Lihou v R - [2015] NZSC 161

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 68/2015
[2015] NZSC 161

BETWEEN	MICHAEL SHANE HENRY LIHOU Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and O'Regan JJ
Counsel:	A N Isac for Applicant J E L Carruthers for Respondent
Judgment:	30 October 2015

JUDGMENT OF THE COURT

AThe application for leave to appeal against the Court of Appeal pre-trial decision ([2013] NZCA 195) is dismissed.
BThe application for leave to appeal against the Court of Appeal conviction decision ([2015] NZCA 227) is also dismissed.

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REASONS

The applicant was convicted after a jury trial in the High Court of abduction for the purpose of sexual connection, assault, rape and sexual violation of a 17 year old female complainant. He seeks leave to appeal against a decision of the Court of Appeal dismissing his appeal against conviction.[1]
[1]Lihou v R [2015] NZCA 227 (French, Simon France and Clifford JJ).
The focus of the proposed appeal is on the propensity evidence which was led at the trial and the directions given by the Judge in relation to that evidence. The admission of the propensity evidence was not challenged in the applicant’s conviction appeal to the Court of Appeal, but was the subject of an earlier Court of Appeal decision dealing with the applicant’s application for leave to appeal to that Court against a pre-trial ruling in the High Court that the propensity evidence was admissible at the trial.[2]
[2]R v Lihou [2013] NZCA 195 (Wild, Chisholm and Keane JJ), on appeal from R v Lihou [2013] NZHC 262 (Williams J).
In his submissions in support of the application for leave to appeal, the applicant also applies for leave to appeal against the Court of Appeal pre-trial decision. However, the Court of Appeal pre-trial decision was a decision to decline leave to appeal and was therefore not amenable to appeal to this Court.[3] That application is therefore dismissed for want of jurisdiction. However, we do not see that as preventing the applicant from challenging in this Court the admission of the propensity evidence at his trial if leave to appeal against the conviction appeal is granted even though there was no post-conviction challenge to the admission of the evidence in the Court of Appeal.
[3]Criminal Procedure Act 2011, s 213(3).
The charges on which the applicant was convicted resulted from an incident in 2012. The Crown case was that the applicant invited the complainant to his home, then forcibly prevented her from leaving, physically assaulted her, sexually violated her and raped her. In the early hours of the following morning he frog-marched her eight kilometres across the countryside before setting up camp. A farmer saw a campfire that they made and the police were contacted, following which the complaint was made and the applicant was arrested.
The propensity evidence related to two earlier…

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 Lihou v R

Details

AGLC: Lihou v R [2015] NZSC 161
Case: [2015] NZSC 161
Decision Date: 30 October 2015

CaseChat Overview and Summary

The Supreme Court of New Zealand dismissed an application for leave to appeal against two decisions of the Court of Appeal in the case of Lihou v R. The applicant, Michael Shane Henry Lihou, sought leave to appeal against the Court of Appeal’s decisions to dismiss his appeals against conviction for abduction, assault, rape, and sexual violation of a 17-year-old female complainant. The charges stemmed from an incident in 2012 where Lihou forcibly prevented the complainant from leaving his home, assaulted her, and raped her before leading her on a trek across the countryside. Lihou was previously convicted and imprisoned for similar offences in 1988 and 1996. The appeal centred on the admissibility of propensity evidence and the directions given by the trial judge regarding this evidence.

The applicant argued that the propensity evidence, which detailed his previous convictions, was improperly admitted because the complainant was aware of these incidents and could have fabricated a story similar to his past offending. The court rejected this argument, stating that the propensity evidence demonstrated Lihou’s propensity for the type of behaviour in question, and thus increased the likelihood that the complainant's account was true. The court also noted that the complainant's lack of knowledge about certain details of the 1988 incident still supported the use of coincidence reasoning. The court found that the trial judge's directions to the jury regarding the propensity evidence were sufficient and that no miscarriage of justice would result from not granting leave to appeal.

The court concluded that no grounds for leave to appeal were established and dismissed the application for leave to appeal against the Court of Appeal's decisions.

Orders