Morton v R

Case [2016] NZSC 51


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

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE SUPREME COURT OF NEW ZEALAND

SC 86/2015 [2016] NZSC 51

BETWEEN

RICHARD JAMES CAMERON

MORTON Appellant

AND

THE QUEEN Respondent

Hearing: 18 November 2015

Court:

Elias CJ, William Young, Glazebrook, Arnold and OʼRegan JJ

Counsel:

A M Simperingham, C B Wilkinson-Smith and M Prinsloo for
Appellant
A Markham, Y Moinfar and H A Wrigley for Respondent

Judgment:

5 May 2016

JUDGMENT OF THE COURT

A      The appeal is allowed.

BPermission under s 49(2)(a) of the Evidence Act 2006 is given to the appellant to adduce evidence from himself and the co-defendants in which they may give their accounts of their interactions with the complainant on the night of the offending and as to the prior sexual relationship of one of the co-defendants with the complainant.

RICHARD JAMES CAMERON MORTON v R [2016] NZSC 51 [5 May 2016]

CPermission is refused in respect of the recantation and inconsistent conduct evidence and the evidence referred to in [74] (other than that identified in [77]).

D      There is no direction under s 49(2)(b).

REASONS

William Young and O’Regan JJ [1]
Elias CJ [83]
Glazebrook and Arnold JJ [119]

WILLIAM YOUNG AND O’REGAN JJ

(Given by William Young J)

Table of Contents

Para No
Introduction [1]
Section 49 of the Evidence Act in the context of the case [7]
What has happened to date [16]
The first trial [16]
The conviction appeal judgment [19]
The ruling of Courtney J [23]
The results judgment of the Court of Appeal [26]

The ruling of Whata J as to evidence which could be given at the

retrial

[27]
The retrial before Whata J [28]

The reasons of the Court of Appeal for dismissing the appeal from

the ruling of Courtney J

[31]
The further ruling of Whata J [33]
An unhappy dilemma [35]
Section 49 of the Evidence Act in the broader context [42]
The position before the Evidence Act 2006 [42]
The position in other jurisdictions [44]
Practicality and policy considerations [46]

Convictions based on evidence which is inadmissible against the

later defendant

[50]
Convictions which directly engage with the defendant’s conduct [51]
The legislative history of s 49 [53]
The New Zealand jurisprudence [58]
Recent English jurisprudence [59]
Is the exceptional circumstances test satisfied? [60]
Some concluding comments as to s 49 [70]
Sexual experience and reputation evidence [73]
The orders of the Court [78]

Introduction

[1]      The appellant was one of five men who were tried on charges of rape arising out of a single incident involving one complainant.  We will refer to the other men as…

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Morton v R [2016] NZSC 51
Case
[2016] NZSC 51
Decision Date

CaseChat Overview and Summary

The Supreme Court of New Zealand allowed the appeal of Richard James Cameron Morton against his conviction for being a party to a gang rape committed by four other men. The Court of Appeal had dismissed an appeal by the appellant against the High Court's refusal to allow the appellant to call evidence which tended to show that the complainant had consented to the sexual activity with the four men. The Supreme Court held that the appellant should be allowed to call such evidence. The Court held that the convictions of the four men were conclusive as to their commission of the offence of rape, but that the appellant should be allowed to call evidence relevant to his belief in the complainant's consent. The Court declined to make a direction under s 49(2)(b) of the Evidence Act 2006 that the issue whether the four men committed the offence be determined without reference to s 49(1). The Court held that there were exceptional circumstances which required permission to be given under s 49(2)(a) to call evidence relevant to the appellant's belief in the complainant's consent, even though such evidence may also tend to prove that the four men did not commit the offence. The Court concluded that the appellant was entitled to call evidence of the complainant's behaviour and statements on the night of the offending which tended to show that she consented, but that the four men were not entitled to give evidence that the complainant consented to sexual intercourse with them. The Court also held that the evidence of the complainant's previous sexual activities was not admissible.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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