R v P

This appeal arose from a conviction in the High Court at Auckland of the appellant for unlawful sexual connection by digital penetration and sexual violation by rape, committed against the same complainant, M, on 5 July 1996. The appellant was sentenced to preventive detention, which followed earlier sentences for sexual offending against other young girls. The appeal was based solely on a recantation by M of the evidence she gave in support of the charges. The essential issue for the Court was whether the recantation was true or may be true, and if so, whether a retrial should be ordered.

The legal issues the Court needed to decide included whether the fresh evidence, in this case the recantation by M, was true and necessarily decisive, sufficiently credible to give rise to a risk of a miscarriage of justice, or positively disbelieved by the Court. The Court considered the principles articulated in previous cases and acknowledged that the Crown's case at trial in 1998 was dependent upon acceptance of M's testimony. Given the recantation, the convictions must be viewed as unsafe.

The Court heard evidence from M and concluded that her retraction could not be rejected as untruthful. Therefore, the convictions were unsafe. However, a retrial was not feasible, nor sought. The Court found the case to be worrying, as the appellant had benefitted from two recantations, both of which occurred several years after the respective trials.

The appeal was allowed, and the convictions were quashed. No further orders were made.