R v J(CA360/06) - [2007] NZCA 141

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

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA360/06 [2007] NZCA 141

THE QUEEN

v

J(CA360/06)

Hearing: 28 March 2007
Court: O’Regan, Ellen France and Wilson JJ Counsel: S W Hughes for Appellant
P K Feltham for Crown

Judgment: 29 March 2007

Reasons: 20 April 2007

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.

R V J(CA360/06) CA CA360/06 29 March 2007

B The convictions are quashed. C A retrial is ordered.
DOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other publicly accessible database until final disposition of retrial. Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] The appellant was convicted, after a District Court jury trial, of two representative charges of indecent assault on his daughter. We heard his appeal against conviction on 28 March 2007, and issued a judgment the following day allowing his appeal and ordering a retrial. In this judgment we give our reasons for that decision.

Grounds of appeal

[2] The case put to us by the appellant’s counsel, Ms Hughes, was substantially focused on allegations of trial counsel incompetence (the appellant’s trial counsel was not Ms Hughes). She argued that trial counsel had erred in the following respects:

(a)He advised the appellant not to make a statement to the police, did not brief him to give evidence, and advised him not to give evidence;

(b)He did not brief the appellant’s wife and son, and did not call either of them to give evidence;

(c) He did not object to the calling of evidence of past incidents involving the appellant and the complainant which put the appellant’s alleged character in contention.

[3] It was submitted that these matters, when taken individually and cumulatively, led to a miscarriage of justice at trial. It was argued that this Court should allow the appeal and direct the entry of an acquittal, rather than order a retrial.

Affidavit evidence

[4] We received in evidence affidavits from the appellant, his wife and son, and an affidavit in response from the appellant’s trial counsel. Neither party sought leave to cross-examine. There are a number of conflicts in the evidence which we are unable to resolve, but ultimately this has not posed a problem for the disposition of the appeal because of the approach which we have taken.

Evidence of extraneous matters

[5] The principal focus of the appellant’s case was on the evidence which was led by the Crown which related to events involving the appellant and the complainant other than those to which the charges related. That…

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.

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Details

Case: [2007] NZCA 141
Decision Date: 20 April 2007

CaseChat Overview and Summary

In the case of R v J, the appellant was convicted in the District Court of two charges of indecent assault against his daughter. The appeal against his conviction was heard by the Court of Appeal of New Zealand, with O'Regan, Ellen France, and Wilson JJ presiding over the case. The main legal issue was whether the appellant's trial counsel was incompetent, leading to a miscarriage of justice. The Court considered the appellant's counsel's arguments, including allegations that trial counsel had advised the appellant not to give evidence, did not brief the appellant's wife and son, and did not object to the admission of prejudicial evidence. The Court also examined affidavits from the appellant, his wife, son, and trial counsel.

The Court of Appeal found that the combined effect of the admission of prejudicial evidence, the appellant not giving evidence, and the lack of direction to the jury on how to consider the evidence, created a substantial risk of real prejudice and an unsafe verdict. The Court allowed the appeal and quashed the convictions, ordering a retrial. The Court rejected the submission to direct an acquittal instead of a retrial, as it was in the interests of justice and fairness to the complainant to have a jury determine the final outcome of the case.

Orders