Nathan Richard Crook v The Queen - [2020] NZSC 86

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

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 39/2020
[2020] NZSC 86

BETWEEN	NATHAN RICHARD CROOK Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Williams JJ
Counsel:	N P Chisnall for Applicant J A Eng for Respondent
Judgment:	28 August 2020

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr Crook applies for leave to appeal against the Court of Appeal’s decision upholding his convictions in the District Court for sexual offending.

Background

The applicant was convicted of five charges of sexual offending against a child and sentenced to three years and three months’ imprisonment.[1] He was in a relationship with the complainant’s mother and the Crown case was that the offending occurred at times when the mother was absent or asleep. The complainant told her mother about the applicant’s conduct some considerable time after the relationship had ended. It is relevant to the issues in the proposed appeal that on hearing of these matters, the mother initially told the complainant that she would be required to take a lie detector test. The complainant was frightened by this and retracted her allegations, saying the whole story was a joke.
[1]R v Crook [2019] NZDC 7669 (Judge Duncan Harvey).
Two features of the trial were the subject of the applicant’s conviction appeal in the Court of Appeal. First, in a pre-trial ruling, the District Court held that the Crown was not obliged to call the complainant’s mother, who the defence considered was likely to give evidence sympathetic to the defendant.[2] Second, the complainant’s evidential video interview (EVI) was replayed to the jury, on request, immediately before closing addresses.
[2]R v Crook [2018] NZDC 21091 (Judge Duncan Harvey).
In respect of the first issue, the trial Judge held that the Crown was justified in considering the mother unreliable and unworthy of belief.[3] Not only was the mother’s account contrary to her own statements to Child Youth and Family Services and to that of other witnesses, it was also contrary to comments the applicant himself had made.[4] Accordingly, the Judge declined to direct the Crown to call the mother as witness.[5]
[3]At [40], distinguishing Rapana v R [2015] NZHC 2286 as to the circumstances in which the prosecution is obliged to call a witness.
[4]At [41].
[5]At [42]. See Criminal Procedure Act 2011, s 113(3).
As to the second issue, the applicant elected to give evidence and was the last witness to be called. Immediately after his evidence, the jury asked for the complainant’s EVI to be replayed. When the interview was replayed, no contemporaneous direction was given by the Judge in relation to it, but relevant directions were given during his summing up. Closing…

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

Case: [2020] NZSC 86
Decision Date: 28 August 2020

CaseChat Overview and Summary

Nathan Richard Crook sought leave to appeal his convictions in the Court of Appeal, which upheld his convictions in the District Court for sexual offending against a child. The applicant was sentenced to three years and three months’ imprisonment. The Supreme Court was asked to decide two issues: whether the trial Judge should have directed the Crown to call the complainant’s mother as a witness and whether the trial Judge’s jury directions in summing up were insufficient to deal with the risks arising from the complainant’s evidential video interview being played to jurors a second time before closing addresses.

The Supreme Court held that there were insufficient prospects of success on the proposed grounds to warrant the grant of leave. As to the first issue, the Court of Appeal applied settled authority to these facts and the Court was not persuaded that further guidance on the application of s 113(3) was required generally. Nor was the Court of the view that such an assessment, if made, had a reasonable prospect of producing a different result in this case. As to the second issue, the Court found that it was significant the EVI was replayed prior to the closing addresses, as opposed to during deliberation. This meant the closing addresses and the Judge’s summing up applied to the replay as they did to all other evidence. As to the lack of a contemporaneous demeanour warning, the Court considered there was no reason to assume the jury was motivated by demeanour thinking in relation to the EVI.

The application for leave to appeal was dismissed.

Orders