R v T (CA255/05) - [2005] NZCA 398

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

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

CA255/05

THE QUEEN

v

T (CA255/05)

Hearing: 22 November 2005
Court: Robertson, Baragwanath and Doogue JJ Counsel: J H M Eaton for Appellant
K B F Hastie for Crown

Judgment: 24 November 2005

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.

B The convictions are quashed and a new trial ordered.

CNot to be published in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law
report or law digest permitted.

R V T (CA255/05) CA CA255/05 24 November 2005

REASONS

(Given by Robertson J)

Introduction

[1] T was found guilty in the District Court at Christchurch on 21 April 2005 of three charges of indecent assault of a girl under 12 and one charge of sexual violation by unlawful sexual connection. All four charges were representative charges and covered the period between 1 February 2001 and 10 September 2001. He was found not guilty on a charge of rape and other charges of sexual violation.

[2] On 10 May 2005 Judge Saunders sentenced him to four and a half years’ imprisonment on the sexual violation charge and three years’ imprisonment on each of the three indecent assault charges to be served concurrently. T originally appealed against his conviction and sentence but subsequently abandoned his appeal against sentence.

Factual background

[3] At the time of trial, the complainant was 13 years old. T is her stepfather, having married her mother in November 2000. The allegations against him did not surface until March 2004.

[4] Between March and September 2001 the complainant’s mother regularly worked Monday to Friday shifts at a rest home, beginning at 7am. The appellant, along with the children, would drop her at work early in the morning, before returning home to prepare for the school day. During this time, T was alleged to have performed various sexual acts on the complainant.

[5] The charges of indecent assault involved T, first, kissing the complainant on the lips and putting his tongue in her mouth, secondly, kissing her in the genital area and thirdly, rubbing his penis on the complainant’s body.

[6] The charge of unlawful sexual connection related to an incident where T

made the complainant perform oral sex on him.

[7] The abuse became known in two ways. First, in March 2004 the victim told one of her friends at a slumber party what her stepfather had been doing to her. The friend gave evidence of recent complaint. Secondly, in June 2004 the complainant placed a note in a question and answer box during sexuality education at her school. That note was read by her school teacher and led to police investigations into the…

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 (CA255/05)

Details

AGLC: R v T (CA255/05) [2005] NZCA 398
Case: [2005] NZCA 398
Decision Date: 24 November 2005

CaseChat Overview and Summary

T was convicted in the District Court at Christchurch of four charges of indecent assault and sexual violation by unlawful sexual connection of a girl under 12 years of age. T appealed against his conviction on the basis that there was a miscarriage of justice due to inappropriate questioning and submission by the prosecutor and material misdirection by the trial Judge, which undermined the appellant's right to silence; inadequate directions as to onus of proof; and material misdirection by the trial Judge as to the relevance of recent complaint evidence. The Court of Appeal held that the appeal must succeed on the first ground alone, finding that the right to silence had been breached. The Court found that the prosecution attempted to undermine the appellant's exercise of the right to silence by submitting to the jury that the appellant did not need to know what allegations had been made against him because he already knew what they were. This was unacceptable and amounted to a breach of the appellant's rights. The Court quashed the convictions and ordered a new trial.

Orders