Dean James Charlton v The Queen - [2017] NZSC 5

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 102/2016
[2017] NZSC 5

BETWEEN	DEAN JAMES CHARLTON Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and Ellen France JJ
Counsel:	C D Eason for Applicant P D Marshall and A B Richards for Respondent
Judgment:	9 February 2017

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Following a jury trial before Nation J, the applicant, Mr Charlton, was convicted on one count of indecent assault, one count of sexual violation by rape and one count of injuring with intent to injure, all against the same complainant, B. He was acquitted of another charge of sexual offending against B and of three sexual offending charges involving another complainant, A. He appealed against his conviction on the two sexual offending counts against B, but the Court of Appeal dismissed his appeal.[1] He now seeks leave to appeal to this Court.
[1]Charlton v R [2016] NZCA 212 (Stevens, Asher and Williams JJ) [Charlton (CA)].
To explain the grounds of appeal, it is necessary to say a little of the background. B and Mr Charlton had a brief relationship. The three offences of which Mr Charlton was convicted occurred on a single evening when they were together in bed. B said that Mr Charlton became angry and aggressive towards her – he hurt her breasts, punched her in the upper chest area, briefly strangled her and finally raped her. Several days later she sent some text messages to the applicant’s phone number, which did not mention sexual offending and were consistent with an on-going relationship, for example:
“Hi hay i of to sleep now i am tied.”
“I miss u.”
B said in evidence that these texts were intended for other recipients and that she had sent them to Mr Charlton’s number in error. The Crown then sought to adduce evidence from Constable Newton that, during the course of the investigation, she had received text messages from B that did not make sense and seemed to have been intended for someone else.[2] Mr Charlton’s trial counsel objected to this evidence, but Nation J ruled it admissible.[3] Counsel did not seek an adjournment or apply to recall B.
[2]Constable Newton organised B’s initial evidential interview and took further statements from her subsequently.
[3]R v Charlton [2015] NZHC 772 [Ruling 4] and R v Charlton [2015] NZHC 773 [Ruling 5].
Against this background, Mr Charlton seeks to raise two grounds, namely that Nation J did not consider and apply:
(a)s 34 of the Criminal Disclosure Act 2008; and
(b)s 8 of the Evidence Act 2006.

Mr Charlton does not suggest that the proposed appeal raises any issue of general or public importance. Rather, his argument is that the deficiencies alleged are such as to give rise to a real risk of a miscarriage of justice.

Although…

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: [2017] NZSC 5
Decision Date: 9 February 2017

CaseChat Overview and Summary

Dean James Charlton appealed against his conviction for indecent assault, rape, and injuring with intent to injure, all committed against the same complainant, B. Charlton was acquitted of another charge of sexual offending against B and of three sexual offending charges involving another complainant, A. Charlton’s appeal against his conviction on the two sexual offending counts against B was dismissed by the Court of Appeal. Charlton now seeks leave to appeal to the Supreme Court of New Zealand.

Charlton’s grounds for appeal are that the trial judge did not consider and apply s 34 of the Criminal Disclosure Act 2008 and s 8 of the Evidence Act 2006. Charlton contends that these alleged deficiencies give rise to a real risk of a miscarriage of justice. The Court of Appeal had considered the s 8 point but found that there was no real risk of a miscarriage of justice. The Supreme Court agreed, noting the strength of the Crown case, including independent medical evidence supporting B’s account of the injuries she sustained. The Supreme Court also noted that Charlton had admitted to punching and strangling B at trial. The Court found that there was no risk of a miscarriage of justice in relation to the proposed grounds of appeal.

The Supreme Court dismissed Charlton’s application for leave to appeal. The Court held that it does not normally permit a second appeal to be brought on grounds not raised before the Court of Appeal. Furthermore, even if the trial judge had considered and applied s 34 and s 8, the Court found that there was no risk of a miscarriage of justice due to the strength of the Crown case. The Court noted that there was independent medical evidence supporting B’s account of the injuries she sustained and that Charlton had admitted to punching and strangling B at trial.

No orders were made. The application for leave to appeal was dismissed.

Orders