R v A (CA194/07 and CA271/07) - [2007] NZCA 448

AN ORDER SUPPRESSING THE NAME OF A IS STILL ON FOOT
˝ IN THE DISTRICT COURT.
˝

˝ PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA194/07
CA271/07 [2007] NZCA 448

THE QUEEN

v

A (CA194/07 AND CA271/07)

Hearing: 9 October 2007
Court: Hammond, Baragwanath and Keane JJ Counsel: M Starling and S G Bailey for Appellant
D R La Hood and M E Ball for Crown

Judgment: 17 October 2007 at 3.30 pm

JUDGMENT OF THE COURT

A Leave to appeal against conviction granted.

B The appeals against conviction and sentence are both dismissed.

REASONS OF THE COURT

(Given by Hammond J)

R V A (CA194/07 AND CA271/07) CA CA194/07 17 October 2007

Introduction

[1] A, a female, was convicted by a jury in the District Court at Invercargill of six counts of unlawful sexual connection against two male complainants, one (B) aged 15 and the other (C) aged 14, contrary to s 134(1) of the Crimes Act 1961. A was 40 years old at the time. On 5 April 2007, Judge Phillips sentenced A to three years imprisonment. She now appeals against her convictions, and the sentence imposed.

[2] The conviction appeal is based on two grounds arising out of the Judge’s summing up. It is said that the Judge’s directions to the jury on intoxication and the use of “similar fact” evidence were both in error, and have given rise to a miscarriage of justice.

[3] The appeal against conviction was filed out of time. The Crown does not oppose leave being granted. A sentence appeal was filed within time, and there is no prejudice to the Crown given the length of the delay. Leave is accordingly given for the conviction appeal.

[4] The appeal against sentence is on the ground that it is manifestly excessive.

[5] There is an existing order for the suppression of A’s name, which was made by the trial Judge. There has been no application to vary or amend that order; it is accordingly still extant.

Background

[6] A moved from Australia to the South Island of New Zealand after a business belonging to her and her husband ran into financial difficulty. In New Zealand at all relevant times she lived in a house with her sister-in-law, brother-in-law, and their

family. One complainant, B, was the son of A’s sister-in-law and brother-in-law. The second complainant, C, was a close friend of B’s.

[7] On 1 August 2005, A, her hosts, B, and C were all drinking alcohol. A supplied B and C with vodka throughout the evening. A, B, and C all became heavily intoxicated.

[8] Late into the evening, after B’s parents had gone to bed, A and the two boys proceeded to a farming shed on the property. Further alcohol was consumed. C eventually vomited from his consumption of liquor.

[9] A proceeded to remove her clothing and have sexual intercourse with B. She…

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: [2007] NZCA 448
Decision Date: 17 October 2007

CaseChat Overview and Summary

A, a 40-year-old woman, appealed against her conviction and sentence for six counts of unlawful sexual connection against two underage male complainants, B (aged 15) and C (aged 14). The appeal against conviction was based on alleged errors in the summing up of the trial judge, specifically regarding intoxication and the use of "similar fact" evidence. The appeal against sentence argued that the sentence was manifestly excessive. The Court of Appeal addressed each ground of appeal in turn.

In relation to the summing up, the Court found that the judge's direction on intoxication was orthodox and aligned with the established case law. The court found that the jury rejected A's claim of insensibility due to intoxication, and there was sufficient evidence to support this rejection. As for the "similar fact" evidence, the Court found that the judge provided appropriate warnings to the jury, and there was a strong case for the high degree of sameness between the events, which warranted the use of such evidence. The court concluded that the appeal against conviction should be dismissed.

Regarding the sentence appeal, the Court found that the trial judge had adopted a proper starting point and made appropriate deductions for A's previous good character. The Court acknowledged that the sentence was within the range available to the sentencing judge, considering the aggravating features of the case, such as the predatory nature of the behaviour, breach of trust within the family, and the continuing course of conduct. The Court dismissed the appeal against sentence.

In summary, the Court of Appeal dismissed both the appeal against conviction and the appeal against sentence, affirming the original decisions made by the trial judge.

Orders