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Ellis v R

Ellis v R

Case [2021] NZSC 77 1 July 2021

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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF WITNESSES UNDER 17 YEARS OF AGE PROHIBITED BY S 139A OF THE CRIMINAL JUSTICE ACT 1985.

NOTE: ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE DEPONENT, HER FAMILY MEMBERS AND HER BOYFRIEND REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 49/2019
[2021] NZSC 77

BETWEEN	PETER HUGH MCGREGOR ELLIS Appellant
AND	THE QUEEN Respondent

Hearing:	11 November 2020 and 25 March 2021
Court:	Winkelmann CJ, Glazebrook, O’Regan, Williams and Arnold JJ
Counsel:	R A Harrison, S J Gray, B L Irvine and K D W Snelgar for Appellant J R Billington QC and A D H Colley for Respondent
Judgment:	1 July 2021

JUDGMENT OF THE COURT

The respondent’s application for leave to adduce the evidence of the deponent in relation to the alleged incident in 1982/1983 and the affidavits of other proposed witnesses in relation to that incident at the hearing of the appellant’s appeal against conviction is dismissed.

____________________________________________________________________

REASONS
(Given by O’Regan J)

Admissibility of evidence

The respondent seeks leave to adduce evidence at the hearing of the appellant’s appeal.[1] The proposed evidence is an affidavit from a deponent to the effect that she was sexually abused by the appellant in 1982 or 1983, and other material that relates to the alleged sexual abuse incident. The name of the proposed deponent is suppressed.[2] We will refer to her as “the deponent”.
[1]The application invokes r 40(1) of the Supreme Court Rules 2004, which provides that the Court may grant leave for the admission of further evidence on questions of fact. The background to the appeal is set out below at [7]. As explained below at [7](g), the Court has determined that the appellant’s appeal should continue despite his death.
[2]Ellis v R [2020] NZSC 137.
On 15 June 2021, we delivered a results judgment in which we dismissed the respondent’s application.[3] We said we would deliver our reasons later. These are those reasons.
[3]Ellis v R [2021] NZSC 63.
The respondent first sought leave to adduce the deponent’s proposed evidence in October 2019, prior to the hearing to consider whether the appellant’s appeal should continue despite his death. The application was dismissed at that time.[4] However, this Court said the application could be renewed if the appeal proceeded.[5]
[4]Ellis v R [2019] NZSC 122.
[5]At [8].
The respondent renewed its application in October 2020. It sought a ruling that the proposed evidence be admitted at the hearing of the appeal. It argued at that time that the proposed evidence was admissible in light of its relevance to the central issue in the appeal (namely, the reliability of the prosecution evidence at the appellant’s trial). The respondent pursued that application at the first hearing on 11 November 2020. That hearing was adjourned to give the…

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 Ellis v R

Details

AGLC: Ellis v R [2021] NZSC 77
Case: [2021] NZSC 77
Decision Date: 1 July 2021

CaseChat Overview and Summary

In the case of Ellis v R, the Supreme Court of New Zealand was asked to consider the admissibility of new evidence presented by the respondent in relation to an alleged incident of sexual abuse that occurred in 1982 or 1983, and which the appellant was accused of committing. The appellant, Peter McGregor Ellis, faced a lengthy legal battle against his conviction and sentence, which ultimately resulted in his death before the final appeal was heard. The respondent sought to introduce the evidence of a deponent, who alleged that the appellant had sexually abused her when she was a young child, in order to support the safety of the appellant's conviction. The court was required to decide whether the proposed evidence should be admitted at the hearing of the appeal against conviction.

The court considered the principles governing the admissibility of fresh evidence in a criminal appeal, as well as the respondent's proposed alternative test based on relevance. Ultimately, the court found that the well-established test for the admission of fresh evidence in a criminal appeal, as articulated in Lundy v R, was appropriate in this case. The court was concerned about the reliability of the deponent's account, given the lengthy delay between the alleged incident and the disclosure, as well as the fact that the allegations were not put to the appellant before his death. The court also found that the proposed evidence was not cogent in relation to the grounds of appeal advanced by the respondent.

The court concluded that the proposed evidence should not be admitted at the hearing of the appeal, as it would unfairly prejudice the appellant's appeal and potentially increase the scope of the appeal without providing any real benefit to the court in the assessment of the grounds of appeal. The court determined that a ruling on the admissibility of the proposed evidence should be made at that time, rather than deferring the decision until the hearing of the appeal.

Orders