Cornelius Hermanus Hendriks v The Queen - [2018] NZSC 98

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

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 53/2018
[2018] NZSC 98

BETWEEN	CORNELIUS HERMANUS HENDRIKS Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	A G V Rogers for Applicant M H Cooke for Respondent
Judgment:	25 October 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was found guilty by a jury on four charges involving sexual offending against a younger relative. At the time of the offending, the applicant was aged between 15 and 18 and the complainant between seven and 11. At the time of his trial, the applicant was 22.
The applicant’s appeal against conviction was dismissed by the Court of Appeal and he now seeks leave to appeal to this Court.[1] In support of the application counsel for the applicant contends that there are two points which justify the grant of leave.
[1]H (CA741/2017) v R [2018] NZCA 218 (Williams, Venning and Mander JJ).
The first point arises in this way. At the time of the trial, the applicant had a conviction for driving with an excess proportion of alcohol in his blood but had no other convictions. The applicant did not give evidence but it would have been open to his counsel at trial to have questioned the officer in charge of the case about the applicant’s record. Trial counsel did not do so and it is common ground this was an oversight on the part of the trial counsel. Mr Rogers (who did not appear for the applicant at trial) argues that if evidence of the applicant’s limited criminal history (or perhaps his lack of apparently relevant convictions) had been led at trial, the trial Judge would have been required to refer to that in his summing-up, and such evidence and the Judge’s summing-up would have improved the applicant’s chances of being found not guilty.
In dealing with this aspect of the case, the Court of Appeal concluded that the applicant’s prospects of an acquittal were not materially diminished by reason of trial counsel’s oversight.[2] The applicant was a young man at the time of his trial and appreciably younger at the time of the offending. Given this, there was no occasion for the jury to think that he did have relevant convictions. As well, had the evidence been adduced, it is far from clear that the trial Judge, in summing-up, would have placed the emphasis on it which counsel for the applicant maintained would have been appropriate. The Court of Appeal referred to and cited from this Court’s judgment in Wi v R.[3]
[2]At [14].

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: [2018] NZSC 98
Decision Date: 25 October 2018

CaseChat Overview and Summary

Cornelius Hermanus Hendriks sought leave to appeal his conviction for sexual offences against a younger relative in the Supreme Court of New Zealand. The applicant was between 15 and 18 years old during the time of the offence, while the complainant was between seven and 11. At the time of his trial, the applicant was 22 years old. The Court of Appeal had previously dismissed the applicant's appeal against conviction. The applicant contended that there were two points that warranted the grant of leave to appeal, namely the trial counsel's failure to bring the applicant's limited criminal history to the court's attention and the trial judge's summing-up on the standard of proof.

The Supreme Court considered the first point, which related to the trial counsel's oversight in not bringing the applicant's limited criminal history to the court's attention. The Court of Appeal had concluded that the applicant's prospects of an acquittal were not materially diminished by this oversight. The Supreme Court agreed and held that the issue was settled by its judgment in Wi v R. The Court did not see this issue as one of public or general importance and found no appearance of a miscarriage of justice in the Court of Appeal's approach.

The second point related to the trial judge's summing-up on the standard of proof. The Court of Appeal had noted that the submission was based on a misunderstanding of the case of R v Wanhalla. The Supreme Court agreed and held that the point did not warrant a grant of leave to appeal.

Accordingly, the Supreme Court dismissed the application for leave to appeal.

Orders