Purvis v The Queen

[2005] NZCA 291

IN THE COURT OF APPEAL OF NEW ZEALAND

CA242/05

THE QUEEN

v

GRAEME MURRAY PURVIS

Hearing:30 November 2005

Court:Hammond, John Hansen and Doogue JJ

Counsel:J Ablett Kerr QC for Appellant

M D Downs for Crown

Judgment:30 November 2005 

JUDGMENT OF THE COURT

A      The appeal against conviction is allowed and the conviction and sentence are quashed.

B      A verdict of acquittal is entered under s 385(2) Crimes Act 1961.

REASONS

(Given by Doogue J)

[1]       Graeme Murray Purvis appeals against his conviction for permitting an indecent act with a girl under the age of 12 years.  A jury in the District Court at Dunedin found him guilty of that crime on 21 February 2002.  He was sentenced to 18 months imprisonment by the trial judge, Saunders DCJ, on 21 March 2002.

[2]       The appeal, which is supported by the Crown, is based on fresh evidence obtained by the Police that the two principal witnesses at the trial have recanted in respect of the evidence given by them.  One of the witnesses goes so far as to accept that she gave false evidence at trial.  The other witness acknowledges that the impression that her evidence gave in Court was false and that matters may not have occurred in the way she said.

[3]       It is accepted that the evidence now before this Court is technically hearsay, being evidence obtained by the Police in the context of a perjury inquiry.  The Crown understandably takes no issue as to that, particularly as the recantation by one of the witnesses was made following the administration of a caution and a Bill of Rights Act advice.

[4]       The material before this Court establishes that there is no reliable evidence upon which a properly directed jury could possibly convict the appellant.

[5]       It is preferable that we say no more about the facts of the matter.  However, we make it absolutely clear that on the material now before the Court there is no evidence that the appellant was guilty of any offence whatever in respect of the two-year-old child in question.  It is not a case of doubt as to whether the appellant is guilty or not.  It is a case where there is no evidence at all of any wrongdoing on his part. 

[6]       Thus there was a clear miscarriage of justice in respect of the conviction of the appellant.  We therefore accept the view of the Crown that it is proper the conviction and sentence be quashed and a verdict of acquittal be entered under s 385(2) Crimes Act 1961 and we so order.  It is not a technical verdict of acquittal but one that entirely clears the appellant’s name.

Solicitors:

Crown Law Office, Wellington