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MG v Police

MG v Police

Case [2017] NZHC 3137 14 December 2017

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL THE FINAL DISPOSITION OF TRIAL [RETRIAL].

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

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000307

[2017] NZHC 3137

IN THE MATTER OF an appeal against charges being found proved

BETWEEN

MG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 November 2017

Counsel:

S J Lance for the Appellant

D G Johnstone and J C Bull for the Respondent

Judgment:

14 December 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 14 December 2017 at 2.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

MG v POLICE [2017] NZHC 3137 [14 December 2017]

Introduction

[1] MG was convicted of seven charges of rape, and two charges of sexual violation by unlawful sexual connection following a Judge alone trial in the North Shore Youth Court.1 All of the charges related to offending against ZS and took place during the course of a relationship between MG and ZS. MG was 16 and ZS was 15 years old at the time.

[2] There was no dispute that sexual activity between MG and ZS had taken place. The key issue in dispute was consent. Judge Ronayne found that ZS “specifically, clearly and firmly” made it clear on each occasion that she did not want the sexual acts to take place.2

[3] MG appeals his convictions on the grounds that the Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred. He says the Judge erred in various ways but in particular by:

(a)Failing to properly assess Facebook messages, including those of a sexually explicit nature, sent by ZS to MG both prior to and during the course of their relationship;

(b)Referring to a counterintuitive explanation for ZS’s delay in complaining which was implausible and not supported by any counterintuitive evidence called by the Crown;

(c)Relying on extraneous matters in assessing ZS’s credibility.

[4] MG also seeks leave to adduce fresh evidence. The evidence is a statement of BN, who was a friend of ZS at the time she was in a relationship with MG. BN’s evidence is that ZS told her about each sexual occasion with MG and she did not ever suggest she was being forced to have sex against her will. In fact, BN’s evidence is that ZS said she enjoyed having sex with MG.

1 New Zealand Police v MG [2017] NZYC 417.
2 At [69].

The offending

[5] ZS and MG met at school in mid-2014. They began exchanging…

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 MG v Police

Details

AGLC: MG v Police [2017] NZHC 3137
Case: [2017] NZHC 3137
Decision Date: 14 December 2017

CaseChat Overview and Summary

In the High Court of New Zealand, MG appeals his conviction and sentence for multiple charges of rape and sexual violation against ZS, who was 15 years old at the time of the offences. MG submits that the Youth Court Judge erred in his assessment of the evidence to the extent that a miscarriage of justice occurred. MG contends that the Judge erred in his assessment of the Facebook messages sent between MG and ZS, in his analysis of ZS's delay in making a complaint, and in the extraneous matters he relied on in assessing ZS's credibility. MG also seeks leave to adduce fresh evidence from BN, who was ZS's best friend at the time, that ZS had told her that she enjoyed having sex with MG and had never suggested she was being forced to have sex against her will. The Court found that the Judge did not err in his assessment of the evidence. However, the Court found that BN's evidence was both credible and fresh, and that there was a real risk of a miscarriage of justice if it was not admitted. Accordingly, the appeal was allowed, the convictions were set aside, and a new trial was ordered.

Orders