K v The Queen - [2019] NZSC 102

NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT
PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

NOTE: ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANT’S FAMILY MEMBERS WHO WERE WITNESSES AT THE TRIAL PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

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 ANY WITNESSES UNDER 18 YEARS OF AGE PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 70/2019
[2019] NZSC 102

BETWEEN	K (SC 70/2019) Applicant
AND	THE QUEEN Respondent

Court:	Winkelmann CJ and Glazebrook J
Counsel:	L A Andersen for Applicant R K Thomson for Respondent
Judgment:	26 September 2019

JUDGMENT OF THE COURT

A An extension of time for leave to appeal is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr K was convicted of serious sexual offending against the young daughter of his then-partner. His appeal against conviction was dismissed by the Court of Appeal on 27 June 2019.[1] Mr K now seeks leave to appeal to this Court.
[1]K (CA445/2018) v R [2019] NZCA 264 (French, Miller and Lang JJ) [CA judgment].
The application is out of time. No objection was taken by the respondent and the delay was only a few days. An extension of time to appeal is granted.
The grounds on which Mr K seeks leave to appeal are:
(a)Evidence related to the family dynamics should not have been admitted. Essentially, the evidence was that Mr K was a “dominating and controlling figure prone to angry outbursts, abusive language and, on occasion, violence”;[2] and
(b)The trial judge’s failure to give a specific relationship evidence direction caused a miscarriage of justice.

Court of Appeal decision

[2]At [14].

The Court of Appeal agreed with Mr K’s counsel that the relationship evidence was propensity evidence. Citing Mahomed v R, the Court accepted that, although the evidence was not orthodox propensity evidence and not led for the purpose of coincidence reasoning, it fell within the definition of propensity evidence under s 40 of the Evidence Act 2006.[3]
[3]At [18], citing Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
However, the Court of Appeal did not accept the submission that the evidence should have been excluded. The evidence was relevant because it provided context to the offending, a possible explanation for the complainant’s passive and uncomplaining behaviour and an explanation as to why Mr K may have targeted the complainant.[4] It also bore on the complainant’s delay in disclosing the offending, a matter the defence had put in issue. The Court considered that to have excluded the evidence would have provided a “sanitised and quite misleading picture of the…

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 K v The Queen

Details

AGLC: K v The Queen [2019] NZSC 102
Case: [2019] NZSC 102
Decision Date: 26 September 2019

CaseChat Overview and Summary

The case of K v The Queen involved an appeal against conviction by Mr K, who was found guilty of serious sexual offences against his partner's daughter. The Court of Appeal dismissed Mr K's appeal on 27 June 2019. The applicant now seeks leave to appeal to the Supreme Court. The legal issues in the case revolve around the admissibility of relationship evidence and whether the trial judge's failure to give a specific relationship evidence direction resulted in a miscarriage of justice. The Court of Appeal had considered these issues and concluded that the evidence was relevant and did not necessitate a specific direction, and the absence of such a direction did not result in a miscarriage of justice.

The Supreme Court found that the points Mr K sought to raise had already been thoroughly examined by the Court of Appeal and that there was no indication that the Court of Appeal's analysis was in error. Therefore, the interests of justice did not warrant granting Mr K's application for leave to appeal. The Supreme Court granted an extension of time for leave to appeal but dismissed the application for leave to appeal.

In light of the above, the Supreme Court did not grant leave to appeal. No further orders were made by the court.

Orders