Green v The Queen - [2015] NZCA 324

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

NOTE: PERMANENT SUPPRESSION ORDER OF NAME OF WITNESS MADE IN THE DISTRICT COURT REMAINS IN FORCE

IN THE COURT OF APPEAL OF NEW ZEALAND

CA283/2014
[2015] NZCA 324

BETWEEN	RODNEY JOHN GREEN Appellant
AND	THE QUEEN Respondent

Hearing:	7 July 2015
Court:	White, Keane and Kós JJ
Counsel:	E R Fairbrother QC for Appellant M J Lillico for Respondent
Judgment:	23 July 2015 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce the evidence of Dr D F Garavan is declined.
BThe appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Following a jury trial in the Napier District Court, the appellant, Mr Green, was convicted on two charges of indecent assault and sentenced to 175 hours community work and ordered to pay the complainant $3,000 in emotional harm reparation.[1] He was acquitted on four other charges of indecent assault, including one involving another complainant.
[1]R v Green DC Napier CRI-2013-041-770, 9 May 2014.
Mr Green appeals against his convictions on the ground that there was a miscarriage of justice at his trial because relevant medical evidence was not called to address the “key” issue of the complainant’s bruising which she claimed resulted from one of the assaults.[2] He has abandoned an appeal against sentence.
[2]Crimes Act 1961, s 385(1)(c).
The incidents giving rise to the charges allegedly occurred when the complainants drove Mr Green and others in a limousine to and from a sporting event. It is unnecessary to refer further to the first incident involving complainant A, who drove the vehicle to the event, because Mr Green was acquitted on that charge.
The five other incidents involved complainant B who picked up Mr Green and the others after the event and drove Mr Green home. Complainant B’s evidence was that Mr Green: grabbed her bottom before getting into the vehicle; placed his hand between her legs when in the front seat of the vehicle beside her; kissed her on the mouth; squeezed her left breast; and placed her hand on his exposed penis.
In addition to describing these incidents, complainant B gave evidence that she told a number of people about aspects of Mr Green’s behaviour over the following 24 hours, including her then partner, and that she had showed him bruising to her left breast and left arm which she said had been caused by Mr Green grabbing her. She was not cross-examined about this aspect of her evidence.
Complainant B’s partner gave evidence confirming what complainant B said she had told him and that he had seen the bruising. He also said the complainant B might have told him Mr Green stuck his tongue down her throat, but his evidence under cross‑examination was that she did not tell him that Mr Green had grabbed her bottom, put his hand between her legs or put her…

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 Green v The Queen

Details

AGLC: Green v The Queen [2015] NZCA 324
Case: [2015] NZCA 324
Decision Date: 23 July 2015 at 3.00 pm

CaseChat Overview and Summary

Rodney John Green appealed his convictions on two charges of indecent assault, arguing that there was a miscarriage of justice because relevant medical evidence was not called to address the complainant's bruising, which she claimed resulted from one of the assaults. He was acquitted on four other charges of indecent assault. The appeal was heard by the Court of Appeal of New Zealand, which found that the bruising evidence was not as crucial to the prosecution as Mr Green claimed. The jury's different verdicts could be reconciled on the basis of the partner's evidence, which only corroborated the two charges on which Mr Green was convicted. The court found that the prosecutor's references in closing to the bruising were not inappropriate, and that the evidence of Dr Garavan, who did not examine the bruises, did not meet the requirements for the admissibility on appeal of expert opinion evidence. The court concluded that Mr Green's ground of appeal had not been established and there was no miscarriage of justice.

The application for leave to adduce the evidence of Dr Garavan was declined and the appeal against conviction was dismissed. The court found that the bruising evidence was not as crucial to the prosecution as Mr Green claimed, and that the prosecutor's references in closing to the bruising were not inappropriate. The court also found that the evidence of Dr Garavan did not meet the requirements for the admissibility on appeal of expert opinion evidence. The court concluded that Mr Green's ground of appeal had not been established and there was no miscarriage of justice.

Orders