Flesher v The Queen - [2005] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND
CA12/05
THE QUEEN
v
MARK DAVID FLESHER
Hearing:17 August 2005

Court:Anderson P, Randerson and Williams JJ
Counsel:R Wade for Appellant

M D Downs for Crown

Judgment:25 August 2005

JUDGMENT OF THE COURT

Appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS
(Given by Anderson P)
Factual background
[1]       In May 2004 the appellant was convicted on his trial before District Court Judge Epati and a jury on three representative counts of indecently assaulting young girls and four representative counts of wilfully ill-treating children. The indecent assaults related to two sisters and the charges of wilfully ill-treating related to those girls and two of their brothers. The District Court Judge declined sentencing jurisdiction. The appellant was sent to the High Court where, in December 2004, Frater J imposed preventive detention with a minimum non-parole period of five years. This appeal is against both conviction and sentence.
[2]       The indecent assaults consisted of the appellant rubbing his body against buttocks and genitals. This occurred when he and the girls were clothed so that there was no skin to skin contact. At relevant times one girl, whom we will call A, was about 12 years of age and the other girl, B, was about 9 or 10.
[3]       The offences of wilfully ill-treating children consisted of him striking them with his fists, a belt, a bamboo stick and kicking them with his boots on.
Grounds of appeal against conviction
[4]       The grounds of appeal against conviction are that the trial Judge wrongly declined leave to the appellant’s trial counsel (not Mr Wade) to cross-examine A about her previous sexual experience, and that the trial Judge misdirected the jury in respect of the onus of proof on the charges of wilful ill-treatment.
[5]       On the morning of the trial the Judge heard and determined an application on behalf of the appellant for leave to cross-examine pursuant to s 23A of the Evidence Act 1908. The purpose of the intended cross-examination was to elicit that A had been sexually abused at about the age of four. The defence wished to submit that A’s knowledge of sexual activity was not based on what the appellant was accused of but on the early childhood experience. Further, the defence wished to submit that A’s attitude to the appellant was the product of a transference of anger from the early malefactor.
[6]       The Judge held that the statutory test for the grant of leave had not been met. That test is stipulated by s 23A(3) of the Evidence Act 1908 in the following terms:
(3)     The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to—
(a)     Facts in issue in the proceeding; or
(b)     The issue of the appropriate sentence,—

as the case may require, that to exclude it would be contrary to the interests of…

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 Flesher v The Queen

Details

AGLC: Flesher v The Queen [2005] NZCA 217
Case: [2005] NZCA 217
Decision Date: 25 August 2005

CaseChat Overview and Summary

Mark David Flesher appeals against his conviction and sentence, which were imposed by the High Court. The appeal was heard by Anderson P, Randerson and Williams JJ in August 2005. Flesher was convicted of indecently assaulting two sisters and wilfully ill-treating those girls and two of their brothers. He was sentenced to preventive detention with a minimum non-parole period of five years. The grounds of appeal against conviction were that the trial judge wrongly declined leave to cross-examine one of the victims about her previous sexual experience and that the trial judge misdirected the jury in respect of the onus of proof on the charges of wilful ill-treatment. The grounds of appeal against sentence were that the trial judge was unduly influenced in her determination that preventive detention was the appropriate sentence by the refusal of the appellant to acknowledge guilt. The court held that the trial judge’s refusal to grant leave to cross-examine was correct because the statutory test was not satisfied. The court also held that the omission of “not” in the first sentence of the summing up did not occasion any miscarriage of justice. The court held that the sentence of preventive detention was appropriate in the circumstances. The court noted that the possibility of an extended supervision order must be taken into account when assessing the extent to which a lengthy determinate term will provide adequate protection for the public. However, the court was persuaded that, notwithstanding the extended supervision regime, a sentence of preventive detention was appropriate in this case.

The appeals against conviction and sentence are dismissed.

Orders