H v R

Case [2019] NZSC 69 3 July 2019

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

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 97/2018
[2019] NZSC 69

BETWEEN	H (SC 97/2018) Appellant
AND	THE QUEEN Respondent

Hearing:	4 April 2019
Court:	Winkelmann CJ, William Young, Glazebrook, O’Regan and Ellen France JJ
Counsel:	A M S Williams and A J Bailey for Appellant C A Brook and P D Marshall for Respondent
Judgment:	3 July 2019

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS
(Given by Glazebrook J)

Table of Contents

Para No.
Introduction	[1]
Legislation	[5]
Background facts	[10]
Offending against Dianna	[10]
Offending against Emily	[13]
Procedural history	[14]
Court of Appeal judgment	[19]
Issues	[23]
Application of s 322	[24]
The Crown’s position	[24]
Mr H’s position	[26]
Our assessment	[28]
What are the principles to be applied?	[31]
Relationship of s 322 with s 147 of the Criminal Procedure Act and stay jurisdiction	[35]
Submissions	[35]
Decisions of the High Court	[37]
Our assessment	[39]
Has the time elapsed been unnecessarily or unduly protracted?	[42]
Submissions	[42]
Our assessment	[43]
Should the charge have been dismissed?	[46]
Suppression	[50]
Background	[50]
Our approach	[54]
Result	[59]

Introduction

In 2017 Mr H[1] was convicted after a jury trial on eight charges of sexual offending against his sister “Dianna” and his daughter “Emily” (not their real names).[2] He was sentenced to seven years’ imprisonment.[3]
[1]As explained in more detail later, “Mr H” has been used because, despite the appellant’s name not being suppressed, identifying him by name would breach the complainants’ protections under s 203 of the Criminal Procedure Act 2011 due to the nature of this offending and the complainants’ relationship to him.
[2]These fictional names were given to the complainants the courts below: R v [H] [2017] NZHC 1316 at [5] and [13]; and [H (CA376/2017)] v R [2018] NZCA 376 (Kόs P, French and Miller JJ) [CA judgment] at [3(a)], n 2. We have done the same to avoid confusion.
[3]The convictions in relation to Dianna were on: one charge of rape, four charges of indecency with a girl aged between 12 and 16 (three of which were representative charges) and one representative charge of indecent assault on a girl over 16. The convictions related to Emily were on: one representative charge of indecent assault on a girl aged under 12 and another of indecent assault on a girl aged 12–13 years.
Mr H’s appeal against conviction and sentence was dismissed by the Court of Appeal on 20 September 2018.
On 21 February 2019, this Court granted Mr H leave to appeal against one of the convictions: for the rape of Dianna.[4] This offending was alleged to have occurred between 1 December 1955 and 21 July 1959 when Mr H was aged between 16 and a half and 20 years and Dianna was aged between five years and four months and eight…

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 H v R

Details

AGLC: H v R [2019] NZSC 69
Case: [2019] NZSC 69
Decision Date: 3 July 2019

CaseChat Overview and Summary

In this case, Mr H appealed against his conviction and sentence for sexual offending against his sister and daughter. The Supreme Court found that Mr H's age at the time of the alleged offending should have been considered by the Court of Appeal when applying section 322 of the Oranga Tamariki Act 1989. The Court of Appeal had incorrectly held that section 322 did not apply to this case. However, the Supreme Court found that the charge for rape should not have been dismissed under section 322. The seriousness of the offence and the fact that Mr H had continued to offend against young victims meant that the discretion to dismiss the charge should not have been exercised. The Supreme Court also considered the issue of suppression and decided that the judgment should be released publicly, but with references to the appellant as Mr H to protect the identity of the complainants. The appeal was ultimately dismissed.

Orders