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R v Healy

R v Healy

Case [2007] NZCA 451 18 October 2007

Propensity Evidence

Admissibility of Evidence

Jurisdiction

Sentencing

Criminal Law

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NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA414/07 [2007] NZCA 451

THE QUEEN

v

HAROLD JOHN HEALY

Hearing: 17 October 2007
Court: Glazebrook, Hammond and Ellen France JJ Counsel: S Lance for Appellant
B J Horsley and T Smith for Crown

Judgment: 18 October 2007

Reasons: 18 December 2007 at 10 am

JUDGMENT OF THE COURT

A Leave to appeal is granted but the appeal is dismissed.

R V HEALY CA CA414/07 18 October 2007

BOrder prohibiting the publication of the judgment and reasons in the news media or on the internet or in any other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No.

Introduction [1] Background [3] Counts one to three [4] Counts four to six [9]
The High Court judgment [17] The appeal [23] Leave to appeal [26] Severance [28] Propensity evidence [33] The balance in this case [55] Result [71]

Introduction

[1] The appellant is charged with sexual offending in relation to two separate incidents each involving a girl, one of whom was aged between 13 and 14 years at the time and the other 16 years. Prior to the trial, the appellant sought severance of the counts involving the first complainant, “P”, from those relating to the second complainant, “F”.

[2] In a decision delivered on 1 August 2007, Asher J declined to order severance on the basis that the evidence of each complainant was admissible as propensity evidence in relation to the charges concerning the other complaint against the appellant: HC AK CRI 2006-044-6242. The appellant sought leave to appeal against that decision under s 379A of the Crimes Act 1961. He argued that

severance should have been ordered because the prejudicial effect of the evidence outweighs any probative value. In a judgment given on 18 October 2007, we granted leave to appeal but dismissed the appeal. We now give our reasons.

Background

[3] We turn first to the factual background as it appears from the evidence as at depositions.

Counts one to three

[4] Counts one to three in the indictment relate to the complainant, P. Count one is a charge of sexual violation by unlawful sexual connection (licking the complainant’s genitalia). Count two is also an allegation of sexual violation of P, this time by digital penetration. Count three is a charge of sexual violation by rape.

[5] All three charges relate to one incident. The context was that P was living at the Centrepoint Community in Albany at the time (October 1988 to April 1989) with her mother although, by the time of the alleged offending,…

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 Healy

Details

AGLC: R v Healy [2007] NZCA 451
Case: [2007] NZCA 451
Decision Date: 18 October 2007

CaseChat Overview and Summary

The appellant, Harold John Healy, is charged with sexual offences against two girls, one aged between 13 and 14 years, and the other 16 years. The charges relate to two separate incidents occurring at Centrepoint, a community where the appellant was a senior member involved in teenage counselling sessions. Prior to the trial, the appellant sought severance of the counts involving the first complainant, P, from those relating to the second complainant, F. The High Court declined to order severance on the basis that the evidence of each complainant was admissible as propensity evidence in relation to the charges concerning the other complainant against the appellant. The appellant sought leave to appeal against that decision under s 379A of the Crimes Act 1961, arguing that severance should have been ordered because the prejudicial effect of the evidence outweighed any probative value. The Court of Appeal granted leave to appeal but dismissed the appeal. The reasoning of the Court of Appeal focused on the statutory basis for the admissibility of propensity evidence under s 43 of the Evidence Act 2006. The Court held that the Judge had correctly assessed the probative value of the evidence against the risk of prejudice, considering the similarity and unusual features of the alleged offending. The Court of Appeal rejected the appellant's argument that the evidence lacked probative value given the issues in dispute and concluded that the Judge had appropriately balanced the competing interests.

Orders