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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…
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.
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Details
AGLC
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.