Mitchell v The Queen - [2011] NZCA 289

IN THE COURT OF APPEAL OF NEW ZEALAND

CA782/2010
[2011] NZCA 289

BETWEEN KATHLEEN IVY MITCHELL
Appellant

AND THE QUEEN
Respondent

Hearing: 16 June 2011

Court: Wild, Keane and Miller JJ

Counsel: C M Ruane for Appellant
A M Toohey for Respondent

Judgment: 22 June 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Miller J)

Introduction

Ms Mitchell was found guilty of attempting to pervert the course of justice by seeking to deter a complainant from giving evidence against Ms Mitchell’s husband-to-be, who faces a charge of indecent assault. The charge was laid under s 117(e) of the Crimes Act 1961. She admits that she told the 73-year old complainant that she must go to court to give evidence, that she would be cross-examined, and that the charge carried a maximum sentence of seven years imprisonment.
On appeal, she contends that the jury’s verdict is unsafe, for her statements were factually correct and did not amount to threats or other improper pressure. Accordingly, they lacked the necessary tendency to pervert the course of justice. Further, they were not made with the necessary specific intent to do so.
The appeal may have been filed a day late. If it is needed, leave to appeal is granted.

The narrative

The charge against Ms Mitchell’s husband has yet to reach trial. It is alleged that in December 2008 the complainant approached the police, saying that a week earlier he had indecently assaulted her while treating her at a clinic where he was employed as a physiotherapist. On 24 June 2009 depositions were about a month away.
On that date Ms Mitchell telephoned the complainant and spoke for a little less than 21 minutes. She did not identify herself. The complainant’s account was that Ms Mitchell said she was conducting a survey and wanted to know whether the complainant was satisfied with her overall treatment by the police. She inquired why the complainant had waited so long before going to the police. The complainant responded that she had not waited at all, but had gone to the police within a week. Ms Mitchell then inquired into the complaint. The complainant felt that she had probably gone into quite a lot of detail about it.
The complainant deposed that Ms Mitchell told her that if she went to Court as a witness and he was found guilty then he could get seven years in jail. The complainant interpreted the mention of court and the penalty as an attempt “to scare me”, to “[P]ut me off going to court.” She added that Ms Mitchell told her that if she went to court she would be cross-examined.
Although the tenor of the conversation was initially friendly, the complainant came to gather from Ms Mitchell’s anxious tone that she was “personally affected”. The complainant felt intimidated; she was “shaking like anything”. At the end she asked who she was speaking to. Ms Mitchell was reluctant to give…

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 Mitchell v The Queen

Details

AGLC: Mitchell v The Queen [2011] NZCA 289
Case: [2011] NZCA 289
Decision Date: 22 June 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Kathleen Ivy Mitchell appealed against her conviction for attempting to pervert the course of justice. The case involved an alleged indecent assault by Mitchell's fiancé, and she had been found guilty of trying to influence a complainant from giving evidence against him. The appeal contested the safety of the jury's verdict, arguing that Mitchell's statements were factually correct and did not amount to threats or improper pressure, thus lacking the tendency to pervert the course of justice. The court had to decide whether Mitchell's statements had the tendency to dissuade the complainant from giving evidence and whether she intended her actions to have that effect.

The court considered that under section 117(e) of the Crimes Act 1961, Mitchell's act must have the tendency to obstruct or pervert the course of justice and that she intended her act to have that effect. The court noted that the jury's decision should be based on all the circumstances, including the nature of the proceedings, the method and timing of the interference, and the relationship between the witness and the interfering party. The court also highlighted that while it is lawful to dissuade a witness from committing perjury through reasoned arguments, threats or improper pressure cross the line into criminality. In this case, the court found it was open to the jury to conclude that Mitchell's statements, particularly her failure to disclose her interest and her emphasis on the consequences without providing context, could dissuade the complainant from giving evidence, thus obstructing the course of justice.

The Court of Appeal dismissed the appeal, affirming the jury's verdict. The court found that Mitchell's actions, particularly her failure to disclose her interest and her emphasis on the consequences without context, had the tendency to dissuade the complainant from giving evidence, thereby perverting the course of justice. Additionally, the court concluded that Mitchell intended to dissuade the complainant, which was evident from her actions and statements. The appeal was dismissed, and the conviction stood.

Orders