Police v SBC

[2012] NZHC 692

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF RESPONDENT AND COMPLAINANT UNTIL THE FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-042-698 [2012] NZHC 692

BETWEEN  NEW ZEALAND POLICE Applicant

ANDSBC Respondent

Hearing:         16 April 2012

Counsel:         J Webber for Applicant

B Daniell-Smith for Respondent

Judgment:      16 April 2012

ORAL JUDGMENT OF MILLER J

[1]      The Crown applies under s 345(3) of the Crimes Act for permission to file an indictment containing one count of doing an indecent act on a child under 12, the Justices having discharged the respondent, on the ground that there was no case to answer.

[2]      The incident is said to have happened at a camping ground.  The respondent’s wife and three children were staying there, and he would join them in the evenings. The girl concerned is his daughter.   The Crown case rested on eight written statements.  Six of the deponents, all of whom were at the camping ground, state that they variously observed him kiss the girl on the mouth and rub her neck and bottom, causing her skirt to lift up, and the girl kissed him and rubbed his leg and bottom. The kissing was much longer than consistent with a goodnight kiss, for example.

This behaviour was seen on more than one occasion.

NEW ZEALAND POLICE V SBC HC NEL CRI-2012-042-698 [16 April 2012]

[3]      None of these witnesses was called at the committal hearing, but the defence called three witnesses, who said that the contact they observed, which may not have been the same behaviour, was quite normal.

[4]      The Justices correctly directed themselves that they should not discharge for insufficiency of evidence unless the likelihood of a properly directed jury returning a guilty verdict is so slight that the defendant ought not be committed for trial.  They formed the view that this was such a case, although they gave reasons for reaching that conclusion.

[5]      Before me, Mr Daniell-Smith not only argued that the Justices applied the right test but also sought his written submissions to support their conclusions by reference to the evidence.   There is nothing to show that the six Police witnesses knew the respondent was the girl’s father, and had they done so they might not have interpreted his behaviour in such a way.   Further, it is implausible that he would behave indecently in so public a place.  Strictly speaking there is no complainant; the girl disclosed no impropriety.

[6]      In my opinion the Justices were plainly wrong to reach a conclusion that a jury could not properly convict.  Police witnesses deposed to behaviour that a jury might properly think indecent, and indecency itself is a jury question.  It was not for the Justices to decide that the defence witnesses would be preferred about what happened or whether it was indecent.  In any event, the Justices did not hear orally from the Police witnesses so they were in no position to evaluate the evidence overall.  Finally, there was no necessary contradiction between Police and defence witnesses, since they may not have observed the identical behaviour.

[7]      The depositions disclose evidence which, if accepted, might properly found a conviction for indecency. The application is granted.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Applicant