ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA308/06 [2007] NZCA 234

THE QUEEN

v

E (CA308/06)

Hearing: 20 November 2006
Court: Glazebrook, John Hansen and Harrison JJ Counsel: G W Calver for Appellant
M A Corlett for Crown

Judgment: 21 November 2006

Reasons for Judgment: 12 June 2007 at 4pm

R V E (CA308/06) CA CA308/06 21 November 2006

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe application to recall our judgment of 21 November 2006 to withdraw the order for a retrial is to be set down for a further hearing.

COrder prohibiting publication of the judgment and any part of the proceedings in news media or on internet or other publicly available database until final disposition of trial. Publication in Law Report or
Law Digest permitted.

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…

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 234
Case: [2007] NZCA 234
Decision Date: 12 June 2007

CaseChat Overview and Summary

In R v E, the Court of Appeal of New Zealand considered the appeal against the conviction of Mr E for sexual violation by rape of a young girl. The Court identified several issues with the trial which led to the appeal being allowed, including inappropriate conduct by the prosecutor, misdirections by the Judge in his summing up, and the improper admission of certain evidence. The Court also considered whether the order for a retrial should be reconsidered and set a timetable for further submissions on the matter. Ultimately, the appeal was allowed, and the conviction was quashed.

Orders