Herbert v The Queen - [2020] NZSC 48

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

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT AND ANY PERSON 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 15/2020
[2020] NZSC 48

BETWEEN	EDWARD RAWIRI HERBERT Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	A J Holland and K J Simonsen for Applicant J E Mildenhall for Respondent
Judgment:	18 May 2020

JUDGMENT OF THE COURT

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

BThe application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant, Mr Herbert, was convicted after trial on one charge of sexual violation by rape. His appeal against conviction to the Court of Appeal was dismissed.[1] He now seeks leave to appeal to this Court on the basis that the jury’s verdict was unreasonable.

Background

[1]Herbert v R [2019] NZCA 640 (Collins, Brewer and Gendall JJ) [CA judgment].

The incident giving rise to the charge arose in this way. On 15 July 2017, the complainant, aged 16, became intoxicated at a party held in a house in Auckland. She was carried to a bed in a spare room at the house by her friends to sleep it off. Mr Herbert, aged 34, was later found in the same room. The two did not know each other. When found in the room the complainant was on a mattress on the floor. Both the complainant and Mr Herbert were without their underwear and the complainant was in a distressed state. She did not have much recollection as to what happened in the bedroom. Police were called and arrived shortly after midnight. A medical examination was undertaken in the early hours of the following morning. Subsequent forensic testing of swabs taken as part of that examination identified Mr Herbert’s semen on vaginal swabs from the complainant and his DNA on a swab taken from a bruise on her neck.
At trial, the complainant’s evidence-in-chief was given by way of video interview. In the interview she said she remembered getting held down and trying to get away and feeling Mr Herbert “like rubbing up” against her. She told police a scratch on her arm had resulted from a struggle with Mr Herbert. In cross-examination the complainant said she could not recall any penetration or being in the bedroom with Mr Herbert and that she had “guessed a few things” when she had spoken to the police. She also accepted that she had made an assumption about how she got the scratch on her arm.
Susan Vintiner, a forensic scientist, from the Institute of Environmental Science and Research Ltd (ESR) gave evidence at trial as part of the Crown case…

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 Herbert v The Queen

Details

AGLC: Herbert v The Queen [2020] NZSC 48
Case: [2020] NZSC 48
Decision Date: 18 May 2020

CaseChat Overview and Summary

In the case of Herbert v The Queen, the applicant, Mr. Herbert, sought leave to appeal to the Supreme Court of New Zealand against his conviction for sexual violation by rape. The Court of Appeal previously dismissed his appeal against conviction. Mr. Herbert contended that the jury's verdict was unreasonable, primarily due to the alleged insufficiency of evidence to prove penile penetration. The Supreme Court was tasked with determining whether the application for leave to appeal should be granted, considering the applicant's arguments about the unreasonableness of the jury's verdict and the appropriate application of scientific evidence in such cases.

The court considered whether the proposed appeal raised any question of general or public importance concerning the application of the principles governing unreasonable verdicts, particularly as they pertain to the interpretation of scientific evidence. Mr. Herbert argued that the Court of Appeal erred in its approach to the evidence, leading to a miscarriage of justice. The Crown, on the other hand, argued that the appeal did not raise any significant legal issues of general importance and that the jury's verdict was supported by a range of evidence, including the complainant's testimony and the scientific analysis. The Supreme Court found that the proposed appeal would essentially revisit the arguments already considered by the Court of Appeal and did not present any new questions of general or public importance.

The Supreme Court granted the application for an extension of time to file the application for leave to appeal due to the explained delay, but ultimately dismissed the application for leave to appeal. The Court concluded that the proposed appeal did not meet the criteria for leave under the Senior Courts Act 2016, as it did not raise a question of general or public importance nor did it present an appearance of a miscarriage of justice. Consequently, Mr. Herbert's appeal against his conviction was not allowed to proceed to the Supreme Court.

Orders