R v S (CA514/07) - [2007] NZCA 497

NOTE: INTERIM ORDER SUPPRESSING RESPONDENT’S NAME AND IDENTIFYING DETAILS

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND REASONS 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

CA514/07 [2007] NZCA 497

THE QUEEN

v

S (CA514/07)

Hearing: 7 November 2007
Court: Ellen France, John Hansen and Heath JJ Counsel: M D Downs for Crown
J H M Eaton for Respondent

Judgment: 14 November 2007 at 12 pm

JUDGMENT OF THE COURT

A The Solicitor-General’s application for leave to appeal is granted.

R V S (CA514/07) CA CA514/07 14 November 2007

B The appeal is allowed.

C The evidence of EM and of CR is admissible.

DOrder prohibiting publication of the judgment and reasons in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] The respondent is to be tried in the week commencing 26 November 2007 on a number of charges of sexual offending in relation to one complainant, “J”. The alleged offending spans a period from 1967 to the end of 1978 when J was aged from
7 to 18 years and the respondent 21 to 32 years. In a decision delivered on

17 September 2007, Panckhurst J ruled that evidence from two other young girls that the respondent had touched them inappropriately on occasions in the period covered by the indictment was not admissible in the trial either as propensity evidence or, in relation to one of the girls, as direct evidence: HC CHCH CRI 2006-009-001151. The Solicitor-General seeks leave to appeal against that decision under s 379A(1)(aa) of the Crimes Act 1961.

Background

[2] The indictment contains 15 counts. The factual background is set out at [7] to [12] of the High Court decision. J was born in December 1959 and is related by marriage to the respondent. The complainant had rubella at a young age which left her deaf in both ears. Throughout the relevant time she was deaf to the extent that

she was reliant on lip reading to communicate. In 1997 J received implants which improved her hearing considerably.

[3] The offending is alleged to have commenced in 1967. J’s parents had a hotel in the city in which they lived. On occasions, the respondent stayed at the hotel and counts one and two allege the commission of indecent acts on a girl under 12 (inducing J to touch his penis and rubbing his penis on her face).

[4] Counts three, four, five and seven allege further acts of indecent touching of a girl under 12 at either the hotel or on a farm where the respondent lived.

[5] The other nine counts allege rape or sodomy (one count) committed at…

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 S (CA514/07)

Details

AGLC: R v S (CA514/07) [2007] NZCA 497
Case: [2007] NZCA 497
Decision Date: 14 November 2007

CaseChat Overview and Summary

The case of R v S (CA514/07) before the Court of Appeal of New Zealand involved the respondent, whose name and identifying details were suppressed due to an interim order. The Crown sought leave to appeal against a decision of Panckhurst J, who ruled that evidence from two other young girls, EM and CR, that the respondent had touched them inappropriately was not admissible in the trial. The evidence related to alleged sexual offending against one complainant, J, between 1967 and 1978. The legal issues before the Court were whether the evidence of EM and CR was admissible as propensity evidence or direct evidence of a guilty relationship between the respondent and the complainant.

The Court found that the Judge had understated the extent of similarity in the incidents described by EM and the complainant, which occurred in the same setting. The Court held that the evidence of EM had considerable probative value because it occurred contemporaneously with the alleged offending in relation to J and suggested a process of grooming similarly aged girls. The Court also found that the evidence of CR was directly relevant, as it was logically inferred that there was a pre-existing sexual relationship between the respondent and the complainant that CR was invited to join. The Court granted leave to appeal, allowed the appeal, and ruled that the evidence of EM and CR was admissible. The Court also made an order prohibiting publication of the judgment and reasons in the news media or on the internet or other publicly accessible database until final disposition of trial. Publication in law report or law digest was permitted.

Orders