Noble v R

IN THE SUPREME COURT OF NEW ZEALAND
SC 108/2009
[2010] NZSC 85
DEAN CARLEO CICONE NOBLE
v
THE QUEEN
Court:Elias CJ, Blanchard and McGrath JJ
Counsel:B J Hart for Applicant

M D Downs for Crown

Judgment:16 July 2010

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
REASONS
[1]        The applicant was convicted on charges of sexually violating a fellow prisoner in Paparoa Prison. The Court of Appeal dismissed his appeal: R v Noble[1]. Affidavit evidence from two other prisoners was sought to be admitted. The deponents said that the complainant had made statements to them to the effect that he had not been violated by the applicant. The Court of Appeal heard these witnesses cross-examined. It did not believe their evidence, for the reasons it gave. It declined to admit that evidence.
[1]      R v Noble [2009] NZCA 507.
[2]        The proposed ground for a further appeal to this Court is that the Court of Appeal should have admitted the evidence of the other prisoners. Counsel for the applicant submits that the approach to the admission of further evidence on appeal followed by the Court of Appeal, based on R v Bain[2], although approved by the Privy Council in Bain v R[3], is outdated. Counsel urges a different approach. We are unpersuaded by this argument, noting that the Bain approach is consistent with that followed in comparable jurisdictions.[4] Furthermore, it is inconceivable that on any basis an appellate court would be obliged to receive evidence which it did not find to be sufficiently credible, as was the case here.
[2]      R v Bain [2004] 1 NZLR 638 (CA) at [22]–[24].
[3]      Bain v R (2007) 23 CRNZ 71 (PC).
[4]Gallagher v R (1986) 160 CLR 392, Palmer v R [1980] 1 SCR 759 and Pendleton v R [2002] 1 WLR 72 (HL).
[3]        Counsel has tendered an unsigned document said to be a statement taken from a third prisoner. We decline to receive it, noting that the application to this Court was made as long ago as 20 November 2009 and that the applicant has been given numerous extensions of time for the filing of submissions and supporting material.
Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to decide whether Dean Carleo Cicone Noble was entitled to appeal against his conviction for sexually violating a fellow prisoner in Paparoa Prison. The Court of Appeal had dismissed Noble’s appeal and refused to admit evidence from two other prisoners who claimed that the complainant had told them he had not been violated by Noble. The evidence was rejected by the Court of Appeal, which Noble now seeks to challenge. The central issue before the Supreme Court was whether the Court of Appeal should have admitted the evidence of the two prisoners, a decision based on the precedent established in R v Bain. The Court considered whether the Bain approach, which had been approved by the Privy Council, was outdated and whether a different approach should be adopted. The Court noted that the Bain approach was consistent with that followed in comparable jurisdictions and concluded that it was inconceivable that an appellate court would be obliged to receive evidence it did not find credible. The Court also declined to consider an unsigned statement from a third prisoner that was tendered as part of the application.

The Supreme Court found that the Court of Appeal’s approach to admitting evidence on appeal, based on the Bain case, was consistent with precedent and not outdated. It emphasised that it was inconceivable that an appellate court would be obliged to consider evidence it did not find credible. This was a key point in rejecting Noble’s argument that the Court of Appeal should have admitted the evidence from the two other prisoners. The Court also noted that the application for leave to appeal had been made a considerable time ago, and Noble had been given numerous extensions of time for filing submissions and supporting material. Consequently, the Supreme Court dismissed Noble’s application for leave to appeal. The Court’s reasoning was grounded in the consistency of the approach with established legal principles and the court’s conclusion that the evidence in question was not credible.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established