R v M (CA231/01) - [2002] NZCA 366

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

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…

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 M (CA231/01)

Details

AGLC: R v M (CA231/01) [2002] NZCA 366
Case: [2002] NZCA 366
Decision Date: 6 March 2002

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal (CA231/01) was heard on 26 February 2002, with Blanchard JTipping JDurie J presiding. The appellant, represented by G J King and C J Milnes, contested his conviction on two counts of indecent assault and two counts of sexual violation, challenging the trial judge's decision to allow the Crown to cross-examine him on a previous conviction. The Crown, represented by J C Pike, defended the trial judge's decision. The key legal issues revolved around whether the trial judge correctly exercised his discretion under s5(4)(b) of the Evidence Act 1908 to permit cross-examination on a previous conviction, the control over the nature and extent of the cross-examination, and the adequacy of the jury directions provided by the judge regarding the purpose of the cross-examination.

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