B (SC 6/2024) v The King - [2024] NZSC 45

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

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 6/2024
[2024] NZSC 45

BETWEEN	B (SC 6/2024) Applicant
AND	THE KING Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	S J Gray and S C Shao for Applicant J M Pridgeon for Respondent
Judgment:	2 May 2024

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant was found guilty after trial on several charges of sexual assault and indecency against H.[1] His conviction appeal was dismissed by the Court of Appeal.[2] He has filed an application for leave to appeal to this Court on the grounds that evidence about H’s behavioural changes over the offending period was not admissible. As this evidence was adduced at trial, he says that a miscarriage of justice has resulted because the trial Judge did not direct the jury on the proper use of this evidence.

Background

[1]H was aged between 13 and 18 over the years of the alleged offending.

[2]B (CA588/2021) v R [2023] NZCA 655 (Miller, Brewer and Osborne JJ) [CA judgment].

The facts are set out in the decision of the Court of Appeal.[3] For present purposes it is helpful to say a little about the trial.
[3]At [4]–[12].
At trial, the Crown relied on the evidence of the following witnesses: H; H’s friend (to whom H first disclosed what was taking place); a relative of H; and the officer in charge of the case. The Court of Appeal observed that in her evidence‑in‑chief, H said the offending caused her to become “pretty depressed about life”.[4] As summarised by the Court of Appeal, in her evidence H’s friend said that talking about the offending “had lifted a weight” off H’s shoulders “but she continued to go off the rails a bit, hanging out with the wrong crowd, drinking and sneaking out”.[5]
[4]See CA judgment, above n 2, at [18].
[5]At [18].
The applicant’s defence was that some of the incidents giving rise to his charges had not taken place; had not taken place in the way H had described; or had been misinterpreted by H. The applicant gave evidence to this effect. The defence also called a relative of the applicant who said they were with the applicant when the incident giving rise to the first of the charges was said to have occurred.
Part of the evidence for the defence was that H’s allegations were explained by the fact that H had become depressed in her teenage years, and that there was conflict between the applicant and H over her boyfriend’s behaviour. This formed…

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: [2024] NZSC 45
Decision Date: 2 May 2024

CaseChat Overview and Summary

The Supreme Court of New Zealand recently considered an application for leave to appeal from an individual, referred to as B, who was convicted of sexual assault and indecency against a complainant, H. Glazebrook, Ellen France, and Kós JJ presided over the case, with counsel S J Gray and S C Shao representing the applicant, and J M Pridgeon representing the respondent. The applicant sought leave to appeal on the basis that evidence about H’s behavioural changes over the period of the alleged offending was inadmissible and that the trial judge's failure to direct the jury on the proper use of this evidence resulted in a miscarriage of justice.

The legal issues in this case centred on the admissibility of evidence concerning H’s behavioural changes and the trial judge's obligation to provide a direction to the jury about the proper use of such evidence. The Court of Appeal had already ruled on the admissibility of this evidence, holding it was part of the context of the offending and did not require expert evidence. Furthermore, the Court of Appeal considered a direction to the jury on the proper use of this evidence to be desirable but not essential, given the obviousness of the point and the minimal risk that the omission affected the outcome. The Supreme Court was tasked with assessing whether the Court of Appeal's findings on these matters were correct and whether the principles applied were sound.

In its judgment, the Supreme Court determined that the principles governing the admissibility of behavioural evidence were correctly applied by the Court of Appeal. The Court found that no question of general or public importance arose from the applicant's arguments, and there was no appearance of a miscarriage of justice in the Court of Appeal's assessment. Consequently, the Supreme Court granted the application for an extension of time to apply for leave to appeal but dismissed the application for leave to appeal itself. This decision upheld the Court of Appeal's findings and rejected the applicant's contentions.

Orders