Hearing: 20 November 2006 and 5 July 2007
Court: Glazebrook, John Hansen and Harrison JJ Counsel: G W Calver for Appellant
M A Corlett for Crown on 20 November 2006
C L Mander for Crown on 5 July 2007

Judgment: 21 November 2006

Reasons for Judgment: 12 June 2007 at 4pm

Judgment and Reasons for Judgment recalled and re-issued: 11 September 2007 at 4pm

JUDGMENT OF THE COURT

A The appeal is allowed, the conviction quashed and a verdict of acquittal

entered.

R V E (CA308/06) CA CA308/06 [11 September 2007]

BOrder prohibiting publication of the name and identifying details of the appellant for a period of five working days from the date of re-issue of
this judgment.

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

A trial gone wrong  [1]
The charges  [6]
Should the period of the representative charges have been
more restricted?  [8]

Did the Judge’s direction on the July school holidays in 2005
save the situation? [13]

The complainant’s evidence  [15]
Should the complainant’s videotaped interview have been used
as her evidence-in-chief?  [16] Were any parts of the complainant’s evidence inadmissible?             [32] Should the complainant’s mother have been permitted to act as
support person in the CCTV room?  [38]

Should the videotape of the complainant’s evidence have been
shown again to the jury? [46]

The conduct of the prosecution [49]
Was the prosecutor’s questioning of Mr E on possible motives
for the complainant and S to lie inappropriate? [50]

Did the Crown improperly labour the submission that the
complainant and S had no motive to lie?  [56] Did the prosecutor invite speculation on the part of the jury?            [58] Was prosecutor’s questioning on opportunity to commit the
offences appropriate?  [61] Did the Crown improperly lead the complainant’s evidence?             [65] Was the proper scope of re-examination exceeded?  [69] Was it proper for the Crown to make submissions as to the
complainant’s naivety?  [76]

Was it appropriate to suggest Mr E’s mother was tailoring
her evidence to protect her son? [81] Should the Crown have called the complainant’s mother? [84] Should the evidence as to Mr E’s arrest have been led? [85]

Did the prosecutor exceed the proper bounds in his
closing address? [93]

Should the prosecutor have encouraged the jury to ask for
the complainant’s videotape to be replayed? [97]

The course of the trial [99]
Should Mr E’s mother been allowed to give evidence on any
changes in the complainant’s behaviour? [100]

Did the Judge put unwarranted restrictions on the scope
of character evidence called by the defence? [103]

Should the defence have put allegations of “coaching” to
the complainant? [109]

Should the defence have speculated on the complainant’s
sources of knowledge of sexual…

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 E (CA308/06)

Details

AGLC: R v E (CA308/06) [2007] NZCA 404
Case: [2007] NZCA 404
Decision Date: 12 June 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v E (CA308/06) was heard by Glazebrook, John Hansen, and Harrison JJ. The appeal was against a conviction on a count of sexual violation by rape in the Napier District Court. The appeal was allowed, the conviction quashed, and a verdict of acquittal entered. The case involved an alleged sexual violation of a seven-year-old girl by the appellant, Mr E, who was 18 at the time of the alleged offence. The court identified several issues with the trial, including problems with the charges, the complainant's evidence, the conduct of the prosecution, and the summing up. The court concluded that the issues identified were significant enough to cause a miscarriage of justice and that a retrial would be inappropriate due to the problems with the complainant's evidence in the first trial and her comment that she could not remember "any of the times" that the alleged offending had occurred.

Orders