Nevin v The King - [2023] NZSC 161

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THE NAME OF THE SCHOOL PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THE OCCUPATION AND SPORT OF THE APPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE cellpadding="0" cellspacing="0">

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA
SC 101/2023
[2023] NZSC 161

BETWEEN
CONNOR SEAN CLAYTON NEVIN
Applicant

AND

THE KING
Respondent

Court:
Glazebrook and Kós JJ

Counsel:

I M Brookie for Applicant
J M Pridgeon for Respondent

Judgment:

7 December 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Background

In July 2022, the applicant, Mr Nevin,[1] was convicted of three charges of sexual violation by unlawful sexual connection, two charges of sexual conduct with a young person and one charge of common assault. All offences concerned the same complainant. Mr Nevin was sentenced to six years and six months’ imprisonment by Judge Northwood, the trial Judge.[2]
[1]Mr Nevin’s application for leave to appeal a High Court decision refusing to overturn the District Court’s decision dismissing his application for permanent name suppression was dismissed in Nevin v R [2023] NZSC 160.
[2]R v Nevin [2022] NZDC 23920. The sentence was composed of six years and six months’ imprisonment on the sexual violation charges, and concurrent sentences of three years’ imprisonment for the sexual conduct charges and six months’ imprisonment for the assault charge.
Mr Nevin’s appeal against conviction and sentence was dismissed by the Court of Appeal on 22 August 2023.[3]
[3]N (CA28/2023) v R [2023] NZCA 378 (Collins, Lang and Woolford JJ) [CA judgment].
Mr Nevin seeks leave to appeal against the Court of Appeal judgment relating to conviction on three grounds which he says either singly or in combination led to a miscarriage of justice:
(a)inadmissible opinion evidence from the complainant’s mother;
(b)use of counter‑intuitive evidence; and
(c)motive to lie.
He also seeks leave to appeal against the Court of Appeal judgment on sentence. Mr Nevin argues that it is not correct that he took no issue with there being five aggravating factors and that the cases the Court of Appeal relied on are distinguishable.

Court of Appeal decision

Opinion evidence

This issue arose in the context of evidence given by the complainant’s mother about a telephone call she made to Mr Nevin after the complainant had disclosed the alleged offending.[4] Her testimony included comments about Mr Nevin’s reaction, and in particular, a delay before he responded to the allegations.
[4]At [15]–[17].
It was submitted by the applicant in the Court of Appeal that the jury should…

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 Nevin v The King

Details

AGLC: Nevin v The King [2023] NZSC 161
Case: [2023] NZSC 161
Decision Date: 7 December 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr. Nevin applied for leave to appeal the Court of Appeal’s dismissal of his appeal against conviction and sentence. Mr. Nevin was convicted of multiple sexual offences and sentenced to six years and six months’ imprisonment. The Court of Appeal dismissed the appeal on both conviction and sentence, finding no miscarriage of justice. The applicant’s grounds for appeal were (a) the inadmissible opinion evidence from the complainant’s mother, (b) the use of counter-intuitive evidence, and (c) the motive to lie. The Court of Appeal dismissed these grounds, finding no risk of a miscarriage of justice.

The Court of Appeal held that the opinion evidence from the complainant’s mother did not affect the outcome of the trial. The Court noted the distinction between expressions of opinion and evidence that conveys a witness’s observations about a defendant’s demeanour. The Court also held that the counter-intuitive evidence was properly used in the closing address and trial, and the prosecutor’s remarks did not impermissibly boost the complainant’s credibility. The Court further rejected the applicant’s submission that there was an onus on him to explain why the complainant may have lied. The Court of Appeal held that there were five aggravating factors justifying the starting point of seven years’ imprisonment, which was well within the available range. The applicant did not demonstrate that the Court of Appeal’s analysis was wrong or that the appeal raised issues of general or public importance.

The Supreme Court dismissed the application for leave to appeal, finding that the applicant had not demonstrated that the Court of Appeal’s analysis was wrong or that the appeal raised issues of general or public importance. The Court held that the proposed appeal did not appear to raise any issues of general or public importance and that there was no appearance of a miscarriage of justice. The Court of Appeal’s dismissal of the appeal against conviction and sentence was affirmed.

Orders