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IN THE SUPREME COURT OF NEW ZEALAND
SC 25/2007 [2007] NZSC 102
KURT JOHN OWEN
v
THE QUEEN
Hearing:20 November 2007
Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:D J Sharp and K L Goldsbury for Appellant
Solicitor-General D B Collins QC and M D Downs for Crown
Judgment:11 December 2007
JUDGMENT OF THE COURT
A The appeal is dismissed.
REASONS
(Given by Tipping J)
Introduction
[1] Section 385(1)(a) of the Crimes Act 1961 states that the Court of Appeal or this Court must allow an appeal against conviction if the Court is of the opinion that the verdict of the jury should be set aside on the ground “that it is unreasonable or cannot be supported having regard to the evidence”. The appellant, Mr Owen, failed to persuade the Court of Appeal[1] that the verdicts of the jury which found him guilty on five counts of sexual violation should be set aside on this ground. He appeals by leave to this Court raising matters both of fact and of law. It is convenient to deal with the legal matters which arise before considering the facts. We will first state the conclusions we have reached on those matters and then set out the factors which have led us to those conclusions.
[2] Leave to appeal was granted in this case so that the correct approach to s 385(1)(a) could be reviewed in this Court. The leading case is R v Ramage[2] in which the Court of Appeal said that a verdict will be unreasonable or not supported having regard to the evidence “if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the [appellant]”.[3] Somewhat different articulations of the test propounded in Ramage have been employed in the Court of Appeal in the 23 years since that case was decided. In some cases the differences can be viewed as semantic but in others they are capable of suggesting substantive variations.
[3] In the present case the Court of Appeal said:[4]
Put shortly, the question is whether the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to guilt. It is insufficient that the reviewing Court may simply disagree with the verdict of the jury. And further, if the jury has received evidence which, if accepted, would support its verdict the verdict is not unreasonable: R v McDonald CA 142/04 29 July 2004.
[4] At para [22] (original emphasis).
The appellant argued that the way the Ramage test had been applied, at least in some cases, meant that if there was any evidence capable of supporting the verdict, it could not be characterised as unreasonable. Reference was made in particular to the McDonald articulation upon which the Court…
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.
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AGLC
R v Owen [2007] NZSC 102
Case
[2007] NZSC 102
Decision Date
CaseChat Overview and Summary
In the Supreme Court of New Zealand, the case of R v Owen involved the appellant, Kurt John Owen, appealing against his conviction on five counts of sexual violation. The appeal was dismissed by the Court, which found that the verdicts of the jury were not unreasonable and could be supported by the evidence. The primary legal issue the Court addressed was the interpretation of section 385(1)(a) of the Crimes Act 1961, which allows for an appeal against conviction if the verdict is deemed unreasonable or not supported by the evidence. The Court clarified that a verdict is unreasonable if, considering all the evidence, no reasonable jury could have been satisfied to the required standard that the accused was guilty. The Court also noted that while the concepts of "unreasonable" and "not supported" overlap, they are distinct, with a verdict based on no evidence necessarily being unreasonable.
The Court reviewed the historical context of section 385(1)(a), which was modelled on the English Criminal Appeal Act 1907, and discussed various judicial interpretations over the years. It highlighted the importance of the jury's role in assessing facts and the appellate court's role in reviewing, rather than substituting, its view. The Court emphasised that the appellate court must give appropriate weight to the jury's advantages in assessing evidence and should not lightly interfere with the jury's findings. The Court also considered the consistency of its interpretation with the New Zealand Bill of Rights Act 1990 and international obligations.
In the specific circumstances of the case, the Court found that the evidence, including the complainant's testimony, the physical evidence, and the observations of third parties, sufficiently supported the jury's verdict. The Court concluded that the jury could reasonably have been satisfied to the required standard that the appellant was guilty on all counts, and thus the appeal was dismissed.