H v The Queen - [2016] NZSC 103

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 49/2016
[2016] NZSC 103

BETWEEN	H (SC 49/2016) Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and Arnold JJ
Counsel:	J H M Eaton QC for Applicant A J Ewing for Respondent
Judgment:	15 August 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The proposed appeal

The applicant was found guilty of sexual offending in relation to his daughter. The offending covered a four year period (1998–2001) when she was between 10 and 13 and came to light in 2009 in the context of proceedings against the applicant in relation to sexual offending against another relative (P). The applicant was eventually (after four trials) acquitted in relation to the alleged offending against P but she gave evidence as a propensity witness at the applicant’s trial in relation to the offending against his daughter.
The applicant’s appeal against conviction and sentence was dismissed by the Court of Appeal.[1] His application for leave to appeal to this Court in respect of conviction proposed four grounds of appeal. None of these were advanced in the Court of Appeal.

No section 122 warning

[1]H (CA533/2014) v R [2015] NZCA 124 (Stevens, Asher and Williams JJ).

The first proposed ground of appeal is that a warning under s 122 of the Evidence Act 2006 was not given in respect of the evidence of either the daughter or P. By the time of the applicant’s trial, all allegations in respect of his daughter related to events which had occurred more than 10 years previously and the allegations of P related to events which had occurred some three decades earlier. The applicant’s counsel did not invite the judge to give a warning and the argument thus falls to be addressed under s 122(1) and (2)(e) but not (3).
The defence case in relation to both the daughter and P was that they had fabricated their allegations. Details of time and place do not appear to have been critical. In the case of the daughter, the allegations were made (in 2009) within 10 years of some of the offending and just outside that period in respect of the rest. While s 122(2)(e) is applicable to the evidence of a propensity witness, the need for such a warning in respect of such evidence is rather less than in the case of a complainant’s evidence.

Unconventional summing up on standard of proof

The second proposed ground of appeal relates to the way in which the Judge summed up on the standard of proof. The judge concluded his remarks on the standard of proof with an example from ordinary life (crossing a road). The transcript of what he said seems a little scrambled. But what we think he must have said is that one should not step onto a road if there is a chance…

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 The Queen

Details

AGLC: H v The Queen [2016] NZSC 103
Case: [2016] NZSC 103
Decision Date: 15 August 2016

CaseChat Overview and Summary

In the case of H v The Queen, the applicant sought leave to appeal against his conviction and sentence for sexual offending against his daughter, which occurred between 1998 and 2001 when she was between 10 and 13 years of age. The appeal was dismissed by the Court of Appeal, and the applicant sought further leave to appeal to the Supreme Court of New Zealand. The applicant proposed four grounds of appeal, none of which were advanced in the Court of Appeal. The grounds of appeal related to the failure to give a warning under s 122 of the Evidence Act 2006, the summing up on the standard of proof, the distinction between particular counts of rape and a representative count, and a reference to the film "Once Were Warriors."

The court considered each ground of appeal in turn. Firstly, the court found that a warning under s 122 of the Evidence Act 2006 was not required in this case, as the defence case did not rely on details of time and place. Secondly, the court held that the summing up on the standard of proof was not unconventional, and the judge's example from ordinary life did not result in a miscarriage of justice. Thirdly, the court found that the distinction between particular counts of rape and a representative count was sufficiently clear from the indictment, the prosecutor's closing address, and the chronology provided to the jury by the judge. Finally, the court held that the reference to "Once Were Warriors" was not prejudicial, as it had been mentioned in evidence and was relevant to the case.

The Supreme Court of New Zealand dismissed the applicant's application for leave to appeal. The court found that the case did not raise any question of public or general importance and that there was no appearance of a miscarriage of justice. The court held that the points raised in the appeal were not significant enough to warrant further consideration. The applicant's appeal against conviction and sentence was therefore dismissed.

Orders