A (SC 80/2017) v The Queen - [2017] NZSC 136

NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 MADE IN THE COURT OF APPEAL REMAINS IN FORCE.

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 80/2017
[2017] NZSC 136

BETWEEN	A (SC 80/2017) Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, OʼRegan and Ellen France JJ
Counsel:	P L Borich QC for Applicant J E L Carruthers for Respondent
Judgment:	6 September 2017

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant stood trial in relation to a total of 20 charges of violent offending and four charges of sexual offending against his former wife. He was convicted of five charges of violent offending and was either acquitted or the jury was hung on the balance of the charges.[1] The applicant’s appeal to the Court of Appeal against conviction and sentence was dismissed.[2] He now seeks leave to appeal to this Court.
[1]We were told that there will not be a re-trial on the balance of the charges.
[2]A (CA90/2017) v R [2017] NZCA 278 (Asher, Venning and Ellis JJ).
The applicant wishes to argue that there were a number of errors in the way his trial was conducted which have given rise to points of public importance and to a miscarriage of justice. In particular, the applicant relies on the following matters:
(a)the way the prosecutor cross-examined him about his admission of violence;
(b)comments by the prosecutor in the Crown’s closing address; and
(c)decisions by the trial Judge, Judge Ronayne, about the admissibility of evidence and other matters.

The cross-examination

The applicant gave evidence at trial. He admitted some violence towards the complainant. The prosecutor cross-examined the applicant about the admission suggesting, amongst other things, that in this way the applicant had accepted the elements of the relevant charge and asking him whether he now wished to plead guilty.[3] The applicant wishes to argue the line of questioning was inconsistent with the presumption of innocence and fair trial rights contained in s 25 of the New Zealand Bill of Rights Act 1990.
[3]The questions are set out in detail in the Court of Appeal’s judgment: at [42].
The Court of Appeal said the prosecutor was entitled to put to the applicant the fact he had accepted the elements of the offence were met and “effectively that he was guilty of the charge”.[4] While the prosecutor encouraged the jury to form a view about the applicant’s integrity on this basis, he did not invite the jury to infer guilt on other charges because of the applicant’s continued denial of the charge to which the admission related. The Court saw that this was important.[5]
[4]At [47].
[5]At [47].
We see no appearance of a miscarriage in this assessment. Nor does any more general point arise. The questions were…

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.

Continue reading A (SC 80/2017) v The Queen

Details

AGLC: A (SC 80/2017) v The Queen [2017] NZSC 136
Case: [2017] NZSC 136
Decision Date: 6 September 2017

CaseChat Overview and Summary

The applicant, who stands convicted of some charges related to violent and sexual offending against his former wife, seeks leave to appeal to the Supreme Court of New Zealand against his conviction and sentence. The applicant's appeal to the Court of Appeal against his conviction and sentence was dismissed. He now seeks leave to appeal to this Court. The applicant argues that there were a number of errors in the way his trial was conducted which have given rise to points of public importance and to a miscarriage of justice. The Court of Appeal dismissed the applicant's appeal and the Supreme Court dismissed the application for leave to appeal. The Court was satisfied that there was no miscarriage of justice and no point of public importance. The Court found that the prosecutor's questions to the applicant were not well put, but were not so objectionable as to give rise to a miscarriage of justice. The Court also found that the prosecutor's comments about the complainant's evidential interview and the use of an emotive analogy were not prejudicial. The Court further found that the trial judge's rulings on the admissibility of evidence were properly made and did not give rise to a miscarriage of justice. The Court dismissed the application for leave to appeal.

Orders