F (SC 107/2021) v The Queen - [2021] NZSC 166

NOTE: COURT OF APPEAL ORDER MADE IN [2016] NZCA 180 PROHIBITING PUBLICATION OF APPLICANT’S NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 107/2021
[2021] NZSC 166

BETWEEN	F (SC 107/2021) Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Williams JJ
Counsel:	P E Dacre QC and R L Thomson for Applicant M R L Davie for Respondent
Judgment:	2 December 2021

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment of 17 March 2017 (F (SC 129/2016) v R [2017] NZSC 34) is dismissed.

____________________________________________________________________

REASONS

In August 2015, the applicant was tried by a jury on nine charges of sexual offending against his former wife.[1] His primary defence at trial in relation to most (although not all) of the charges was sexsomnia—that he had been asleep at the time. He was found guilty of three of the charges—one of rape and two of indecent assault. A distinguishing feature of the evidence in relation to the incidents in respect of which he was found guilty was that he had spoken during the activity complained of. In relation to one of the charges of indecent assault, there was the further distinguishing feature that the applicant, having initially claimed to have been asleep, later acknowledged both to his former wife and then to the police that he had been awake throughout the incident. At trial, Dr Antonio Fernando, a psychiatrist who specialises in sleep disorders, gave evidence for the Crown in relation to sexsomnia. He said that in instances of sexsomnia there is generally no communication.
[1]The trial Judge discharged him on another two charges.
The applicant’s appeal against conviction was dismissed by the Court of Appeal,[2] as was an application for an extension of time to seek leave to appeal to this Court.[3]
[2]F (CA705/2015) v R [2016] NZCA 180.
[3]F (SC 129/2016) v R [2017] NZSC 34 (Glazebrook, O’Regan and Ellen France JJ).
After his release from prison, the applicant consulted Dr Fernando as a patient. On the basis of his interactions with the applicant and more extensive review of the literature, Dr Fernando came to an opinion more favourable to the applicant’s sexsomnia defence than the one he had expressed to the jury.
In 2019, the applicant applied to the Court of Appeal for a recall of its earlier judgment. This was on the basis of the different and more favourable view that Dr Fernando now has in relation to his defence. This application was dismissed.[4]
[4]F (CA270/2019) v R [2019] NZCA 447.
He now seeks leave to appeal against the Court of Appeal’s judgments dismissing the conviction appeal and declining a recall. This application is based on…

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: [2021] NZSC 166
Decision Date: 2 December 2021

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the applicant, F, sought recall of the Court’s earlier judgment dismissing his appeal against conviction for sexual offences. The applicant argued that new evidence from two sleep disorders experts supported his defence of sexsomnia—that he was asleep during the offences. The Crown opposed the application on jurisdictional and substantive grounds.

The court faced jurisdictional issues, as it did not have the authority to hear an appeal against the Court of Appeal’s refusal to recall its earlier judgment. Additionally, the applicant’s attempt to challenge the Court of Appeal’s dismissal of his conviction appeal should likely be by way of recall of the Supreme Court’s earlier judgment, which had effectively dismissed his application for leave to appeal. The court further noted that the new evidence was not particularly fresh and raised potential complications due to the experts' prior roles and the applicant’s admissions. The court suggested that the Criminal Cases Review Commission might be a more appropriate forum for the applicant to pursue his concerns.

The Supreme Court dismissed the application for recall of its earlier judgment, finding that the Criminal Cases Review Commission provided a better mechanism for the applicant to address his concerns. The court emphasized that the new evidence did not suggest any error in the earlier judgment and that the applicant’s case did not meet the threshold for "very special reason" required for recall. The court also highlighted the complications arising from the experts' prior roles and the applicant’s admissions.

The Supreme Court made no orders as the application for recall was dismissed. The applicant was directed to consider pursuing his concerns through the Criminal Cases Review Commission.

Orders