R v Tepu - [2008] NZCA 460

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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.

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA322/2008 [2008] NZCA 460

THE QUEEN

v

IVAN POURAUMATI TEPU

Hearing: 14 October 2008
Court: Arnold, Hugh Williams and Wild JJ Counsel: J L Cagney for Appellant
M T Davies for Crown

Judgment: 3 November 2008 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

R V TEPU CA CA322/2008 3 November 2008

BThe judgment is not to be published in the news media or on the internet or other publicly accessible database until final disposition of trial. Publication in a law report or law digest is permitted, however.

REASONS OF THE COURT

(Given by Arnold J)

[1] The appellant is charged with various counts of sexual violation (by rape), indecent assault, unlawful sexual connection and violence against the same complainant arising out of an incident in the evening and early morning of 6 – 7
March 2007.

[2] The Crown alleges that the appellant and an associate met up with the complainant at a caravan park in West Auckland. She had some drinks with them. The appellant drove the complainant, in his car, to a supermarket in Takapuna to purchase some more alcohol. On the way back the appellant took the complainant to a rural area. The complainant became concerned and asked the appellant to take her home. The appellant stopped the car, went round to the passenger side and pulled the complainant from the car. She attempted to fight back, but he put his hands to her throat and applied pressure. He also threatened her with violence. The appellant removed the complainant’s clothing and committed a variety of sexual acts on her. He then drove her back to the caravan park and dropped her off.

[3] The complainant reported the matter to the police. The appellant gave a video interview around mid-morning on 7 March 2007. In that video interview he denied that he had travelled to the supermarket in Takapuna and denied that he had been involved in any sexual activity with the complainant or anyone else that night. Those denials were, the appellant now accepts, false. Videotape footage obtained from the supermarket shows the appellant and the complainant together at the supermarket around midnight that evening, and DNA analysis of saliva taken from the complainant’s body indicates that it came from the appellant.

[4] Mr Cagney advises that the appellant’s stance at trial will be that he did go to the supermarket with the complainant and that some sexual activity did later occur between them, but it was consensual, or at least he had a reasonable belief that it was consensual.

[5] Against this background, Mr Cagney sought a…

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 Tepu

Details

AGLC: R v Tepu [2008] NZCA 460
Case: [2008] NZCA 460
Decision Date: 3 November 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an appeal from Ivan Pouramaiti Tepu, who was charged with multiple counts of sexual violation, indecent assault, unlawful sexual connection, and violence against the same complainant. The alleged incident occurred in March 2007, where the appellant and an associate met with the complainant at a caravan park in West Auckland. The appellant is accused of driving the complainant to a supermarket in Takapuna, subsequently taking her to a rural area, and committing a series of sexual acts against her will. The crux of the appeal revolved around the admissibility of the appellant's statement to the police, in which he denied any sexual activity with the complainant, a denial which he now accepts was false.

The central legal issue before the court was whether the prosecution could use the appellant's false denials in his police statement to challenge his credibility at trial, and if such use would constitute an impermissible attack on his veracity under sections 37 and 38 of the Evidence Act 2006. The appellant's counsel argued that the prosecution's intention to cross-examine the appellant on his false statements would violate section 38, which restricts the prosecution's ability to challenge a defendant's veracity unless certain conditions are met.

The Court of Appeal examined the relevant sections of the Evidence Act and concluded that section 27, which governs the admissibility of defendants' statements, does not inherently limit the prosecution's ability to use such statements to challenge the defendant's credibility, provided it does not constitute an attack on the defendant's general disposition to refrain from lying. The court reasoned that an allegation of lying in a specific instance does not equate to an allegation about the defendant's general veracity or character. Additionally, sections 37 and 38 were interpreted not to restrict the prosecution's use of prior inconsistent statements to challenge the credibility of the defendant or prosecution witnesses on matters pertinent to the trial. Therefore, the court held that Judge Gittos' ruling allowing the prosecution to use the appellant's statement without restriction was correct.

The appeal was dismissed, affirming the earlier ruling that the appellant's statement was admissible in its entirety. The court's decision upheld the District Court's ruling, rejecting the appellant's argument that sections 37 and 38 of the Evidence Act should be interpreted to prevent the prosecution from using false statements to challenge the appellant's credibility at trial.

Orders