Barker v The Queen - [2009] NZCA 186

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THERE ARE SUBSISTING SUPPRESSION ORDERS WHICH REMAIN IN FORCE AS TO THE NAMES OR ANY PARTICULARS LIKELY TO LEAD TO THE IDENTITY OF THE COMPLAINANTS AND SOME WITNESSES IN THIS CASE.
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA733/2008 [2009] NZCA 186

THE QUEEN

v

RICHARD JEFFREY GEORG BARKER

Hearing: 3 February 2009
Court: Glazebrook, Hammond and O'Regan JJ Counsel: T W Fournier for Appellant
A Markham for Crown

Judgment: 15 May 2009 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is allowed, the convictions are set aside and a retrial ordered.

R V BARKER CA CA733/2008 15 May 2009

BOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on internet or other publicly available database until final disposition of re-trial. Publication
in Law Report or Law Digest permitted.

Glazebrook J (dissenting) [1] Hammond J [93] O’Regan J [133]

GLAZEBROOK J

Table of Contents

Para No

Introduction [1] The background [6] Complainant A: injuring with intent to injure [8] Complainant B: wounding with intent to injure [20] Expert evidence [33] The trial Judge’s factual findings [40] The trial Judge’s ruling on the defence of consent [46] The parties’ submissions [51] The law in New Zealand on the defence of consent [54] Application to this case [68]
Should the defence of consent apply where mere scarification is
involved? [69]

Should the defence apply with regard to scarification in a
sexual context? [72]

What is the position if more than mere bodily injury is
intended? [79]

Did the factors identified by the Judge justify removing the
defence? [82]

Result [90]

Introduction

[1] Mr Barker was convicted, following a trial by judge alone (Judge Phillips) in the District Court, of one count of injuring with intent to injure, contrary to s 189(2)

of the Crimes Act 1961, and one count of wounding with intent to injure, contrary to s 188(2). Mr Barker was acquitted of five counts of indecency.

[2] The two counts on which Mr Barker was convicted related to two female complainants, who were respectively aged 15 and 17 years at the time of the offending. I will call them A and B in this judgment. Two of the indecency counts of which Mr Barker was acquitted related to A and B and the remaining three to another young female complainant, C.

[3] Mr Barker appeals his convictions on the sole ground that the trial Judge wrongly withdrew the defence of consent on public policy grounds. It was accepted at trial, and uncontested in this Court, that the elements of the two offences of which Mr Barker was convicted were proved.

[4] There is undoubtedly authority for the…

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 Barker v The Queen

Details

AGLC: Barker v The Queen [2009] NZCA 186
Case: [2009] NZCA 186
Decision Date: 15 May 2009

CaseChat Overview and Summary

Barker v The Queen is an appeal against convictions for injuring with intent to injure and wounding with intent to injure. The appeal against conviction was heard in the Court of Appeal of New Zealand. Mr Barker was convicted following a trial by judge alone in the District Court of injuring with intent to injure, contrary to s 189(2) of the Crimes Act 1961, and wounding with intent to injure, contrary to s 188(2). Mr Barker was acquitted of five counts of indecency. Mr Barker appeals his convictions on the sole ground that the trial Judge wrongly withdrew the defence of consent on public policy grounds. It was accepted at trial, and uncontested in this Court, that the elements of the two offences of which Mr Barker was convicted were proved. The appeal was allowed, the convictions were set aside and a retrial ordered.

Orders