Mann v The Queen - [2010] NZCA 68

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA537/2009

[2010] NZCA 68

BETWEEN CARL BRIAN MANN
Appellant

ANDTHE QUEEN Respondent

Hearing: 24 February 2010
Court: Arnold, Harrison and Fogarty JJ Counsel: A N Isac for Appellant
N P Chisnall for Respondent

Judgment: 15 March 2010 at 2.30 pm

JUDGMENT OF THE COURT

A The appellant is granted leave to adduce further evidence.

B The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] Following a jury trial before Judge Atkins QC the appellant was convicted of one count of sexual violation by digital penetration and one count of attempted

MANN V R CA537/2009 15 March 2010

sexual violation by rape. He was sentenced to five years’ imprisonment on the sexual violation count and to four years’ imprisonment on the attempted rape count, the sentences to be served concurrently.[1]

[1] R v Mann DC Palmerston North CRI-2008-054-1953, 18 August 2009

[2] Although the appellant filed an appeal against both conviction and sentence, the sentence appeal was not pursued. Accordingly, we treat it as abandoned and address only the conviction appeal.

[3] Affidavit evidence was filed in support of the appeal, although there does not appear to have been any application to file fresh evidence. There were affidavits from the Officer in Charge at the appellant’s trial, Detective Sergeant Milligen, and from the Court Crier, Mr K M Bailey. These deal with aspects of the trial that are at issue on the appeal and are clearly admissible, so we receive them. The appellant also filed an affidavit. Although it contains a good deal of inadmissible commentary, it does annex some relevant materials, so we receive it as well.

Factual background

[4] The appellant was one of a group of people who were at the complainant’s flat one evening, socialising and drinking. The group (including the appellant and the complainant) left the flat sometime between 9 – 10 pm to visit some local bars. The complainant said that the appellant had showed some interest in her, but this was not reciprocated. She had recently returned to New Zealand from England, where she had lived for several years, and her boyfriend was shortly due to join her from there.

[5] The group went from bar to bar, not always in company. At one bar a “wet tee shirt” contest was underway. One of the members of the group placed his hand on the complainant’s breast, as did the appellant. The precise circumstances in which this occurred are disputed. The complainant said that the appellant had “grabbed” her breast. The appellant said that the complainant has placed his hand on her breast,
after another person had touched it. The complainant denied this, saying that she had

placed another person’s (LB’s) hand on her breast to “disarm” the appellant’s sexual advance. LB supported this account.

[6] Another witness, PS, who was a flatmate…

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 Mann v The Queen

Details

AGLC: Mann v The Queen [2010] NZCA 68
Case: [2010] NZCA 68
Decision Date: 15 March 2010

CaseChat Overview and Summary

Carl Brian Mann appeals his conviction of one count of sexual violation by digital penetration and one count of attempted sexual violation by rape. The appellant contends that the complainant was wrongly permitted to give evidence about the effect of antidepressant medication on her, that the complainant improperly attacked the credibility of another Crown witness, that a lies direction was given which was not justified, and that the verdicts were unsafe for three reasons, and unreasonable and not supported by the evidence. The Court of Appeal dismisses the appeal against conviction. The complainant’s evidence about the effect of medication on her was not supported by Dr Cape’s evidence, although neither did his evidence undermine it. The Crown was not obliged to give equal value to everything that every Crown witness of fact said in evidence. There is no rule prohibiting the Crown from inviting the jury not to accept evidence given by a witness it has called. The jury’s question strongly suggested that there was predetermination on the part of at least some jurors. However, by the time the jury posed the question, they had heard four days of evidence and the Crown and defence closings. The jury obviously wanted to understand what, if any, legal effect this had. Accordingly, they asked the Judge for guidance. Far from indicating pre-determination, this simply shows that the jury was going about its task in a careful and thoughtful way. Again, we see nothing in this point. A juror made a report to the Judge, who instigated an investigation. The investigation did not turn up anything. The trial continued with 11 jurors. There is nothing untoward in any of this. The essential question is whether the jury could reasonably have been satisfied that the appellant was guilty. The jury accepted the complainant’s evidence. In this case, there is no basis on which the Court could properly interfere with the jury’s assessment.

Orders