R v Brown - [2007] NZCA 585

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

CA145/07 [2007] NZCA 585

THE QUEEN

v

ROBERT JOHN BROWN

Hearing: 19 November 2007
Court: Glazebrook, Williams and MacKenzie JJ Counsel: N Levy for Appellant
D J Boldt for Crown

Judgment: 17 December 2007 at 4pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Williams J)

R V BROWN CA CA145/07 17 December 2007

Table of Contents

Para No

Background [1] Similar fact/severance [3] W’s evidence inadmissible as prior consistent statement? [23] Comment by prosecutor [39] Recent complaint direction [47] Conflict of evidence direction [52] Other matters [57] Result [60]

Background

[1] Following trial in the Napier District Court the appellant, Mr Brown, was convicted on four counts of indecent assault on W (three counts) and M (one count), one count of inducing W to masturbate him, four counts of unlawful sexual connection with W occasioned by connection between the appellant’s mouth and W’s penis and one count of unlawful sexual connection with T arising out of similar actions. He was acquitted on one count of attempted sexual violation on W by attempted anal intercourse.

[2] He has appealed to this Court against his convictions on various grounds which are discussed as this judgment proceeds.

Similar fact/severance

[3] In a reserved judgment delivered 11 days before trial, Judge Rea dealt with applications by the Crown under s 344A of the Crimes Act 1961 concerning similar fact evidence and by the defence for severance of the counts relating to T and M from those relating to W.

[4] During the course of that hearing, counsel for Mr Brown, who was not

Ms Levy, abandoned the severance application as far as it related to the T count.

[5] The s 344A application was for orders that the evidence of C and three others should be ruled admissible in relation to all the W and T counts. During the hearing the Crown abandoned its application in relation to two of those four and Mr Brown’s counsel conceded the evidence of C was admissible at trial.

[6] The concession as far as C was concerned was of some importance given the appellant employed C carting hay in late 1995. His evidence was that after some intimate conversation and a massage the appellant removed that young man’s shorts, grabbed his penis and asked if he could suck it. C refused. The appellant offered him money. The appellant pleaded guilty to one count of indecent assault as a result of that incident. The facts of the incident, but not the conviction, were given in evidence at the appellant’s trial.

[7] Also, during the hearing the admissibility was challenged of the evidence of two of W’s younger brothers and two other witnesses.

[8] Judge Rea summarised the evidence of the complainants and the proposed witnesses, ruled the evidence of the two brothers and the other…

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 [2007] NZCA 585
Case: [2007] NZCA 585
Decision Date: 17 December 2007

CaseChat Overview and Summary

In the case of The Queen v Robert John Brown, the appellant was convicted of multiple counts of indecent assault and unlawful sexual connection. The appellant appealed his convictions on various grounds, including the admissibility of similar fact evidence, the direction given to the jury on recent complaints, and the prosecutor's comments during cross-examination. The Court of Appeal of New Zealand dismissed the appeal against conviction. The Court found that the trial judge's directions on similar fact evidence and recent complaints were sufficient and did not result in a miscarriage of justice. Furthermore, the Court considered that the prosecutor's comment during cross-examination, while inappropriate, did not warrant intervention from the Court of Appeal. The Court of Appeal concluded that none of the grounds of appeal raised were sufficient to overturn the appellant's convictions.

Orders