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Rongonui v R

Rongonui v R

Case [2010] NZSC 92 23 July 2010

Appeal

Admissibility of Evidence

Expert Evidence

Contempt of Court

Criminal Law

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IN THE SUPREME COURT OF NEW ZEALAND
SC 66/2009
[2010] NZSC 92
MAIA RONGONUI
v
THE QUEEN
Hearing:19 November 2009

Court:Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel:N Levy for Appellant
M D Downs and T Epati for Crown

Judgment:27 November 2009 (appeal allowed)
Reasons:23 July 2010

REASONS OF THE COURT

Para No

Elias CJ [1]
Blanchard, Tipping, McGrath and Wilson JJ [17]

ELIAS CJ
[1]     The appellant appeals his conviction on two counts of sexual violation in respect of the same complainant. He advances two principal grounds in support of the appeal. The first is that evidence was wrongly admitted that the complainant spoke to her friends immediately after the claimed violation and “told them what had happened”. It is argued that this evidence was a previous consistent statement which should have been excluded under s 35(1) of the Evidence Act 2006. The second ground is that the prosecutor was permitted to lead evidence from a prosecution witness of what she had said in a previous statement about inculpatory remarks made to her by the appellant, in breach of ss 89 and 90(5) of the Evidence Act.
[2]     All members of the Court were in agreement at the hearing of the appeal that the appeal should be allowed on the second ground. The reasons for that conclusion are now given by Tipping J, with whom on this point I am in complete agreement. I write separately on the first ground of the appeal only.
[3]     For the reasons that follow, I consider that the evidence that the complainant told her friends “what had happened” was properly admitted. It fell outside the rule of exclusion contained in s 35(1) because it was direct evidence of the facts in issue rather than merely repetitive of the evidence given by the complainant. Although in the circumstances it was overwhelmed by its direct relevance to the facts in issue, what was said was also properly admissible in its testimonial character (and therefore within the scope of s 35(1)) in order to meet a challenge to the complainant’s veracity on the grounds of recent invention. It was within the exception provided by s 35(2).
[4]       The purpose, interpretation and application of s 35 are the subject of consideration in the judgment of the Court in Hart v R,[1] delivered contemporaneously with the reasons in this appeal. I do not repeat the views I expressed in Hart, which I apply here. Two considerations are of particular importance to the conclusions I reach on application of s 35 in the present appeal. First, the policy of s 35(1) in excluding superfluous repetition of evidence does not apply to speech which is relevant to prove directly a fact in issue (here, non-consensual sexual assault). Secondly, as indicated in Hart, I consider that a defence

challenge to a complainant’s evidence, particularly on the question of consent, will generally amount to a claim of…

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 Rongonui v R

Details

AGLC: Rongonui v R [2010] NZSC 92
Case: [2010] NZSC 92
Decision Date: 23 July 2010

CaseChat Overview and Summary

In Rongonui v R, the Supreme Court of New Zealand allowed the appellant's appeal against his conviction on two counts of sexual violation. The Court found that the trial judge had wrongly admitted evidence that the complainant told her friends "what had happened" immediately after the alleged violation and that the prosecutor had improperly led evidence from a prosecution witness about inculpatory remarks made to her by the appellant. The Court held that the evidence of the complainant telling her friends "what had happened" was properly admitted as it was direct evidence of the facts in issue and also relevant to meet a challenge to the complainant’s veracity on the grounds of recent invention. However, the Court held that the prosecutor was not permitted to lead the prosecution witness almost line by line through her previous statement as this represented a major and prejudicial departure from proper practice and amounted to a miscarriage of justice. The Court allowed the appeal and ordered a retrial.

Orders