Kilroy v The Queen - [2016] NZHC 2115

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.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000056 [2016] NZHC 2115

BETWEEN
PHILIP ROLAND KILROY

Appellant

AND

THE QUEEN Respondent

Hearing: 22 August 2016

Appearances:

Peter Tomlinson for the Appellant
Nick Webby for the Respondent

Judgment:

7 September 2016

JUDGMENT OF MOORE J [Appeal against conviction]

This judgment was delivered by me on 7 September 2016 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

KILROY v THE QUEEN [2016] NZHC 2115 [7 September 2016]

Introduction

[1] Philip Roland Kilroy appeals his conviction on five counts of a sexual nature in relation to two complainants.

[2] The convictions were entered following a Judge-alone trial in the

District Court.

[3] The resolution of the case depended on the Judge’s findings of credibility and reliability in relation to the complainants. The defence was a bald denial. Mr Kilroy said the alleged offending never took place and the complainants were not telling the truth.

[4] Mr Kilroy now appeals his convictions. He says the Judge failed to give any or sufficient reasons for rejecting his evidence and that he failed to analyse the evidence in any detail, thereby erring to the extent a miscarriage of justice occurred.

Background

[5] The charges faced by Mr Kilroy were:

(a) indecency with a girl aged between 12 and 16 years;

(b) sexual violation by unlawful sexual connection; digital penetration

(representative);

(c) sexual violation by unlawful sexual connection; mouth to genitalia; (d) indecent assault on a girl under 12 years (representative); and
(e) attempted sexual violation; mouth to penis.

[6] The trial occupied three days commencing on 18 November 2015. Verdicts were delivered on 23 November 2015.

[7] The offending against the two complainants covered a period from the late

1970s (in relation to Count 1) to the turn of the new millennium (in relation to Counts 2 to 5). At trial the complainants’ pre-recorded evidential DVDs were played. This was supplemented by their oral testimony. The Crown called five other witnesses, four of whom were family members; either close relatives or relations by marriage. The officer-in-charge gave evidence of her dealings with Mr Kilroy, including playing his exculpatory interview recorded on DVD.

[8] Mr Kilroy was the only defence witness.

[9] The offending in relation to the first complainant was alleged to have taken place when she was about 12 years old. Her evidence was that she would occasionally stay at the appellant’s home. She described a single incident when he placed his hand down the back of her skirt and penetrated her vagina with his finger.

[10] The remaining charges related to the younger complainant and were later in time. These involved allegations the appellant rubbed her genitalia, inserted his finger or thumb into her vagina, connected his mouth with her genitalia, and attempted to force her to connect her mouth to his genitalia.

Judge…

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 Kilroy v The Queen

Details

AGLC: Kilroy v The Queen [2016] NZHC 2115
Case: [2016] NZHC 2115
Decision Date: 7 September 2016

CaseChat Overview and Summary

Philip Roland Kilroy appeals his conviction on five counts of a sexual nature in relation to two complainants. The convictions were entered following a Judge-alone trial in the District Court. The resolution of the case depended on the Judge’s findings of credibility and reliability in relation to the complainants. The defence was a bald denial. Mr Kilroy says the Judge failed to give any or sufficient reasons for rejecting his evidence and that he failed to analyse the evidence in any detail, thereby erring to the extent a miscarriage of justice occurred. The appeal was dismissed. The experienced District Court Judge had to make credibility decisions. The Judge accepted the evidence of the complainants and that means he must have rejected the evidence of the defendant. He says so. It is not necessary in these circumstances for him to create a record of his reasoning. In the present case, unlike the Judge in Biddle, Judge Down properly reminded himself of the tripartite direction. Furthermore, he expressly applied the principle which is implicit in the tripartite direction. He did not move inexorably from a finding in favour of the complainants’ credibility to an automatic determination of guilt. He went back to the evidence and examined the issues and elements the Crown was required to prove. He independently satisfied himself on the whole of the evidence the Crown had discharged its duty.

Orders