Herrick v The Queen - [2012] NZCA 202

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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT OR ANY PART OF IT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/2012 [2012] NZCA 202

BETWEEN JOSHUA JAMES HERRICK Appellant

ANDTHE QUEEN Respondent

Hearing: 16 May 2012
Court: Arnold, Ellen France and Venning JJ Counsel: P F Johnson for Appellant
C L Mander and M H Cooke for Respondent

Judgment: 22 May 2012 at 11 am

JUDGMENT OF THE COURT

A We grant leave to appeal but dismiss the appeal.

BOrder prohibiting publication of the judgment or any part of it in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest
permitted, however.

JOSHUA JAMES HERRICK V R COA CA165/2012 [22 May 2012]

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] The appellant, Mr Herrick, seeks leave to appeal against the decision of Judge Farish granting the Crown’s application for leave to file an amended indictment.1 The effect of the Judge’s decision is that a further count, namely attempting to pervert the course of justice, will be heard at the appellant’s forthcoming trial on six counts of sexual offending.

Background

[2] The Crown alleges that on 29 October 2008 the appellant and his co-accused took two 16-year-old girls to the appellant’s flat. There the two men plied the girls with alcohol, to the point that both lost their memory of what occurred during the evening. The Crown alleges that the two men engaged in sexual activity with the girls without their consent. They face counts of indecent assault, sexual violation by rape and stupefying the complainants.

[3] The Crown alleges that on 29 October 2008 the appellant and his co-accused made a video recording of the events at issue. A proposed witness, C, will give evidence that he was shown a video clip of the appellant engaging in sexual activity with one of the complainants. C’s evidence will be that the video recording shows the appellant forcing himself on the complainant while she was resisting his advances.

[4] The trial of both accused began on 22 February 2011 in Christchurch. The
Christchurch earthquake intervened and the trial was aborted. Two subsequent trials in Timaru and Greymouth were also aborted for different reasons.

1 R v Herrick DC Christchurch CRI-2009-009-18321, 22 March 2012.

[5] The Crown alleges that on 18 September 2011, shortly after the aborted Timaru trial, the appellant approached C while they were both waiting for a periodic detention van. The appellant, it is alleged, threatened C, telling him not to give evidence at trial and indicating that if he did, the appellant would have him charged with credit card fraud. It…

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 Herrick v The Queen

Details

AGLC: Herrick v The Queen [2012] NZCA 202
Case: [2012] NZCA 202
Decision Date: 22 May 2012

CaseChat Overview and Summary

Joshua James Herrick appealed against a decision by Judge Farish to permit the Crown to file an amended indictment, adding a charge of attempting to pervert the course of justice to the six counts of sexual offending with which he was charged. The Crown alleged that the appellant had, on 18 September 2011, threatened a proposed witness, C, not to give evidence at trial and indicating that if he did, the appellant would have him charged with credit card fraud. The appellant contended that the time period between the alleged sexual offending and the conduct leading to the charge of perverting the course of justice was too long and that the effect of joinder in the present case was to force the appellant to give evidence, thus depriving him of his right to remain silent. The Court considered that neither of the features identified by the appellant provided an appropriate basis for departing from the approach taken in R v Daleszak and R v Betti. The various counts were rightly joined in a single indictment. The Court granted leave to appeal but dismissed the appeal.

Orders