B (CA588/2021) v The King - [2023] NZCA 655

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA588/2021
[2023] NZCA 655

BETWEEN	B (CA588/2021) Appellant
AND	THE KING Respondent

Hearing:	2 November 2023
Court:	Miller, Brewer and Osborne JJ
Counsel:	S J Gray and S C Shao for Appellant Z R Hamill for Respondent
Judgment:	18 December 2023 at 1.00 pm

JUDGMENT OF THE COURT

A    The application for an extension of time is granted.
B    Leave to adduce further evidence is granted.
C    The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

The appellant was convicted after a jury trial on seven charges involving indecencies against his stepdaughter, who was aged between 13 and 18 when the offences were said to have happened, in the years 2009 to 2014.
There were six charges of indecent assault, which took the form of kissing or touching her legs or bottom, and one of doing an indecent act (watching her in the shower) with intention to insult or offend. Three of the indecent assault charges were representative.
This conviction appeal is now brought on four grounds:[1]
(a)Evidence of changes in the complainant’s behaviour was led and used by the Crown as evidence that the offending had happened.
(b)A secret recording of a family meeting, in which the appellant appeared to accept some of the allegations, was led in evidence.
(c)The complainant associated the first offence with the 2009 Bathurst 1000 car race being on TV and the appellant was able to show that he was elsewhere when the race was run that year. The Crown is said to have met this evidence by asserting without an adequate evidential foundation that the complainant must have been watching a replay of the race.
(d)The complainant was not cross-examined about her claim that she had a job at the time of the first offence.

The narrative

[1]Allegations of trial counsel error were made initially but have been abandoned.

The appellant married the complainant’s mother in 2002 and their family comprised five children they had together and two of her previous relationship. The complainant, the eldest, had lived with him since she was aged six.
The first incident (charge 1) is said to have occurred on a weekend in 2009 when the Bathurst 1000 was playing on television. The complainant said that the appellant went into the bathroom and watched her while she showered and then took her towel off the towel rail and refused to hand it to her unless she turned to face him.
Thereafter the Crown alleged a continuing course of conduct with multiple instances of offending. Some specific charges were identified by reference to context or the features of the offending.
In 2011 the complainant told her best friend at the time that her stepfather had been abusing her. In September 2016 she sent the appellant text messages in which she appeared to confront him. A few days later there was an unplanned family meeting which included the appellant, the complainant…

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 B (CA588/2021) v The King

Details

AGLC: B (CA588/2021) v The King [2023] NZCA 655
Case: [2023] NZCA 655
Decision Date: 18 December 2023 at 1.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, B, sought to appeal his conviction on seven charges involving indecencies against his stepdaughter. The jury had found him guilty on all charges, and he brought this appeal on four grounds. The court granted the application for an extension of time and leave to adduce further evidence but dismissed the appeal.

The grounds of appeal included the Crown's reliance on evidence of changes in the complainant's behaviour as evidence that the offending had happened, the admissibility of a secret recording of a family meeting, the complainant's association of the first offence with the 2009 Bathurst 1000 car race being on TV, and the failure to cross-examine the complainant about her claim that she had a job at the time of the first offence. The court found that the evidence of behavioural change was admissible as part of the context but that a direction cautioning the jury that there might be other explanations for the complainant's behaviour was desirable but not essential. The covert recording was found to be reliable and not unfairly obtained, and the alibi evidence did not materially advance the appellant's case. The failure to cross-examine the complainant about her employment history was not enough in itself to amount to a miscarriage of justice.

The court concluded that none of the grounds of appeal had been made out and that the jury verdicts were not unsafe. The appeal was dismissed.

Orders