Narayan Prasad v The Queen - [2016] NZSC 146

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE
CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 83/2016
[2016] NZSC 146

BETWEEN	NARAYAN PRASAD Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and OʼRegan JJ
Counsel:	M J Phelps for Applicant K S Grau for Respondent
Judgment:	3 November 2016

JUDGMENT OF THE COURT

A An extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.
____________________________________________________________________

REASONS

The applicant was convicted of five charges involving historic sexual offending against three complainants. The offending against two complainants occurred in the late 1970s and early 1980s while that against the third complainant occurred between 1995 and 1997. It was his third trial.[1] The applicant’s appeal against conviction and sentence to the Court of Appeal was dismissed.[2] He now seeks leave to appeal to this Court against his conviction.
[1]There were initially 42 charges involving four complainants. The applicant was convicted on 31 charges at the first trial but his appeal to the Court of Appeal was allowed and a new trial was ordered: Prasad v R [2013] NZCA 267. At the second trial he was acquitted on all but five charges, on which the jury could not reach agreement. At the third trial he was convicted on the five remaining charges.
[2]Prasadv R [2016] NZCA 163 (French, Simon France and Ellis JJ) [Prasad (CA)].
The application is made out of time and an extension of time for the filing of the application for leave is sought. The delay is not lengthy and there is no prejudice to the respondent. We therefore grant the required extension of time.
The application deals with two aspects of the third trial:
(a)the reliability warning given by the trial Judge, Dobson J, dealing with prejudice arising from the delay between the alleged offending and the trial; and
(b)the direction given by the trial Judge in relation to evidence given by one of the complainants about an allegation in respect of which the applicant had been acquitted at the second trial.

Reliability warning

The applicant’s third trial took place before the delivery of the decision of this Court in CT (SC 88/2013) v R,[3] dealing with the application of s 122(2) of the Evidence Act 2006. That provision requires a trial Judge at a jury trial to consider whether to give an unreliability warning in some circumstances. One of these is where evidence is given about conduct of a defendant alleged to have occurred more than ten years before the trial, as happened at the applicant’s trial. Although the Judge in the present case did make a direction dealing with the impact of delay on the applicant’s defence, it did not meet the requirements set out in CT. The Court of Appeal determined, however, that the deficiencies in the reliability warning did not lead to a miscarriage of justice.[4]
[3]

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 Narayan Prasad v The Queen

Details

AGLC: Narayan Prasad v The Queen [2016] NZSC 146
Case: [2016] NZSC 146
Decision Date: 3 November 2016

CaseChat Overview and Summary

Narayan Prasad sought leave to appeal to the Supreme Court of New Zealand against his conviction for five charges of historic sexual offending against three complainants. The offending occurred between the late 1970s and 1997. Prasad had previously been acquitted on 31 charges but was convicted on the remaining five charges at his third trial. The Supreme Court considered two issues: the reliability warning given by the trial judge regarding the delay between the alleged offences and the trial, and the direction given by the trial judge in relation to evidence given by one of the complainants about an allegation in respect of which Prasad had been acquitted at the second trial. The court concluded that no point of principle arose in relation to the reliability warning, given recent decisions, and that there was no appearance of a miscarriage of justice. Regarding the previous acquittal, the court found that the trial judge adequately addressed the matter and that no point of public importance arose. The Supreme Court granted an extension of time for Prasad to apply for leave to appeal but dismissed the application.

Orders