R v C (CA395/2008) - [2009] NZCA 272

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ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSTION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA395/2008 [2009] NZCA 272

THE QUEEN

v

C (CA395/2008)

Hearing: 10 June 2009
Court: Arnold, Priestley and Winkelmann JJ Counsel: L Cordwell for Appellant
N P Chisnall for Crown

Judgment: 26 June 2009 at 10 am

JUDGMENT OF THE COURT

A The appeal against convictions is allowed.

BThe nine convictions entered against the appellant in the District Court at Whangarei are quashed.

C A retrial is ordered.

R V C (CA395/2008) CA CA395/2008 [26 June 2009]

DOrder prohibiting publication in news media or on internet or other publicly available database until final disposition of retrial. Publication
in law report or law digest permitted.

REASONS OF THE COURT

(Given by Priestley J)

Introduction

[1] The appellant was tried in the Whangarei District Court in May 2008. The trial Judge was Judge K B de Ridder.

[2] The jury convicted the appellant on all nine counts he faced. These were six counts of sexual violation by rape (one being a representative count); two counts of sexual violation; and one count of indecent assault. The alleged offending was against the appellant’s young step-daughter and had spanned a period of six and a half years from 1995.

[3] In June 2008, the Judge sentenced the appellant to a term of 15 years imprisonment with a minimum term of nine years.

[4] This appeal challenges both the convictions and the imposed sentence.

Appeal grounds

[5] The appellant advances two points of appeal against his conviction:

(a)The Judge erred in his pre-trial decision on 9 May 2008 (the reasons for which were not given until 7 July 2008 some eight weeks after conviction and indeed 10 days after the appellant had been sentenced) refusing the defence application under s 44 of the Evidence Act 2006

to cross-examine the complainant on her previous sexual experience with another person.

(b)The Judge erred in failing to declare a mistrial once it was discovered that a supporter of the complainant had been talking to various members of the jury prior to their empanelment.

[6] The appeal against sentence is grounded on the submission that it is manifestly excessive.

[7] Because we consider the second ground for the appeal against conviction is determinative we deal with it first.

Background of communication with jurors

[8] The trial began on Monday 12 May 2008. Defence counsel was

Mr N G Cooke. Crown counsel were Mr P J Magee and Ms A L Patterson.

[9] The risk of an irregularity was not drawn to the attention of the Judge until the afternoon of the fourth day of the trial, 15 May. A security officer who had been on duty in the…

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 C (CA395/2008)

Details

AGLC: R v C (CA395/2008) [2009] NZCA 272
Case: [2009] NZCA 272
Decision Date: 26 June 2009

CaseChat Overview and Summary

In the appeal R v C (CA395/2008), the Court of Appeal of New Zealand considered an appeal against the convictions and sentence of the appellant. The appellant was convicted on nine counts of sexual offences against his step-daughter, and was sentenced to 15 years imprisonment with a minimum term of nine years. The appeal against conviction was based on two grounds: the trial judge's refusal to allow cross-examination of the complainant regarding her previous sexual experience with another person, and the judge's failure to declare a mistrial after discovering that a supporter of the complainant had been talking to various members of the jury prior to their empanelment. The appeal against sentence argued that the sentence was manifestly excessive.

The court found that the second ground for the appeal against conviction was determinative. The trial judge did not make any inquiries into the communications between the woman and the three jurors, despite the appellant's counsel seeking a mistrial. The court held that a fair-minded member of the public, informed of the facts, would entertain a reasonable apprehension that the jury could not discharge its task impartially. The Court of Appeal concluded that the trial judge's failure to make appropriate inquiries and the lack of investigation into the matter led to a reasonable apprehension of bias. Therefore, the appeal against conviction was allowed, the nine convictions were quashed, and a retrial was ordered.

The court did not need to examine the ground based on declining leave under s 44 of the Evidence Act 2006, as the appeal against conviction was allowed on the other ground. The sentence imposed on the appellant fell with the convictions, which would be quashed.

The final orders of the court were that the appeal against conviction was allowed, the nine convictions entered against the appellant in the District Court at Whangarei were quashed, and a retrial was ordered. There was an order prohibiting publication in news media or on the internet or other publicly available database until the final disposition of the retrial. Publication in a law report or law digest was permitted.

Orders