R v Bowen - [2007] NZCA 253

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA468/06
CA29/07 [2007] NZCA 253

THE QUEEN

v

ROBERT JAMES BOWEN

Hearing: 14 May 2007
Court: Chambers, John Hansen and Priestley JJ Counsel: J J Corby for the Appellant
M D Downs for the Crown

Judgment: 21 June 2007 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Priestley J)

R V BOWEN CA CA468/06 21 June 2007

[1] On 17 October 2006 the jury in a trial presided over by Judge McAuslan found the appellant guilty of one charge of indecent assault on a girl aged between
12 and 16 years under the now repealed s 134(2)(a) of the Crimes Act 1961.

[2] On 24 November 2006 the Judge sentenced the appellant to 16 months imprisonment. Leave to apply for home detention was declined.

[3] The appellant in his notice of appeal challenged his conviction on the ground that the jury’s verdict was unreasonable and could not be supported having regard to the evidence. Such ground relies on s 385(1)(a) of the Crimes Act.

[4] Before us, however, Mr Corby, for the appellant, did not proceed with that ground. He raised two new grounds. Mr Downs, for the Crown, did not oppose these new issues being raised:

a) Was there a miscarriage of justice arising as a result of the jury having before it evidence relating to a count in respect of which the appellant was discharged under s 347(3) during the trial? (See infra [11]).

b)Should the jury have been shown an evidential videotaped interview of the complainant?

[5] During the course of argument, however, Mr Corby accepted that the evidence relating to the count on which the appellant was discharged was properly before the jury and did not lead to a miscarriage of justice. He also abandoned the point relating to the videotaped interview.

[6] That would have disposed of the conviction appeal but for a matter raised by the bench. We queried whether the Judge's summing up on the standard of proof was adequate. Mr Corby eagerly adopted this point and it became the sole ground of the conviction appeal.

[7] There is also an appeal against sentence. It is limited to the Judge’s refusal to grant leave to apply for home detention.

Background

[8] The indictment at the appellant’s trial contained four counts. Three counts alleged indecent assault under s 134(2)(a). The first of these specified touching the complainant’s breasts; the second kissing her breasts; and the third touching her genitals. All three counts arose out of the same incident in October 2004.

[9] The fourth count alleged, pursuant to s 117(e), a subsequent wilful attempt to pervert the course of justice. That count was the subject of a successful joinder application in August 2006 and accordingly it was tried together with the indecent assault counts.

[10] The trial took place in October…

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 Bowen

Details

AGLC: R v Bowen [2007] NZCA 253
Case: [2007] NZCA 253
Decision Date: 21 June 2007

CaseChat Overview and Summary

In the appeal of R v Bowen, the appellant contested his conviction and sentence following a jury trial. The appellant was found guilty of indecent assault on a girl aged between 12 and 16 years, and was sentenced to 16 months imprisonment with leave to apply for home detention denied. The appeal against the conviction centred on the adequacy of the trial judge's summing up on the standard of proof, while the appeal against sentence focused on the judge's refusal to grant leave to apply for home detention. The appellant's counsel conceded that the evidence relating to a count on which the appellant was discharged was properly before the jury and did not lead to a miscarriage of justice, and abandoned the point relating to the videotaped interview of the complainant. The court examined whether the trial judge's summing up on the standard of proof was adequate, and concluded that despite its inadequacies, the jury had a clear understanding of the "beyond reasonable doubt" standard. The court also found that the trial judge's refusal to grant leave to apply for home detention did not constitute an error in the exercise of her discretion.

The appeal against conviction and sentence was dismissed. The court emphasised the importance of using a single, safe, and approved formula for jury directions on the standard of proof, and highlighted the need for discretion to be exercised on a case by case basis when considering leave to apply for home detention.

Orders