NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

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1 NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT IN THE COURT OF APPEAL OF NEW ZEALAND CA254/2014 [2015] NZCA 159 BETWEEN AND TONY GORDON BEST Appellant THE QUEEN Respondent Hearing: 15 April 2015 Court: Counsel: Judgment: Randerson, Wild and French JJ A J Bailey and K Paima for Appellant M D Downs and K A Courteney for Respondent 12 May 2015 at 10 am JUDGMENT OF THE COURT The appeal against conviction is dismissed. REASONS OF THE COURT (Given by Wild J) Introduction [1] Mr Best appeals against his conviction for one count of sexual violation by rape and two counts of sexual violation by unlawful sexual connection. He was convicted after the jury found him guilty at his trial in the Christchurch District Court in March BEST v R CA254/2014 [2015] NZCA 159 [12 May 2015]

2 [2] The ground of appeal is that evidence of a prior, unrelated complaint of rape was wrongly excluded. Background [3] The offending occurred on 10 May The complainant was one of several people drinking at Mr Best s home. The complainant was put to bed on a mattress on the floor in a spare room after she became heavily intoxicated. After the others present had either left or were asleep, Mr Best suggested to a young man who was still there that he and Mr Best have a threesome with the complainant. The young man declined. [4] The young man went into the spare room and went to sleep on the floor beside the mattress on which the complainant was sleeping. Later Mr Best came into the spare room and the offending occurred. The young man was woken by what was happening and gave evidence that he heard the complainant say No, several times and then No stop it, and I m going to sleep. He did not say or do anything and it seems the complainant was not aware he was in the room. The offending went on for quite a time before Mr Best allowed the complainant to get up. Mr Best left the room. As the complainant went out through the lounge she saw Mr Best masturbating on the couch. After arriving home the complainant made an immediate complaint of rape. Pre-trial and trial rulings [5] Before the trial, Judge Neave ruled on an application by Mr Best to question the complainant about a rape complaint she had made, which Mr Best alleged was false. 1 This complaint related to a man we will call M, and involved an incident on or about 24 May While the complainant and M were watching a film, M began touching her and asking whether she would have sex. Her account was that she froze and did not know how to stop M having sex with her. M told the police the complainant had consented. 1 R v Best DC Christchurch CRI , 21 June 2013.

3 [6] After this incident the complainant had sent text messages which conveyed that M was, or had become, her boyfriend at least on a trial basis. [7] At the hearing of the application the prosecutor advised Judge Neave that M was not charged because the matter did not meet the Solicitor-General s Prosecution Guidelines, in that there was no reasonable prospect of obtaining a conviction. A job sheet made by the police at the time recorded: 2 Wait for [the complainant] to arrive and discuss the case with [the complainant s friend] and [the complainant] in relation to not now wanting to proceed due to the content of the text messaging that was located. [The complainant] seemed to be happy with what was happening and plans were put in place with [the complainant s friend] to keep her safe. [8] Judge Neave ruled that questioning the complainant about her previous complaint engaged s 44 of the Evidence Act 2006 because, even on M s account, sexual activity had occurred. The Judge rejected the submission that the facts revealed a plain case of false complaint. Rather, he took the view the decision not to prosecute was a judgment call that a prosecution was unlikely to be successful on the facts available. 3 [9] Judge Neave also rejected the defence submission that details of the previous complaint had relevance in considering whether Mr Best had a reasonable belief the complainant was consenting to the sexual activity. [10] The Judge then dealt with Mr Best s alternative argument that evidence of the previous complaint was relevant, because it established the complainant knew: (a) of the medical procedures following the making of a rape complaint; and that (b) the police would review any text messages she had sent following the alleged rape. 2 3 It appears Judge Neave did not have this job sheet. R v Best, above n 1, at [16].

4 [11] After noting that the prosecutor had not argued vigorously in opposition to these points, Judge Neave ruled: 4 [24] To the extent that it is necessary to adduce the evidence referred to, there is clear relevance to the enquiry before the jury. Thus, to the extent that Mr Bailey seeks to question the complainant about the processes that are followed in the event of a rape complaint and, in particular, her knowledge of investigation of text messages and the effect that that had on the investigation process, it would obviously be relevant in meeting the issues which are before the Court. [25] I am not satisfied that it is in the interests of justice to admit the evidence to any other extent. [12] Evidence about the prior complaint was raised by the prosecutor with the trial Judge, Judge Garland, on the morning the trial began. Judge Garland effectively endorsed Judge Neave s ruling: he indicated defence counsel would be permitted to question the complainant about her knowledge of medical procedures following a complaint of rape and her knowledge that the police would review any text messages she had sent following her complaint, but without reference to the earlier incident involving M. The prosecutor was directed to advise the complainant that she would be questioned on these topics. 5 [13] We do not accept Mr Bailey s submission that Judge Garland s ruling was inconsistent with Judge Neave s pre-trial ruling. What Judge Garland permitted was exactly what Judge Neave had contemplated. Mr Best s arguments [14] Mr Bailey explained the two-fold nature of Mr Best s defence at trial: (a) He had oral consensual sex with the complainant. (b) Neither the alleged digital nor vaginal sex had occurred, in the latter case because Mr Best was physically incapable of having sexual intercourse. 4 5 R v Best, above n 1. There is no formal record of Judge Garland s ruling, which he gave in chambers.

5 Consequently, the complainant s credibility was a crucial issue at trial. Mr Best s aim in seeking to cross-examine the complainant about her complaint against M and/or of calling evidence from M was to establish a tendency on the complainant s part to give an untruthful account when making allegations of sexual offending. Mr Bailey submitted the matter was governed by the veracity rules, that is, by s 37 of the Evidence Act. [15] Mr Bailey submitted the two District Court Judges had erred in declining to treat the complainant s complaint against M as false. Alternatively, even if Mr Best had just a 50 per cent chance of establishing falsity through cross-examination, that ought to have been permitted. Mr Bailey emphasised the similarities between the two incidents, in particular on both occasions there were other people in the house to whom the complainant could have appealed for help. [16] Mr Bailey accepted the jury had heard evidence that the complainant knew about post-rape complaint procedures (including medical procedures) and knew also that any text messages she sent after making a rape complaint would be checked by the police. But he submitted the jury, had it known of the text messages the complainant sent after making her complaint against M, and known those texts were the reason why the police did not prosecute, would have viewed her text messages on the present occasion in a different light. [17] Mr Bailey relied on this Court s decision in R v MacDonald, in particular the lengthy citations in it from this Court s earlier decision in R v Duncan and from the English Court of Appeal s decision in R v T. 6 He referred also to the English Court of Appeal s judgment in R v All-Hilly. 7 [18] Mr Bailey drew his submission together by citing these passages from this Court s decision in R v C (CA391/07): 8 [23] If an accused person wishes to offer evidence of past complaints or allegations of sexual offending against the complainant, s 44 will be R v MacDonald CAl66/04 8 April 2005; R v Duncan [1992] 1 NZLR 528 (CA); R v T [2001] EWCA Crim 1877, [2002] 1 WLR 632. R v All-Hilly [2014] EWCA Crim 1614 at [12] [14]. R v C (CA391/07) [2007] NZCA 439.

6 engaged. Where the evidence which an accused wishes to offer is clear evidence that a complainant has previously made a false complaint (a clean case to use the words of MacDonald at [36]), and the falsity goes to whether any sexual activity took place between the complainant and the defendant, leave to offer the evidence is likely to be granted under s 44 if it would otherwise be admissible under s 37. The sexual context in such cases will be seen as tangential to the issue of the veracity of the complainant and the focus will therefore be on s 37. [24] In other cases, where the truthfulness or falseness of the past complaints is in issue, the matter will fall to be determined (under s 44) in essentially the same way as it was under s 23A (though bearing in mind that s 44 now prohibits absolutely evidence of reputation in sexual matters). Evidence about the prior complaint [19] We consider the two rulings by the successive District Court Judges were correct. There was not clear evidence the previous complaint was false. [20] On the R v C analysis set out in [18] above, admissibility is to be determined under s 44 and not under the veracity rules (ss 37 39). [21] This Court has already acknowledged the criticism that R v C did not consider s 40(4), which provides: 9 Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in s 37 and, accordingly, this section does not apply to evidence of that kind. [22] However, on the R v C analysis, the reason s 37 applies where the prior complaint was false is that evidence of that falsity will be solely or mainly (to use the words of s 40(4)) relevant to veracity. But, where the truth or falsity of the prior complaint is in issue, any evidential inquiry into that complaint will inevitably need to go into the detail of the previous sexual incident: did it happen at all? Was it consensual? Or did the defendant reasonably think the complainant was consenting? [23] It is difficult to categorise that sort of evidence as solely or mainly relevant to veracity in terms of s 40(4). Rather, such evidence better fits the s 44(1) 9 For example, in Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Thomson Reuters, Wellington, 2014) at [EV44.03]; Bruce Robertson (ed) Adams on Criminal Law Evidence (online ed, Westlaw NZ) at [EA44.02A(5)] and [EA44.02B(4)]. See Nguyen v R [2011] NZCA 8, [2011] 2 NZLR 343 at [18]; R (CA277/09) v R [2010] NZCA 98 at [12] [13].

7 description of evidence relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant. [24] Further, whatever evidence emerges from the contest as to the truth or falsity of the previous complaint is unlikely to be substantially helpful in assessing [the complainant s] veracity : the test in s 37(1) for the admissibility of evidence of veracity. Indeed, in Gore v R this Court held such evidence has limited probative value as to the complainant s veracity. 10 By contrast, evidence of a clear prior false complaint meets the s 37(1) test. [25] There is also a sound policy reason for applying s 44 to the evidence sought to be adduced here. Cross-examination about a previous complaint risks traumatising and re-victimising the complainant, in circumstances in which the previous complaint may be of limited relevance. The Law Commission has not recommended any legislative response to the courts continued application of s 44, but confirmed that the presumption in s 44 against admission is intended to avoid unnecessary distress, humiliation and embarrassment for the complainant. 11 So the clean case principle in R v C, which gives s 44 primacy in these cases, represents sound law. [26] Here, Mr Best sought to lead evidence about the prior complaint. He submitted the evidence put the complainant s veracity in issue. Applying the R v C analysis, first, given the lack of clear evidence the prior complaint was false, the evidence would not be solely or mainly relevant to veracity. Nor would it be substantially helpful in assessing the complainant s veracity. Its primary relevance would be to her sexual experience and its admissibility is properly considered under s 44(3). [27] Secondly, a Judge must exclude evidence if its probative value is outweighed by the risk the evidence will have an unfairly prejudicial effect on the proceeding or needlessly prolong it: s 8(1). In making a s 8(1) decision to exclude, the Judge must take into account a defendant s right to offer an effective defence: s 8(2). Here, Gore v R [2014] NZCA 370 at [25] [26]. Law Commission The 2013 Review of the Evidence Act (NZLC R127, 2013) at [7.27].

8 permitting cross-examination of the complainant aimed at establishing that the complaint she made on 24 May 2011 was false would have necessitated the jury hearing disputed evidence on a matter collateral to the essential issues in the trial and could have amounted to a needless distraction. So, potentially, significant unfair prejudice and prolongation, balanced against limited probative value. [28] As to s 8(2), we do not accept Mr Bailey s submission that the defence was prejudiced through the inability to cross-examine the complainant about the text messages she had sent following her complaint against M. Mr Downs is surely right in submitting the only evidence relevant to Mr Best s defence was evidence that the complainant knew about post-rape investigative procedures and thus could have sent self-serving text messages to support her allegation against Mr Best. [29] Pursuant to the rulings before and at the start of the trial, Mr Bailey was able to cross-examine the complainant about these procedures. She accepted she knew she would have to undergo a medical examination including the taking of swabs. In relation to texts, there was this exchange: Q A Q A And is it equally fair to say that you would have been well aware that the police would also look at texts that you re sending Yes. - as part of the investigation? Yes. [30] We accept Mr Downs submission that it was enough the jury knew about the complainant s knowledge of post-complaint investigations they did not need to know why the complainant had that knowledge. [31] In his closing address to the jury, Mr Bailey referred to the self-serving text messages the complainant had sent, reminding the jury she had told them she knew the police would review those text messages. This supported the defence case that the complaint against Mr Best was false and the complainant was using her knowledge of investigative procedures to shore up her false complaint.

9 [32] No prejudice to the defence is made out, let alone any risk that justice miscarried for Mr Best at his trial. Result [33] The appeal against conviction is dismissed. Solicitors: Crown Law Office, Wellington for Respondent