R v C (CA395/2008)

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.