KL (SC 113/2021) v The Queen - [2021] NZSC 162

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 NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF THE COMPLAINANT AND ANY PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 113/2021
[2021] NZSC 162

BETWEEN	KL (SC 113/2021) Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	M B Dodds for Applicant F E S F Girgis for Respondent
Judgment:	24 November 2021

JUDGMENT OF THE COURT

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

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr KL was convicted on one representative charge of committing an indecent act on a child under 12 years. He was acquitted on six other charges of sexual and violent offending against the same complainant.
Mr KL applies for leave to appeal against the Court of Appeal’s decision declining his application to adduce new evidence and dismissing his appeal against conviction.[1]

Grounds of appeal

[1]KL (CA753/2020) v R [2021] NZCA 375 (Gilbert, Brewer and Hinton JJ).

Mr KL seeks leave to appeal on two grounds:
(a)new evidence; and
(b)inconsistent verdicts.
Subsequent to trial, Mr KL obtained a Report of Concern (ROC) made by a social worker from Oranga Tamariki relating to the first telephone call received from the complainant’s mother with regard to the complainant’s disclosure of the alleged offending. It is submitted that the ROC, had it been available at trial, would have supported the defence’s contention that the complainant was coached.
Mr KL submits that the findings of the jury on charge one and the other charges were logically inconsistent. Mr KL was found guilty of charge one but not of charge two, although both are alleged to have occurred at the same time. Mr KL submits that most of the charges were interrelated. To find charge one proved but not the others was, on his submission, unreasonable.

Court of Appeal decision

The Court of Appeal refused to admit the ROC on the basis it had insufficient cogency to be admitted as fresh evidence on appeal.[2] The Court said that the ROC was not a verbatim record and was ambiguous, the allegations of coaching were before the jury and the interactions with Oranga Tamariki were put to the complainant’s mother.[3] The Court concluded that the ROC would not have added anything materially to the defence case. Further, it potentially would have supported the Crown’s case.[4] In any event, the ROC pertained mostly to the second charge against Mr KL, on which he was acquitted.[5]
[2]At [45].
[3]At [48].
[4]At [51].
[5]At [52].
On the unreasonable verdict submission, the Court of Appeal applied the test in R v Munro[6] and B (SC12/2013) v R.[7] It canvassed 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.

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Details

Case: [2021] NZSC 162
Decision Date: 24 November 2021

CaseChat Overview and Summary

The case of KL (SC 113/2021) v The Queen involved an appeal against the conviction of Mr KL, who was found guilty of committing an indecent act on a child under 12 years of age, but acquitted on six other charges of sexual and violent offending against the same complainant. Mr KL applied for leave to appeal against the decision of the Court of Appeal which declined his application to adduce new evidence and dismissed his appeal against conviction. The legal issues before the court were whether the new evidence, a Report of Concern (ROC), would have supported the defence's contention that the complainant was coached, and whether the jury's verdict on charge one and the other charges were logically inconsistent.

The court found that the ROC did not have sufficient cogency to be admitted as fresh evidence on appeal, and that it would not have materially added to the defence case. The court also found that the verdicts were not unreasonable, and that there was no apparent error in the Court of Appeal’s analysis. The application for leave to appeal was dismissed, but the application for an extension of time was granted as adequate reasons for the delay had been provided.

In conclusion, the Supreme Court dismissed the application for leave to appeal but granted the application for an extension of time. This decision highlights the importance of providing adequate reasons for any delay in making an application for leave to appeal, and the need for the applicant to demonstrate that their case raises a point of general or public importance, or that there is a risk of a miscarriage of justice. The court’s decision also reinforces the principle that the admission of fresh evidence on appeal is subject to strict scrutiny, and that such evidence must have sufficient cogency to be considered.

Orders