R v Te Maari - [2007] NZCA 279

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA4/07 [2007] NZCA 279

THE QUEEN

v

ALAN JOSEPH TE MAARI

Hearing: 12 June 2007
Court: Ellen France, Ronald Young and Keane JJ Counsel: J G Rowan QC and E C Killeen for Appellant
M F Laracy for Respondent

Judgment: 6 July 2007 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Keane J)

R V TE MAARI CA CA4/07 6 July 2007

[1] On Friday 13 October 2006 Alan Te Maari was found guilty of one count of sexual violation by rape of T, a young relative of his, and another of digitally penetrating her. He was found not guilty of three other counts: of sexually violating her by rape on an earlier occasion, of indecently assaulting her, a girl aged under 12, and of inducing an indecent act. He was sentenced to five and a half years imprisonment for the rape and concurrently to 18 months imprisonment for the lesser violation.

[2] The jury reached their verdict at 9.39 pm after deliberating for almost ten hours having twice found themselves unable to agree, first after almost four hours had elapsed and again one hour twenty minutes before they reached their verdict. Each time the Judge invited them to persevere, on the second giving to them the standard direction: R v Papadopoulos [1979] 1 NZLR 621(CA); R v Accused (CA87/88) [1988] 2 NZLR 46 (CA).

[3] On this appeal Mr Te Maari contends that the Judge should, when the jury first found themselves unable to agree, or shortly after, have given them a Papadopoulos direction and discharged them in the evening when they then confirmed that were still unable to agree. In withholding that direction until then, well into the Friday evening, Mr Te Maari contends, the Judge pressed the jury to an unsafe verdict.

Context

[4] The jury had to consider an indictment containing five counts, alleging three occasions on which Mr Te Maari had sexually abused T between 6 May 1984, when she was aged ten, and 8 May 1987, when she was aged 13.

[5] Between 6 May 1984 – 1986, when she was living with her mother, and aged under 12, he was alleged to have indecently assaulted her by kissing her, his tongue in her mouth (count one); also to having induced her to commit an indecent act on him, to touch his penis (count two). Between 4 April 1986 and 8 May 1987 in another town, Sanson, where he was then said to be living, he was alleged to have sexually violated her by raping her (count three). On or about 15 February 1987,

again at her mother’s house, he is said to have sexually violated her by penetrating her genitalia with his fingers (count four) and to have raped her (count five).

[6] The trial began on Monday…

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 Te Maari

Details

AGLC: R v Te Maari [2007] NZCA 279
Case: [2007] NZCA 279
Decision Date: 6 July 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Te Maari involved Alan Joseph Te Maari, who was convicted of one count of sexual violation by rape and another of digitally penetrating a young relative of his. Te Maari was acquitted on three other counts: sexually violating the complainant by rape on an earlier occasion, indecently assaulting her, and inducing an indecent act. He was sentenced to five and a half years imprisonment for the rape and concurrently to 18 months imprisonment for the lesser violation. The appeal against his conviction and sentence was dismissed by the Court of Appeal. The legal issues in this case revolved around whether the trial judge should have given a Papadopoulos direction to the jury when they first reported being unable to agree on a verdict after almost four hours of deliberation. Te Maari contended that the judge should have discharged the jury at that point or shortly after, arguing that the judge's failure to do so pressured the jury into reaching an unsafe verdict. The Court of Appeal found no error in the judge's handling of the jury's deliberations and held that the verdict was safe. The appeal was dismissed, and the conviction and sentence were upheld.

Orders