R v Lewis - [2014] NZHC 2331

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-055-2751 [2014] NZHC 2331

THE QUEEN

v

JUNIOR LEWIS

Hearing: 22, 23 and 24 September 2014

Counsel:

AM McClintock and MJ Hammer for Crown
PE Dacre QC for Defendant

Judgment:

24 September 2014

JUDGMENT OF BREWER J

Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Paul Dacre QC (Auckland) for Defendant

R v LEWIS [2014] NZHC 2331 [24 September 2014]

[1] On 29 July 2013, the complainant, P, was home in bed, sick with the chickenpox. P was five years old.

[2] P lived in a four bedroom home which was occupied by nine people, including the defendant, Mr Junior Lewis. P shared a room and a bed with her grandmother, H. H was her guardian following the death of P’s mother. On this day, H had a doctor’s appointment. The appointment time was 10:45 am. It was about a five to 10 minutes drive to the doctor.

[3] Mr Lewis, who is a member of P’s extended family, had been staying at the house off and on for the previous two months. His mother and sister had recently obtained another house and he was in the process of shifting there. Nevertheless, he spent the night of 28 July 2013 at P’s house.

[4] On the morning of the 29th, Mr Lewis went to a bottle store and, when it opened at 9:00 am, bought alcohol. He returned to the house having, he said, consumed two cans of “Codys”. H had not yet left for her doctor’s appointment when he arrived. He spoke to H and knew that she was on her way to the doctor.

[5] Sometime after H left the house, Mr Lewis went into the bedroom H shared with P. P was in the bed. P’s evidence is that Mr Lewis got into the bed with her and sexually assaulted her. I will come to the detail of the allegations shortly.

[6] Mr Lewis, in his interview with the Police and in evidence before me, said he went into P’s room to get clothing he had left there. While he was there he sat on the bed so as to better reach his shoes which were under another bed in the room. He chose to sit because he had a sore leg. He spoke briefly to P. Mr Lewis denied any sexual contact with P or, indeed, touching her at all.

[7] Mr Lewis said, and this is corroborated by P, that while he was in the room P’s adult brother, R, came in and challenged him by asking if he had done anything to his sister. Mr Lewis replied “no” and at once left the house, never to return. There is no evidence that there was any prior discord between Mr Lewis and the

other occupants of the address, and his own evidence was that he got 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 Lewis

Details

AGLC: R v Lewis [2014] NZHC 2331
Case: [2014] NZHC 2331
Decision Date: 24 September 2014

CaseChat Overview and Summary

In the case of R v Lewis, Junior Lewis was charged with four offences relating to the alleged sexual assault of a five-year-old girl, P. Lewis was a member of P's extended family and was staying at P's house at the time of the alleged incident. The four charges against Lewis were: (1) indecent act on P by touching her genitalia, (2) indecent act on P by inducing her to touch his penis, (3) sexual violation of P by raping her, and (4) sexual violation of P by introducing his penis into her anus. The legal issues the court had to decide were whether Lewis had committed the alleged offences and whether there was a variance between the proof and the charges.

The court found that charges 1 and 2 were proven beyond reasonable doubt, as P's evidence was consistent and clear, and she demonstrated the alleged acts with dolls. However, for charges 3 and 4, the court was not sure if there was penetration, as P's evidence was not clear enough to establish this element. The court decided to amend charges 3 and 4 to charges of doing an indecent act on a child under 12 years, as the court found that there was proof of indecencies on a child but was not sure whether there was penetration. The court held that amending the charges would not mislead or prejudice Lewis in his defence, as the defence was a complete denial of any sexual contact, and the court found that Lewis was not misled or prejudiced in his defence.

The court found Lewis guilty on charges 1, 2, 3 (as amended), and 4 (as amended) and set the sentencing date for 6 November 2014. Lewis was remanded in custody to appear for sentencing.

Orders