A (SC 106/2015) v The Queen - [2015] NZSC 191

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

EXTANT ORDER PROHIBITING PUBLICATION OF THE NAME OF THE APPLICANT BY S 140 OF THE CRIMINAL JUSTICE ACT 1985 TO AVOID IDENTIFICATION OF THE COMPLAINANTS

IN THE SUPREME COURT OF NEW ZEALAND

SC 106/2015
[2015] NZSC 191

BETWEEN	A (SC 106/2015) Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O'Regan JJ
Counsel:	R M Lithgow QC for Applicant M J Lillico and F G Biggs for Respondent
Judgment:	17 December 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Background

Mr A seeks leave to appeal against a Court of Appeal decision[1] dismissing his appeal against conviction on a number of charges relating to sexual offending against his daughter, brother and niece. He also seeks leave to appeal against the dismissal of his appeal against sentence.
[1]A (CA37/2014) v R [2015] NZCA 377.
It is submitted that Mr A was deprived of an opportunity to put his defence at trial. In particular, he was not able to put the defence that the allegations were untrue and arose out of the whanau dynamics related to the whanau home. That the allegations were made because of resentment about the family home was put to Crown witnesses and denied. It is also alleged that this defence was effectively taken away from the jury by the trial judge.
Mr A objects to the prosecutor’s address in which the jury was told that questions are not evidence. It is submitted this is not correct in the sense that cross examination works by offering a different narrative which the jury should be able to take into account in their assessment of the total dynamics.
It is submitted further that the Judge’s summing up was unbalanced and that the tripartite direction was wrong and inadequate. It is accepted that a tripartite direction may not have been necessary but, as it was embarked on, it should have been complete.
As to sentence, it is submitted that, while in general conformity with the Court of Appeal’s guideline judgment in R v AM (CA 27/2009),[2] it is nevertheless manifestly excessive. This is on the basis that intra-familial sexual abuse should not be in band four (16 to 20 years’ imprisonment), as set out by the Full Court of the Court of Appeal in R v AM. Even if R v AM is correct, it is submitted that a small adjustment to sentence should be made.

Court of Appeal decision

[2]R v AM (CA 27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

As to the argument that Mr A’s defence that the allegations of sexual offending were motivated by family grievances was taken away from the jury by the trial Judge in his summing-up, the Court of Appeal said that, there was nothing in the evidence to demonstrate any relevant animosity about the ownership of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZSC 191
Decision Date: 17 December 2015

CaseChat Overview and Summary

The applicant, Mr A, appealed against a decision of the Court of Appeal that dismissed his appeal against conviction and sentence on several charges relating to sexual offending against his daughter, brother, and niece. The Supreme Court of New Zealand heard the appeal and dismissed the application for leave to appeal. The applicant contended that he was deprived of an opportunity to put his defence at trial, particularly the defence that the allegations were untrue and arose from family dynamics related to the family home. He also argued that the prosecutor's address, which stated that questions are not evidence, was incorrect and that the trial judge's summing up was unbalanced and inadequate. The applicant further argued that the sentence was manifestly excessive, claiming that intra-familial sexual abuse should not be in band four, which is 16 to 20 years' imprisonment. The Court of Appeal had already addressed all the applicant's arguments, and no matter of general or public importance arose from the case. The Court of Appeal had found the sentence to be unimpeachable in terms of R v AM. The Supreme Court dismissed the application for leave to appeal, finding that the Court of Appeal's decision was correct and that no miscarriage of justice was indicated.

Orders