Foster v The Queen - [2021] NZSC 90

REDACTED VERSION FOLLOWING VARIATION OF SUPPRESSION ORDER MADE BY THE COURT OF APPEAL ON 27 JULY 2021

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

NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT’S FATHER PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

NOTE: SUPPRESSION ORDER IN RELATION TO ASPECTS OF THE COURT OF APPEAL JUDGMENT PURSUANT TO S 205 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THE NAME OF THE APPLICANT’S UNIT REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 40/2021
[2021] NZSC 90

BETWEEN	JAMIE ANTHONY FOSTER Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	P L Borich QC for Applicant S E Trounson for Respondent
Judgment:	19 July 2021
Reissued:	12 August 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted of sexual violation by unlawful sexual connection and indecent assault after a District Court jury trial. He was sentenced to a term of imprisonment of six years.[1] He appealed against his convictions to the Court of Appeal, but the appeal was dismissed.[2] He now seeks leave to appeal to this Court against his convictions.

Background

[1]R v Foster [2020] NZDC 7250 (Judge Thomas).

[2]Foster v R [2021] NZCA 90 (Courtney, Woolford and Mander JJ) [CA judgment].

The applicant and the complainant were both police officers based in the greater Auckland area who had been assigned to duties at the Waitangi Day celebrations.[3] They were staying in a motel in Kerikeri. There was a party atmosphere on the night in question with alcohol being consumed.
[3]On 27 July 2021, the Court of Appeal made an order under s 203(3) of the Criminal Procedure Act 2011 varying automatic suppression under that section of the complainant’s identifying particulars to allow publication of her occupation. Automatic suppression of the complainant’s name, address and other identifying particulars remains in force.
The alcohol was stored in the motel unit assigned to the applicant and another male colleague. Around 12.30 am, the complainant went into that room to get a drink. Her evidence was that as she was doing this, the applicant indecently assaulted her by putting his hand down her shorts and rubbing her genital area over her underwear. She says she resisted this and the applicant desisted. She did not tell anyone as she did not wish to make a fuss. We will call this the first incident.
At about 2.30 am, after the complainant had gone to bed in a unit she was sharing with a female colleague, the applicant entered the unit. On the complainant’s evidence, she awoke to a painful forced feeling in her vagina. She protested and the applicant stopped. A conversation of some…

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 Foster v The Queen

Details

AGLC: Foster v The Queen [2021] NZSC 90
Case: [2021] NZSC 90
Decision Date: 19 July 2021

CaseChat Overview and Summary

Jamie Anthony Foster appealed against his convictions for sexual violation and indecent assault, which were upheld by the Court of Appeal. The applicant, a police officer, was sentenced to six years in prison following a jury trial at the District Court. He now seeks leave to appeal against his convictions to the Supreme Court of New Zealand. The applicant argues that the Court of Appeal erred in its analysis of the evidence and that this led to a miscarriage of justice. The Court was required to determine whether there were sufficient grounds for leave to appeal to be granted. The issues before the Court were whether the trial Judge's refusal to allow the applicant to cross-examine a police officer about an exculpatory statement made by the applicant to the officer engaged s 21 of the Evidence Act 2006, and whether the Court of Appeal erred in its treatment of four matters it found went wrong during the trial.

The Court found that the argument regarding s 21 of the Evidence Act did not have sufficient prospects of success to justify a further appeal. The Court of Appeal had held that the prohibition in s 21 should not be interpreted flexibly, and that it was clear that the statement in question was of a wholly exculpatory character and not a mixed inculpatory/exculpatory conversation between the applicant and the witness. The Court also found that the argument regarding s 232 of the Criminal Procedure Act did not have sufficient prospects of success to justify a further appeal. The Court of Appeal had considered the four matters it found went wrong during the trial and determined that they did not affect the outcome of the trial, and therefore did not cause a miscarriage of justice.

The application for leave to appeal is dismissed.

Orders