R v Oliver - [2007] NZCA 326

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

ORDER PROHIBITING PUBLICATION OF THE COURT’S REASONS FOR JUDGMENT (BUT NOT THE RESULT) IN THE NEWS MEDIA OR ON THE INTERNET OR IN
ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA487/05 [2007] NZCA 326

THE QUEEN

v

KRISTINA RACHAEL OLIVER

Hearing: 14 November 2006 and 20 July 2007
Court: O’Regan, Potter and Miller JJ Counsel: R B Squire QC for Appellant
P K Feltham for Crown

Judgment: 31 July 2007 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is allowed and the convictions on counts 1,

2 and 4 are quashed.

B We order a retrial on counts 1, 2 and 4.

R V KRISTINA RACHAEL OLIVER CA CA487/05 31 July 2007

C Any issues relating to bail are to be dealt with in the District Court.

DWe make an order prohibiting publication of the Court’s reasons for judgment (but not the result) in the news media or on the internet or in any other publicly accessible database until final disposition of retrial. Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] Ms Oliver appeals against conviction and sentence on one charge of sexual violation and two charges of assault.

Issues

[2] The appeal against conviction is brought on the basis that there was a miscarriage of justice: s 385(1)(c) of the Crimes Act 1961. The miscarriage is said to have arisen because of the failure of Ms Oliver’s trial counsel to obtain and lead at the trial expert evidence contradicting that of the medical expert called by the prosecution, Dr Middleton. Counsel for Ms Oliver sought leave to adduce in this Court evidence from an obstetrician and gynaecologist, Dr Wilde, which took issue with aspects of the evidence given at trial by Dr Middleton. This is the sole ground of appeal: others that were initially identified were abandoned. No issue is taken with the way in which the trial was conducted by the trial Judge, Judge Davidson.

[3] The issues for determination are whether Dr Wilde’s evidence should be admitted on appeal and whether a miscarriage of justice arose because of the failure of trial counsel to lead such evidence at trial. These issues overlap to a considerable extent.

[4] The evaluation of these issues requires a reasonably detailed consideration of the factual background and the course of the trial, especially the medical evidence led by the Crown at trial. We begin with those topics, before turning to a consideration of the admissibility of the evidence of Dr Wilde.

The Crown case

[5] The complainant, C, and her female partner, P, took up residence at a Women’s Refuge in October 2003. C suffers from depression and epilepsy, and attended a mental health drop-in centre, where Ms Oliver became her case…

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 Oliver

Details

AGLC: R v Oliver [2007] NZCA 326
Case: [2007] NZCA 326
Decision Date: 31 July 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Kristina Rachael Oliver appeals against her conviction and sentence on one charge of sexual violation and two charges of assault. The appeal is brought on the basis that there was a miscarriage of justice because Ms Oliver’s trial counsel failed to obtain and lead expert evidence contradicting that of the medical expert called by the prosecution. The appeal court considers the admissibility of the new evidence and whether a miscarriage of justice arose because of the failure of trial counsel to lead such evidence at trial. The court finds that the evidence of Dr Wilde is sufficiently fresh and credible to be admitted on appeal. The court concludes that a miscarriage of justice has occurred because the jury did not hear Dr Wilde’s evidence, which directly contradicted the medical evidence heard by the jury and provided a basis for challenging the complainant’s account of the alleged fisting incident. The court allows the appeal against conviction on all counts on which Ms Oliver was convicted and sets aside those convictions. The court orders a new trial on those counts.

Orders