R v X (CA352/07) - [2007] NZCA 500

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF
RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA352/07 [2007] NZCA 500

THE QUEEN

v

X (CA352/07)

Hearing: 10 October 2007
Court: Hammond, Baragwanath and Keane JJ Counsel: S A Saunderson-Warner for Appellant
D J Boldt for Crown

Judgment: 14 November 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.

B The conviction and sentence are quashed.

R V X (CA352/07) CA CA352/07 14 November 2007

C A new trial is directed.

DOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in the news media or on the internet or in other publicly accessible database until final disposition of re-trial.
Publication in a law report or a law digest is permitted.

REASONS OF THE COURT

(Given by Keane J)

[1] On 19 June 2007, after a trial of three days in the District Court, before Judge Callaghan and a jury, X was convicted of a single but representative count of indecently assaulting Y, a girl then aged four years, between 5 August 2003 and
4 August 2004. He was sentenced to imprisonment for two and a half years. He appeals his conviction but not his sentence.

[2] During 2003 – 2004, and indeed after, Y spent occasional weekends with X, a friend of her parents, first with her older sister, then with her younger brother, often alone. She did so enthusiastically. Even when video interviewed she still regarded him as her best friend. In September 2006, however, as a result of what Y then told her mother, and what she then said was not given in evidence, those visits ceased.

[3] On 19 October 2006 X was spoken to by the police. He declined to make any statement. He was arrested and charged with indecently assaulting Y not just during the period for which he now stands convicted, 5 August 2003-4 August 2004, but also for further indecent assaults between 20 May 2005-25 September 2005. Until four days before the trial he faced a second count alleging that later offending but that was quashed by the Judge under s 345.

[4] At trial the Crown’s case rested entirely on Y’s account. There was no corroborating evidence. The trial turned, as does this appeal, on whether or on the extent to which Y remained constant in her complaint.

[5] In her evidence in chief, her video interview, Y was unequivocal that X had indecently assaulted her more than once. On those occasions, she said, she shared his bed with him. She was unclothed, as it seems was he, and he licked her near her genitalia. She pointed to where he licked her and…

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 X (CA352/07)

Details

AGLC: R v X (CA352/07) [2007] NZCA 500
Case: [2007] NZCA 500
Decision Date: 14 November 2007

CaseChat Overview and Summary

In the case of R v X, the appellant was convicted of indecently assaulting a four-year-old girl, Y, over a period of time. The conviction was based entirely on the uncorroborated testimony of Y. The Court of Appeal was asked to decide whether the conviction was safe, given the inconsistencies in Y's evidence. The appellant argued that Y's evidence was so contradictory that no reasonable jury could have convicted him, and that the trial judge should have directed the jury to acquit him or discharged him under s 347 of the Crimes Act 1961.

The Court of Appeal found that Y's evidence was indeed contradictory and that the trial judge's handling of the case contributed to the unsafe nature of the conviction. The judge's questioning of Y during re-examination was found to have reinforced her original account, and the judge's directions to the jury did not sufficiently emphasize the importance of Y's retractions and the impact they had on the reliability of her complaint. The Court concluded that the conviction was unsafe and allowed the appeal, quashing the conviction and sentence and directing a fresh trial.

The Court emphasized that Y's complaint was worthy of a jury's consideration and that a retrial should only occur if Y could sensibly and fairly be asked to give evidence again. The appellant's status, whether he should remain in custody or be granted bail, was to be decided in the District Court.

Orders