G v The Queen - [2021] NZHC 695

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

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2020-483-11

[2021] NZHC 695

BETWEEN
G

Appellant

AND

THE QUEEN

Respondent

Hearing: 24 March 2021

Counsel:

N Bourke for the Appellant P D Marshall for Respondent

Judgment:

22 April 2021

JUDGMENT OF GRICE J

[1] The appellant was convicted of sexual violation and burglary following a Judge alone trial on 12 June 2020.1 He was sentenced on 7 August 2020 to 14 years’ imprisonment with a seven-year minimum period of imprisonment.2

[2] This is an appeal against the conviction.3 The grounds are: lack of a free and informed choice as to the mode of trial; that trial counsel failed to cross-examine on important aspects of the defence case; and that the appellant’s defence case was not properly put before the Court.

1      R v G [2020] NZDC 10945 [“Trial Decision”]; and Crimes Act 1961, ss 128(1)(a) and (b), 128B and s 231(1)(a).
2      R v G [2020] NZDC 15722 [“Sentencing Decision”].
3      The sentence appeal is not pursued by the appellant: G v R HC Wellington CRI-2020-483-000011, 11 February 2021.

G v R [2021] NZHC 695 [22 April 2021]

Background

Factual background

[3] The appellant is the paternal uncle of the complainant, B. B’s father is the appellant’s brother.

[4] B’s parents supported the appellant, offering him employment, financial assistance and helping care for his partner’s children. The relationship significantly deteriorated over 2015 and 2016. The Department of Child, Youth and Family Services (CYFS) were involved in relation to the appellant’s children. B’s father said he would not lie to CYFS about whether he had seen the appellant and his partner on drugs. The appellant became aggressive and threatening, and a few weeks later there was an altercation between the brothers. In January 2016, the appellant was trespassed from B’s family address.

[5] In July 2016, the appellant burgled B’s house. When apprehended, he explained he was “getting back at [his] brother”. He was held on remand and later sentenced between 29 October 2016 and 24 April 2017.

[6] The Crown case is that in 2017, the appellant entered B’s home on two occasions to find her home alone during the school holidays. B identified the appellant and described him violently raping her.

[7] On the first occasion, in April 2017, she recalled coming across him in the hall. The appellant grabbed B, ripped off her shorts and underwear, pushed her against the wall and raped her. He told B that she was “useless” and “this is revenge”. After ejaculating in her, he pushed on the floor, put on his clothes and left. She was bleeding from her vagina, she tried to clean up and went to bed for the rest of the day. She did not tell her parents what had happened, saying she hoped she could forget about 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 G v The Queen

Details

AGLC: G v The Queen [2021] NZHC 695
Case: [2021] NZHC 695
Decision Date: 22 April 2021

CaseChat Overview and Summary

The appellant, G, was convicted of sexual violation and burglary and appealed the conviction. The court was required to decide three issues: whether the appellant's choice to proceed with a Judge alone trial was informed, whether trial counsel failed to advance the defence case in accordance with the appellant's instructions, and whether there were material errors in the conduct of the cross-examination. The court found that the appellant's choice to proceed with a Judge alone trial was informed, as he had been advised of his right to elect and the implications of his advice in the circumstances. The court also found that trial counsel did not fail to advance the defence case in accordance with the appellant's instructions, as he had followed the appellant's instructions to focus on the complainant's credibility and had cross-examined the complainant extensively. Finally, the court found that there were no material errors in the conduct of the cross-examination, as the decisions regarding the style and ambit of cross-examination were not regarded as a fundamental decision where a failure to follow a client's instructions will generally make the trial unfair. The appeal against conviction and sentence were dismissed.

Orders