R v Whiu [2017] NZDC 20697

Published 14 March 2018

Admissibility of evidence — cross-admissibility of propensity evidence — application for charges to be heard together — hearsay evidence of deceased complainant — observation evidence as hearsay evidence — reliability of hearsay evidence — whether hearsay evidence should be excluded — possibility of collusion — defence not able to cross-examine deceased witness on hearsay statement — pre-trial. The defendant faced two sets of allegations concerning sexual offending against them. The crown argued that the allegations were cross-admissible as propensity evidence in relation to each complainant, and that the charges should be heard together. The offending alleged by the first complainant occurred 11 years after the offending alleged by the second, third and fourth complainants, and the defence argued that the two sets of allegations should not be cross-admissible against each other. The court found that the two sets of charges should be heard together, and that the evidence of each complainant was cross-admissible as propensity evidence. The complainants each alleged regular, ongoing abuse in homes that the defendant was living in, and that the allegations had a high probative value. The crown also sought to admit a statement made by a deceased complainant who had also observed behaviour between the defendant and one of the other complainants. The court found that the statement was reliable and that it did not compromise the effectiveness of the defence at trial. The court granted a joint trial in respect of the sexual abuse charges, allowing sexual allegations made by one complainant as cross admissible propensity evidence and allowed the Crown's hearsay application in respect of the deceased witness. Judgment Date: 28 September 2017. * * * Note: names have been changed to comply with legal requirements. * * *