D (SC 39/2018) v The Queen - [2018] NZSC 76

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NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 39/2018
[2018] NZSC 76

BETWEEN	D (SC 39/2018) Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and O’Regan JJ
Counsel:	F E Guy Kidd for Applicant J C Pike QC for Respondent
Judgment:	20 August 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted of 41 sexual offences against three children in his care. He was acquitted on one charge. He was sentenced to a term of imprisonment of 17 years, with a minimum period of imprisonment of eight years and six months.[1]
[1]R v [D] [2016] NZDC 11300 (Judge Ingram).
He appealed against his convictions to the Court of Appeal. That Court allowed the appeal in part, setting aside the convictions in relation to three counts.[2] The appeal failed in relation to the other 38 convictions and no adjustment was made to the applicant’s sentence.
[2]D (CA533/2016) v R [2018] NZCA 109 (Brown, Brewer and Collins JJ) [CA judgment].
The applicant seeks leave to appeal against his convictions to this Court. The application is advanced on two bases. The first relates to the way in which the trial Judge directed the jury in relation to the demeanour of the complainants when they were giving evidence. The second relates to material that was before the jury which, the applicant argues, was prejudicial and led to a miscarriage of justice. The applicant argues that a miscarriage of justice has occurred or will occur if leave to appeal is not granted.[3] He does not suggest that the proposed appeal involves a matter of general or public importance.[4]
[3]Senior Courts Act 2016, s 74(2)(b); Supreme Court Act 2003, s 13(2)(b).
[4]This Court dealt with the issues relating to demeanour of witnesses in Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116.
The applicant wishes to argue on appeal that the directions made by the Judge about demeanour of witnesses (in this case, the complainants’) in his opening address to the jury and in his summing up led to a miscarriage of justice occurring. The Judge indicated to the jury…

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 D (SC 39/2018) v The Queen

Details

AGLC: D (SC 39/2018) v The Queen [2018] NZSC 76
Case: [2018] NZSC 76
Decision Date: 20 August 2018

CaseChat Overview and Summary

The case D (SC 39/2018) v The Queen involved an applicant convicted of 41 sexual offences against three children in his care, with one charge being acquitted. He was sentenced to 17 years of imprisonment with a minimum of eight years and six months. The applicant had previously appealed to the Court of Appeal, which allowed the appeal in part, setting aside three convictions. The applicant sought leave to appeal against his convictions to the Supreme Court of New Zealand, arguing that the trial judge's directions to the jury about the demeanour of the complainants and certain prejudicial information before the jury led to a miscarriage of justice.

The legal issues the court had to decide were whether the applicant's appeal involved a matter of general or public importance, and if the Court of Appeal's decision to not grant leave to appeal was correct. Specifically, the applicant argued that the trial judge's directions about the demeanour of the complainants when giving evidence led to a miscarriage of justice. He also argued that prejudicial information before the jury led to a miscarriage of justice. The applicant did not suggest that the proposed appeal involved a matter of general or public importance.

The Supreme Court dismissed the applicant's application for leave to appeal. The court found that the Court of Appeal had carefully considered the issue of the trial judge's directions about the demeanour of the complainants and concluded that they did not lead to a miscarriage of justice. The court also found that the Court of Appeal had concluded that the prejudicial information before the jury did not result in a miscarriage of justice. The Supreme Court declined leave to appeal, stating that the Court of Appeal's decision was correct and that there was no risk of a miscarriage resulting from the way the Court of Appeal dealt with these points.

The final orders were that the application for leave to appeal was dismissed.

Orders