Heke-Gray v The King - [2024] NZSC 54

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

NOTE: COURT OF APPEAL ORDER IN [2018] NZCA 153 PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE PROPENSITY OFFENDING VICTIM PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 118/2023
[2024] NZSC 54

BETWEEN	JESSIE ARTHUR HEKE-GRAY Applicant
AND	THE KING Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	N P Chisnall KC and L A Elborough for Applicant Z R Johnston and W P So for Respondent
Judgment:	9 May 2024

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted of several sexual offences against the complainant.[1] While the Court of Appeal allowed the applicant’s appeal against sentence, it dismissed his appeal against conviction.[2] The applicant now applies for leave to appeal against his convictions to this Court.

Background

[1]The applicant was charged with other violent offences that are not the subject of this appeal.

[2]Heke-Gray v R [2023] NZCA 474 (Gilbert, Thomas and Woolford JJ) [CA judgment].

In September/October 2016, the complainant arranged on social media to come to Whangārei to live with the applicant. This was on the explicit basis she would have sex with him in exchange for protection against her former partner. In sexualised Facebook communications, she agreed to anal sex (if he used lubricant) and “ruff vicious forced sex” (provided the applicant did not hurt her).[3]
[3]At [10].
After collecting the complainant from the bus stop, the applicant told the complainant to drive him to a beach. His actions there led to three charges of sexual violation by unlawful sexual connection and one charge of assault with intent to injure (the beach incident).[4] At trial, the applicant disputed the level of violence involved and argued that the complainant consented and/or he believed she had done so.
[4]At [11].
The other sexual offences arose from two incidents within a two-week period. On the same evening as the beach incident, further alleged acts by the applicant while they were staying at a hotel resulted in two charges of sexual violation by unlawful sexual connection (the hotel incident).[5] Almost two weeks later, alleged actions by the applicant at a farm resulted in a charge of sexual violation by rape (the farm incident).[6] At trial, the applicant’s defence was that the hotel and farm incidents had not occurred.
[5]At [12].
[6]At [15].
The jury convicted the applicant on all charges. The applicant appealed to the Court of Appeal against his convictions and sentence.
In the Court of Appeal, the applicant applied to adduce further evidence. The proposed report from Dr Brandon Birath addressed how the applicant’s Foetal Alcohol Spectrum Disorder (FASD) may have impacted his belief in…

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 Heke-Gray v The King

Details

AGLC: Heke-Gray v The King [2024] NZSC 54
Case: [2024] NZSC 54
Decision Date: 9 May 2024

CaseChat Overview and Summary

Jessie Arthur Heke-Gray appealed to the Supreme Court of New Zealand against his conviction for several sexual offences, following a decision by the Court of Appeal which dismissed his appeal against conviction but allowed his appeal against sentence. The applicant sought leave to appeal to the Supreme Court, arguing that the proposed appeal raised an issue of general or public importance and that there was a risk of a substantial miscarriage of justice. The applicant contended that the Court of Appeal made several errors in assessing whether the evidence could have impacted the jury's outcome and whether there was a risk of a miscarriage of justice.

The Supreme Court held that the Court of Appeal did not require the further evidence to have impacted the verdicts on all the charges, as it had dealt with the incidents separately and assessed the relevance of the evidence for each charge. The Court also found that the evidence could not have assisted the jury with respect to the charges arising from the beach incident. The Court further concluded that once the Court of Appeal found the evidence could not have affected the jury’s outcome, no risk of a miscarriage of justice could arise from it not being before the jury. The Court found that the extent to which a defendant’s subjective mental state is relevant to the mens rea element of sexual violation offences may raise an issue of general or public importance. However, the applicant’s proposed appeal was not an appropriate case to explore this issue as it turned on its own facts and had insufficient prospects of success. The evidence could not assist on the hotel or farm incidents as the applicant's defence at trial was that neither incident occurred. The jury found they did, and the Crown had disproven consent. The further evidence was not relevant to whether the physical acts occurred, was not fresh and would involve the applicant seeking to change the basis of the defence run at trial.

The Supreme Court granted the application for an extension of time to apply for leave to appeal, but dismissed the application for leave to appeal against the convictions.

Orders