R v Thompson - [2002] NZCA 401

PUBLICATION OF NAMES OR ANY IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY s139, CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 255/02

THE QUEEN

NATHANAEL THOMPSON

Hearing:	26 September 2002
Coram:	Blanchard J Morris J Williams J
Appearances:	C J Tennet for Appellant F E Guy for Crown
Judgment:	16 October 2002

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Issues

At the conclusion of the Crown case, half way through a six day trial, the appellant, Mr Thompson, was discharged under the Crimes Act 1961 s347 on three of the nineteen counts in the indictment against him. The jury convicted him on eleven of the remainder and acquitted him on the balance. Those on which he was convicted included six counts of sexual violation by unlawful sexual connection by anal penetration, both digital and penile, of two young boys, AT and ST, four counts of indecent assault on the same complainants and a third, LT, and one count of inducing LT to commit an indecent act on him. On 25 July 2002 Mr Thompson was sentenced to 10 years imprisonment on each of the sexual violation charges and two years imprisonment on the remainder, with all sentences to be served concurrently.
He has appealed to this Court against his convictions. If the Court found in his favour in relation to any of the convictions he submitted that should affect the length of the sentence.
The grounds of appeal were :
[a]that it had been wrongly decided in a pretrial ruling delivered on 17 May 2002 that the evidence of two witnesses in relation to finding items at their dwellinghouse was admissible and the prejudicial effect of that evidence outweighed any probative value and extended not just to the count to which those items related but to all counts;
[b]that the verdicts on three of the counts relating to AT could not be supported having regard to the evidence (Crimes Act 1961 s385(1)(a));
[c]that the manner and timing of the trial Judge’s direction to the jury in terms of R v Accused (CA87/88) [1988] 2 NZLR 46 (a Papadopoulos direction) placed undue pressure on the jury and resulted in unsafe verdicts;
[d]that the trial Judge misdirected on recent complaint evidence thus giving rise to miscarriage of justice; and
[e]that the trial Judge misdirected the jury as to how they should deal with the appellant’s statement to the Police.

Ground [a] Admissibility of evidence

The offending took place over a three year period up to September 2001. The appellant was aged 17-21 at the time and was a youth leader of a small church in Auckland led by his cousin. He lived at a number of addresses during that period and met the complainants through his church membership.
One of the addresses at which he lived was that occupied by a husband and wife (who may have been de facto partners) who were the witnesses whose evidence was the subject of the pretrial ruling. The appellant…

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 Thompson

Details

AGLC: R v Thompson [2002] NZCA 401
Case: [2002] NZCA 401
Decision Date: 16 October 2002

CaseChat Overview and Summary

In the appeal case R v Thompson, the appellant, Mr. Thompson, was convicted on eleven counts of sexual violation, indecent assault, and inducing an indecent act. He appealed against his convictions, raising several grounds. The first ground was that the evidence of two witnesses regarding items found at their dwellinghouse was wrongly admitted, as its prejudicial effect outweighed its probative value. The Court found that the evidence was of probative value in relation to the issues raised, and the pretrial ruling was correct.

The second ground was that the verdicts on three of the counts relating to one of the complainants could not be supported by the evidence. The Court determined that the evidence was sufficient for the jury to logically conclude that there was both a "first time" and a sufficient number of subsequent occasions to form a proper basis for conviction on both the specific count and the representative count.

The third ground was that the trial judge's direction to the jury in terms of the Papadopoulos direction placed undue pressure on the jury and resulted in unsafe verdicts. The Court held that there is no basis to infer that any of the jury's verdicts were unsound or compromised verdicts or were improperly influenced by the Papadopoulos direction.

The fourth ground was that the trial judge misdirected on recent complaint evidence, giving rise to a miscarriage of justice. The Court found that the trial judge had fully considered the defence case and there was nothing in this ground which assisted the appellant.

The fifth ground was that the trial judge misdirected the jury as to how they should deal with the appellant's statement to the police. The Court held that the trial judge's direction correctly identified the issues for the jury as far as the appellant's statement and the defence evidence is concerned.

As none of the grounds of appeal were made out, the appeal against conviction was dismissed, and the Court did not consider the question of sentence.

Orders