R v B (CA279/05) - [2006] NZCA 389

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA279/05

THE QUEEN

v

B(CA279/05)

Hearing: 14 February 2006
Court: William Young P, Potter and Rodney Hansen JJ Counsel: D J Sharp for Appellant
J M Jelas for Crown

Judgment: 7 March 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Potter J)

Introduction

[1] B was found guilty following trial in the District Court at Gisborne before

Judge Wilson QC and a jury, of two charges of indecent assault upon his daughter T

R V B(CA279/05) CA CA 279/05 7 March 2006

who was aged 14 at the time of the offending in 1986 and 1987. He was sentenced to two years eight months imprisonment.

[2] B now appeals against the convictions.

Factual background

[3] The Crown case may be summarised as follows:

B lived alone with T in a bach at Leigh, north of Auckland, after his wife left and moved to Auckland. From the time T was aged 12 the appellant would expose his penis to her and fondle his penis in front of her. He would also watch T while she was in the bathroom in the bach at Leigh.

[4] After coming home drunk from the hotel the appellant would touch T between the legs with his hands when she was in bed. This offending occurred on a regular basis over a 12 months period between February 1986 and February 1987. On at least two occasions the appellant touched T’s genital area. These facts formed the basis of the first charge, a representative charge of indecent assault.

[5] On one occasion T ran crying to a neighbour’s address which resulted in the neighbour, P, confronting the appellant.

[6] When T was about 14 years old there was an incident which gave rise to count 2. T had been drinking and was asleep in her bed. She awoke to find the appellant performing oral sex on her. She kicked him and swore at him. Following that incident she moved out of the bach and went to Auckland to live with her mother.

[7] The appellant denied that the offending ever took place.

Grounds of appeal

[8] The grounds of appeal as presented in submissions, are:

(a) The Crown made submissions that the appellant was sexually frustrated, which were emotive, highly prejudicial, unsupported by the evidence and breached prosecutorial boundaries.

(b)The Crown’s approach was erroneously given legitimacy by the trial Judge when he repeated it in his summing up and did not refer to the defence criticism of the Crown’s submissions on this point.

(c) The Judge gave a standard direction about recent complaint evidence and did not identify or sufficiently identify inconsistencies in the evidence of the recent complaint witness P and the evidence of T at trial as to the complaint made and the events complained of. Consequently there was a risk that the jury would treat the…

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 B (CA279/05)

Details

AGLC: R v B (CA279/05) [2006] NZCA 389
Case: [2006] NZCA 389
Decision Date: 7 March 2006

CaseChat Overview and Summary

B was convicted in the District Court of two charges of indecent assault upon his daughter. The appellant appealed against the convictions. The appellant's grounds of appeal were that the Crown made emotive, highly prejudicial, and unsupported submissions about the appellant's alleged sexual frustration, which were given legitimacy by the trial judge, and that the trial judge did not sufficiently identify inconsistencies in the evidence of the recent complaint witness and the evidence of the complainant at trial as to the complaint made and the events complained of. The Crown argued that the submission about sexual frustration was not without evidential foundation and was not a dominant part of the Crown case, and that the complaint evidence was largely consistent and supported the credibility of the complainant as a witness. The Court found that the Crown's submission about sexual frustration was not without evidential foundation and was not a dominant part of the Crown case, and that the trial judge did not misdirect the jury by not drawing their attention to inconsistencies in the evidence. The appeal was dismissed.

The Court of Appeal of New Zealand found that the appeal was without merit and dismissed it. The Court found that the Crown's submission about sexual frustration was not without evidential foundation and was not a dominant part of the Crown case, and that the trial judge did not misdirect the jury by not drawing their attention to inconsistencies in the evidence. The Court concluded that the evidence of the recent complaint witness and the evidence of the complainant at trial were largely consistent and supported the credibility of the complainant as a witness. The Court found that the trial judge had directed the jury as to the limited purpose of the recent complaint evidence, which was to assist them in assessing the credibility of the complainant. The Court concluded that the trial judge's direction was sufficient and did not amount to a material misdirection to the jury. The appeal was dismissed, and the convictions and sentences of the appellant were upheld.

Orders