Paul James Page v The Queen - [2000] NZCA 75

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 4/00

PAUL JAMES PAGE

THE QUEEN

Hearing:	30 May 2000
Coram:	Gault J Doogue J Robertson J
Appearances:	R M Lithgow for appellant M J Thomas for respondent
Judgment:	6 June 2000

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

This is an appeal against conviction. An appeal against sentence is not pursued for practical reasons relating to the release date of the appellant. The appellant sought an adjournment and for Mr Lithgow to be no longer assigned as his counsel. The Court declined these requests and directed the assignment of Mr Lithgow as counsel continue.
The appellant was convicted by a jury in the District Court at Dunedin on 13 December 1999 of indecently assaulting a 24 year old woman on 17 April 1999. He was sentenced to 12 months’ imprisonment on 22 December 1999.
The appellant conducted the trial on his own behalf but independent counsel as an amicus curiae was appointed to cross-examine the complainant on his behalf. The amicus has lodged a report to the Court. The appellant disputes it. We have put it to one side.
The central issue in the trial was one of identification. There is no dispute that the Judge in his summing-up gave the appropriate direction on the special need for caution before convicting on the correctness of identification evidence.

The Evidence at Trial

The complainant, a 24 year old graduate student, said she was walking home to her flat in Dunedin at around 5.55 a.m. on 17 April 1999 after visiting some night clubs. She said that she met the appellant, whom she did not know, walking in the opposite direction and that he turned around and started to walk with her. When they got to her flat she said that she was going in and that the man wasn’t. The complainant did not have her key and first rang the door bell but as there was no response from her flatmates she went around to the back of the flat down an alleyway and yelled out to her flatmates who apparently heard her. Then she returned along the alleyway to the front of the flat. She was met by the same man, who grabbed her with both hands around her left thigh by the crotch. The complainant pushed the man away and was let into the flat by her flatmates. She said she had been touched in the genital area. She said that the time the man was with her was approximately 15 minutes. She said that on the first part of the walk in company with the man the lighting was good, being in Princes Street, Dunedin. She thought the shape of the man’s face and the texture of his skin were unusual and not like the average person. She could not recall the man’s clothing but she could recall the man’s hair, which she originally thought was short, spiky and blond.
The complainant called the police…

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: [2000] NZCA 75
Decision Date: 6 June 2000

CaseChat Overview and Summary

Paul James Page appealed against his conviction for indecent assault, arguing that his trial was unfair due to several alleged errors. The appeal was heard by Gault J, Doogue J, and Robertson J in the Court of Appeal of New Zealand. The key issue was whether the trial errors were substantial enough to warrant a new trial. The appellant argued that the cross-examination of the complainant was inadequate, the Crown failed to disclose the name and address of a potential defence witness, the complainant's husband was not called to testify, and a newspaper story during the trial could have wrongly influenced the jury. The Court found that while there were some procedural errors, they did not prejudice the appellant's defence or result in a miscarriage of justice. The Court concluded that there was no ground for quashing the conviction, but it was required by law to address the breach of section 10(1) of the Criminal Justice Act 1985. The Court made a declaration of breach but dismissed the appeal in all other respects.

Orders