D v The Queen - [2015] NZSC 119

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

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 60/2015
[2015] NZSC 119

BETWEEN	D (SC 60/2015) Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and O'Regan JJ
Counsel:	L L Heah for Applicant J C Pike QC for Respondent
Judgment:	31 July 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant seeks leave to appeal against a decision of the Court of Appeal in which it dismissed his appeals against conviction and sentence on 13 counts of historic sexual offending against his two step daughters.[1] If leave is given, the applicant seeks to challenge only his conviction, not sentence.

Background

[1]D (CA 95/2014) v R [2015] NZCA 171 (French, Miller and Asher JJ) [D v R (CA)].

The complainants, whom we will call R and N, were born in 1984 and 1987 respectively. Twelve counts in the indictment related to incidents of sexual assaults on R between June 1996 and December 1997, when she was aged between 11 and 13 years. The single count in relation to N related to an incident that occurred during the same period when N was aged between 9 and 10 years.
The applicant and the mother of the complainants and their respective children were living in the same household at the time these incidents occurred. R disclosed to her mother that the applicant had been touching her in December 1997 and her mother expressed disbelief. R said that he had also touched N, and this was subsequently confirmed by N. The mother then confronted the applicant who admitted touching the girls inappropriately. However, neither complainant gave any details as to what the applicant had done to them. Shortly after this, the applicant left the household, but he and the complainants’ mother began seeing each other again some time later, and eventually R went to the police in 2011. Before her evidential interview, R wrote down her account of what had happened to her and circulated that to N and other family members. N also made a complaint to the police a short time later.
In his evidence at the trial, the applicant admitted that he found children sexually attractive and admitted that he had touched both complainants inappropriately, though not in the manner alleged by the complainants. He denied that the touching involved any of the conduct alleged in the charges against him.

Proposed grounds of appeal

Leave to appeal is sought on the following grounds:
(a)that the Court of Appeal erred in declining to admit evidence of a memory expert, Dr Zajac. It is argued that a miscarriage of justice arose because Dr Zajac’s evidence was not adduced at the applicant’s trial;
(b)that the Court of Appeal erred in finding that…

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 v The Queen

Details

AGLC: D v The Queen [2015] NZSC 119
Case: [2015] NZSC 119
Decision Date: 31 July 2015

CaseChat Overview and Summary

The case of D v The Queen involved an application for leave to appeal against the Court of Appeal’s decision which dismissed D’s appeals against his conviction and sentence on 13 counts of historic sexual offending against his two step-daughters. The applicant sought to challenge only his conviction, not the sentence. The Court of Appeal had previously dismissed the applicant’s appeals against conviction and sentence on the historic sexual offending charges. The applicant sought to challenge the Court of Appeal’s decision on the basis that the Court of Appeal erred in declining to admit evidence of a memory expert, Dr Zajac; in finding that the failure by the trial Judge to give a warning under s 122(2)(e) of the Evidence Act 2006 had not occasioned a miscarriage of justice; and in rejecting the applicant’s challenge to the directions given by the trial Judge in relation to propensity evidence.

The Court dismissed the applicant’s application for leave to appeal. The Court found that the Court of Appeal had not erred in declining to admit evidence of Dr Zajac as fresh evidence, and had correctly determined that the evidence was not material to the verdict. The Court also found that no miscarriage of justice arose from the failure to give a s 122 warning, and that the Court of Appeal had correctly applied the law in determining that a s 122 warning should have been given. Finally, the Court found that the trial Judge’s direction on propensity evidence was sufficient, and that the Court of Appeal had correctly rejected the applicant’s challenge to the direction. The Court concluded that no point of public importance arose in relation to the issues raised in the application for leave to appeal, and that there was no risk of a miscarriage if leave was not granted.

The Court dismissed the application for leave to appeal, and no appeal will lie to the Court of Appeal or to this Court.

Orders