R v Arneman - [2007] NZCA 428

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA290/07 [2007] NZCA 428

THE QUEEN

v

CRAIG ROBERT ARNEMAN

Hearing: 20 September 2007
Court: Ellen France, John Hansen and Wild JJ Counsel: S A Saunderson-Warner for Appellant
D R La Hood and C A Patterson for Crown

Judgment: 4 October 2007 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by John Hansen J)

[1] The appellant faced two charges of indecent assault. The first involved A, a boy then aged five. The second involved his sister B, then aged nine. The trial,

R V ARNEMAN CA CA290/07 4 October 2007

which commenced on 21 May 2007, was before Judge Spear and a jury in the District Court. The evidence occupied only a day and a half. After deliberating for nearly ten hours the jury found the appellant not guilty in relation to A, but guilty in relation to B. He was sentenced to 200 hours community work with supervision for two years, with special conditions relating to attending counselling and receiving mental health treatment.

[2] He appeals against conviction on two grounds. The first relates to the Judge’s refusal of a jury request to view the evidential video of B again. The second relates to the failure of the Judge to give what is now the standard direction as to the use the jury may make of the trial transcript.

Background

[3] The appellant was in a relationship with A and B’s aunt. B awoke on a fold- out bed in front of the television to find the appellant sitting between her and her cousin. B saw that the defendant’s boxer shorts were pulled down, his penis was visible and he was masturbating himself. The appellant asked for a cuddle, which B gave him.

Events giving rise to appeal

[4] Following the evidence, addresses to the jury were concluded on 22 May. After the conclusion of the addresses, senior counsel for the appellant, Ms Saunderson-Warner was required to travel to Timaru to take part in another trial. She arranged for an experienced local criminal practitioner, Mr Savage, to appear on her behalf the following morning when the Judge summed up. However, Ms Murphy, who also appeared, had been junior counsel for the appellant throughout the trial.

[5] In this case the jury were given the transcript of the evidential video, as well as the transcript of evidence-in-chief, cross-examination and re-examination. It is conceded by the appellant that before the video was shown the Judge gave the standard direction in relation to it, and the use the jury could make of the transcript.

At the conclusion of the summing up, counsel raised with the Judge his failure to give any direction to the jury as to the use they could make of the trial transcripts. Counsel for the Crown also raised with the Judge whether or not…

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 Arneman

Details

AGLC: R v Arneman [2007] NZCA 428
Case: [2007] NZCA 428
Decision Date: 4 October 2007

CaseChat Overview and Summary

Craig Robert Arneman appealed against his conviction for indecently assaulting B, a child aged nine. The appeal concerned the trial judge's refusal to allow the jury to view the video evidence of B's statement again and the failure to give the standard direction as to the use the jury may make of the trial transcript. The jury had requested to view the video again, but the trial judge refused. The appellant's counsel did not object to this decision. The jury had been provided with the transcript of evidence given at the trial, including the transcript of the complainant’s video interview. The trial judge accepted that it would have been preferable to give the standard direction as to the use the jury may make of the trial transcript, but he did not consider there was any risk of a miscarriage of justice. The Court of Appeal found that neither point demonstrated that the verdict was unsafe, and the appeal against conviction was dismissed.

Orders