Q (CA63/2010) v The Queen

Case [2010] NZCA 487


For a Court ready (fee required) version please follow this link

ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA63/2010 [2010] NZCA 487

BETWEEN  Q (CA63/2010) Appellant

ANDTHE QUEEN Respondent

Hearing:         1 September 2010

Court:            Arnold, Keane and MacKenzie JJ Counsel:     W C Pyke for Appellant

H A Wrigley for Respondent

Judgment:      27 October 2010 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is allowed.  The conviction is quashed and a retrial is ordered.

BPublication of the judgment and any part of the proceedings in news media  or  on  the  internet  or  other  publicly  available  database  is prohibited until final disposition of retrial.  Publication in law report or

law digest is permitted, however.

Q (CA63/2010) V R CA63/2010 [27 October 2010]

REASONS OF THE COURT

(Given by Keane J)

Introduction

[1]      Q was found guilty at a jury trial before Judge Wolff of two sexual violation offences committed on 15 April 2009, penetrating the anus of the complainant, X, first with his penis then his finger, and was sentenced to eight years imprisonment, concurrently, for each offence.1   He appeals his conviction and sentence.

[2]      Q denied these offences when first confronted by the police not long after X complained.  He said “it did not happen”.  That was taken to be an outright denial. At his trial the Crown set out to prove first the fact of penetration in the two ways complained of and only then to exclude any issue as to consent.  As well as relying on X‟s evidence it relied on the doctor who examined her shortly after she made her complaint, Dr Hancock, as to injuries to X‟s anus and elsewhere.  It relied on ESR evidence confirming that spermatozoa swabbed by Dr Hancock from X‟s anus was statistically that of Q.

[3]      In the event, and this was clearly signalled by his then counsel in an opening statement at the beginning of the trial, Q admitted in evidence that he had penetrated X‟s anus in the two ways she described.  He did so, he said, with her consent, or with a reasonable belief that she did consent.  The jury, by its verdict, clearly preferred her account to his to the point where it was sure.  But on this appeal Q contends that the verdict is unsafe and that the trial miscarried.

[4]      First,  Q  contends,  the  jury‟s  verdict  is  explained  by the  fact  that,  when Dr Hancock described the injuries to X‟s anus, she described them as “penetrative and blunt force trauma”.  Then, when asked by Q‟s then counsel whether they were

consistent, nevertheless, with consensual relations, she said that was possible but

1      R v Q(CA63/2010) DC Hamilton CRI-2009-072-287, 13 January 2010.

unlikely.   These expressions of opinion, Q‟s…

Continue reading Q (CA63/2010) v The Queen

Sign in free to access the full text

Details
AGLC
Q (CA63/2010) v The Queen [2010] NZCA 487
Case
[2010] NZCA 487
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against conviction and sentence from Q, who was convicted of two counts of sexual violation involving anal penetration. The Court quashed the convictions and ordered a retrial, finding that the jury's verdict was influenced by inadmissible opinion evidence from a medical expert and that the trial judge's direction to the jury was incomplete. The Court found that the medical expert's use of the term "blunt force trauma" was not in itself problematic, but her opinion that the injuries were highly suggestive of non-consensual activity was inadmissible. The Court also found that the trial judge's direction to the jury was incomplete as it omitted the third cardinal point, which provides a counterbalance to the pressure to reach a unanimous verdict. The Court found that the omission could have placed undue pressure on the juror standing out to surrender to the majority opinion contrary to their oath. The Court quashed Q's convictions and ordered a retrial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.