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R v Lyons [2018] NZDC 4620

Published 22 March 2019

Propensity evidence — sexual offending against children — guilty plea to charges against one complainant — Evidence Act 2006, ss 43 & 49. The Crown sought to call at trial evidence of the defendant's convictions for sexual conduct with a child under 12, and sexual violation by unlawful sexual connection. The defendant had pleaded guilty to the charges the day before his trial was due to start, but still faced charges of sexual conduct with a young person under 16, against a second complainant. The defendant denied the offending against the second complainant, so her credibility would be a key issue at trial. The Crown therefore argued that the proven offending against the first complainant was highly probative. The defendant argued that to allow the evidence of convictions at trial would be unfairly prejudicial, as there was a risk that the jury would give undue weight to the convictions. The court pointed out that for propensity evidence to be admitted, it must be shown that the probative value of the evidence outweighs the risk of unfair prejudice to the defendant. The court found that the sexual violation conviction was too different to the charges the defendant faced against the second complainant, so was unfairly prejudicial to the defendant and could not be led at trial. However the conviction for sexual conduct with a child under 12 was sufficiently similar, and proper judicial directions could counter any risk of unfair prejudice to the defendant. The Crown was allowed to lead evidence of this conviction. Judgment Date: 12 March 2018. * * * Note: names have been changed to comply with legal requirements. * * *