L v The Queen - [2015] NZSC 42

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 42

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:	21 April 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[1]Contrary to s 140A(1)(a) of the Crimes Act 1961 (now repealed).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 the complainant, he accepted that it could be “a pretty fundamental problem” with his allegations and…

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 The Queen

Details

AGLC: L v The Queen [2015] NZSC 42
Case: [2015] NZSC 42
Decision Date: 21 April 2015

CaseChat Overview and Summary

The appellant, L, was convicted of one count of indecent assault against a boy, aged between 12 and 16 years, by a jury in the District Court. The conviction was appealed to the Court of Appeal, which dismissed the appeal. L then sought leave to appeal to the Supreme Court, which was granted on two questions concerning the trial judge's failure to give a warning under s 122 of the Evidence Act 2006 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 L could give evidence of a payment he had made to the complainant. The Supreme Court allowed the appeal and quashed the conviction, finding that the trial judge should have given a s 122 warning and that the Court of Appeal was wrong to conclude that no miscarriage of justice arose from the judge's ruling. The court held that the issues of reliability went to the heart of the charges and that the trial miscarried as a result of the failure to give a warning. The court also held that the trial judge wrongly restricted L's ability to give evidence on his sons' illness as a reason for making the payment to the complainant. The court accepted that the evidence was not propensity evidence but was merely evidence seeking to explain why he had paid the complainant and that he should have been able to give that evidence in his own words. The appeal was allowed and the conviction was quashed, and no retrial was ordered.

Orders