M (SC 111/2024) AND THE KING - [2025] NZSC 13

NOTE: DISTRICT COURT ORDER IN [2022] NZDC 23803 PROHIBITING PUBLICATION OF RELATIONSHIP BETWEEN APPLICANT AND COMPLAINANT REMAINS IN FORCE.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 111/2024
[2025] NZSC 13

BETWEEN	M (SC 111/2024) Applicant
AND	THE KING Respondent

Court:	Ellen France, Williams and Kós JJ
Counsel:	J E L Carruthers for Applicant B J Thompson for Respondent
Judgment:	7 March 2025

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant was convicted after a jury trial on charges of historic sexual offending against a child. He challenged his convictions on the basis that his election not to give evidence was uninformed. The Court of Appeal dismissed his appeal.[1] He has filed an application for leave to appeal to this Court.

Background

[1]M (CA722/2022) v R [2024] NZCA 431 (Mallon, Lang and Moore JJ) [CA judgment].

The offending was alleged to have occurred over two periods. The first offence was a single incident when the complainant was aged between five and six years old and the applicant between 15 and 17 years old. This gave rise to a charge of sexual violation by unlawful sexual connection.[2] The second period of time spanned 1 July and 31 December 2005, when the complainant was between eight and nine years old. Various incidents over that period led to four further charges of sexual violation by unlawful sexual connection and one charge of sexual conduct with a child under the age of 12.[3]
[2]Crimes Act 1961, ss 128(1)(b) and 128B.
[3]Crimes Act, s 132(3).
The matter went to trial in 2022. Prior to that, in May 2020, the applicant had undertaken a video interview with police, who put the allegations made by the complainant to him. The video interview was not played at trial. In addition to the complainant, the Crown called several other witnesses. One of these witnesses gave recent complaint evidence. Another of the witnesses gave evidence about, amongst other matters, having seen the applicant on top of the complainant during one of the incidents and about him taking her into the bushes during another. The applicant’s defence, that the allegations were fabricated, was advanced through cross-examination of the complainant and of other witnesses.
Following conviction, the applicant was sentenced to a term of four and a half years’ imprisonment.[4]

The proposed appeal

[4]R v [M] [2022] NZDC 23803 (Judge Robinson).

The proposed appeal would focus on whether the Court of Appeal was right to reject the applicant’s claim his decision not to give evidence was not an informed one. He wishes to argue that the Court of Appeal erred in its analysis and that the decision in his case is difficult to reconcile with other recent decisions of that Court. In support of the submission of a miscarriage of justice, the…

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: [2025] NZSC 13
Decision Date: 7 March 2025

CaseChat Overview and Summary

The applicant, M, sought leave to appeal against his conviction for historic sexual offending against a child, which was upheld by the Court of Appeal. M argued that his decision not to give evidence was uninformed. The Supreme Court, consisting of Ellen France, Williams, and Kós JJ, was tasked with determining whether the Court of Appeal's rejection of M's claim was correct and whether the principles applied to his case were appropriate. The court also needed to assess if the application raised a question of general or public importance and if the proposed appeal met the criteria for leave to appeal.

The Supreme Court examined whether M's decision to not testify was informed and considered the Court of Appeal's assessment of the evidence and the advice provided by trial counsel. It was noted that M was aware of the evidence he could have presented and that trial counsel had adequately explained the potential benefits and risks of giving evidence. The court found that trial counsel's advice, though focused on the risks, was sufficient, and that the absence of a written brief did not necessarily mean the decision was uninformed. The court also considered the evidence M could have provided, such as his assertion that he and the complainant never met and his shoulder injury from a car accident, and found that trial counsel's assessment was reasonable. The court concluded that M's election not to give evidence was informed and that the Court of Appeal's assessment did not suggest a miscarriage of justice. The court found that no question of general or public importance arose and that the criteria for leave to appeal were not met.

The Supreme Court dismissed the application for leave to appeal. The reasoning was that the Court of Appeal had carefully considered the evidence and the implications of M's decision not to give evidence, and that the proposed appeal did not meet the criteria for leave to appeal. The court found that there was no indication of a miscarriage of justice and that the decision to not testify was informed. Therefore, the application was dismissed.

Orders