R v Aylwin - [2007] NZCA 458

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA49/07 [2007] NZCA 458

THE QUEEN

v

ALISDAIR BRUCE AYLWIN

Hearing: 26 June 2007
Court: William Young P, Randerson and Panckhurst JJ Counsel: S J Bonnar for Appellant
K Raftery for Crown

Judgment: 23 October 2007 at 3.30 pmat 3.30 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by Randerson J)

R V AYLWIN CA CA49/07 23 October 2007

[1] On 19 December 2006 the appellant was convicted in the District Court at Tauranga on one count of indecent assault. His conviction followed a jury trial with Judge Harding presiding. He was later sentenced to 100 hours community work.

[2] He now appeals against conviction and sentence. The points advanced in support of the appeal against conviction are:

(a) The Judge erred in permitting the Crown to put the case to the jury in separate counts alleging alternative factual bases for the charge of indecent assault;

(b)Crown counsel put prejudicial and irrelevant questions to the appellant resulting in a miscarriage of justice; and

(c)The verdict of the jury was unreasonable or not supported by the evidence.

[3] The sentence appeal was advanced on the ground that, in all the circumstances of the case, the Judge erred in refusing to exercise his discretion to discharge the appellant without conviction.

The factual background

[4] The appellant was a serving police officer. On the evening of 2 July 2005 he and the complainant were invited to watch a rugby match on television in a garage at the home of mutual friends. Both the complainant and the appellant became extremely intoxicated at the function, to the extent that each vomited during the evening. At some point, the complainant fell asleep in the garage but was later woken by the host (a Mrs Morgan) who assisted the complainant into a single bed in a bedroom in the house and shut the door.

[5] Soon afterwards, Mrs Morgan met with the appellant who enquired about the complainant. Mrs Morgan told him that the complainant was in a relationship. With Mrs Morgan’s permission, the appellant then went into a separate bedroom and lay down. Feeling unwell, he later got up and vomited. Eventually, he entered the room in which the victim was sleeping in the early hours of the morning. He stripped to his underwear and got into bed with her.

[6] The next morning, while it was still dark, and as the appellant and the complainant were waking, the physical contact occurred which was the subject of the charge. The nature of this contact was strongly disputed at trial. The complainant alleged she was awoken by someone pulling her underwear aside and touching her vagina. This was denied by the appellant whose account was that he awoke with his right arm draped over the top of the complainant across her midriff.…

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 Aylwin

Details

AGLC: R v Aylwin [2007] NZCA 458
Case: [2007] NZCA 458
Decision Date: 23 October 2007

CaseChat Overview and Summary

The case of R v Aylwin involved an appeal against conviction and sentence by the appellant, a police officer, who had been found guilty of one count of indecent assault. The Court of Appeal of New Zealand dismissed the appeals. The appellant argued that the trial judge erred in permitting the Crown to present alternative factual bases for the charge of indecent assault and that the cross-examination of the appellant was prejudicial and irrelevant. The Court found no error in the judge's decision and concluded that the appellant was not prejudiced by the Crown's amendment of the indictment or the cross-examination. The appellant also argued that the verdict was unreasonable or not supported by the evidence, but the Court found that the jury had sufficient evidence to infer the essential elements of the offence. Finally, the appellant argued that the sentence was disproportionate to the gravity of the offence, but the Court of Appeal found no error in the sentencing judge's discretion and concluded that the sentence of 100 hours of community work was appropriate.

Orders