HF v The the King - [2022] NZHC 2838

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

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-154

[2022] NZHC 2838

BETWEEN
HF

Appellant

AND

THE KING

Respondent

Hearing: 10 October 2022

Appearances:

MA Simpkins for the Appellant AJ Gordon for the Respondent

Judgment:

1 November 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 1 November 2022 at 12.00pm

Registrar/Deputy Registrar

Date……………………………

Solicitors: Lance Lawson Limited, Rotorua
Crown Solicitor, Rotorua

HF v R [2022] NZHC 2838 [1 November 2022]

Introduction

[1] The appellant faced one charge of rape and one charge of unlawful sexual connection in the Youth Court.1 The charges arose in relation to sexual conduct with the appellant’s aunt, though given their respective ages, the pair grew up as and considered themselves cousins. The appellant was 16 years old at the time of the offending and the complainant 17 years old. The appellant’s position at trial was that the sexual activity between the pair was either consensual, or he had a reasonable belief in consent.

[2] Following a two-day Judge-alone trial before Judge MA MacKenzie in the Youth Court, the Judge found both charges against the appellant proved.2

[3] The appellant now appeals against that decision, saying that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.3

[4] The appellant also applies to admit new evidence on the appeal, being an affidavit of the complainant’s older sister who I will refer to as MM. MM gives evidence of what she says the complainant told her about the offending. MM’s affidavit also attaches two text messages which the complainant sent two days after the alleged offending. The text messages are said to undermine the complainant’s evidence that she did not consent to the sexual conduct with the appellant.

[5]This judgment is structured as follows:

(a)I first set out the factual background and the key aspects of the Judge’s decision.

(b)I then summarise the applicable legal principles.

1      The appellant does not have name suppression, but given he and the complainant are related (and it is necessary to refer to the nature of that relationship in this judgment), I have not used the appellant’s name, in order to protect the complainant’s identity.
2      R v KH [2021] NZYC 489.
3      Criminal Procedure Act 2011, s 232(2)(b).

(c)I then summarise the parties’ submissions.

(d)Next, I set out my decision on the appeal, putting aside the fresh evidence.

(e)Finally, I address the whether the new evidence should be admitted on the appeal, and if so, whether when combined with the evidence given at trial, it might reasonably have led the Judge to conclude that the charges had not been proven.

Factual background

[6] There was no dispute at trial that sexual conduct took place between the complainant and the appellant, and each of them…

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 HF v The the King

Details

AGLC: HF v The the King [2022] NZHC 2838
Case: [2022] NZHC 2838
Decision Date: 1 November 2022

CaseChat Overview and Summary

In the matter of HF v The King, the appellant, HF, appealed against his conviction in the Youth Court for one charge of rape and one charge of unlawful sexual connection. The appeal was dismissed, and the application to admit further evidence on the appeal was also dismissed, with the exception of certain text messages sent by the complainant on 7 February 2021.

The Youth Court Judge had found both charges against the appellant proved, concluding that the complainant did not consent to the sexual activity and that the appellant did not have a reasonable belief in consent. The appellant argued that the Youth Court Judge had erred in her assessment of the evidence, particularly in relation to the complainant's evidence that she could have left the room at any time but did not. The court held that the Judge had not erred in her treatment of this aspect of the complainant's evidence.

In addition, the appellant sought to admit further evidence on the appeal, being an affidavit from the complainant's older sister, MM, who claimed that the complainant had told her about "hooking up" with the appellant and that the complainant had not mentioned being raped. The court found that there were real doubts as to whether MM's evidence was fresh, and that her evidence was not sufficiently credible or cogent to be admitted on the appeal. However, the text messages sent by the complainant on 7 February 2021 were admitted as they were reliable evidence and the complainant accepted that she had sent them. Nevertheless, the existence of these text messages did not give rise to a miscarriage or a risk of a miscarriage.

Orders