R v John - [2017] NZHC 2003

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT UNTIL THE FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2017-085-690

[2017] NZHC 2003

THE QUEEN

v

JOSEPH JOHN

Hearing: 14 August 2017

Counsel:

S C Carter for Crown

I M Antunovic for Defendant

Judgment:

22 August 2017

JUDGMENT OF THOMAS J (SEVERANCE)

Introduction

[1]The defendant awaits trial on the following charges:

(a)sexual violation of Complainant 1 by rape on 26 May 2016;

(b)sexual violation of Complainant 2 by rape on 21 February 2017; and

(c)sexual violation of Complainant 2 by unlawful sexual connection on 21 February 2017.

R v JOHN [2017] NZHC 2003 [22 August 2017]

[2] The defendant applies for the charges against each complainant to be heard separately. The Crown opposes the application for severance.

Allegations

Complainant 1

[3] The complainant in the first charge, Complainant 1, was 18 years old at the time of the alleged offending. The defendant was 22.

[4] Complainant 1 and the defendant became friendly via texting and had met on two occasions before the incident.

[5] On 26 May 2016 they met one another at the Warehouse while Complainant 1 was shopping with her mother. It was a chance encounter. The defendant asked Complainant 1 to see a movie with him later that evening and she agreed. The defendant picked up Complainant 1 from her home in his car at about 4.00 pm. They drove to a cinema in central Wellington and the defendant purchased tickets for the movie.

[6] Because Complainant 1 did not have identification with her, they were unable to see the movie for which they had tickets. The defendant suggested they park in the car and listen to music and Complainant 1 agreed. The defendant drove to a park in Upper Hutt and, once the vehicle was parked, they both moved into the back seat of the vehicle. Both consumed alcohol. Complainant 1 had the defendant’s laptop on her lap and was playing music, which they listened to for a period of time. She removed her shoes to get comfortable.

[7] It is alleged the defendant tried to kiss Complainant 1, but she rejected his advances, said no, and said she had a girlfriend and did not want to cheat on her. The defendant attempted to kiss her again, but she pushed him off. Complainant 1 was wearing a dress and the defendant began to remove her underwear. She tried to pull her underwear up, saying, “Get off me, let go of my undies”. The defendant was successful in removing Complainant 1’s underwear completely. It is alleged he pushed her into the side door of the vehicle. She was lying on her back and penetration

occurred. Complainant 1 says she punched the defendant several times in the head and was yelling, “Get off me”. She dug her nails into the skin of his back and was screaming and crying throughout. She alleges the defendant asked her, “Why are you crying?”, to…

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 John

Details

AGLC: R v John [2017] NZHC 2003
Case: [2017] NZHC 2003
Decision Date: 22 August 2017

CaseChat Overview and Summary

The defendant, Joseph John, applied for the charges against each complainant to be heard separately, however, the Crown opposed the application for severance. The defendant was awaiting trial on charges of sexual violation by rape and unlawful sexual connection against two complainants, Complainant 1 and Complainant 2. The defendant applied for the charges against each complainant to be heard separately, arguing that the allegations were unconnected in time, place or circumstance and it was conducive to the ends of justice that the charges were heard separately. The Crown opposed the application, submitting the evidence in relation to both sets of charges was admissible on a cross-propensity basis and it was in the interests of justice the charges were heard together. The court considered the principles of joinder and severance and found that the evidence in the two charges was cross-admissible on a propensity basis and it was not in the interests of justice to order separate trials. The application for severance was dismissed.

Orders