Grooby v The Queen
[2018] NZSC 114
•26 November 2018
| NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE |
| NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 85/2018 [2018] NZSC 114 |
| BETWEEN | ANTHONY DONALD GROOBY |
| AND | THE QUEEN |
| Court: | William Young, O’Regan and Ellen France JJ |
Counsel: | E Huda for Applicant |
Judgment: | 26 November 2018 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
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REASONS
Following his trial before Judge Ruth and a jury, the applicant was found guilty of sexual offences against three young girls. The prosecution relied on propensity evidence from a fourth person who alleged that the applicant on an earlier occasion had engaged in conduct which, in one respect, was similar to that alleged by two of the complainants. The applicant’s appeal against conviction was dismissed by the Court of Appeal[1] and he now seeks leave to appeal to this Court.
[1]Grooby v R [2018] NZCA 344 (Williams, Brewer and Thomas JJ).
The argument which counsel for the applicant wishes to advance in this Court is that where the Crown relies on evidence to the effect that the defendant has a propensity to commit offences of the kind alleged, the jury should be told not to rely on propensity reasoning unless satisfied that the propensity has been proved beyond reasonable doubt. Judge Ruth did not direct the jury in that way.
The recent decision of the United Kingdom Supreme Court in R v Mitchell supports the applicant’s argument; albeit that it was decided in the context of a particular evidential code.[2] And it is also possible to derive support for the argument (and the slightly different/overlapping argument that the other offending to which the propensity evidence relates must be proved beyond reasonable doubt) from certain Australian decisions, most particularly HML v R.[3]
[2]R v Mitchell [2016] UKSC 55, [2017] AC 571.
[3]HML v R [2008] HCA 16, (2008) 235 CLR 334.
The law in New Zealand has taken a different course, as illustrated by R v Holtz,[4] the general reasoning in the minority judgment in Mahomed v R[5] (which was adopted in Taniwha v R[6]) and our willingness to allow in evidence relating to an allegation in respect of which the defendant has previously been acquitted, as in Fenemor v R.[7]
[4]R v Holtz [2003] 1 NZLR 667 (CA).
[5]Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
[6]Taniwha v R [2016] NZSC 121, [2017] 1 NZLR 116 at [64]–[65].
[7]Fenemor v R [2011] NZSC 127, [2011] 1 NZLR 298.
The submissions for the respondent note that: (a) HML has attracted a good deal of criticism in Australia (including legislative reversal in Victoria[8]); and (b) an argument which overlaps with the one that succeeded in Mitchell has been rejected in Canada.[9] As well, the Mitchell approach is not consistent with the approach taken in respect of circumstantial evidence.[10]
[8]Jury Directions Act 2015 (Vic), ss 61 and 62.
[9]R v Arp [1998] 3 SCR 339.
[10]See, for example, R v Guo [2009] NZCA 612.
Although the applicant’s argument raises a legal issue of public importance, it is inconsistent with what is now the settled law in New Zealand and it has insufficient prospects of success to warrant the grant of leave.
The application for leave to appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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