Q (CA63/2010) v The Queen - [2010] NZCA 487

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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…

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.

Continue reading Q (CA63/2010) v The Queen

Details

AGLC: Q (CA63/2010) v The Queen [2010] NZCA 487
Case: [2010] NZCA 487
Decision Date: 27 October 2010

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