R v Crimper [2018] NZDC 7362

Published 16 May 2019

Propensity evidence — Mohamed v R [2011] NZSC 52 — M v R [2013] NZCA 239 — Evidence Act 2006, ss 40, 43. The defendant faced two charges of sexual violation and one of rape. The complainants were young children who were living in his care. In this pretrial matter the Crown sought to admit as propensity evidence the defendant's convictions for neglect and ill-treatment of children in his care, two of whom were the complainants in this case. The ill-treatment and neglect convictions arose out of a visit to the defendant's home by social workers, who discovered the house in very poor and unsanitary condition. The children were removed from the house and placed in the care of another person. Subsequently the children made comments to social workers which then gave rise to the current charges against the defendant. The Crown argued that the ill-treatment and neglect of the children did not necessarily amount to propensity evidence for sexual offending, but was revealing of the family dynamics and the relationship between the defendant and the complainants. The defendant argued that the previous convictions were irrelevant, and that the cases that the Crown cited in support did not apply, as they involved violence against the complainants. The Court found that the previous convictions did amount to propensity evidence. They showed the defendant's overbearing control and inhumane treatment of the complainants, which amounted to abuse. The defendant had a propensity to act in a certain way towards the complainants. The convictions were allowable as evidence under s 43 of the Evidence Act: they related to an ongoing state of affairs, were connected in time to the allegations in the present case, did not suggest collusion, and showed generally unusual circumstances. Any risk of unfair prejudice to the defendant could be managed by appropriate directions to the jury. The Court granted the Crown's application. Judgment Date: 13 April 2018. * * * Note: names have been changed to comply with legal requirements. * * *