R v Barlien - [2008] NZCA 180

For a Court ready (fee required) version please follow this link

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

CA505/2007 [2008] NZCA 180

THE QUEEN

v

EIVIN BARLIEN

Hearing: 26 May 2008
Court: Glazebrook, Chisholm and Cooper JJ Counsel: L C Rowe for Appellant
M D Downs for Crown

Judgment: 24 June 2008 at 10.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

R V BARLIEN CA CA505/2007 24 June 2008

Table of Contents

Para No

Introduction [1] Background [5] The trial [18] The legislation [21] History of s 35 of the Evidence Act [28] Common law position [32] The parties’ contentions [40] Was evidence given of inadmissible previous consistent statements? [46] What is the consequence of any inadmissibility? [57] Result [63] Postscript [64]

Introduction

[1] Mr Barlien was convicted, following a jury trial before Judge Clapham in the Wanganui District Court, of five counts of sexual offending against three young girls. Two are sisters (R and S). The third complainant, O, was not related to R and S but she had met them. The offending against O took place at different times from that against R and S.

[2] The appeal focuses upon s 35 of the Evidence Act 2006 and, in particular, whether the Judge was correct to admit evidence of R and S’s previous consistent statements. Mr Barlien’s position is that the evidence should not have been led and that therefore his convictions in relation to R and S should be set aside.

[3] There is no such issue arising in relation to the remaining complainant, O, but the Crown did rely on propensity evidence, citing the strong similarities between the alleged offending against O and against the sisters, R and S. Mr Barlien’s position is that his conviction for the offending against O is tainted by the inadmissible evidence led in relation to R and S.

[4] We propose to deal with the appeal under the following headings:

(a) Background

(b) The trial

(c) The legislation

(d) History of s 35 of the Evidence Act

(e) Common law position

(f) The parties’ contentions

(g) Was evidence given of inadmissible previous consistent statements? (h) What is the consequence of any inadmissibility?
(i) Result

(j) Postscript

Background

[5] The alleged offending against R and S took place on two separate occasions. The first was on 9 and 10 January 2006 when R stayed at Mr Barlien’s mother’s house. R’s sister, S, also stayed on 10 January 2006. The allegation was that, at some stage on that day and in the guise of massaging her leg, Mr Barlien touched R’s vagina while she was playing a computer game. It was unclear whether S was present or playing outside at the time. S gave evidence of a similar event happening to her. She said Mr Barlien put his hand under her underpants while 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.

Continue reading R v Barlien

Details

AGLC: R v Barlien [2008] NZCA 180
Case: [2008] NZCA 180
Decision Date: 24 June 2008

CaseChat Overview and Summary

The appeal against Eivin Barlien's convictions was dismissed by the Court of Appeal. Barlien had been convicted of sexual offences against three girls. The appeal focused on section 35 of the Evidence Act 2006 and whether the Judge was correct to admit evidence of the previous consistent statements of two of the complainants. Barlien argued that the evidence should not have been led and that therefore his convictions in relation to those complainants should be set aside. The Court held that the evidence was inadmissible under section 35 of the Act. However, the Court found that the inadmissibility did not lead to a miscarriage of justice because the substance of the statements was before the jury in any event. The Court noted that the judgment highlighted some issues with section 35 of the Act.

Orders