Kohai v R - [2015] NZSC 36

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NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985

IN THE SUPREME COURT OF NEW ZEALAND

SC 42/2014
[2015] NZSC 36

BETWEEN	ABRAHAM EPARAIMA KOHAI Appellant
AND	THE QUEEN Respondent

Hearing:	22 October 2014
Court:	McGrath, William Young, Glazebrook, Arnold and O'Regan JJ
Counsel:	W C Pyke and S K Green for Appellant J M Jelas for Respondent
Judgment:	16 April 2015

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by Arnold J)

Like the appeal in DH (SC 9/2014) v R,[1] the judgment in which we are delivering contemporaneously, this appeal raises the issue of counter-intuitive evidence. This is evidence given by an expert in order to correct erroneous beliefs or assumptions that fact-finders may hold about how children who have been sexually abused behave. The aim of such evidence is to avoid illegitimate reasoning by fact-finders. Mr Pyke, who argued the appeal in DH (SC 9/2014), also argued the present appeal.
[1]DH (SC 9/2014) v R [2015] NZSC 35.
The background is that the appellant was convicted following a jury trial before Judge Wolff on nine of 14 counts of historical sexual offending against three complainants, all of whom were under 12 years of age at the time of the offending. He was acquitted on a number of additional counts. He appealed against his convictions on two grounds – trial counsel incompetence and wrongful admission of evidence from a psychologist, Dr Suzanne Blackwell, addressing counter-intuitive behaviour. The Court of Appeal dismissed his appeal.[2] The appellant was granted leave to appeal to this Court on the question whether the Court of Appeal was correct to dismiss his conviction appeal.[3]
[2]Kohai v R [2014] NZCA 83 (Harrison, Simon France and Dobson JJ) [Kohai (CA)].
[3]Kohai v R [2014] NZSC 91.
In his written submissions, Mr Pyke identified two matters in relation to the appellant’s trial which, he said, had the combined effect of rendering the trial unfair. These were:
(a)The counter-intuitive evidence called by the Crown was over-broad and, in part at least, inadmissible; and
(b)The prosecutor made inappropriate and prejudicial remarks about the appellant in her closing address to the jury, which were not sufficiently addressed by the trial Judge in his summing up.

Mr Pyke also raised two points about the Court of Appeal’s decision in his written submissions:

(c)The Court did not deal fairly with the appellant, who gave evidence before it.
(d)The Court considered the various points raised by the appellant in isolation rather than considering them as a whole.

Although he identified the issue, Mr Pyke did not elaborate on the alleged failure of the Court of Appeal to treat the appellant fairly in either his written or oral submissions. Accordingly, we take that aspect no further. We will address the remaining issues in turn, after we have set out the factual background.

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 Kohai v R

Details

AGLC: Kohai v R [2015] NZSC 36
Case: [2015] NZSC 36
Decision Date: 16 April 2015

CaseChat Overview and Summary

In Kohai v R, the Supreme Court of New Zealand reviewed an appeal by Abraham Eparaima Kohai, who was convicted of multiple counts of historical sexual offending against three complainants, all under the age of 12 at the time of the alleged offences. The appellant's primary grounds for appeal were the alleged incompetence of his trial counsel and the admission of counter-intuitive evidence from a psychologist, Dr Suzanne Blackwell. The Court of Appeal had dismissed the appeal, and the appellant sought leave to appeal to the Supreme Court.

The court considered whether the trial was rendered unfair by the scope and content of Dr Blackwell's evidence and whether the prosecutor's closing address contained prejudicial remarks. The court concluded that while some aspects of Dr Blackwell's evidence were overly broad and some comments by the prosecutor were inappropriate, these issues did not cumulatively prejudice the trial to the extent that it was unfair. The court emphasized the importance of counter-intuitive evidence in correcting misconceptions about the behavior of sexually abused children and highlighted the need for such evidence to be presented clearly and concisely. Despite the identified issues, the court found that the trial was fair overall and dismissed the appeal.

Orders