R v Cassidy - [2007] NZCA 573

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA285/07 [2007] NZCA 573

THE QUEEN

v

ANDREW ROBERT CASSIDY

Hearing: 8 October 2007
Court: Arnold, Ronald Young and Fogarty JJ Counsel: P L Borich for Appellant
M D Downs for Crown

Judgment: 13 December 2007 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed in part.

BWe quash the convictions on the three attempted sexual violation and six sexual violation counts and substitute convictions for indecent assault (s 140A(1)(a) of the Crimes Act 1961) for the sexual violation convictions
on counts 8, 9, 11 and 12.

R V CASSIDY CA CA285/07 13 December 2007

CWe direct that a further hearing as to sentence be scheduled as soon as possible in this Court. The appellant will remain in custody in the meantime.

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

Para No.

Introduction [1] Background [3] Basis of appeal [7] Good character direction [8] Direction on motive to lie [11] Treatment of evidence of complainant’s mother [24] Directions on attempt [30] Insufficient answer to jury’s question [40] Failure to call potential witness [43] Mode of evidence [46] Conclusion [51] Decision [65]

Introduction

[1] Following a jury trial in the High Court before Harrison J the appellant was convicted on three counts of indecent assault on a boy aged between 12 and 16, one count of committing an indecent act upon a young person, three counts of attempted sexual violation and six counts of sexual violation (three involving anal penetration and three involving oral sexual activity). All counts were representative. The complainant was the appellant’s second cousin and the offending was alleged to have taken place over a three year period (early 2003 – early 2006) when the complainant was between 13 and 15 years of age and the appellant was between 19 and 22.

Background

[3] The complainant and the appellant lived for a period with the complainant’s aunt. The complainant said that he awoke one night to find the appellant touching his “private parts” while masturbating himself. The complainant pretended to be asleep. This happened on four or five occasions. According to the complainant, the appellant told him that this behaviour was acceptable because they were cousins.

[4] The complainant then returned to live with his mother but often spent weekends and other periods at his cousin X’s house. (X is the appellant’s brother.) The complainant said that at X’s place the appellant tried to, and sometimes did, have anal intercourse with him, generally while they were “stoned” after taking drugs. The drug involved was marijuana on all but one occasion, when it was methamphetamine. The complainant also said that on some occasions the appellant made him suck the appellant’s testicles.

[5] Eventually, the complainant said, he told the appellant to leave him alone. He said that the appellant constantly followed him and said that he would kill…

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 Cassidy

Details

AGLC: R v Cassidy [2007] NZCA 573
Case: [2007] NZCA 573
Decision Date: 13 December 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Andrew Robert Cassidy, appealed against his convictions on various charges, including attempted sexual violation, sexual violation, and indecent assault. The complainant, who was the appellant's second cousin, alleged that the offending took place over a three-year period, when the complainant was between 13 and 15 years of age and the appellant was between 19 and 22. The appellant denied any wrongdoing and claimed that the complainant fabricated the allegations to deflect his mother's attention from his drug use.

The appeal was based on several grounds, including the judge's failure to give a good character direction, inadequate direction on the motive to lie, improper treatment of the evidence of the complainant's mother, insufficient instructions on the elements of attempted sexual violation, an inadequate response to a jury question, failure to call potential witnesses, and the mode of the complainant's evidence. The court rejected most of the grounds, but found merit in the arguments concerning the judge's directions on the attempted sexual violation charges and the inadvertent transposition of decision options in an issues sheet.

The court concluded that the convictions for attempted sexual violation must be quashed. The majority of the court also considered that the sexual violation convictions should be quashed, as there was a risk that the jury might have been confused about the position in relation to consent on those counts. However, the minority disagreed, stating that there was no real likelihood that the jury was misled by the errors. Nevertheless, the majority's view prevailed, and the sexual violation convictions were quashed as well.

Instead of ordering a new trial, the court exercised its power under s 386(2) of the Crimes Act to substitute convictions for indecent assault under s 140A(1)(a) for the convictions on the sexual violations charged in counts 8, 9, 11, and 12. The court made this decision based on the representative nature of the charges and to avoid the risk of inconsistent verdicts in a potential retrial. The appellant must now be re-sentenced, and a further hearing will be scheduled in the Court of Appeal as soon as possible. The appellant will remain in custody in the meantime.

Orders