R v Palmer - [2007] NZCA 113

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REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA256/06 [2007] NZCA 113

THE QUEEN

v

PIKI PALMER

Hearing: 21 February 2007
Court: William Young P, Randerson and Harrison JJ Counsel: W C Pyke for Appellant
K Raftery for Crown

Judgment: 3 April 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal against convictions is allowed.
B The convictions are quashed under s 385(2) of the Crimes Act 1961. C A retrial is ordered.

R V PALMER CA CA256/06 3 April 2007

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The appellant, Mr Piki Palmer, appeals against his conviction following trial in the District Court at Tauranga on counts of sexual violation by rape and by unlawful sexual connection. He does not appeal against his sentence of concurrent terms of imprisonment of eight years and three years respectively.

[2] Mr Palmer appeals on two discrete grounds: first, that his trial counsel erred in failing to advise him to give evidence at trial and, second, that the trial Judge erred when summing-up in his directions on the burden and standard of proof, admissibility and use of complaint evidence, and in a general lack of balance in favour of the Crown.

Crown Case

[3] The complainant lived at Mt Maunganui. Early on 24 October 2005 she and three others went to the beach there. During the morning they purchased a considerable amount of alcohol. The complainant herself drank two or three bottles of beer and seven or eight bottles of pre-mixed bourbon and cola, known as Codys.

[4] While near the beach, the complainant and her friends met up with Mr Palmer and three others. The complainant and Mr Palmer had known each other for about five years but had not encountered each other for at least a year. He drove her to a liquor outlet to buy additional alcohol. She continued drinking more Codys until she was by her own account ‘pretty drunk’. She then invited Mr Palmer and the others to her place to drink further.

[5] At trial the complainant said she remembered little about the drive home except going up the stairs and vomiting on the wall next to her bed and twice in the bathroom. She saw Mr Palmer standing in the hallway when she returned to her

bedroom and commented that she was ‘too wasted’. She fell asleep but awoke to a banging sound and observed that the bedroom door handle had been removed. She saw Mr Palmer walking towards the bed ‘and then I was out and then he was on top of me’ and ‘having sex with me’. She did not want or ask him to have sex and he did not seek her agreement. He stopped…

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 Palmer

Details

AGLC: R v Palmer [2007] NZCA 113
Case: [2007] NZCA 113
Decision Date: 3 April 2007

CaseChat Overview and Summary

In the case of R v Palmer, the appellant, Mr Piki Palmer, appealed against his conviction for sexual violation by rape and unlawful sexual connection following a trial in the District Court at Tauranga. Mr Palmer did not appeal against his sentence. The grounds of appeal were twofold: first, that trial counsel erred in failing to advise him to give evidence, and second, that the trial judge erred in his summing-up on the burden and standard of proof, admissibility and use of complaint evidence, and a general lack of balance in favour of the Crown.

The Court found that trial counsel had not erred in advising Mr Palmer against giving evidence as he had made the decision himself after being fully briefed on the charges and consequences. The Court also found that the trial judge's summing-up had been unfair, as it lacked balance and included a material misdirection on the use of recent complaint evidence. The cumulative effect of these errors resulted in a miscarriage of justice.

As a result, Mr Palmer's appeal against conviction was allowed. The convictions were quashed under s 385(2) of the Crimes Act 1961, and a retrial was ordered.

Orders