s ex-wife, BA.

175 R v Vertongen, above n 146, at [18] and [30].

176 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1), cl 64.

frame the issue as being the credibility of the complainant, the outcome is the same and the issue is defined in terms of whether the defendant did the acts as alleged.

Similarly, three of the fifteen cases demonstrate that it is easier for evidence of previous or other convictions or conduct to be deemed admissible where the issue of consent or reasonable belief in consent is intermingled or considered alongside other issues that more readily allow for the admission of propensity evidence.

In summary, this article has sought to analyse decisions surrounding the admissibility of propensity evidence, and in particular previous convictions or other conduct, in acquaintance sexual offending scenarios. Where the issue is identified as being consent or reasonable belief in consent, short of the court being able to identify other issues, or more precisely frame the issue, it appears that it will be difficult for that evidence to be admitted. In order to more precisely define an issue, the court must be capable of identifying some unique or similar features between the alleged offending and the propensity evidence. Thus, in such cases the barrier to admission is two-fold. First, in cases involving acquaintance rape, the issue is likely to be that of the broad issue of consent or reasonable belief in consent. Due to the broad nature of this issue, it is unlikely that any evidence of other non-consensual conduct or convictions will be admissible. Second, even if the court does find such evidence to be relevant to the issue so broadly defined, it may still be excluded on the basis of dissimilarities. Indeed the reason why the court is unlikely to be able to further define the issue is due to the lack of connection between the evidence of previous conduct and the alleged offending.

IV. Conclusion

The propensity provisions codified the complicated common law rules relating to similar fact evidence. The 2008 review by the Law Commission, prompted by the public disquiet that arose over the high profile police rape cases rightly resisted further reforms on the basis that time was needed to assess how the courts would interpret the provisions. A further review has been carried out and has demonstrated that overall the propensity provisions are “working”.¹⁷⁷ While initially there were concerns that the provisions would “lower the bar” for admissibly of inherently prejudicial material and that courts were displaying a tendency to avoid the provisions altogether, these concerns appear to have been alleviated to an extent.

An aspect not included in the review, however, was whether the public disquiet arising from the historic police rape cases, which gave rise to the

2008 review in the first place, has been addressed. The disquiet highlighted and was a manifestation of a wider concern surrounding the high attrition and low conviction rates in acquaintance rape cases. Additionally, this disquiet highlights a fundamental tension between the public’s perception of what information a jury should have before it and the defendant’s right to a fair trial. It has therefore been timely for a review of the way in which

177 Letter from Sir Geoffrey Palmer to Hon Simon Power, above n 6.

the propensity provisions are being applied in cases involving acquaintance sexual offending where propensity evidence is offered in the form of the defendant’s other conduct or convictions.

The above analysis of the sample of fifteen acquaintance sexual offence cases, decided after the introduction of the Evidence Act 2006, ultimately demonstrates that the concerns of the public following the police rape cases have not been addressed. Where the issue is identified as being consent or reasonable belief in consent, which is generally an issue in any sexual violation case, then the admission of propensity evidence is difficult. Short of there being a denial of the allegations on the part of the defendant, or if they lack features that allow the issue to be defined more narrowly, be intermingled with other issues or where another issue can be identified, the evidence is unlikely to be found to be admissible.

It is suggested that while this allows only limited options for the admission of propensity evidence in such cases, it is logical. It does not necessarily follow that evidence of the fact that the defendant has had sex without consent on a previous occasion means that they will disregard consent on another occasion. Such evidence is highly prejudicial and thus to be deemed admissible, as urged in Freeman, the issue must be more precisely framed so as to increase its probative value above its inevitable prejudicial effect. It is important that the issue is framed as precisely as it possibly can be to avoid the admission of mere propensity evidence.

The precise framing of an issue is clearly a difficult exercise for the courts, something exacerbated by the fact that determination of the admissibility of propensity evidence is often conducted in the absence of the disclosure of the defendant’s defence. Even where the defence is disclosed, and despite the clear direction from the Court of Appeal to the contrary, there appears to be a trend for the courts to broadly define the issue. This is apparent in cases where the issue is not only broadly defined as consent or reasonable belief in consent, but also where the issue is framed as the credibility of the complainant. Whatever the reason for this, the practice is not in accordance with Freeman and such an approach has the potential of not only making it more difficult to admit propensity evidence but also opens up the possibility of allowing the admission of insufficiently relevant propensity evidence.

While it makes logical sense, it signals a problem for the admission of propensity evidence in acquaintance sexual offending cases, where the issue is likely to involve the broad issue of consent or reasonable belief in consent. Short of the defendant denying the events as alleged or the court being able to more narrowly define the issue or intermingle it with other issues, it is unlikely that propensity evidence will have sufficient probative weight to justify its admission. Therefore, in light of the above analysis, regardless of how the propensity provisions are working overall, it is argued that they are non-responsive to the to the public disquiet that focussed attention on these provisions in the first place in the wake of the historical police rape allegations.

The question that naturally arises is whether the provisions ought to be responsive to the public concerns. While the aim of this paper has not been to explore options for reform, it has demonstrated that the propensity provisions do not readily allow for the admission of evidence of other conduct or convictions offered about the defendant in acquaintance rape cases. This article therefore recommends that further research be undertaken to identify and explore possible reform options in this particular context.