Legal Research
Cases
R v Davis

R v Davis

Case [2007] NZCA 577 13 December 2007

Appeal

Limitation Periods

Judicial Review

Admissibility of Evidence

Criminal Law

No judgment structure available for this case.

Type to search within this case.

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA386/07 [2007] NZCA 577

THE QUEEN

v

ALAN JAMES DAVIS

Hearing: 8 November 2007
Court: Wilson, Ronald Young and Venning JJ Counsel: A T Ellis and A W Rossiter for Applicant
G J Burston and J Murdoch for Respondent

Judgment: 13 December 2007 at 11.30am

JUDGMENT OF THE COURT

Leave to appeal is refused.

REASONS OF THE COURT

(Given by Wilson J)

[1] The applicant, Mr Davis, was convicted on one count of unlawful anal intercourse on a boy under 16 and two counts of doing an indecent act on a boy
under that age. On 7 April 2006 Mr Davis was sentenced to a total of four years

R V ALAN JAMES DAVIS CA CA386/07 13 December 2007

imprisonment, comprising concurrent sentences of four years on the first count and three years each on the other counts.

[2] Mr Davis filed this appeal against conviction on 7 August 2007, approximately one year and two months out of time. He was released on home detention on 16 July this year, and has since 8 October been on parole.

Background

[3] The offences occurred in 1978 or early 1979, when the complainant was

13 years old. The complainant said that Mr Davis and another man (who is the subject of separate proceedings) befriended his father following a car accident. He described an initial incident at Mr Davis’ flat where Mr Davis forced him to submit to oral sex and anal penetration. He estimated that another six incidents of indecent assault occurred at various times in Mr Davis’ car and one further incident, similar to the first, occurred at the flat.

[4] The complainant gave a statement to police on 24 June 2002, and informations were laid against Mr Davis on 17 November 2004.

[5] Mr Davis made a number of pre-trial applications, which were determined by

Gendall J in a Judgment dated 11 August 2005: R v Davis HC WN CRI-2005-085-

8899 9 August 2005. The Judge dismissed applications for a permanent stay of prosecution, an order for a discharge pursuant to s 347 of the Crimes Act 1961, an order to exclude certain evidence and an order that the Crown disclose information about other complaints of sexual offending made by the complainant. He allowed an application under s 23A of the Evidence Act 1908 to permit cross-examination of the complainant.

[6] A first trial was abandoned when it transpired that one juror knew the accused and another knew the complainant. The trial finally took place on 6 to 8
March 2006 before MacKenzie J and a jury. The defence case was that Mr Davis never had any type of sexual contact with the complainant, although he was aware

that the complainant was being subjected to sexual abuse by four other men, with whom Mr Davis associated at the time.

Application for extension of time

[7] Mr…

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 Davis

Details

AGLC: R v Davis [2007] NZCA 577
Case: [2007] NZCA 577
Decision Date: 13 December 2007

CaseChat Overview and Summary

The case of R v Davis involves an appeal by the applicant, Alan James Davis, against his conviction for unlawful anal intercourse and indecent acts on a boy under the age of 16. The applicant was sentenced to four years imprisonment, which was to run concurrently. The applicant filed his appeal against conviction on 7 August 2007, approximately one year and two months out of time. He was released on home detention on 16 July 2007 and has been on parole since 8 October 2007.

The applicant's appeal is based on several grounds, including the trial judge's response to a jury question about "reasonable doubt", the structure of the summing up, the trial judge's refusal to grant a stay or discharge due to undue delay, the applicant's actual prejudice as a result of the delay, the trial judge's failure to address the difficulties and prejudice faced by the applicant in presenting his defence due to the long delay, and the contention that these grounds, taken together, caused a substantial miscarriage of justice.

The Court of Appeal found that none of the proposed grounds of appeal were valid. The applicant's additional ground, that the appeal should not have been heard by the Criminal Appeal Division of the Court, was dismissed as there was a statutory basis for the hearing of a greater percentage of criminal appeals in a Divisional Court. The Court found that the trial judge's response to the jury's question was not a misdirection, and the summing up was fair and balanced. The Court also found that the applicant had not suffered any actual prejudice due to the delay, and that the trial judge was entitled to exercise his discretion not to give a Longman-type direction on the issue of delay.

The Court of Appeal concluded that the proposed grounds of appeal did not establish a substantial risk that a miscarriage of justice may have occurred, and therefore refused leave to appeal. The Court noted that the appeal had limited utility, as the applicant was already on parole, and that the delay in seeking leave to appeal was long and unexplained.

Orders