R (SC 1/2019) v The Queen - [2019] NZSC 87

NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

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

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT AND WITNESS “S” PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 1/2019
[2019] NZSC 87

BETWEEN	R (SC 1/2019) Appellant
AND	THE QUEEN Respondent

Hearing:	14 May 2019
Court:	Winkelmann CJ, O’Regan, Ellen France, Williams and Arnold JJ
Counsel:	N P Chisnall and N J Manning for Appellant B J Horsley and J E L Carruthers for Respondent
Judgment:	16 August 2019

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS
(Given by Ellen France J)

Table of Contents

Para No.
Introduction	[1]
Background	[4]
The offending	[5]
The trial	[9]
The Court of Appeal judgment	[23]
Was the evidence admissible?	[27]
The case on appeal	[28]
The applicable principles	[30]
Summary of the position	[45]
Application of the principles to this case	[48]
The directions to the jury	[55]
Result	[66]

Introduction

Following a trial by jury the appellant was found guilty of six charges of sexual offending against the daughter of his former partner.[1] He was sentenced to a term of imprisonment of three years and six months.[2] His appeal against conviction was dismissed by the Court of Appeal.[3] He now appeals to this Court.[4]
[1]The appellant was also acquitted on one charge of sexual violation.
[2]R v [R] [2018] NZDC 3878 (Judge Thomas).
[3]R (CA158/2018) v R [2018] NZCA 529 (Kós P, Woolford and Dunningham JJ) [CA judgment].
[4]Leave granted: R (SC 1/2019) v R [2019] NZSC 10.
The appeal turns on:
(a)the admissibility of evidence given at trial by the complainant and her mother about the complainant’s behaviour, including evidence that she self‑harmed and that she attempted to commit suicide; and
(b)the way in which the trial Judge dealt with this evidence in summing up.
To explain how these issues arise we need to first set out the background.

Background

The appellant had been in a long‑term relationship with the complainant’s mother although they were not living together by the time of the incidents giving rise to the charges. The complainant, who was 14 years old at the time of those incidents, regarded the appellant as a father figure.

The offending

The charges arose out of two separate incidents. The first of these occurred on 27 December 2016. There was no issue that the appellant and the complainant spent some time together that day. However, the appellant contested the complainant’s account that, after they had been out for a drive, they were together at the complainant’s home. Her mother was at work at the time.
The complainant said the appellant brought their conversation towards sexual topics…

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: [2019] NZSC 87
Decision Date: 16 August 2019

CaseChat Overview and Summary

The appeal against conviction was dismissed by the Court of Appeal. The appellant appealed to the Supreme Court of New Zealand. The appeal concerned the admissibility of evidence given at trial by the complainant and her mother about the complainant’s behaviour, including evidence that she self-harmed and that she attempted to commit suicide, and the way in which the trial Judge dealt with this evidence in summing up. The Court of Appeal had concluded that the evidence was admissible and that there was no risk of a miscarriage of justice because of the trial strategy of the defence. The Court of Appeal had also concluded that the absence of a direction to the jury not to jump to the conclusion that the complainant’s self-harming and attempted suicide was a result of the offending did not give rise to a risk of a miscarriage of justice for three reasons: first, because of the defence strategy; secondly, because the prosecutor had not sought to use the evidence to make that link; and finally, because the conduct preceded the incidents. The Supreme Court of New Zealand found that the evidence was admissible and the Judge’s directions had not given rise to a miscarriage of justice. The appeal was accordingly dismissed.

Orders