B (SC 114/2010) v The Queen - [2011] NZSC 64

NOTE: PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT (INCLUDING THE RELATIONSHIP OF THE COMPLAINANT TO THE APPELLANT) IS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 114/2010
[2011] NZSC 64

B(SC 114/2010)

THE QUEEN

Hearing: 5 May 2011

Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

Counsel: T Sutcliffe and L F Walkington for Appellant
M D Downs and B F Fenton for Crown

Judgment: 9 June 2011

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young J)

Following a trial in the District Court before Judge Burnett and a jury, the appellant was found guilty of sexual offences against his grand-daughter. She was aged between 11 and 14 at the time of the offending. A subsequent appeal against conviction was dismissed by the Court of Appeal.[1]
[1] B(CA110/10) v R [2010] NZCA 493.
The further appeal to this Court turns on evidence given by the complainant that she complained about the offending (a) in March 2008 to her great grandmother (referred to as AB) and (b) in June 2008 to her maternal grandmother (NB). These complaints were described by the complainant in her evidential interview. This was played at trial as her evidence in chief. The first important reference came soon after the interview started and just after she referred to specific offending by the appellant:
Complainant:... the next morning my, I told ... [AB] and ... she ... just started crying ... and he was out but then she ... stopped when he got in and she didn’t mention anything and then a couple of weeks ago I told [NB] who just passed away and then ... (crying) she told her daughter [the complainant’s aunt] ... and she she told my Mum and then I told my Mum what happened and then she told Dad and then he got angry and he came over that morning, [the appellant] came over that morning and Mum and Dad got really angry at him and told him to go away and that’s when my other Nana found out that, I told my other Nana and she got really upset and started crying and then she went home with [the appellant] and that’s when I went to Auckland, just to get away from it all.

The complainant said that the offending stopped after she complained to AB but that otherwise her complaint to AB led nowhere. The only other significant reference to the complaints came later in the evidential interview:

Interviewer:     Mmm. Okay. And I think you told me who you’ve told, the first one was [AB], have I got that right?
Complainant:   Yeah.
Interviewer:     And, and I think you said it was in March that you told [AB], have I kind of got that right or have I got that a bit confused or …
Complainant:   Yeah, I think it was in March.
Interviewer:     Okay and when did you tell your…

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: [2011] NZSC 64
Decision Date: 9 June 2011

CaseChat Overview and Summary

In the case of B (SC 114/2010) v The Queen, the appellant, who was convicted of sexual offences against his grand-daughter, appealed against his conviction to the Supreme Court of New Zealand. The complainant, who was between 11 and 14 years old at the time of the offending, had previously complained about the incidents to her great grandmother (AB) in March 2008 and to her maternal grandmother (NB) in June 2008. The central legal issue in the appeal was the admissibility of the evidence concerning these complaints under section 35(1) and (2) of the Evidence Act 2006. The appellant argued that the evidence was either inadmissible or that some of the detail was prejudicial and unnecessary.

The Supreme Court found that while some details of the complaint to NB were indeed inadmissible, this did not prejudice the appellant or lead to a miscarriage of justice. The court accepted that the details surrounding the complaint to NB and its consequences were typical of intra-familial sexual abuse cases and were necessary for the jury to understand the gravity of the situation. The evidence of the complaint being passed on to the complainant’s mother and the appellant’s mother confronting him were also admissible as they were integral to the events that led to the police involvement and the complainant's evidential interview.

Ultimately, the Court dismissed the appeal, holding that the evidence was admissible and any inadmissible details did not prejudice the appellant. The conviction stood, and no miscarriage of justice occurred.

Orders