R v C (CA391/07) - [2007] NZCA 439

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

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT (BUT NOT THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE

DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA391/07 [2007] NZCA 439

THE QUEEN

v

C (CA391/07)

Hearing: 19 September 2007

Court: O’Regan, Potter and Keane JJ

Counsel: W Lawson and P A Brook for Appellant
A F Pilditch and C H Macklin for Crown

Judgment: 12 October 2007 at 4pm

JUDGMENT OF THE COURT

A Leave to appeal is granted but the appeal is dismissed.

B We make an order prohibiting publication of the reasons for judgment

(but not the result) in news media or on internet or other publicly

R V C (CA391/07) CA CA391/07 12 October 2007

accessible database until final disposition of trial. Publication in Law

Report or Law Digest permitted.

REASONS OF THE COURT

(Given by O’Regan J)

Allegations of historical sex offending

[1] The appellant faces six charges of historical sex offending against his sister, to whom we will refer as A. There are three charges of indecent assault of a girl aged under 12 years, and three charges of rape. The period during which the offending is said to have occurred is 4 September 1968 – 3 September 1974 for all but one of the rape counts, for which the relevant period is 4 September 1973 –
3 September 1975. A was aged between 10 and 17 years during the period of the offending, and is now aged 49 years.

[2] The appellant has also been tried for two sexual offences involving A’s daughter. We will refer to the daughter as B. Initially the charges against both A and B were contained in a single indictment, but Wild J ordered severance of the counts involving B. The Crown did not oppose severance provided that, in the trial for the offending against A, A was permitted to give evidence that the catalyst for her complaint to the police in relation to the offending against her was the fact that B had disclosed to her the previous day that the appellant had sexually abused B. Severance was granted on that basis.

Issues for determination

[3] The appellant seeks leave to appeal against a decision of Wild J which dealt with an application by the appellant for leave under s 23A of the Evidence Act 1908 (the 1908 Act) to cross-examine A about complaints and allegations she has made in the past of sexual abuse by other men. The point of this cross-examination would be to provide a basis for a submission that the past complaints were false and that the jury should see the present complaint as another instance of false complaint on A’s part. By the time the matter came to be determined, it was obvious that the trial would take place after…

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.

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Details

Case: [2007] NZCA 439
Decision Date: 12 October 2007

CaseChat Overview and Summary

The appellant in this case is appealing against a decision of Wild J which declined an application for leave to cross-examine A, the complainant in this case, about complaints and allegations she has made in the past of sexual abuse by other men. The point of this cross-examination was to provide a basis for a submission that the past complaints were false and that the jury should see the present complaint as another instance of false complaint on A’s part. The first issue for determination is whether the case should be determined under s 37 or s 44 of the Evidence Act 2006. If s 37 is applicable, the evidence of the previous allegations ought to be admitted on the basis that it would be substantially helpful to the jury in assessing the veracity of A. If, as the Crown contends, the Judge was right to deal with the case in terms of s 44, the issue is whether leave to cross-examine A on the previous allegations ought to be given either in respect of all or some of the complaints and allegations. The court found that the case should be determined under s 44 of the 2006 Act, and that Wild J was right to decline the appellant’s application. Leave to appeal was granted but the appeal was dismissed. An order was made prohibiting publication of the reasons for judgment in news media or on the internet or other publicly accessible database until final disposition of trial.

Orders