| PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985 |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA231/01 |
THE QUEEN
V
M (CA231/01)
| Hearing: | 26 February 2002 |
| Coram: | Blanchard J Tipping J Durie J |
| Appearances: | G J King and C J Milnes for Appellant J C Pike for Crown |
| Judgment: | 6 March 2002 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
Introduction
The principal issue in this appeal against conviction concerns the trial Judge’s decision to allow the Crown to cross-examine the appellant on a previous conviction. The Judge thereby exercised the discretion available to him under s5(4)(b) of the Evidence Act 1908. That section is the equivalent of what used to be s1(f) of the Criminal Evidence Act 1898 (UK). The present provision in the United Kingdom is s1(3) of the Youth Justice and Criminal Evidence Act 1999 (UK). The New Zealand and United Kingdom sections deal with the same topic in different ways. The United Kingdom provisions constitute a prohibition on cross-examination of an accused person as to previous convictions, subject to specified exceptions prescribing when such cross-examination may be permitted. The New Zealand legislation gives the Court a general discretion to deal with the matter as best suits the interests of justice. The New Zealand Courts have, however, in exercising that discretion, always been influenced by the United Kingdom jurisprudence on the subject.
In the present case the appellant raises three points. He contends:
(1)that the Judge should not have allowed the cross-examination in question at all;
(2)that having allowed it, the Judge did not appropriately control the nature and extent of the cross-examination which followed; and
(3)that the Judge failed to give the jury proper directions on the purpose of the cross-examination and the use to which the evidence elicited could be put.
We will examine each of these three contentions after setting out the circumstances in which they arise.
Background
The appellant was convicted on two counts of indecent assault and two counts of sexual violation following a jury trial in the High Court at New Plymouth. The charges were representative. He was sentenced to five years imprisonment on the more serious sexual violation charge with concurrent sentences of four and three years imprisonment in respect of the other charges.
The complainant was the appellant’s 12 year old granddaughter. She and her sisters were placed in their grandparents’ care in 1995. In 1999 the appellant’s wife, the children’s grandmother, was convicted of wilfully ill treating the complainant and one of her sisters. The appellant was convicted of being a party to the ill treatment in the sense of permitting it to happen, albeit he was not responsible personally for any of the conduct constituting the ill treatment. The children were taken out of their grandparents’ care in March 1999. In April 2000 the complainant alleged that while she had been living with her grandparents her grandfather had committed various sexual acts on her. He denied that anything of this…
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- AGLC
- R v M (CA231/01) [2002] NZCA 366
- Case
- [2002] NZCA 366
- Decision Date
CaseChat Overview and Summary
The Court found that the trial judge erred in allowing the cross-examination as the focus was misdirected towards the likelihood of the appellant committing the offence, rather than solely on his credibility. The judge's direction to the jury was also deemed inadequate, as it did not clearly instruct them to avoid using the previous conviction as direct evidence of guilt. The Court concluded that the misdirection and improper cross-examination could have led to a miscarriage of justice. Consequently, the appeal was allowed, and the convictions were quashed, with directions for a new trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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