M v The King - [2024] NZHC 2220

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

NOTE: NO PUBLICATION OF A REPORT OF THE PROCEEDINGS IN THE YOUTH COURT REFERRED TO IN THIS JUDGMENT IS PERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL OR TECHNICAL NATURE THAT DO NOT INCLUDE THE NAME(S) OR IDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANY PERSON HAVING THE CARE OF

THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR IS ATTENDING. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000093 CRI-2023-404-000219

[2024] NZHC 2220

BETWEEN M and N-B Appellants

AND

THE KING

Respondent

Hearing:
11 March 2024;

Further submissions 22 March 2024 & 19 April 2024

Appearances:

S Gray for the Appellants

N Walker for the Respondent

Judgment:

8 August 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 8 August 2024 at 2.30 pm Registrar/Deputy Registrar

M and N-B v R [2024] NZHC 2220 [8 August 2024]

[1] The appellants faced charges of sexual assault against a young complainant. Following a Judge alone trial at Manukau Youth Court, Judge P Recordon found the charges proved.1 The appellants were transferred to the District Court for sentencing.2 The appellant, Mr M, was convicted of sexual violation. The appellant, Mr N-B was convicted of assault with intent to commit sexual violation. Mr M was sentenced to 12 months’ home detention. Mr N-B was sentenced to 80 hours’ community work.

[2] For reasons which will emerge, nearly 12 months elapsed between the start of the trial and its completion. It commenced on 9 August 2021. It was not completed until 2 August 2022. Judgment was issued on 23 August 2022. Multiple delays of different origin explain this unusual course, not least New Zealand’s public health response to COVID-19.

[3] The appellants now appeal their convictions. Responsibly Ms Gray, for the appellants, accepts that the trial Judge was entitled to make the findings he did regarding the credibility and reliability of the complainant on the evidence before the Court.3 The appellants instead challenge three key decisions made during the trial which shaped the course of the proceedings and which they say ultimately led to a miscarriage of justice.4

[4]The respondent opposes the appeal.

Summary of the offending

[5]I take this summary from the decision of Judge Recordon.5

[6] After a house party in September 2019, the appellants and complainant went back to Mr M’s house for the night.

1      New Zealand Police v MM & WN-B [2022] NZYC 454.
2      R v MM & WN-B DC Auckland CRI-2021-292-000004, 14 February 2023. [Minute of Judge Recordon].
3      The appellants abandoned an earlier indication that the Judge’s verdicts would be challenged. At…

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 M v The King

Details

AGLC: M v The King [2024] NZHC 2220
Case: [2024] NZHC 2220
Decision Date: 8 August 2024

CaseChat Overview and Summary

M and N-B appeal their convictions for sexual assault against a young complainant. The charges were brought in 2020 and the trial began in August 2021. The trial was adjourned several times, including due to COVID-19 restrictions, and finally resumed in August 2022. The trial was completed and judgment finding the charges proved was delivered on 23 August 2022. The appellants now appeal their convictions on the basis of three decisions made by the trial Judge. The first was the Judge's refusal to abort the trial after the disclosure of new evidence by the Police. The second was the Judge's refusal to abort the trial for the impact of delay caused by COVID-19. The third was the Judge's refusal to dismiss the charges under section 322 of the Oranga Tamariki Act 1989. The appellants submit that these decisions amounted to a miscarriage of justice. The Court rejected all grounds of appeal. In relation to the first and second grounds, the Court found that the trial Judge's decisions were not an error. The Court found that the appellants' right to a fair trial was not prejudiced. The Court also found that there was no error in the exercise of the Judge's discretion under section 322 of the Oranga Tamariki Act 1989. The Court found that the Judge had properly weighed the relevant considerations and there was no basis for concluding that the delay caused a miscarriage of justice. The appeals are dismissed.

Orders