R v Brown - [2015] NZHC 1155

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

THE NAMES OF THE PARTIES HAVE BEEN ANONYMISED. THIS JUDGMENT MAY BE CITED AND REPORTED UTILISING THESE NAMES.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-009-6904 [2015] NZHC 1155

THE QUEEN

v

BROWN

Hearing: 22 April 2015

Appearances:

K B Bell for the Crown
S J Shamy for the Defendant

Judgment:

27 May 2015

JUDGMENT OF NATION J

Introduction and Background

[1] The defendant has applied, pursuant to s 322 of the Children, Young Persons, and Their Families Act 1989 (the CYPFA), for a dismissal of charges he faces on the basis that the time that has elapsed between the date of the commission of the alleged offences and the hearing has been unduly protracted.

[2] The defendant faces the following charges:

(a) two representative charges of doing an indecent act on a child;1

1 Crimes Act 1961, s 132(3).

R v BROWN [2015] NZHC 1155 [27 May 2015]

(b) three charges of sexual violation by unlawful sexual connection;2 and

(c) three charges of sexual connection with a child.3

[3] The complainant is the defendant’s cousin. The alleged conduct is alleged to have occurred when the defendant and his cousin were staying at their grandparents’ farm property.

Chronology

[4] The first sexual conduct is alleged to have occurred in December 2005 when the defendant was aged 12 and the complainant was aged 6 ½. Because the defendant could not be criminally liable for the alleged offending until he reached the age of 14, the initial conduct is not the subject of criminal charges.

[5] The defendant turned 14 on 16 November 2007. This is the start date of the representative charges of sexual connection with a child under 12 and sexual violation. At this time, the complainant was aged 8 ½. In early 2010, the alleged offending apparently ceased.

[6] In August/September 2013, in response to questions from his parents, the complainant told his parents he was sexually abused. The complainant was aged 14. The defendant was aged 19.

[7] On 24 October 2013, the complainant was evidentially interviewed by a specialist child interviewer. The file was assigned to a detective on 22 November
2013. On 5 December 2013, the detective obtained a statement from the complainant to clarify some points made in the initial interview. On 17 May 2014, the detective met with the complainant and his parents to discuss the Court process and confirm whether the complainant wanted the matter to proceed to Court. The complainant asked for some time to think about it, and indicated that he would like
to discuss it with his counsellor.

2 Sections 128(1)(b) and 128B. Two of these are representative charges.
3 Section 132(1). These are alternative charges to the s 128(1)(b) charges, above. Again, two are representative charges.

[8] In May 2014, the complainant’s parents took him to counselling. In June

2014, the complainant informed the detective that…

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 Brown

Details

AGLC: R v Brown [2015] NZHC 1155
Case: [2015] NZHC 1155
Decision Date: 27 May 2015

CaseChat Overview and Summary

The defendant sought to have charges against him dismissed on the basis that the time that had elapsed between the date of the commission of the alleged offences and the hearing had been unduly protracted. The defendant faced charges relating to the sexual abuse of his cousin. The charges were laid in the District Court in July 2014, when the defendant was aged 20. The defendant was remanded to the High Court for trial in May 2014. The defendant applied for dismissal of the charges on the basis that the delay was undue or unnecessary. The High Court held that it had jurisdiction to apply s 322 of the CYPFA in these proceedings. The Court held that the delay between the alleged offending and the date of trial was not, of itself, sufficient reason to dismiss the charges. The Court accordingly refused the defendant’s application.

Orders