L v R - [2015] NZSC 53

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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.

NOTE: DISTRICT COURT ORDER SUPPRESSING THE NAME OF THE APPELLANT CONTINUES IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 28/2014
[2015] NZSC 53

BETWEEN	L (SC 28/2014) Appellant
AND	THE QUEEN Respondent

Hearing:	19 February 2015
Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	A N Isac and J L W Wass for the Appellant B J Horsley and Y M Moinfar for the Respondent
Judgment: Re-issue date:	21 April 2015 7 May 2015

JUDGMENT OF THE COURT

A The appeal is allowed and the conviction is quashed.
B There is to be no retrial.

____________________________________________________________________

REASONS
(Given by Glazebrook J)

Background

Mr L was convicted, after a jury trial in the District Court at Palmerston North before Judge Morris, of one representative charge of indecent assault against a boy aged between 12 and 16 years.[1] He was acquitted on two further charges. Mr L’s case in relation to each count was that the alleged acts had not occurred and that the complainant was either lying or unreliable in his account. All of the charges arose out of conduct that was alleged to have taken place almost 20 years ago.
[1]Contrary to s 140A(1)(a) of the Crimes Act 1961 (now repealed). He was sentenced to five months’ home detention, 200 hours of community work and ordered to pay reparation.
Mr L’s appeal against conviction was dismissed by the Court of Appeal on 30 May 2013.[2]
[2]L (CA707/2012) v R [2013] NZCA 191 (O’Regan P, Goddard and Lang JJ) [L v R (CA)].
On 8 August 2014, this Court granted Mr L leave to appeal on the following questions:[3]
(a)whether the trial Judge should have given the jury a warning, under s 122(1) of the Evidence Act 2006, concerning the complainant’s evidence; and
(b)whether the Court of Appeal was wrong to conclude that no miscarriage of justice arose from the Judge’s ruling as to the manner in which Mr L could give evidence of a payment he had made to the complainant.

Background

[3]L (SC 28/2014) v R [2014] NZSC 107 [L v R (SC leave)].

The events giving rise to the charges were alleged to have started when the complainant was 13 years old. Mr L had been engaged to assist with a drama production at the complainant’s school (we will call this “Production A”). The complainant was involved in the lighting for that production. He alleged that, when he and Mr L were together in a ‘genie’ (a crate at the top of a lighting ladder) during rehearsals, Mr L would press his erect penis into the complainant’s lower back. This was the basis for the first count.
The defence called evidence that a genie was not used during Production A. When this proposed evidence was put to…

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 L v R

Details

AGLC: L v R [2015] NZSC 53
Case: [2015] NZSC 53
Decision Date: 21 April 2015 7 May 2015

CaseChat Overview and Summary

This case involved an appeal by Mr L against his conviction for indecent assault against a boy, originally heard in the District Court at Palmerston North. The Supreme Court was asked to consider whether the trial Judge should have given the jury a warning, under s 122(1) of the Evidence Act 2006, concerning the complainant’s evidence, and whether the Court of Appeal was wrong to conclude that no miscarriage of justice arose from the Judge’s ruling as to the manner in which Mr L could give evidence of a payment he had made to the complainant. The Supreme Court held that a reliability warning should have been given. The issues of reliability were not merely related to peripheral matters but went to the heart of the charges. The fact that a warning was not given meant that the trial miscarried. This means that the appeal must be allowed. The Supreme Court also held that the evidence Mr L wished to give was not evidence showing his “propensity to act in a particular way or to have a particular state of mind”. It was merely evidence seeking to explain why he had paid the complainant. He should have been able to give that evidence in his own words.

Orders