P (SC 88/2018) v The Queen - [2019] NZSC 1

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: ORDER MADE IN THE DISTRICT COURT PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT AND HIS WIFE REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 88/2018
[2019] NZSC 1

BETWEEN	P (SC 88/2018) Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	N P Chisnall for Applicant J E L Carruthers for Respondent
Judgment:	15 February 2019

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr P faced trial on a number of charges alleging assault of his wife and children and of breaches of a protection order. Two of the charges arose out of a single incident and gave rise to a charge of assault of his wife, K, and a charge of assault of his daughter, L. At trial, Mr P was found guilty of assault of L, but the jury could not agree on the charge of assault of K. At a retrial on that charge (and others on which the jury could not reach agreement) he was acquitted.
Mr P appealed unsuccessfully to the Court of Appeal against conviction[1] and now seeks leave to appeal to this Court. There are two proposed grounds of appeal. The first proposed ground is that the conviction for assaulting L was inconsistent with the not guilty verdict on the retrial. Mr P says this issue gives rise to a question of general or public importance. The second proposed ground is that the conviction for assaulting L was inconsistent with the jury’s inability to agree at the first trial on the assault charge in relation to K. It is submitted that leave to appeal should be granted on the basis there is a risk a miscarriage of justice has occurred. The argument is that this is one of those cases where the evidence on the two charges could not logically be separated.[2]
[1]P (CA354/2017) v R [2018] NZCA 361 (Gilbert, Courtney and Moore JJ) [CA judgment].
[2]With reference to B (SC 12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [68](e) citing R v Pittman 2006 SCC 9, [2006] 1 SCR 381 at [8].
Both of these proposed grounds were considered by the Court of Appeal.
On the question of inconsistency on the basis of the outcomes reached at separate trials, the Court said it was unaware of a case in which it had been seen as “tenable” to assert inconsistency on that basis.[3] The Court also noted the doubt expressed about this concept.[4] But, in any event, the Court concluded that the present case was not one “in which the concept justifies serious consideration because of the important differences between the two trials”.[5] The Court highlighted the fact that the…

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: [2019] NZSC 1
Decision Date: 15 February 2019

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal from Mr P, who had previously been convicted of assaulting his daughter, L, but acquitted on a retrial of assault on his wife, K. Mr P argued that the inconsistency between his acquittal on the charge of assaulting K and the conviction for assaulting L raised a question of general or public importance, potentially leading to a miscarriage of justice. The application was dismissed, with the Court of Appeal's reasoning upheld. The Court of Appeal had found no tenable basis for asserting inconsistency between the outcomes of separate trials, given the differences in the evidence presented and the circumstances of each trial. The Court of Appeal had also considered the evidence regarding the assault on L to be consistent and plausible, whereas there were inconsistencies in the accounts regarding the assault on K, including the defence expert's evidence. The Court found no appearance of a miscarriage of justice and concluded that the criteria for leave to appeal were not met.

The legal issues at the core of this case revolved around the consistency of verdicts across separate trials and the potential for a miscarriage of justice due to conflicting outcomes. The first issue was whether the acquittal on the assault charge against K could be considered inconsistent with the conviction for assaulting L, particularly given the different evidence and circumstances at each trial. The second issue was whether the evidence presented at the retrial for the assault on K, and the inconsistencies in the accounts regarding that incident, could justify a finding that a miscarriage of justice had occurred. The Court of Appeal had addressed these issues by examining the differences in the evidence and the circumstances of each trial, and found no basis for inconsistency or miscarriage of justice.

The Supreme Court's reasoning followed closely with that of the Court of Appeal, emphasising that the outcomes of separate trials could differ based on the evidence and circumstances presented. The Court highlighted the differences in the evidence, particularly the consistency of the accounts regarding the assault on L, and the inconsistencies and expert evidence regarding the assault on K. The Court concluded that there was a logical and reasonable basis for the different outcomes, and no miscarriage of justice was apparent. The criteria for leave to appeal were not met, as the Court found no question of general or public importance and no appearance of a miscarriage of justice. The application for leave to appeal was therefore dismissed.

Orders