Henry v The Queen - [2020] NZSC 10

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

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 109/2019
[2020] NZSC 10

BETWEEN	SHANE KARI HENRY Applicant
AND	THE QUEEN Respondent

Court:	Winkelmann CJ, Glazebrook and O’Regan JJ
Counsel:	W C Pyke for Applicant A J Ewing for Respondent
Judgment:	19 February 2020

JUDGMENT OF THE COURT

A 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 after a District Court jury trial of a number of sexual and violent offences against his then partner, E, and also pleaded guilty to attempting to pervert the course of justice by sending text messages to E to ask her to drop the charges against him. The trial Judge, Judge Taumaunu, sentenced him to a term of imprisonment of ten years and six months.[1]
[1]R v Henry [2015] NZDC 18033.
The charges arose from two incidents, one in May 2013 and one in September 2013.
In relation to the May incident, the applicant was convicted of kicking E in the leg, the head and on her body, while he was wearing steel capped boots. He was also accused of kicking her in her genital area after she refused to have sex with him, but was acquitted on the charge of indecent assault that resulted from that part of the incident.
In relation to the September incident, the applicant was convicted of sexual violation by rape, sexual violation involving digital penetration and male assaults female.
The applicant appealed to the Court of Appeal against both conviction and sentence. His conviction appeal was dismissed but his sentence appeal was allowed in part and the effective sentence was reduced by six months.[2]
[2]Henry v R [2019] NZCA 407 (Williams, Simon France and Toogood JJ) [CA judgment].
The applicant now seeks leave to appeal to this Court against his convictions. His application was filed out of time but the respondent does not object to an extension of time being granted and we are satisfied it is appropriate to grant the extension.
The grounds of appeal that the applicant wishes to advance if leave is granted are:
(a)Admission of evidence of bizarre statements and behaviour: In his evidential video interview, the applicant made some rather bizarre statements. The complainant also referred to such statements and some bizarre behaviour by the applicant in her evidential video interview. A District Court Judge had agreed that some of these references should be excised in a pre-trial ruling, but the applicant’s counsel asked for some of them to be left in the version of the video that was played during the trial.[3] The applicant wishes to renew the argument he made in the Court of Appeal that this evidence should not have been admitted because it was unfairly prejudicial.
(b)Admission of evidence…

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 Henry v The Queen

Details

AGLC: Henry v The Queen [2020] NZSC 10
Case: [2020] NZSC 10
Decision Date: 19 February 2020

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to consider an application for leave to appeal from Shane Kari Henry, who had been convicted of sexual and violent offences against his then partner, E, and for attempting to pervert the course of justice. The applicant's conviction appeal had previously been dismissed by the Court of Appeal, but the sentence appeal was allowed in part, reducing his sentence by six months. The applicant sought leave to appeal against his convictions, arguing that the trial court had unfairly admitted evidence of bizarre statements and behaviour, as well as evidence of other allegations by the complainant.

The Court had to determine whether the applicant's proposed grounds of appeal, relating to the admission of certain evidence, were suitable for consideration. The Court found that the evidence of the applicant's bizarre statements and behaviour did not require a determination on whether such evidence should be admitted in cases involving mentally ill defendants. The Court also concluded that the evidence of other allegations by the complainant did not require reconsideration, as it had been properly admitted under the Evidence Act 2006. The Court considered that the appeal would not lead to a miscarriage of justice and dismissed the application for leave to appeal.

The Supreme Court granted an extension of time for the application for leave to appeal but dismissed the application itself. The Court found no grounds for the proposed appeal and did not consider it suitable for addressing the issues raised by the applicant. As a result, the applicant's convictions and sentence remain unchanged.

Orders