C v The King - [2024] NZHC 3336

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

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-000024

[2024] NZHC 3336

BETWEEN
C

Appellant

AND

THE KING

Respondent

Hearing: 10 September 2024 (via AVL/VMR)

Counsel:

J C Hannam for Appellant

J M Woodcock for Respondent

Judgment:

11 November 2024

JUDGMENT OF LA HOOD J

(Appeal against Conviction)

[1] Following a Judge-alone trial, Mr C (the appellant)1 was convicted in the New Plymouth District Court on 16 February 2024 of the following 33 charges of historic sexual abuse against his stepdaughter:2

(a)Seven charges of indecency with a girl under the age of 12.3 Aside from the first, these charges were all representative.

1      The appellant’s name is not suppressed but is anonymised to protect the identity of the complainant pursuant to s 203 of the Criminal Procedure Act 2011.
2      R v [C] [2024] NZDC 4425 [Decision on appeal].
3      Crimes Act 1961, s 133(1)(a).

C v R [2024] NZHC 3336 [11 November 2024]

(b)Eleven charges of sexual conduct with a child under 12.4 Three of these charges were representative charges involving kissing the complainant. Three are representative charges involving the appellant touching the complainant’s genitalia with his fingers. Three involve the appellant wiping ejaculate on the complainant’s mouth, two of which were representative, and one was specific. Two are representative involving the appellant touching the complainant’s breasts.

(c)Three charges of sexual conduct with a young person.5 Three of these were representative.

(d)Six charges of attempted sexual violation.6 Three of these charges were representative involving the appellant attempting digital penetration of the complainant. Three involve the appellant attempting to put his penis in the complainant’s mouth, two of which were representative charges.

(e)Six charges of sexual violation by unlawful sexual connection.7 Five of these charges involve connection between the appellant’s tongue and the complainant’s genitalia, four of these being representative. One of these charges was a representative charge of digital penetration of the complainant.

[2] Mr C now appeals the convictions. A notice of appeal was filed in respect of both conviction and sentence, but Mr Hannam confirmed that only the conviction appeal is pursued.

4      Section 132(3).
5      Section 134(3).
6      Section 129(1).
7      Sections 128(1)(b) and 128B.

[3]The appeal is brought on the grounds that:

(a)The trial Judge used propensity evidence of the appellant’s previous conviction for indecently assaulting the complainant’s sister incorrectly.

(b)The Judge placed undue weight on matters relating to the appellant’s credibility.

(c)The evidence of the complainant’s behaviour towards the appellant is inconsistent with sexual offending.

(d)Overall, it is contended the Judge erred in convicting the appellant.

The offending

[4] The complainant was the appellant’s stepdaughter. The appellant entered into a relationship with the complainant’s mother when the complainant was about five years old. The alleged offending was as follows.

First address

[5] In about July 2004, the complainant’s mother moved in with 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 C v The King

Details

AGLC: C v The King [2024] NZHC 3336
Case: [2024] NZHC 3336
Decision Date: 11 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, C appeals against his conviction by the New Plymouth District Court for numerous charges of historic sexual abuse against his stepdaughter. The charges include indecency with a girl under the age of 12, sexual conduct with a child under 12, sexual conduct with a young person, attempted sexual violation, and sexual violation by unlawful sexual connection. The appeal focuses on the trial judge's use of propensity evidence, assessment of the complainant's and appellant's credibility, and the complainant's behaviour towards the appellant. The High Court must determine if the trial judge erred in convicting the appellant.

The High Court first considers the trial judge's use of propensity evidence, specifically the appellant's prior conviction for indecently assaulting the complainant's sister. The court holds that the trial judge did not misuse this evidence, as it was relevant to support the complainant's account and the judge's credibility findings against the appellant. The court also notes that the appellant's credibility was properly assessed, with clear reasons given for rejecting his evidence. The High Court finds no error in the judge's assessment of the evidence relating to the appellant entering the children's rooms and the supply of alcohol to the complainant.

Next, the High Court addresses the submission that the complainant's behaviour in delaying her complaint and maintaining a relationship with the appellant is inconsistent with the allegations. The court rejects this argument, stating that there is no typical response to sexual abuse and that sexually abused children can behave in various ways, including having ongoing contact with an offender. The court also dismisses the argument that the judge was required to give separate reasons for each individual charge and that the third address charges were not proven due to a lack of specificity. The High Court concludes that the complainant's evidence of prolonged sexual abuse, combined with her evidence that it continued in the same way at the third address, was sufficient to prove the charges.

Finally, the High Court conducts an overall assessment of the evidence and concludes that there is no basis to find that the trial judge erred in convicting the appellant. The court holds that there was no error of law in the trial judge's approach, nor any error in the assessment of the evidence. The High Court finds that the trial judge had the significant advantage of making credibility findings after seeing and hearing the witnesses and that the judge provided a rational and considered basis for his conclusions.

Accordingly, the appeal is dismissed.

Orders