R v M (CA191/06)

In the case of R v M (CA191/06), the appellant was convicted by the District Court at Auckland of unlawfully engaging in sexual activity with a 15-year-old girl, who believed him to be her father, during an access visit. The appellant was sentenced to three and a half years imprisonment, but has been on bail pending the outcome of his appeal against the conviction. The appeal was based on the argument that the trial judge had made an error by not allowing defence counsel to cross-examine the complainant about whether she had discovered, shortly before the alleged incident, that the appellant might not be her father. It was suggested that if the complainant had indeed found out about this prior to the incident, it might have provided a motive for her to make a false allegation against the appellant.

The court was required to determine whether the trial judge's decision to disallow the cross-examination question constituted a miscarriage of justice. This involved balancing the appellant's right to a fair trial, including the right to cross-examine prosecution witnesses, against the complainant's right to be protected from unnecessary distress. The court also had to consider whether the judge had exercised his discretion appropriately in protecting the complainant.

The court found that the trial judge had exercised his discretion appropriately in disallowing the cross-examination question, as there was no evidential foundation for the suggestion that the complainant was aware of her mother's doubts about the appellant's parentage. The court held that it was important to protect vulnerable young witnesses and that the judge had not totally ruled out the possibility of asking the question if an evidential foundation had been laid. The court also noted that the issue of the complainant's knowledge of her mother's doubts was not central to the case and that, even if she had discovered this information, it was more likely that she would have been angry with her mother rather than the appellant. The court concluded that the appellant had not demonstrated that a miscarriage of justice had occurred as a result of the trial judge's ruling.

The appeal was dismissed, and the appellant was ordered to surrender himself to the New Lynn Police Station by 4 pm on 25 November 2006 to commence his sentence of imprisonment.