Riley Campbell v The Queen - [2015] NZSC 197

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 121/2015
[2015] NZSC 197

BETWEEN	RILEY CAMPBELL Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and O'Regan JJ
Counsel:	P L Borich for Applicant S K Barr for Respondent
Judgment:	17 December 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Background

The applicant faced charges of wounding the complainant with intent to cause grievous bodily harm, attempted sexual violation and indecent assault. He pleaded guilty to the charge of wounding and went to trial on the other two charges. He was found not guilty of attempted sexual violation but guilty of indecent assault. A later appeal to the Court of Appeal against conviction was unsuccessful and he now seeks leave to appeal to this Court.[1]
[1]Campbell v R [2015] NZCA 452 [Campbell (post-conviction)].
The charges arose in this way. The applicant was accompanying the complainant home after a social occasion. While doing so he seriously assaulted her. As a result she suffered appreciable head injuries and was rendered unconscious. The attack had sexual overtones but the complainant has not been able to give a consistent and coherent account of what happened save that, from the outset, she identified the applicant as her attacker. A significant component of the case against the applicant on the sexual charges was that his semen was located in the complainant’s underwear and on a vaginal swab. This material could only have been deposited at the time of the assault or within the preceding seven days.
At interview, the applicant admitted the assault but denied any sexual offending. He claimed to have previously had sex with the complainant but not within the month preceding the assault. At the time of the interview, the testing of the material taken from the complainant was not complete. So the identification of his semen and the time frames within which it could have been deposited were not put to the applicant. In light of the scientific evidence which later emerged, his claim not to have had sexual contact with the complainant in the month preceding the assault was awkward for him as it was not consistent with there being an innocent explanation for the semen which was found.
When interviewed, the applicant was aged 16 years and four months and accordingly s 215 of the Children, Young Persons and their Families Act 1989 was engaged. The background to the interview was that the applicant was arrested at his home and taken to the police station. At the time he was arrested, his rights were explained to him and he indicated his understanding of them by repeating them in his own words. He nominated his father to be present at the interview. The interview was conducted by a detective under the general supervision of a detective sergeant. It focussed first on the…

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 Riley Campbell v The Queen

Details

AGLC: Riley Campbell v The Queen [2015] NZSC 197
Case: [2015] NZSC 197
Decision Date: 17 December 2015

CaseChat Overview and Summary

Riley Campbell, the applicant, sought leave to appeal against his conviction and sentence following his trial in the High Court at Manukau on charges of wounding with intent to cause grievous bodily harm, attempted sexual violation, and indecent assault. The applicant was found guilty of wounding and indecent assault, and not guilty of attempted sexual violation. The appeal against his conviction was dismissed by the Court of Appeal. The Supreme Court was asked to grant leave to appeal on the grounds that the police failed to inform the applicant of the allegations of sexual offending until well into the interview, which was unfair, and that the trial judge wrongly refused to allow cross-examination of the complainant on the proposition that she had engaged in sexual activity with the applicant after he had been released on bail. The applicant also sought leave to appeal out of time in relation to the admissibility ruling made by the Court of Appeal.

The legal issues before the court were whether the police had acted unfairly by not raising the issue of the alleged rape until well into the interview and by not making it clear that the applicant was entitled to have a support person and a lawyer present during the interview. The court also had to determine whether the trial judge had wrongly refused to permit the applicant’s counsel to cross-examine the complainant on the proposition that they had engaged in sexual activity after the applicant had been released on bail.

The Supreme Court found that the Court of Appeal had correctly dismissed the applicant’s appeal against his conviction. The court held that there was no requirement for the applicant to challenge the pre-trial Court of Appeal judgment and that any arguments which were fairly available to him in relation to the admissibility ruling would be available if the court were to grant leave to appeal against the Court of Appeal judgment dismissing his conviction appeal. The court found that the interview strategy adopted by the police was fair and that there had been no unfairness in not alerting the applicant to their suspicions as to sexual offending at the outset. The court also found that the trial judge had not erred in refusing to allow cross-examination of the complainant on the proposition that she had engaged in sexual activity with the applicant after he had been released on bail.

The Supreme Court dismissed the application for leave to appeal. The court found that the arguments raised by the applicant did not give rise to a question of general or public importance and there was no appearance of a miscarriage of justice.

Orders