J (SC64/2024) v The King

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 64/2024
[2025] NZSC 56

BETWEEN	J (SC 64/2024) Applicant
AND	THE KING Respondent

Court:	Ellen France and Miller JJ
Counsel:	J W Griffiths for Applicant M J Lillico and T Zhang for Respondent
Judgment:	21 May 2025

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS

The applicant, whom we will call “J”, seeks leave to appeal his conviction and sentence for the rape of his 14-year-old daughter.[1] His identity is suppressed.
[1]See R v [J] [2022] NZDC 3278 (Judge Rowe); R v [J] [2022] NZDC 4706 (Judge Rowe) [DC reasons judgment]; and R v [J] [2022] NZHC 2364 (Cooke J).
J requires an extension of time. He has adequately explained the delay. We ‍are satisfied an extension of time is warranted in the circumstances.
J wishes to argue that the Court of Appeal erred in accepting the trial Judge’s reasons for accepting evidence of the complainant about a door, which she said J had interfered with to prevent her from leaving the area in which the rape occurred,[2] and says the defence was prejudiced because of lost evidence relating to the door. He ‍points to other alleged inconsistencies in the complainant’s evidence. He says that the trial Judge effectively required him to show that the complainant had a motive to lie. And he contends that the Court of Appeal erred in its reliance on Sena v Police to defer to the trial Judge’s credibility assessment because the complainant’s evidence had been pre-recorded in an evidential video interview.[3] With respect to sentence, he contends that the sentencing Judge erred by proceeding on the basis that there was an element of detention.
[2]DC reasons judgment, above n 1, at [103]–[133]; and J (CA519/2022) v R [2024] NZCA 21 (Mallon, Churchman and Osborne JJ) [CA judgment] at [50]–[52]. J was convicted following a judge-alone trial.
[3]CA judgment, above n 2, at [52] citing Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
The only issue which is potentially of general or public importance is the question whether an appellate court ought to defer to a trial Judge’s credibility assessment of a complainant whose evidence has been pre-recorded.[4] But in this case the complainant’s cross-examination at trial was not pre-recorded and it was described by the Court of Appeal as “thorough”,[5] so the issue does not fully arise. The allegation that the onus was reversed was not raised before the Court of Appeal, and we accept the Crown’s submission that an error in the trial Judge’s approach is not immediately apparent and leave should not be granted when this Court does not have the benefit of the Court of Appeal’s opinion.
[4]Senior Courts Act 2016, s 74(2)(a).
[5]CA judgment, above n 2, at [52].
The only other question is whether there may have been a miscarriage of justice.[6] As to that, the Court of Appeal reviewed the evidence and the trial Judge’s reasons for verdict, and was not persuaded.[7] Nothing raised by the applicant provides a reason to differ.
[6]Senior Courts Act, s 74(2)(b).
[7]See especially CA judgment, above n 2, at [46]–[52].
J was eligible for preventive detention, so he was sentenced in the High Court on findings of fact made by the trial Judge. The sentence was 12 years’ imprisonment with a minimum period of eight years. We see no error of principle or apparent miscarriage of justice in the reasons of the Court of Appeal.[8]
[8]At [62]–[68].
The application for leave to appeal is dismissed.

Solicitors:
Main Street Legal Ltd, Upper Hutt for Applicant

Te Tari Ture o te Karauna ǀ Crown Law Office, Wellington for Respondent

In the case of J (SC64/2024) v The King, the applicant, identified as "J," seeks leave to appeal his conviction and sentence for the rape of his 14-year-old daughter. The application for an extension of time to apply for leave to appeal was granted, and the application for leave to appeal was dismissed. The legal issues in this case primarily revolve around the admissibility and credibility of the complainant's evidence, the trial judge's assessment of this evidence, and the sentence imposed. The court was tasked with determining whether the Court of Appeal erred in its handling of the evidence and the credibility assessment of the complainant, and whether there was a miscarriage of justice.

The Supreme Court reviewed the arguments presented by J, who sought to challenge the Court of Appeal's decision in relation to the complainant's evidence about a door and the trial judge's credibility assessment. J argued that the defence was prejudiced due to lost evidence relating to the door and that the trial judge had effectively required him to prove that the complainant had a motive to lie. The Court of Appeal had deferred to the trial judge's credibility assessment, citing the complainant's pre-recorded evidential video interview, but the Supreme Court found that the cross-examination was not pre-recorded and was thorough, thus the issue did not fully arise. Additionally, the allegation that the onus was reversed was not raised before the Court of Appeal, and the Supreme Court found that no immediate error was apparent in the trial judge's approach.

The court also considered whether there was a miscarriage of justice. The Court of Appeal had already reviewed the evidence and the trial judge's reasons for verdict, and found no grounds for a miscarriage of justice. The Supreme Court, after reviewing the applicant's arguments, found no reason to differ with the Court of Appeal's decision. The sentence imposed was within the bounds of what the trial judge was permitted to do under the law, and the Supreme Court found no error of principle or apparent miscarriage of justice in the Court of Appeal's reasons.

The final orders of the court were to grant the application for an extension of time to apply for leave to appeal and to dismiss the application for leave to appeal. The decision underscores the importance of the trial judge's assessment in cases involving serious allegations and the limited scope for appellate courts to interfere with such assessments unless there is a clear error or miscarriage of justice.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established