R v Henderson - [2007] NZCA 524

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA153/07 [2007] NZCA 524

THE QUEEN

v

NEVILLE ROBERT HENDERSON

Hearing: 23 and 24 July 2007
Court: Wilson, Panckhurst and Venning JJ Counsel: J H M Eaton for Appellant
C L Mander and T M Gresson for Crown

Judgment: 20 November 2007 at 3pm

JUDGMENT OF THE COURT

AThe conviction on count 4 is quashed and an order made that there is to be no new trial on that count.

B The appeal against conviction is otherwise dismissed.

CThe appeal against sentence is allowed. The sentence of four years’ imprisonment is quashed and replaced by a sentence of three and a half years’ imprisonment.

R V NEVILLE ROBERT HENDERSON CA CA153/07 20 November 2007

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] Following a jury trial in the District Court the appellant was convicted of three charges (one representative) of doing an indecent act and three charges of unlawful sexual connection. The complainant in all charges was the 14 year old stepdaughter of a close friend and business associate of the appellant. The trial judge, Judge Callaghan, sentenced the appellant to four years’ imprisonment. He appeals against conviction and sentence.

Factual background

[2] The complainant’s mother and father were separated. The complainant initially lived with her father. The complainant’s mother and her new partner lived in another city. The appellant was a business associate of the complainant’s stepfather and maintained a close relationship with him and the complainant’s mother. From time to time he stayed at their home. The appellant’s partner was also a friend of the complainant’s mother.

[3] At the beginning of 2005 the complainant came to live with her mother and her partner. The offending by the appellant started in August 2005. The complainant described incidents when the appellant hugged her, grabbed her bottom, squeezed it and, on occasions, touched the inside of her thighs. She said this happened from early August 2005 until early January 2006. This behaviour formed the basis of count 1 in the indictment. Over the Christmas holiday period of 2005 the complainant’s family went camping. The accused and his partner camped at the same place for a short period. While at the camp ground the complainant spoke to Mr S, a schoolteacher from Auckland who was travelling around the South Island. He knew the complainant’s stepfather. The complainant disclosed to Mr S that the appellant had made inappropriate comments and had acted inappropriately towards

her. Mr S watched the appellant’s interaction with the complainant. He told her that he intended to disclose what she had told him to her parents. The complainant then sought to retract her disclosures to Mr S. But Mr S did advise the complainant’s stepfather in late December when he left the campsite.

[4] On the night of 31 January 2006 the appellant stayed overnight with the complainant’s family. The complainant said…

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 Henderson

Details

AGLC: R v Henderson [2007] NZCA 524
Case: [2007] NZCA 524
Decision Date: 20 November 2007

CaseChat Overview and Summary

This case is an appeal against conviction and sentence of the appellant, Neville Robert Henderson, who was convicted of six counts of indecent acts and unlawful sexual connection against his 14-year-old stepdaughter of a close friend and business associate. The appeal was heard in the Court of Appeal of New Zealand, with the appeal against conviction dismissed, except for count 4, which was quashed and an order made that there is to be no new trial on that count. The appeal against the sentence was allowed, and the sentence of four years' imprisonment was quashed and replaced by a sentence of three and a half years' imprisonment.

The court considered the arguments made by the appellant's counsel, including the conduct of the Crown counsel, the trial judge's errors, and the admissibility of evidence. The court found that while there were some instances of improper leading questions by the Crown counsel and some emotive language used in the closing address, the overall impact was not so prejudicial as to lead to a miscarriage of justice. The court also found that the trial judge's directions to the jury were sufficient to ensure the fairness of the trial.

Regarding the sentence, the court considered the totality of the offending, the progression of the acts, and the breach of trust. The court decided that the sentence of four years was manifestly excessive, given that count 4 was quashed, and reduced the sentence to three and a half years' imprisonment.

Orders