R v Olliver - [2016] NZHC 2273

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-000810 [2016] NZHC 2273

THE QUEEN

v

THOMAS OLLIVER

Hearing: 21 September 2016

Appearances:

C J Lange for the Crown
P J Shamy for the Defendant

Date ofRuling:

23 September 2016

RULING OF NATION J

[1] At the conclusion of counsels final addresses, I had a discussion with counsel, firstly, as to whether there was a need for a propensity evidence ruling.

[2] Mr Lange told me that, because there had been no challenge as to the truth of the complainants’ evidence as to the defendant’s actions with them, the Crown are not seeking to rely on propensity evidence in relation to what was at issue in the trial. I indicated that, if that was the position, I would probably need to give a direction that they must not use the evidence in relation to one complainant as relevant with regard to the other complainant. I also said that the actions of the defendant, as described by the complainants, had not been admitted. Mr Lange asked for time to consider the Crown’s position.

[3] Just prior to my summing up at 10.00 am on 23 September 2016, I received a communication from the Crown suggesting that evidence in relation to one

R v OLLIVER [2016] NZHC 2273 [23 September 2016]

complainant could potentially be relied on by the Crown on elements of the charges that were in issue but care would have to be taken in directing over this.

[4] Given what was in issue, with the way the trial had proceeded, I did not consider it appropriate to direct the jury that evidence could be used on a propensity basis. Accordingly, in my summing up, I directed the jury that they must not use the evidence relating to one complainant to add weight to the charges involving the other complainant. At the conclusion of my summing up, in the absence of the jury, Mr Lange, for the Crown, said no issue was taken with the approach I had adopted. He said the Crown did not require a ruling on this.

[5] During the discussion I had with counsel after their addresses, Mr Shamy, for the defendant, formally asked me to caution the jury as to the reliability of the two complainants’ evidence, pursuant to s 122(1) of the Evidence Act. He suggested such a caution was required because of the way the complainants’ evidence could or had been rendered unreliable through discussions which had taken place with their mothers and between each other and/or because of conversations which they were likely to have heard others having about the allegations before they participated in evidential interviews.

[6] Mr Shamy suggested I should consider carefully what the Supreme Court had to say about the appropriateness of such a caution in two recent judgments.1 I indicated that I was not minded to give such a caution but I would consider those cases and my decision on whether or not I would give a…

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 Olliver

Details

AGLC: R v Olliver [2016] NZHC 2273
Case: [2016] NZHC 2273
Decision Date: 23 September 2016

CaseChat Overview and Summary

In the case of R v Olliver, the defendant was charged with multiple counts of indecent assault against two complainants, T and S. The court was tasked with determining the reliability of the complainants' evidence and whether the jury could consider evidence from one complainant in relation to charges involving the other complainant. The case involved complex issues concerning the admissibility and weight of evidence in sexual assault cases, particularly when the complainants are children.

The primary legal issues revolved around the admissibility of evidence from one complainant to support charges involving the other, and whether the trial judge should caution the jury about the reliability of the complainants' evidence. The Crown argued that evidence from one complainant could be used to support charges involving the other, while the defence argued for a cautionary direction due to potential unreliability of the complainants' evidence. Additionally, the defence requested that the jury be cautioned about the reliability of the complainants' evidence under section 122(1) of the Evidence Act.

The court decided that the evidence from one complainant should not be used to support charges involving the other, as the Crown did not challenge the truth of the complainants' accounts. The court also decided not to caution the jury about the reliability of the complainants' evidence, finding that the primary issue was the physical contact between the defendant and each complainant. The court considered the evidence from both complainants to be reliable and significant in determining the nature of the contact, and it was noted that the defence had not challenged the truth of their accounts during cross-examination. The court concluded that cautioning the jury would have been unfair to both the complainants and the Crown.

The final orders of the court were that the Crown could not use evidence from one complainant to support charges involving the other, and no cautionary direction was given to the jury regarding the reliability of the complainants' evidence.

Orders