R v Wade CA237/05 - [2005] NZCA 404

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT FOR THE RESULT AS SET OUT IN [33]) 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 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA237/05

THE QUEEN

v

WILLIAM JAMES WADE

Hearing: 30 November 2005
Court: William Young, Potter and Ellen France JJ Counsel: J Haigh QC and J W Clearwater for Appellant
H D M Lawry for Crown

Judgment: 8 December 2005

JUDGMENT OF THE COURT

A The appeal is allowed;

B The appellant’s convictions are quashed; and

C We direct a new trial.

R V WADE CA CA237/05 8 December 2005

DOrder prohibiting publication of the judgment and any part of the proceedings (except for the result as set out in [33]) in news media or on Internet or other publicly accessible database until final disposition of trial. Publication in Law Report or Law Digest permitted.

REASONS

(Given by William Young J)

Introduction

[1] In February this year the appellant stood trial in the District Court at Auckland on an indictment containing five counts. All related to alleged sexual offending involving a single complainant (“SN”) between 28 November 1995 and
27 November 2000. In the result, the appellant was found guilty on two counts of indecent assault of a girl under the age of 12 years and he was found not guilty on the remaining three counts.

Factual background

[2] The appellant was a friend of SN’s parents. During the period of the alleged offending the appellant sometimes stayed at her house with her family and on other occasions the complainant stayed at the appellant’s house. SN alleged that the appellant took the opportunities which such visits provided to indecently assault her from when she was around six or seven years until she was nearly 12 years.

[3] The jury found the appellant guilty on two of the three counts associated with alleged sexual offending which was said to have occurred at his house. He was acquitted on the third count associated with those premises (presumably because the evidence of the complainant as to this incident was inconsistent with that of another witness). The appellant was also acquitted on two counts alleging offending at SN’s family home (in relation to which the appellant advanced a defence of alibi).

[4] Of the two counts on which the appellant was found guilty it is only necessary to discuss one (count three) in any detail. This count related to an incident which, on the Crown case, occurred in the shower at the appellant’s house on the weekend of 20 - 22 September 1996. The complainant, then aged seven, and her younger brother had been left by their parents to stay the weekend at the appellant’s house. The Crown case was that the appellant undressed the complainant…

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 Wade CA237/05

Details

AGLC: R v Wade CA237/05 [2005] NZCA 404
Case: [2005] NZCA 404
Decision Date: 8 December 2005

CaseChat Overview and Summary

In R v Wade, the Court of Appeal of New Zealand reviewed the conviction and sentence of William James Wade, who had been found guilty of two counts of indecent assault on a girl under the age of 12 years by the District Court. The appellant appealed against his conviction and sentence, and the Crown conceded that the appeal should be allowed and a new trial directed. The central issue in the appeal was whether the summing up by the trial Judge contained errors that led to a miscarriage of justice. The Court identified several shortcomings in the summing up, including the absence of a direction on the appellant's good character, a failure to provide an appropriate direction in relation to the "why should the complainant lie?" argument, not putting the defence in relation to count three, and a factual error in the summing up regarding the time lapse between certain events.

The Court held that the absence of a direction on the appellant's good character was a significant error, as it was material to both propensity and credibility. The Court also found that the Judge did not adequately address the "why should the complainant lie?" argument and failed to remind the jury of the appellant's explanation for showering with the complainant. Additionally, the Court considered the factual error made by the Judge in relation to the time lapse between events to be of minor importance.

Ultimately, the Court concluded that the summing up fell short of the ideal standard, and the errors were prejudicial to the appellant. As a result, the Court allowed the appeal, quashed the appellant's convictions, and directed a new trial. The final disposition of the case will depend on the decision of the prosecution authorities.

Orders