Brown v The King - [2024] NZSC 101

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 37/2024
[2024] NZSC 101

BETWEEN	TYSON SHANE BROWN Applicant
AND	THE KING Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	S T L Teppett for Applicant J E L Carruthers for Respondent
Judgment:	19 August 2024

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

On 21 March 2023, Mr Brown was convicted, after a jury trial, of the murder of A, a two‑year‑old child. His appeal against conviction was dismissed by the Court of Appeal on 4 April 2024.[1]
[1]Brown v R [2024] NZCA 95 (Gilbert, Whata and Churchman JJ) [CA judgment].
Mr Brown now applies for leave to appeal to this Court against that decision. His proposed ground of appeal is that a miscarriage of justice has resulted from the failure of the trial Judge to give a reliability warning under s 122 of the Evidence Act 2006 with regard to the evidence of A’s mother, Ms T. This is the same ground as he raised in the Court of Appeal.

Background

A full outline of the factual background is set out in the Court of Appeal judgment.[2] It suffices for the purposes of this application to record that, in early February 2021, Ms T separated from A’s father. In mid‑2021, Ms T moved into a house in South Auckland. Friends of hers occupied a sleepout at the back of the property. Mr Brown began spending time with Ms T, occasionally staying overnight.
[2]At [3]–[12].
On 29 October 2021, Mr Brown tested positive for COVID‑19, which meant he had to isolate at the South Auckland address with Ms T and A. Between 3.51 pm and 4.21 pm on 31 October, Ms T was speaking by telephone to a COVID‑19 public health service. Mr Brown was sentenced on the basis that, during that time, he assaulted A, leading to her death shortly after midnight.[3]

The trial

[3]R v Brown [2023] NZHC 1267 (Johnstone J) at [11]–[12].

The Crown case at trial was that Mr Brown had murdered A. Mr Brown’s defence was that Ms T was the murderer.
Ms T was to have been tried for manslaughter at the same time as Mr Brown. This was on the basis that she had failed to protect A from Mr Brown. However, Ms T pleaded guilty just before trial.
Ms T was called as a witness at Mr Brown’s trial. It is common ground that the evidence she gave was unreliable and, the Crown submits, designed to assist Mr Brown. Ms T was denied a discount for cooperation when sentenced after Mr Brown’s trial.[4]

The Court of Appeal decision

[4]R v [T] [2024] NZHC 332 at [35]. While she was denied a discount for cooperation, she was granted a ten per cent discount because giving evidence for the Crown “amounted to a form of punishment”.

The Court of Appeal said that an objective assessment of Ms…

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 Brown v The King

Details

AGLC: Brown v The King [2024] NZSC 101
Case: [2024] NZSC 101
Decision Date: 19 August 2024

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr. Tyson Shane Brown applied for leave to appeal against his conviction for the murder of a two-year-old child. The Court of Appeal had previously dismissed his appeal, and he now sought to appeal to the Supreme Court, arguing that a miscarriage of justice had occurred because the trial judge did not issue a reliability warning regarding the evidence of the child's mother, Ms. T. This warning, under section 122 of the Evidence Act 2006, is meant to inform the jury about the reliability of evidence provided by a witness.

The court was required to determine whether the failure to issue a reliability warning constituted a miscarriage of justice, considering Mr. Brown's arguments and the Crown's response. Mr. Brown contended that Ms. T had a motive to provide false evidence to receive a sentencing discount and to distance herself from the time when the child sustained injuries. He also argued that the Crown relied on Ms. T's evidence, specifically regarding his presence with the child while Ms. T was on a call to a COVID-19 public health service. The Crown, however, argued that Ms. T's evidence was unreliable and designed to assist Mr. Brown, and that it did not advance the Crown's case. Furthermore, the Court of Appeal had already found that the trial judge's decision not to issue a reliability warning did not result in a miscarriage of justice.

The Supreme Court found that Mr. Brown's proposed ground of appeal did not involve any issue of general or public importance, nor did it suggest that the Court of Appeal was incorrect in its assessment. The court concluded that there was no apparent risk of a miscarriage of justice and dismissed the application for leave to appeal. The court held that the trial judge had discretion under section 122, and multiple factors justified not issuing a reliability warning, including that Ms. T's evidence did not advance the Crown's case and neither party had requested such a warning. The court found that the absence of a reliability warning did not result in a miscarriage of justice.

Orders