Leslie McGeachin v The Queen - [2020] NZSC 95

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 144/2016
[2020] NZSC 95

BETWEEN	LESLIE MCGEACHIN Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person S K Barr for Respondent
Judgment:	14 September 2020

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment of 24 February 2017 (McGeachin v R [2017] NZSC 16) is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr McGeachin was convicted following a jury trial in 2013 for offences of physical and sexual violence committed against two former partners (JO and CF) between the late 1980s and 2011.
Mr McGeachin’s appeal against his convictions was dismissed by the Court of Appeal in 2015.[1] This Court dismissed his application for an extension of time to appeal to this Court in February 2017.[2] It also dismissed his first application for a recall of that decision in late 2017.[3]
[1]McGeachin v R [2015] NZCA 558 (Kós, Fogarty and Mallon JJ).
[2]McGeachin v R [2017] NZSC 16 (Glazebrook, Arnold and O’Regan JJ). This judgment also declined Mr McGeachin leave to appeal against his sentence.
[3]McGeachin v R [2017] NZSC 193 (Glazebrook, O’Regan and Arnold JJ).
In August 2018, this Court deferred its decision in relation to Mr McGeachin’s second application for a recall, in order for him to make an application to the Court of Appeal for recall of its decision on his appeal.[4] On 20 March 2020, the Court of Appeal declined his recall application to that Court.[5]
[4]Minute of the Court (Glazebrook, O’Regan and Ellen France JJ) dated 10 August 2018.
[5]McGeachin v R [2020] NZCA 72 (Wild, Whata and Katz JJ) [CA recall judgment].
Mr McGeachin has now renewed his second application for recall of this Court’s leave decision.

Background

The main issue raised by Mr McGeachin in his second recall application to this Court was that the Evidential Video Interview (EVI) of one of the complainants had been edited before being presented to the jury at his trial. His argument was that this editing removed material indicating that there may have been collusion between the two complainants.
The Court of Appeal at its 2015 appeal hearing was not aware that editing of this nature had occurred as the affidavit of trial counsel, Ms Brown, said the relevant deletions had not been made.
This Court sought submissions on this point. The Crown agreed the deletions had been made but submitted these were immaterial. This Court, in its minute of 10 August 2018, said:[6]
[11] It is not clear that the Supreme Court is the best venue for the resolution of that dispute. It may be that to allow it to be dealt with definitively, further evidence may need to be adduced and possibly that cross‑examination may be required. It would be unusual for this Court to hear evidence (including cross-examination 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.

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Details

Case: [2020] NZSC 95
Decision Date: 14 September 2020

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to recall its decision from February 2017 in the case of Leslie McGeachin v The Queen. The applicant, McGeachin, was convicted in 2013 of various offences of physical and sexual violence against two former partners. His appeals against both conviction and sentence were dismissed by the Court of Appeal and the Supreme Court. In August 2018, the Supreme Court deferred its decision on McGeachin's second application for recall to allow him to apply to the Court of Appeal for recall of its decision on his appeal. The Court of Appeal declined his recall application in March 2020. McGeachin renewed his second application for recall of the Supreme Court's leave decision. The main issue raised by McGeachin was that an Evidential Video Interview (EVI) of one of the complainants had been edited before being presented to the jury at his trial, and this editing removed material indicating that there may have been collusion between the two complainants. The Court of Appeal had previously concluded that there was no need to rehear the appeal because there was no merit to McGeachin's substantive claims. The Court of Appeal found that the errors in the trial counsel's affidavit amounted to a fundamental procedural error in relation to the appeal, but there was no real possibility that omitting the deleted passages affected the outcome of the trial. The Court also considered that there was no real possibility that the jury would have placed any significance favourable to McGeachin on the deleted passages. The Supreme Court dismissed the application for recall, finding that no point of general or public importance arose and that there was no risk of a miscarriage of justice.

This case highlights the importance of accurate and complete evidence in criminal proceedings, as well as the need for careful consideration of the implications of any errors or omissions in the evidence presented. It also underscores the role of the Court of Appeal and the Supreme Court in reviewing the decisions of lower courts and ensuring that justice is served in each case.

Orders