R v K (CA197/07) - [2008] NZCA 3

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 139
CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/07 [2008] NZCA 3

THE QUEEN

v

K (CA197/07)

Hearing: 29 and 30 August 2007
Court: Robertson, Baragwanath and Heath JJ Counsel: C W J Stevenson for Appellant
D R La Hood for Crown

Judgment: 14 February 2008 at 9 am

JUDGMENT OF THE COURT

AThe appeals against conviction on counts 2 and 3 of the indictment are allowed. The convictions and sentences imposed in consequence are quashed.

B A new trial is ordered in respect of those counts.

R V K (CA197/07) CA CA197/07 14 February 2008

C Questions of bail are for the District Court to determine.

DNot to be published in news media or on Internet or other publicly accessible database until completion of re-trial. Publication in law
report or law digest permitted.

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1] The appellant (K) was tried in the District Court at Blenheim, before Judge McKegg and a jury, on one count of indecent assault and one count of sexual violation by rape. On arraignment, at the commencement of the trial, he had pleaded guilty to assaulting the female complainant on two separate occasions and to breaching a protection order taken out against him by her.

[2] K was found guilty by the jury on the two counts to which he entered not guilty pleas. On all charges, he was sentenced to an effective term of imprisonment of nine years. He appeals against all convictions entered, whether as a result of the guilty pleas or of the jury verdicts. No appeal is brought against the sentence imposed.

Background facts

[3] For some time, the complainant and K had been in a turbulent relationship. Although they continued to associate and, on some occasions, to cohabit, the complainant had obtained a protection order in her favour from the Family Court.

[4] The complainant alleged that, on 2 July 2005, she was asleep at a flat she (sometimes) shared with K. She contended that he had returned to the flat intoxicated, at about 5.00am. She asserted that he grabbed her by the throat, strangled her and accused her of sleeping with someone else. There was also some suggestion that K had thrust an object into her genital area. The 2 July incidents gave rise to counts 1 and 2 of the indictment: male assaults female and indecent assault respectively.

[5] On 5 July 2005, the complainant and K participated in a pool tournament at a local hotel. At about 1.30am on 6 July 2005 they returned to their home address. Both had been drinking heavily. The charges of male assaults female and sexual violation by rape arose out of events that occurred after they returned 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 K (CA197/07)

Details

AGLC: R v K (CA197/07) [2008] NZCA 3
Case: [2008] NZCA 3
Decision Date: 14 February 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, K, was convicted on counts 2 and 3 of the indictment and appealed against the convictions. The appellant was found guilty by the jury of indecent assault and sexual violation by rape, but he pleaded guilty to assaulting the female complainant on two separate occasions and to breaching a protection order taken out against him by her. The appellant appealed on the grounds that the conduct of the defence case at trial led to a real risk of an unsafe verdict or an unfair trial, the accused ought not to have faced a charge of breach of the protection order at trial, the Crown ought not to have led evidence from a police officer to the effect that K declined to provide a statement, counsel for the Crown ought not to have referred, in his closing address to the jury, to K's decision not to provide a statement to the Police, and there was no evidence from which a reasonable jury could have concluded that count 2 of the indictment (indecent assault) had been proved beyond reasonable doubt. The Court of Appeal found that the appellant's trial counsel had conducted the trial in a manner inconsistent with the appellant's proposed evidence and had not fully explained the consequences of doing so. The Court held that this amounted to a miscarriage of justice, and the appeal against conviction on counts 2 and 3 of the indictment was allowed. A new trial was ordered in respect of those counts.

Orders