R v GJ

Case [2014] NZHC 2276 18 September 2014

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

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

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-004-1289 [2014] NZHC 2276

BETWEEN
THE QUEEN

Plaintiff

AND

G J

Respondent

Hearing: 12 September 2014

Counsel

G C Hollister-Jones for Applicant
T Cooper for Respondent

Judgment:

18 September 2014

JUDGMENT OF KATZ J

This judgment was delivered by me on 18 September 2014 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga

Counsel: T Cooper, Barrister, Auckland.

THE QUEEN v G J [2014] NZHC 2276 [18 September 2014]

Introduction

[1] The Crown alleges that, during the 1970s and 1980s, the defendant, Mr J, committed a range of sexual offences against nine young girls. Mr J’s trial in respect of those charges is due to commence in the Rotorua High Court on 28 October 2014. Eight of the complainants were either members of Mr J’s extended family or family friends. One complainant met Mr J through his place of work.

[2] The Crown has filed an application seeking pre-trial directions enabling five of the complainants to give evidence at trial in an “alternative” way. Four of the complainants wish to give evidence at trial from behind a screen. That is not opposed by Mr J. Mr J does oppose, however, an application that the evidence-in- chief of two of those complainants, Ms H and Ms J, be given by way of video recordings of interviews conducted with them prior to trial. He also opposes an application for a direction that a further complainant, Ms L, give evidence via video link from Canada, where she now lives with her family.

Giving evidence in an “alternative” way – the law

[3] The principle that witnesses should generally give evidence through live oral testimony in open court has long been a feature of New Zealand law.1 It is embodied in s 83 of the Evidence Act 2006 (“Act”) as the “ordinary” way of giving evidence at trial. It is now widely recognised, however, that the requirement to give evidence orally at trial can place considerable stress on some witnesses. This can impact on the quality of the evidence they are able to give, which potentially undermines the truth finding process and the just determination of proceedings. For example, victims of sexual offending may find giving evidence in the ordinary way
particularly stressful. For them, the process of giving oral evidence in open court can be extremely traumatic. It requires them to recount explicit and highly personal evidence of a sexual nature in a public arena, in the presence of the alleged
perpetrator.

1 Donald Mathieson (ed) Cross on Evidence (looseleaf ed, LexisNexis) at [EVA83.5].

[4] In response…

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 GJ

Details

AGLC: R v GJ [2014] NZHC 2276
Case: [2014] NZHC 2276
Decision Date: 18 September 2014

CaseChat Overview and Summary

In the case of R v GJ, the defendant was facing trial for multiple charges of sexual offending against nine young girls, with the majority of the alleged offending occurring during the 1970s and 1980s. The Crown sought pre-trial directions to enable five of the complainants to give evidence at trial in an alternative way. Four of the complainants wished to give evidence from behind a screen, which was not opposed by the defendant. However, the defendant opposed applications for two of the complainants to give evidence-in-chief by way of video recordings of interviews conducted with them prior to trial, and for a further complainant to give evidence via video link from Canada. The court had to determine whether the complainants' evidence should be given in an alternative way, considering the mandatory factors in s 103(4) of the Evidence Act 2006.

The court concluded that the grounds for making an alternative evidence direction were met in relation to the five named complainants. It was appropriate for Ms H, Ms J, Ms M and Ms G to give evidence from behind a screen. The court considered the factors in s 103(4) in determining whether the evidence-in-chief of Ms H and Ms J should be given by way of video recordings. The court found that the mandatory considerations in s 103(4) of the Act favoured giving evidence in an alternative way and that the direction sought would not prejudice the defendant's fair trial rights in any material way. The court also found that it was appropriate for Ms L to give evidence via video link from Canada, as it would not prejudice the defendant's fair trial rights.

The Crown's alternative mode of evidence applications were granted, and directions were made for the complainants to give evidence in an alternative way. The court also prohibited publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of the trial. Publication in Law Report or Law Digest was permitted.

Orders