R v O (CA342/06) - [2007] NZCA 87

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

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING APPELLANT UNTIL THE FURTHER ORDER OF THE COURT IN WHICH APPELLANT IS TO BE TRIED
ON CERTAIN OTHER CHARGES. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA342/06 [2007] NZCA 87

THE QUEEN

v

O (CA342/06)

Hearing: 26 February 2007
Court: Hammond, Chambers and Arnold JJ Counsel: C P Brosnahan for Appellant
K B F Hastie and K E Salmond for Crown

Judgment: 21 March 2007 at 11 am

JUDGMENT OF THE COURT

A The appeal against the convictions is dismissed.

BOrder prohibiting publication of name, address or particulars identifying appellant, until the further order of the court in which
appellant is to be tried on certain other charges. That order does not

R V O (CA342/06) CA CA342/06 21 March 2007

prevent, however, immediate publication of the judgment or the reasons therefor in any law report or law digest.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No

Introduction  [1] Verdicts against the weight of evidence  [3] Judicial misdirection
Introduction  [24]
Intoxication  [25] Lies  [29] The transcript  [39]
Prosecutorial misconduct
Introduction  [42]
Speech  [44] In-court movement  [52] Facts   [55] Prejudicial comment on the right to silence  [59] The cumulative effect  [64] Conclusion       [66]

Introduction

[1] O was convicted following trial before a jury, presided over by Judge Hubble, on one count of sexual violation by rape and four counts of sexual violation by unlawful sexual connection. He was subsequently sentenced to six years’ imprisonment.

[2] O now appeals against his convictions. Several grounds of appeal are advanced. For convenience they can be grouped into two categories. First, the verdicts are said to be unreasonable having regard to the evidence. Secondly, it is said that there has been a miscarriage of justice arising out of a lack of or inadequate directions by the trial Judge in several respects, alleged prosecutorial misconduct during Crown counsel’s address to the jury, or a combination of those things.

Verdicts against the weight of evidence

[3] In 2005, O and the complainant, who we will designate as “Y”, were both students in the seventh form at boys’ and girls’ high schools respectively, in a New Zealand provincial city.

[4] O and Y had been friends for several years. They each lived on the outskirts of this city. They were intermittently in contact at school events, and local parties.

[5] On 10 April 2005, O and Y were both out socialising with separate groups of friends. O was at a pub in town. Y was with her female friend “Z”. She had arranged to stay at Z’s house that night. Together, Y and Z went to a party in a residential street.

[6] At 10.30 pm O sent a text message to Y. He asked her where she was. There were text messages backwards and forwards between O…

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 O (CA342/06)

Details

AGLC: R v O (CA342/06) [2007] NZCA 87
Case: [2007] NZCA 87
Decision Date: 21 March 2007

CaseChat Overview and Summary

The appellant, O, was convicted on one count of sexual violation by rape and four counts of sexual violation by unlawful sexual connection. O appealed against his convictions, claiming the verdicts were unreasonable and there was a miscarriage of justice arising from judicial misdirection, alleged prosecutorial misconduct, or a combination of both. The Court of Appeal dismissed the appeal against conviction, holding that the jury's verdict was not unreasonable, and that no miscarriage of justice occurred. While some procedural issues were identified, the Court found that none of the points raised individually, or cumulatively, gave rise to a miscarriage of justice. The Court also ordered that O's name be suppressed until further order of the trial Judge in other matters he faces.

Orders