Prosecutions for historical sexual abuse and the problem of delay
[13]
The stay decisions of the District Court Judge
[17]
The first decision refusing a stay
[17]
The refusal of the second stay application
[22]
The approach of the Court of Appeal to delay and prejudice
[24]
Was the appellant’s trial necessarily unfair by reason of delay and prejudice?
[26]
The principles to be applied
[26]
Did delay and prejudice preclude a fair trial in this case?
[33]
Was the trial in fact fair?
[40]
More general comments
[50]
The warning given by the Judge
[52]
Was the warning adequate?
[54]
Disposition
[58]
The appeal
Following his trial before Judge McGuire and a jury in the District Court at Rotorua, the appellant was found guilty on two counts: one count of indecent assault and one representative count of inducing an indecent act. His subsequent appeal to the Court of Appeal was dismissed.[1]
The case against the appellant related to events in the early 1970s. The complainant complained to the police in August 2007 and the appellant was charged in March 2012, around 40 years after the alleged offending.
In the District Court, the appellant twice sought a stay of proceedings on the basis of forensic prejudice caused by delay. These applications required the trial Judge to determine whether the appellant could receive a fair trial despite the delay. Even though the second of the applications was made during the trial, the issue for the Judge was still essentially forward looking in nature, that is, whether the appellant could receive a fair trial. There is no right of appeal against the refusal of a stay. Instead, in both the Court of Appeal and this Court, counsel for the appellant maintained that there was a miscarriage of justice within the meaning of s 385(1)(c) of the Crimes Act 1961. This argument requires an assessment whether the appellant’s trial, as it turned out, was unfair. Such assessment is thus backwards looking and must take into account the way the trial…
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
AGLC
CT v R [2014] NZSC 155
Case
[2014] NZSC 155
Decision Date
CaseChat Overview and Summary
The matter of CT v R came before the court in the context of a criminal trial where the appellant faced charges related to historical sexual abuse. The primary issue revolved around the application of section 122 of the Evidence Act, specifically whether the trial judge was obliged to give a warning about the reliability of certain evidence. The case focused on whether the judge was required to warn the jury about the potential unreliability of evidence that was provided more than ten years after the alleged conduct occurred.
The legal issues at hand included the interpretation and application of section 122 of the Evidence Act, particularly subsection 122(2)(e). The court had to determine whether the trial judge had a mandatory obligation to issue a warning under this provision when evidence of past conduct was presented, and whether the absence of such a warning could lead to a miscarriage of justice. Additionally, the court considered the extent to which the judge's discretion was constrained when deciding whether to give a warning about the reliability of evidence.
The court held that section 122(2)(e) does not impose a mandatory requirement on judges to give a warning about the unreliability of evidence if the alleged conduct occurred more than ten years prior to the trial. Instead, the judge has the discretion to decide whether a warning is necessary, provided that the decision is not based on an improper consideration. The court emphasised that while the lapse of time may affect the reliability of the evidence, it does not automatically necessitate a warning. The decision to warn the jury must be made judiciously, taking into account the potential for unfairness and the specific circumstances of the case. The court also clarified that the absence of a warning does not inherently lead to a miscarriage of justice unless it can be shown that the failure to warn significantly prejudiced the fairness of the trial.
In conclusion, the court ruled that the trial judge was not obliged to give a warning under section 122(2)(e) of the Evidence Act and that the decision whether to do so rested within the judge's discretion. The court found no miscarriage of justice in this instance and affirmed the conviction of the appellant.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Section 122 of the Evidence Act provides:122 Judicial directions about evidence which may be unreliable (1)If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.(2)In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:(a) hearsay evidence:(b)evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:(c)evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:(d)evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a Police station, or another place of detention:(e)evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.(3)In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—(a)if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or(b)if the Judge is of the opinion that there is any other good reason not to comply with the request.(4)It is not necessary for a Judge to use a particular form of words in giving the warning.… Section 122(2)(e) is not confined in application to trials in which historical sexual abuse is alleged, although it commonly arises in that context. In such cases, s 122(2)(e) will often apply to the evidence given by the complainant. A requirement to give a warning under s 122 is not inconsistent with s 121 (which makes it clear that there is no requirement to give a warning against accepting the uncorroborated evidence of a complainant[44]) or the direction given to a trial judge that, where evidence is given or comment is made suggesting delay by the complainant in making a complaint, the judge “may tell the jury that there can be good reasons for the victim of an offence of that kind to delay making or fail to make a complaint in respect of the offence”.[45] Section 122 is not concerned with the policies which formerly led to requirements of corroboration or scepticism about delayed complaint in sexual cases, both of which are rejected in contemporary law. Section 122 addresses, rather, the different concern, equally relevant to sexual cases as it is in relation to other allegations of criminal offending, that a lengthy lapse of time between the conduct in issue and the evidence at trial may raise issues of reliability that bear on the fairness of the trial. Where the judge considers the evidence may be unreliable for that reason (or for the other reasons identified in s 122(2)), consideration of a warning is required and its absence may lead to unfairness in the trial.[44]See also its predecessor, s 23AB of the Evidence Act 1908.[45]Evidence Act, s 127.