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Christian v R

Christian v R

Case [2017] NZSC 145 26 September 2017

Jurisdiction

Miscarriage of Justice

Consent

Reasonable Belief in Consent

Trial Direction

Criminal Law

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 124/2016
[2017] NZSC 145

BETWEEN	CYRUS CHRISTIAN (AKA WILLIAM JOHN TASSELL) Appellant
AND	THE QUEEN Respondent

Hearing:	29 March 2017 Further submissions received 23 June 2017
Court:	Elias CJ, William Young, Glazebrook, OʼRegan and Ellen France JJ
Counsel:	N Levy for Appellant A Markham and M L Wong for Respondent
Judgment:	26 September 2017

JUDGMENT OF THE COURT

A        The appeal is allowed in part.
B        The convictions on counts 4 and 5 are quashed.
C        We order a retrial on counts 4 and 5.
D        The conviction on count 2 stands.
EWe invite submissions on sentence as set out at [78] of the Reasons.
FAn order is made prohibiting publication of the judgment and any part of the proceedings (including the result) in any news media or on the internet or on any other publicly available database until final disposition of the retrial. Publication in a law report or law digest is permitted.

____________________________________________________________________

REASONS

William Young, Glazebrook, O’Regan and Ellen France JJ	[1]
Elias CJ	[79]

WILLIAM YOUNG, GLAZEBROOK, O’REGAN AND ELLEN FRANCE JJ
(Given by O’Regan J)

Table of Contents

Para No.
Introduction	[1]
Issues and summary of conclusions	[5]
Facts	[7]
The trial	[15]
Court of Appeal decision	[18]
Legal background	[19]
Statutory context	[20]
Ah-Chong v R	[23]
R v Tawera	[25]
Directions on consent and reasonable belief in consent	[34]
Consent and reasonable belief in consent	[38]
The submissions	[40]
Our assessment	[43]
On the evidence, was there scope for the jury to be in doubt as to the absence of consent or as to the absence of a reasonable belief in consent?	[47]
Count 2	[51]
Counts 4 and 5	[62]
Substitution of charges?	[69]
Result	[73]
Sentence	[74]

Introduction

The appellant was convicted after a jury trial of three counts of sexual violation by rape. He was acquitted on one count of indecent assault. He was sentenced by the trial Judge, Judge Bidois, to a term of imprisonment of 13 and a half years.[1]
[1]R v Tassell DC Tauranga CRI-2012-087-1863, 25 July 2014. The appellant was discharged on another count of rape. This was a specific charge relating to the second time the appellant was alleged to have raped the complainant. The complainant’s evidence was that she could not remember the occasion specifically.
The Crown case at the trial was that the appellant had repeatedly raped the complainant during a period when she was living at the same address as he was. He denied any sexual activity occurred between him and…

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 Christian v R

Details

AGLC: Christian v R [2017] NZSC 145
Case: [2017] NZSC 145
Decision Date: 26 September 2017

CaseChat Overview and Summary

Cyrus Christian, also known as William John Tassell, was convicted after a jury trial of three counts of sexual violation by rape. He was acquitted on one count of indecent assault. The appellant appealed against conviction and sentence to the Court of Appeal, but his appeal was dismissed. Leave to appeal was granted by this Court. The issues that arise and our conclusions on those issues are: (a) The first issue is whether the Judge erred by not directing the jury on the need to be satisfied that the Crown had proved that the complainant did not consent and that the appellant did not reasonably believe that she did. We conclude that the Judge was in error. (b) Having concluded that the Judge was in error, it is then necessary to determine whether that error led to a miscarriage of justice. We conclude that a miscarriage resulted in relation to two of the three charges. (c) Determining whether a miscarriage occurred requires the Court to determine what constitutes consent in cases of sexual violation. The Court of Appeal concluded that a positive expression of consent is required. We conclude that this overstated the position. While a failure to protest or offer physical resistance does not, of itself, constitute consent and something more is required, that “something more” may be something other than a positive expression of consent. (d) Having determined that a miscarriage occurred and that two of the convictions must be quashed, it is necessary to determine: (i) Whether a new trial should be ordered or indecent assault convictions should be substituted. We determine that a new trial should be ordered. (ii) If any of the convictions remain, what effect on sentence there should be. We seek submissions on that issue.

Orders