R v Raj - [2007] NZCA 10

ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA421/06
CA422/06
CA423/06
CA424/06 [2007] NZCA 10

THE QUEEN

v

RONEEL RAJNIT RAJ RAVIKASH CHANDRA BALRAM REDDY
NEIL ADAM MCKAY

Hearing: 13 February 2007

Court: Robertson, Ronald Young and Venning JJ

Counsel: K B F Hastie and E A Gambrill for the Crown as Applicant
P L Borich for Respondents Raj and McKay
F P Hogan for Respondent Reddy
M I Koya for Respondent Chandra

Judgment: 16 February 2007 at 3 pm

JUDGMENT OF THE COURT

A The application for leave to appeal is granted.

B The appeal is allowed. Evidence of the complainant will be given by:

R V RAJ AND ORS CA CA421/06 16 February 2007

(a) showing of the video interview made on 30 October 2005; and

(b) her subsequent oral evidence by way of closed-circuit television.

CPublication of this decision in news media or on the Internet or other publicly accessible database is prohibited until final disposition of trial.
Publication in law report or law digest is permitted.

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] The Crown seeks leave to appeal the decision made by Judge Johns under s 344A of the Crimes Act 1961 and s 23D of the Evidence Act 1908 that the evidence in chief of one of the complainants in a forthcoming sexual violation trial be given without using a pre-recorded evidential interview.

[2] The four respondents face six counts of sexual violation or attempted sexual violation and one of kidnapping of a young woman. At the time of the alleged offending she was 13½ years of age and is now 15. Mr Raj also faces two additional counts in relation to the sister of the complainant, but they do not figure in this appeal.

[3] There are a variety of allegations made by the complainant which involve the three respondents apart from Mr McKay and two counts arise from an incident a little later on the same night involving only Mr Raj and Mr McKay.

The factual arena

[4] There is no dispute that, at the relevant times, the complainant and the respondents were in each other’s company.

[5] The complainant told her family about what she said had happened immediately on her return home. She was taken to Starship Hospital where she remained for three days. Two days later she was interviewed by a specialist interviewer at the South Auckland Video Unit. It is that video recording which is in issue.

[6] The thrust of the complainant’s evidence on that tape is that a variety of sexual encounters occurred which were all non-consensual. When interviewed by the police, Mr Raj and Mr Reddy denied any sexual connection. Mr Chandra admitted that he had had sexual intercourse but said that it was consensual. Each of the respondents is charged as a party to…

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 Raj

Details

AGLC: R v Raj [2007] NZCA 10
Case: [2007] NZCA 10
Decision Date: 16 February 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand granted leave to appeal in the case of R v Raj, where the Crown sought to appeal a decision made by Judge Johns under the Crimes Act 1961 and the Evidence Act 1908. The four respondents, Raj, Nit, Reddy, and McKay, face multiple counts of sexual violation, attempted sexual violation, and kidnapping of a young woman. The Crown sought to have the complainant's evidence given by showing a video interview made on 30 October 2005 and her subsequent oral evidence through closed-circuit television. Judge Johns, however, decided that the complainant's evidence would be given viva voce using a closed-circuit television instead of playing the video interview.

The legal issues in this case were whether the District Court judge exercised her discretion correctly in declining to permit the complainant's evidence to be given by the pre-recorded video interview and whether the respondents' right to a fair trial would be compromised if the video interview was shown. The Court of Appeal found that the District Court judge placed too much weight on the complainant's age alone in reaching her decision, and the overwhelming evidence supported the proposition that the complainant's evidence should be by pre-recorded video.

The Court of Appeal considered the statutory framework and the purpose of the Evidence Act 1908, which aimed to provide a more flexible process to minimise stress in the trial process and assist in getting to the truth of a matter. The Court held that the use of the video interview technique would not necessarily impede or lessen the ability of the four accused men to get a fair and proper trial. The opportunity for a jury to assess demeanour and reaction and body language would still be available during cross-examination.

As a result, the Court granted the application for leave to appeal and allowed the appeal. The complainant's evidence will be given by the showing of the video interview made on 30 October 2005, and her subsequent oral evidence will be provided by way of closed-circuit television. The publication of this decision in news media or on the Internet or other publicly accessible database is prohibited until the final disposition of the trial, while publication in law report or law digest is permitted.

Orders