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R v Accused (1988) 3 CRNZ 328 (CA)

Case summary provided by BROOKERS

Name: R v Accused
Reported: (1988) 3 CRNZ 328
File number: CA54/88
Date: 14 April 1988
Court: Court of Appeal
Location: Wellington
Judge: Cooke P, Somers J, Gallen J
Charge: Indecent Assault
CYPFA: s215, s224
Key Title: Evidence; Rights; Reasonable Compliance
Brooker’s summary:

Evidence - Similar facts - Indecent assault - Evidence of other employees of defendant sought to be admitted - Test of striking similarity satisfied - s 344A Crimes Act 1961.

The applicant was charged with indecent assault of an employee in 1986. The Crown sought to have admitted evidence of previous employees who had had similar experiences. In the District Court, the Judge had held that the evidence was admissible at the trial. The applicant then sought leave (out of time) to appeal against that decision.

Held, subject to appropriate warnings, and to the discretion of the trial Judge to exclude evidence if a significant difference emerges at the trial it would be wrong to shut the evidence out from the jury's consideration. In justice and common sense the alleged practice of the accused, though its details may have varied somewhat, is admissible on the charges against him. The test of striking similarity is satisfied

Held, declining the application:

Although there was considerable deviation from the requirements of s 215 (arising from the fact that there was no express reference to entitlement to the presence of a barrister or solicitor or to any person nominated by the young persons), on the evidence before him, the High Court Judge was entitled to find reasonable compliance in terms of s 224. The spirit and object of the relevant part of the Act being that adequate protection be provided for children or young persons in police interviews regarding a possible offence, enough was done here to ensure no significant contravening of the purposes and the provisions of the Act (although the case is not far from borderline).[(1991) 8 FRNZ 119, 120]

There was a clear indication that legal advice could be obtained and, although the boy was not invited to nominate any person for consultation or attendance, the mother was manifestly the very sort of person contemplated by the Legislature.

Obiter, this is far from suggesting that these sections impose mere formalities and may be disregarded with impunity by investigating police officers. A factor of importance here is that, the Crown having tendered evidence to discharge the burden of showing reasonable compliance and having adduced enough evidence to establish that prima facie, no evidence in response was called for the accused. The impression which is left is that the points arising under the Act are more of a technical nature in this case and that nothing substantially unfair or seriously contrary to the purposes of the Act took place.

Application

This was an application for leave to appeal from a pretrial ruling determining that certain police evidence was admissible at the trial despite non-compliance with s 215 Children, Young Persons, and Their Families Act 1989.

The facts appear from the judgment.