R v Armstrong - [2007] NZCA 221

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL
DISPOSITION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA409/06 [2007] NZCA 221

THE QUEEN

v

LEIGH ARMSTRONG

Hearing: 17 May 2007
Court: Chambers, John Hansen and Priestley JJ Counsel: M N Pecotic and J Smith for Appellant
K B F Hastie for Crown

Judgment: 1 June 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.

B The conviction is quashed.

R V ARMSTRONG CA CA409/06 1 June 2007

C A new trial is directed on the charge of indecent assault.

DAn order is made prohibiting publication of the reasons for judgment in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial. Publication in a law
report or a law digest is, however, permitted.

REASONS OF THE COURT

(Given by John Hansen J)

[1] Following a trial in the Auckland District Court before Chief Judge Johnson and a jury, the appellant was convicted on a charge of indecent assault. He was acquitted on charges of sexual violation by rape and sexual intercourse with a girl over the age of 12 years and under the age of 16 years, not being his wife.

[2] On 19 October 2006 the Judge convicted the appellant and ordered him to pay reparation of $2000.00 to the complainant.

[3] The appellant appeals against his conviction. He also appeals against sentence, submitting he should have been discharged without conviction.

Background

[4] The complainant and appellant had known each other for some time. The appellant was apparently a close friend of the complainant’s brother. There was some social interchange between the two families.

[5] At the time of the indecent assault in January 2005 the complainant was aged

14 years. The appellant had just turned 18. The complainant was at the Whangaparaoa Plaza. She had been drinking. The appellant collected her to take her home. It appears that arose from a request from the complainant’s brother. The complainant said that, while they were driving home, the appellant put his hand up her skirt and placed it on her upper thigh, leaving it there for some time.

[6] At trial, the appellant accepted he was aware of the complainant’s age. He accepted touching the complainant in the manner alleged, but said it was in response to her actions in fondling his penis. His defence was that it was part of an incident involving mutual touching and thus not indecent. The complainant denied she touched the appellant in any way.

The appeal

[7] In her written submissions Ms Pecotic summarised the grounds of the conviction appeal as:

a) the learned Judge misdirected the jury in respect of indecent assault, both in his summing…

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 R v Armstrong

Details

AGLC: R v Armstrong [2007] NZCA 221
Case: [2007] NZCA 221
Decision Date: 1 June 2007

CaseChat Overview and Summary

In the case of R v Armstrong, the appellant was convicted in the Auckland District Court of indecent assault, a charge under the Crimes Act 1961. The appellant appealed against his conviction and sentence, arguing that the trial judge misdirected the jury on the elements of the offence of indecent assault and failed to present the defence case fairly. Additionally, it was argued that the trial proceeded under the wrong section of the Crimes Act 1961, as the new section 134 did not come into effect until after the alleged offending occurred. The appellant also submitted that the sentence was excessive and that he should have been discharged without conviction.

The Court of Appeal found that the trial judge had indeed misdirected the jury in relation to the elements of the offence of indecent assault, and that the confusion surrounding the applicable section of the Crimes Act 1961 had further contributed to the miscarriage of justice. The Court quashed the conviction and ordered a retrial, while also noting that the sentence appeal was rendered moot due to the quashing of the conviction.

An order was made prohibiting publication of the reasons for judgment in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial. Publication in a law report or a law digest was, however, permitted.

Orders