B (SC 18/2020) v R - [2020] NZSC 52

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 18/2020
[2020] NZSC 52

BETWEEN	B (SC 18/2020) Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Williams JJ
Counsel:	E P Priest and S J Gray for Applicant A Markham for Respondent
Judgment:	5 June 2020

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted on 10 charges of sexual offending against his two younger sisters (S and K) between 1962 and 1972, when the victims were between nine and 17 years old. His appeal to the Court of Appeal was dismissed.[1]
[1]B (CA463/2018) v R [2020] NZCA 18 (French, Gilbert and Courtney JJ).
The applicant acknowledged two acts of sexual intercourse with K, but said that both were consensual and that the first one was when K was 15 (her evidence was that this encounter was non‑consensual and she was 13). He denied that there were any other sexual encounters between them. In relation to S, the applicant denied any sexual activity and said they had a normal sibling relationship.
The defence case was that K was in love with the applicant but had come to hate herself for it. Her complaint was said to be motivated by a desire to prevent the applicant from returning to North America to re‑marry. In relation to S, the defence case was that she was lying to support K and blackmail the applicant into giving her property.
The applicant applied to the Court of Appeal for leave to adduce expert evidence in support of his appeal to that Court. This evidence was a report from a professor of psychology involved in the study of human memory, Dr Strange. The Crown then sought leave to adduce evidence from another expert on memory, Professor Brewin, who took issue with a number of aspects of Dr Strange’s report. Ultimately both Dr Strange and Professor Brewin gave oral evidence and were cross‑examined in the Court of Appeal.
The application to adduce Dr Strange’s evidence was in support of an argument that a miscarriage of justice had occurred at the applicant’s trial because the jury had not heard from an expert on memory. The applicant filed an affidavit from his trial counsel in which counsel said that, in hindsight, he considered he erred by not calling a memory expert. However, the appeal was not advanced on the basis of trial counsel error but rather on a more generic ground that a miscarriage of justice occurred because no expert evidence on memory was before the jury.
Ultimately the Court of Appeal refused leave for Dr Strange’s evidence to be adduced in support of the applicant’s appeal. The Court accepted that evidence that was not fresh could be admitted on appeal if it was cogent, but determined that the evidence of Dr…

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 (SC 18/2020) v R

Details

AGLC: B (SC 18/2020) v R [2020] NZSC 52
Case: [2020] NZSC 52
Decision Date: 5 June 2020

CaseChat Overview and Summary

In the case of B (SC 18/2020) v R, the applicant, who had been convicted of multiple charges of sexual offending against his two younger sisters, sought leave to appeal against the dismissal of his appeal to the Court of Appeal. The Supreme Court of New Zealand was tasked with determining whether the application for leave to appeal should be granted. The applicant argued that the appeal raised a matter of general and public importance regarding the admissibility of expert evidence on memory in cases of historic sexual offending.

The primary legal issue the court needed to decide was whether the proposed appeal had a sufficient prospect of success and whether it raised an issue of general and public importance that warranted the grant of leave to appeal. Additionally, the court needed to consider whether the absence of expert memory evidence at trial could have resulted in a risk of miscarriage of justice.

The Supreme Court found that the proposed appeal did not have a sufficient prospect of success. The court agreed with the Court of Appeal’s assessment that the evidence of the proposed expert witness, Dr Strange, was not cogent and lacked impartiality. Furthermore, the court considered that the context of the applicant's admissions and the corroborative evidence supported the victims’ accounts, diminishing the likelihood that the absence of memory evidence at trial would have resulted in a risk of miscarriage of justice. The court also concluded that the case did not raise an issue of general and public importance warranting the grant of leave to appeal.

The Supreme Court dismissed the application for leave to appeal, finding that the grounds for the grant of leave were not made out.

Orders