R v T (CA11/07) - [2007] NZCA 296

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA11/07 [2007] NZCA 296

THE QUEEN

v

T (CA11/07)

Hearing: 20 June 2007
Court: Hammond, Williams and Wild JJ Counsel: J W Watson for Appellant
K B F Hastie for Crown

Judgment: 18 July 2007 at 3 pm

JUDGMENT OF THE COURT

Time for the filing of the appeal is extended, but the appeal is dismissed, both as

to conviction and sentence.

REASONS OF THE COURT

(Given by Wild J)

R V T (CA11/07) CA CA11/07 18 July 2007

Introduction

[1] This appeal is against both conviction and sentence. It was brought out of time. As the delay is explained, and is not objected to by the Crown, we extend the time for appealing to 10 January 2007, the date on which the Notice of Appeal was filed.

[2] The basis for the conviction appeal is that a ruling given by the Judge at the start of the trial was wrong, and resulted in a miscarriage of justice. This is the way the appellant framed his appeal against conviction in his Notice of Appeal:

The ruling was wrong in law which led to a miscarriage of justice and that the judgment of the District Court for which I was convicted should be set aside on the ground that a wrong decision was made on a question of law.

[3] The Judge’s ruling was under s 23A of the Evidence Act 1908, declining the appellant leave to question the complainant about complaints she had made of sexual misconduct by three other men. We will call the complainant R. She is related to the appellant. The trial proceeded, resulting in the jury finding the appellant guilty on each of the four charges he faced, all of them representative.

[4] The sentence of seven and a half years imprisonment subsequently imposed by the Judge is appealed on the ground that it is manifestly excessive.

[5] Appeal specifically from a s 23A ruling only lies before the trial starts: s 379A(1)(g) of the Crimes Act 1961; R v Watson [1999] 3 NZLR 257 at 259 – 260 (CA). But there is nothing to prevent an appellant, post-trial, appealing on the ground that the s 23A ruling resulted in a miscarriage of justice. That is the basis on which we deal with the appeal against conviction.

[6] The four charges on which the accused was found guilty were all of sexual offending against R, all in the same small provincial town. Summarised they are:

(a) Indecent assault between 15 January 2001 and 15 January 2002, when

R was aged under 12 (15 January 2001 was her 11th birthday).

(b)Indecent assault between 15 January 2002 and 25 November 2004, when R was aged between 12 and 16.

(c) Sexual violation by digital penetration between 15 January 2002 and

25 November 2004.

(d) Sexual violation (R’s mouth on the appellant’s genitalia) between

15…

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 T (CA11/07)

Details

AGLC: R v T (CA11/07) [2007] NZCA 296
Case: [2007] NZCA 296
Decision Date: 18 July 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by T against both his conviction and sentence. The appeal was brought out of time, but the Court extended the time for filing the appeal. The basis for the appeal against conviction was a ruling by the Judge that declined the appellant leave to question the complainant about complaints she had made of sexual misconduct by three other men. The sentence of seven and a half years imprisonment was appealed on the ground that it was manifestly excessive. The Court held that the ruling by the Judge did not result in a miscarriage of justice, and dismissed the conviction appeal. The Court also held that the sentence was not manifestly excessive, and dismissed the sentence appeal.

The appeal against conviction was based on the Judge’s ruling under s 23A of the Evidence Act 1908, declining the appellant leave to question the complainant about complaints she had made of sexual misconduct by three other men. The complainant, R, was related to the appellant. The trial proceeded, resulting in the jury finding the appellant guilty on each of the four charges he faced, all of them representative. The Court held that the ruling by the Judge did not result in a miscarriage of justice, and dismissed the conviction appeal. The Court held that the appellant received a fair trial, and that justice did not miscarry.

The sentence appeal was based on the ground that the sentence of seven and a half years imprisonment was manifestly excessive. The Court held that the effective end sentence of seven and a half years imprisonment on the lead charge was not manifestly excessive, and dismissed the sentence appeal. The Court held that the sentence was entirely appropriate, and viewed it as such.

Orders