Introduction [1] Grounds of appeal [5] Factual background [7] Evidence on appeal [9] Counsel error – the test [11] Unfair trial and inability to present defence [13] Failure to follow instructions [35]
Evidence was not called which was available [36]

ACC discussion [38] Medical evidence [54] Guardianship [86] Evidence of sexual conduct involving the complainant [98]

Summary of conclusions re further evidence [110] “Rogue Juror” [111] Recent complaint evidence [138] Motive to lie [153] Polling the jury [161] Note from jury – Papadopoulos direction [169]
Events at trial [169] Competing submissions [181] Papadopoulos direction [188] Discussion and conclusions [211] Not taking instructions [218]

Comment by the Judge [241] Result [226]

Introduction

[1] Mr Hookway was convicted following trial by jury in the Hamilton District Court in September 2006 of 12 counts of sexual offending against the complainant who we shall call M. He now appeals the convictions.

[2] The offences of which the appellant was convicted were:

(a) Two charges of indecent assault on a girl under the age of 12 years

(s 133(1)(a) of the Crimes Act 1961);

(b)One charge of inducing a girl under the age of 12 years to do an indecent act (s 133(1)(c) of the Crimes Act 1961);

(c) Three charges of sexual violation by unlawful sexual connection

(s 128(1)(b) and 5(b) of the Crimes Act 1961);

(d) One charge of sexual violation by unlawful sexual connection

(s 128(1)(b) and 5(a)(i) of the Crimes Act 1961);

(e) Three charges of sexual violation by rape (s 128(1)(a) of the Crimes

Act 1961); and

(f) Two charges of indecently assaulting a girl between the age of 12 and

16 years (s 134(2)(a) of the Crimes Act 1961).

[3] The appellant was sentenced to 13 and a half years imprisonment with a minimum period of imprisonment of seven years. The appeal against sentence was abandoned at the hearing of the appeal.

[4] The notice of appeal was filed four days late. Leave to extend the time for filing the appeal was not opposed by the Crown and is granted.

Grounds of appeal

[5] The appellant contends that there has been a miscarriage of justice in relation to his trial on the following grounds:

(a) Unfair trial and inability to present defence; (b) Failure by trial counsel to follow instructions:
(i) Not calling evidence which was available;

(ii)Not making an application to cross-examine the complainant on…

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 Hookway

Details

AGLC: R v Hookway [2007] NZCA 567
Case: [2007] NZCA 567
Decision Date: 11 December 2007

CaseChat Overview and Summary

The appellant, Ross Francis Hookway, was convicted of multiple counts of sexual offending against a child, M, and appealed the convictions. The Court of Appeal considered various grounds of appeal, including claims of counsel error, unfair trial, failure to follow instructions, inadmissible evidence, and concerns about the jury's deliberations. The Court examined the evidence and arguments presented, applying legal principles and precedents to determine the merits of each ground. The Court found that none of the grounds presented demonstrated a real risk of miscarriage of justice, and the trial was conducted fairly and in accordance with legal standards. The Court concluded that the verdicts were safe, and the appeal was dismissed.

Orders