Peter Alan Hutchins v The Queen - [2016] NZSC 117

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 67/2016
[2016] NZSC 117

BETWEEN	PETER ALAN HUTCHINS Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and OʼRegan JJ
Counsel:	C J Tennet for Applicant J E Mildenhall for Respondent
Judgment:	31 August 2016

JUDGMENT OF THE COURT

A An extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.
____________________________________________________________________

REASONS

The applicant was convicted after a retrial of one count of sexual violation by unlawful sexual connection and one count of sexual violation by rape. He appealed to the Court of Appeal alleging that the trial Judge had made factual errors in his summing up, had misdirected the jury in certain respects and had failed to put the defence case adequately. He also sought to appeal his sentence on the ground it was manifestly excessive. The appeal was dismissed.[1]
[1]Hutchins v R [2016] NZCA 173 (Stevens, Simon France and Ellis JJ) [Hutchins (CA)].
The applicant seeks to appeal against the Court of Appeal decision. The application was made out of time but the respondent takes no issue with an extension of time being granted. We grant the extension.
The first ground on which leave is sought relates to the direction given by the trial Judge on the burden of proof. This direction did not follow the guidance given by the Court of Appeal in R v Wanhalla.[2] The Court of Appeal highlighted certain deficiencies in the direction, but formed the view that there was no real risk that the jury misconstrued the standard of proof.[3] The Court concluded that no risk of miscarriage arose.[4]
[2]R v Wanhalla [2007] 2 NZLR 573 (CA).
[3]Hutchins (CA), above n 1, at [41].
[4]At [43].
The applicant wishes to argue in this Court that the departures from the guidance given in R v Wanhalla led to a miscarriage of justice in the present case. He refers to the deficiencies identified by the Court of Appeal and in addition the reference in the question trail given to the jury by the Judge which refers to the need for the jury to “feel sure”, which he argued downplayed the importance of the requisite standard of proof. He argued that, given the importance of the burden and standard of proof in every criminal trial, the departure from the guidance given in R v Wanhalla should have led to a finding of a miscarriage of justice and an order for a retrial.
The Court of Appeal’s assessment of the likely impact of the Judge’s direction on the burden and standard of proof was specific to the direction he gave and the facts of the particular case. We do not see any point of public importance arising. Nor do we consider that there is any real risk of a miscarriage of justice…

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: [2016] NZSC 117
Decision Date: 31 August 2016

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the applicant, Peter Alan Hutchins, sought leave to appeal against his conviction and sentence, which were affirmed by the Court of Appeal. Hutchins was convicted of one count of sexual violation by unlawful sexual connection and one count of sexual violation by rape. His appeal to the Court of Appeal was dismissed, and he now seeks leave to appeal to the Supreme Court. The appeal raises issues regarding the trial judge's direction on the burden of proof, the adequacy of the summing up to the jury, and the severity of the sentence.

The legal issues before the court were whether the trial judge's direction on the burden of proof deviated from established jurisprudence in a manner that risked a miscarriage of justice and whether certain factual questions posed by the trial judge during the summing up unfairly influenced the jury. Additionally, the applicant argued that his sentence was manifestly excessive. The court needed to determine whether these issues warranted an appeal and, if so, whether they raised matters of public importance or risk of miscarriage of justice.

The Supreme Court found that the trial judge's direction on the burden of proof, while not following the guidance in R v Wanhalla, did not pose a real risk of miscarriage of justice. The Court of Appeal had already assessed the direction and concluded there was no such risk. Similarly, the court found no merit in the applicant's argument regarding the factual questions posed by the trial judge, as these were not deemed prejudicial by the Court of Appeal. Regarding the sentence, the Supreme Court did not see the need to intervene, given the Court of Appeal's assessment. The court ultimately dismissed the application for leave to appeal.

The Supreme Court granted the applicant an extension of time to apply for leave to appeal but dismissed the application itself. The court found that the issues raised did not meet the threshold for leave to appeal, either because they were factually specific or because there was no real risk of miscarriage of justice.

Orders