Colin Todd Parker v The Queen - [2008] NZSC 25

IN THE SUPREME COURT OF NEW ZEALAND
SC 92/2007
[2008] NZSC 25
COLIN TODD PARKER
v
THE QUEEN
Court:Elias CJ, McGrath and Anderson JJ
Counsel:D J Boldt for Applicant

M D Downs for Crown

Judgment:15 April 2008

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
REASONS
[1]       The applicant seeks leave to appeal from a decision of the Court of Appeal in respect of his conviction on one count of indecently assaulting a girl under 12. The girl was sleeping over in a bunk at the house where the applicant lived. She complained that the applicant entered the bedroom she was sharing with two other girls, reached under her blanket and handled her leg and, then, under her night attire but over her underpants, he touched her on the vagina for about 10 seconds. The applicant’s version was that he had not expected anyone to be in the bunk and had accidentally touched the girl’s leg whilst getting a blanket from her bed. So, in terms of his explanation, the touching was accidental, fleeting and non-sexual; in terms of the girl’s evidence the touching was deliberate, more than fleeting and indecent.
[2]       It was put to the girl that her allegation was a lie. But there was no evidence specific to the particular girl to suggest why she might be lying. All the applicant could suggest, when interviewed, was that she was upset because he had sounded a bit grumpy when he found her in the bunk. This led the Crown, in closing, to ask rhetorically why the girl should make up such a story. The Judge’s directions to the jury on that issue are the focus of this application for leave to appeal.
[3]       The principal authorities on such directions[1] emphasise the necessity to direct that, regardless of the state of the evidence about motive, the onus of proof remains on the Crown through and it is not for an accused to prove motive.
[1]      R v T [1998] 2 NZLR 257; R v E [2007] NZCA 404.
[4]       In this case the Judge directed in conformity with these authorities and included a warning that there may be some motive of which no evidence had emerged. If the Judge had gone no further, the directions would have been unimpeachable, as counsel for the applicant accepts. But the Judge went on to say:
In assessing her credibility whether you believe [her] or not, you are entitled to take into account any lack of evidence of a motive to be as a matter of common sense. You might think that a lack of evidence of a motive to make a false allegation enhances [her] credibility. That is a matter for you but what you must not do is jump to the conclusion that any lack of evidence of motive means that there was no motive nor must you think that there was any obligation on the accused to prove such evidence. There is no burden…

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: [2008] NZSC 25
Decision Date: 15 April 2008

CaseChat Overview and Summary

In Colin Todd Parker v The Queen, the applicant sought leave to appeal his conviction for indecently assaulting a girl under the age of 12. The girl testified that while she was sleeping, the applicant touched her leg and vagina under her blanket for approximately 10 seconds. The applicant claimed the touching was accidental. The case hinged on the jury's assessment of the girl's credibility, particularly in light of her lack of motive to lie. The Court of Appeal had previously dismissed the applicant's appeal, focusing on the judge's directions to the jury about motive and credibility.

The legal issues before the Supreme Court revolved around whether the trial judge's directions to the jury about the lack of evidence of a motive to lie may have led to a miscarriage of justice. The applicant argued that the judge's comments suggesting a lack of evidence of motive might enhance the girl's credibility were inappropriate and confusing, potentially causing the jury to reason incorrectly. The Crown contended that the judge's directions, taken as a whole, did not lead to a miscarriage of justice, and the jury was adequately instructed on the proper assessment of the girl's credibility.

The Supreme Court found that the judge's directions, while not perfect, did not lead to a miscarriage of justice. The court acknowledged that the judge could have used more neutral language and explicitly stated that it was for the jury to be satisfied there was no motive. However, the court held that the overall directions were sufficient to ensure the jury understood the proper assessment of the girl's credibility, and the slight semantic quibble did not amount to a cause of possible injustice.

The Supreme Court dismissed the application for leave to appeal, upholding the conviction. The court's decision focused on the totality of the judge's directions and concluded that the jury had been properly guided on the issue of motive and credibility. The applicant's conviction for indecent assault was therefore affirmed.

Orders