R v W - [2007] NZCA 408

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA164/07 [2007] NZCA 408

THE QUEEN

v

W

Hearing: 26 July 2007
Court: Wilson, Panckhurst and Venning JJ Counsel: G J King for Appellant
M F Laracy and C E R Power for Crown

Judgment: 11 September 2007 at 3pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Venning J)

R V W CA CA164/07 11 September 2007

Introduction

[1] On 14 March 2007 the appellant was found guilty by a jury in the High Court at Dunedin on four representative counts of indecently assaulting his daughter, L, and one count of raping her. He was also found guilty of one count each of sexually violating his granddaughters, E and C, and one count of indecently assaulting E. He was sentenced to seven years’ imprisonment. He appeals against conviction on the basis that there should have been separate trials and certain evidence was wrongly admitted.

Background to the complaints and counts

[2] The appellant is 74 years old. L is now 45. At the time of the trial E was 21 and C was 18. The offending is historical. L gave evidence that the appellant’s offending against her commenced when she was about eight or nine years old and continued until she left school in 1977 at the age of 15. E gave evidence that the offending took place when she was aged between eight and 12. C said the offending against her occurred when she was aged between five and nine.

[3] L said that from the age of seven or eight the appellant would play horsey games with her whilst he was in bed. The games started with her sitting on his stomach, but then the appellant would move her down from his stomach to his genital area. She complained of something hard digging into her at the time. Later, when she was about nine to ten years old, the appellant started coming into her bedroom at night. Under the pretext of looking for the cat the appellant would lift up the covers, put his hand under them and start to tickle her, which progressed to touching and feeling and ultimately to the appellant putting his fingers in her vagina under her pyjamas. While doing that he would ask her if she liked it. He also told her not to tell anyone, that if she did she would get into trouble and she would be a naughty girl. He called her a pet name, a “wee rabbit”. That type of activity occurred four to five times a month. In about 1974 when L was 12 the family moved to another town. L said that after the move the appellant continued to come into her bedroom but without the pretext of looking for the cat. She said that she would

pretend to be asleep but he still put his…

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 W

Details

AGLC: R v W [2007] NZCA 408
Case: [2007] NZCA 408
Decision Date: 11 September 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, W, was convicted of indecently assaulting his daughter, L, and his granddaughters, E and C, as well as raping L. He was sentenced to seven years' imprisonment and appealed against his conviction, arguing that there should have been separate trials and certain evidence was wrongly admitted. The Court of Appeal dismissed the appeal, finding no miscarriage of justice in the trial.

The legal issues included whether similar fact evidence should have been admitted, whether evidence of recent complaint was properly admitted, whether the admission of hearsay evidence constituted a miscarriage of justice, and whether a corroboration warning was necessary.

The Court of Appeal held that the evidence of all three complainants was relevant and admissible as similar fact evidence, as there were sufficient similarities in the nature of the offences and the circumstances in which they occurred. The Court also found that the evidence of recent complaint was properly admitted, as the delay in reporting the offences was reasonable given the age of the complainants and the nature of the abuse. The admission of hearsay evidence was held not to have caused a miscarriage of justice, as the evidence was not led to prove the truth of the matters asserted but rather to provide context for the complainants' actions. Finally, the Court held that the trial judge's direction to the jury regarding the effect of delay on the reliability of the complainant's evidence was adequate, and no miscarriage of justice arose from the decision not to give a corroboration warning.

In conclusion, the Court of Appeal dismissed the appeal against conviction, finding no miscarriage of justice in the trial.

Orders