R v McEldowney - [2007] NZCA 92

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA301/06 [2007] NZCA 92

THE QUEEN

v

CRAIG KEVIN MCELDOWNEY

Hearing: 7 March 2007
Court: Ellen France, John Hansen and Williams JJ Counsel: A R Laurenson for Appellant
K B F Hastie and E A Gambrill for Crown

Judgment: 22 March 2007 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

R V MCELDOWNEY CA CA301/06 22 March 2007

Introduction

[1] The appellant was convicted after trial on two counts of sexual violation by unlawful sexual connection and one count of sexual violation by rape. He appeals against his conviction.

[2] The appeal relates to, first, alleged irregularities in the jury’s deliberations and, second, the availability of further evidence. Two other grounds relating to the medical evidence and evidence about the complainant’s level of intoxication were not pursued.

Factual background

[3] The incidents giving rise to the charges took place on 13 January 2004. At that stage, the 15 year old complainant was visiting her sister A. The complainant made arrangements to visit two other sisters (B and C). C was in a relationship with the appellant.

[4] The complainant, her two sisters B and C, and the appellant attended a barbecue at C’s home. That address was also the home of Luke Henderson. Whilst at the barbecue, the complainant drank a substantial amount of alcohol and became heavily intoxicated.

[5] Samuel Smaller was also at the barbecue. He shared a house with his sister and the appellant. As Mr Smaller was leaving the barbecue he found the complainant passed out on the driveway and covered in vomit. Mr Smaller said in his evidence that he decided to take the complainant back to his home so put her in his car and drove home approximately 20 kilometres away.

[6] Arriving at the house, Mr Smaller went inside and woke his sister and they helped bring the complainant inside. His sister gave the complainant a shower, put her in some pyjamas and put her to sleep in the appellant’s bed. Mr Smaller and his sister both said they understood the appellant was staying the night at C’s house.

[7] The complainant said that she awoke later to find the appellant in the bed. He was lying on top of her and digitally penetrating her. The complainant said she asked him to stop but he continued. He removed her underwear and began having oral sex with her. The complainant said she was passing in and out of consciousness as she was still affected by the alcohol. When the complainant next regained consciousness, she said the appellant was having sexual intercourse with her. The complainant asked the appellant to stop but he continued.

[8] By the time the complainant woke again, the appellant was asleep. The complainant said she picked up her clothes and went to sleep…

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 McEldowney

Details

AGLC: R v McEldowney [2007] NZCA 92
Case: [2007] NZCA 92
Decision Date: 22 March 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Craig Kevin McEldowney, was convicted on two counts of sexual violation by unlawful sexual connection and one count of sexual violation by rape. McEldowney appeals against his conviction, arguing there were irregularities in the jury's deliberations and that further evidence was available that could have impacted the trial's outcome. The appeal does not pursue two other grounds relating to the medical evidence and evidence about the complainant’s level of intoxication.

The appellant argues that the jury’s verdicts were unsafe due to the length of deliberations, the jury’s indication of their progress, and the need for a Papadopoulos direction. The Court held that the length of deliberations was not out of the ordinary, and the jury's discussions did not suggest intimidation or coercion. The Court also found no need to amend the Papadopoulos direction or to poll the jury.

Regarding the new evidence, the appellant claims that Luke Henderson, who was present at the barbecue, could provide fresh evidence suggesting that Samuel Smaller, who took the complainant home, had some sexual intent toward her. However, the Court found that this evidence could have been obtained with reasonable diligence and did not meet the criteria for fresh evidence. Additionally, the Court determined that even if the evidence was fresh and credible, it would not have led to a finding of not guilty.

The appeal is dismissed. The Court found no merit in the appellant's arguments concerning the jury's deliberations and the availability of further evidence. The evidence presented during the trial was sufficient to support the conviction, and the new evidence, if it could have been obtained earlier, would not have changed the outcome.

Orders