R v Primrose CA499/05

In the Court of Appeal of New Zealand, the appeal of Derrol Primrose against his conviction for sexual violation was heard on 9 August 2006. The appeal was allowed and a retrial ordered. The complainant, now aged 21, alleged that the appellant sexually violated her when she was ten or eleven years old. The appellant, who had a relationship with her mother, was acquitted of other charges related to the complainant. The appeal against conviction was based on alleged errors in the summing up by the trial Judge.

The legal issues the court needed to decide included whether the summing up contained errors that misrepresented the burden of proof and the nature of the defence. Counsel for the appellant argued that the Judge failed to give adequate directions to the jury about the precise nature of the defence and provided positively misleading directions on the onus of proof. Specifically, the appellant's counsel contended that the Judge's summing up suggested that the jury had to choose between believing the complainant or the appellant, which was incorrect. The Judge's directions regarding consent and penetration were also said to have reversed the onus of proof. Counsel for the Crown, however, argued that the summing up, when read as a whole, was adequate and did not mislead the jury.

The Court of Appeal held that the Judge's summing up contained material errors that could have misled the jury. The initial direction that the jury had to choose between believing the complainant or the appellant was plainly wrong and was reinforced by other comments. The tripartite direction given in response to counsel's concerns was deemed inappropriate and potentially confusing. The Judge's directions on particular elements of the charge of sexual violation, particularly those related to consent and penetration, also misrepresented the onus of proof. The Court concluded that the verdict was unsafe and could not stand due to these errors. Therefore, the appeal against conviction was allowed and a retrial ordered.