S (CA514/2008) v The Queen - [2009] NZCA 622

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

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN THE NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE IS PROHIBITED UNTIL FINAL DISPOSITION OF THE RETRIAL, ALTHOUGH THE RESULT MAY BE REPORTED. PUBLICATION IN A LAW REPORT OR LAW DIGEST IS PERMITTED, HOWEVER.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA514/2008 [2009] NZCA 622

BETWEEN S (CA514/2008) Appellant

ANDTHE QUEEN Respondent

Hearing: 25 November 2009
Court: Arnold, Potter and Heath JJ Counsel: P H B Hall for Appellant
K A L Bicknell for Respondent

Judgment: 22 December 2009

Reasons: 3 March 2010 at 10.30 am

JUDGMENT OF THE COURT

A We grant the appellant leave to adduce further affidavit evidence from

Professor Garry.

B We allow the appeal. The appellant’s conviction on count 3 is quashed

and a retrial is ordered.

S (CA514/2008) V R COA CA514/2008 [22 December 2009]

C The question of bail is to be dealt with by the District Court.

DPublication of the reasons for judgment in the news media or on the internet or other publicly available database is prohibited until final disposition of the retrial, although the result may be reported.
Publication in a law report or law digest is permitted, however.

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

Para No.

Introduction [1] Factual background [4] Basis of appeal [11] Discussion [13] Further evidence [14] Miscarriage of justice [26]
(i) Trial Counsel error [26] (ii) Wrongful admission of expert evidence [27] (iii) Inappropriate directions on the expert evidence [38] Propensity evidence [47] (i) The Judge’s ruling on propensity evidence [49] (ii) The Judge’s instruction on propensity evidence [57] Warning under s 122 of Evidence Act [62] Inconsistent verdicts [67] Overall assessment [69]

Decision [70]

Introduction

[1] The appellant faced trial by jury before Judge P A Moran on three counts of sexual violation by rape between 1 January and 31 December 1993 (counts 1 – 3) and one count of sexual violation by rape between 1 January and 31 December 1995 (count 4). In relation to the three 1993 counts, he was acquitted on count 1 and convicted on count 3. The jury could not agree on count 2, and a retrial was ordered. The appellant was acquitted on count 4.

[2] Judge Moran sentenced the appellant to seven years imprisonment.1 The appellant appealed against his conviction. He had also filed an appeal against his sentence, but the appellant’s counsel, Mr Hall, advised us at the hearing that the sentence appeal would not be pursued. Accordingly, we treat it as abandoned.

[3] In a results judgment delivered on 22 December 2009 we allowed the appeal.2 We now give our reasons. There was no one ground of appeal that was determinative. Rather, it was a combination of matters that caused us concern. Taking an overall view, we considered that there were several unsatisfactory features about the trial, which meant that…

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 S (CA514/2008) v The Queen

Details

AGLC: S (CA514/2008) v The Queen [2009] NZCA 622
Case: [2009] NZCA 622
Decision Date: 22 December 2009

CaseChat Overview and Summary

The appellant appealed against his conviction for sexual violation by rape between 1 January and 31 December 1993. The appeal was heard by Arnold, Potter, and Heath JJ of the Court of Appeal of New Zealand. The appellant's counsel submitted that the appeal should be allowed on four grounds: trial counsel error, wrongful admission of expert evidence, inappropriate directions on the expert evidence, and propensity evidence. In addition, counsel sought leave to adduce further evidence.

The Court considered that the appeal should be allowed. The appellant's counsel had not been advised of the additional evidence that Crown counsel proposed to lead from Dr Earthrowl until the end of the first day of the trial, in circumstances where Dr Earthrowl was scheduled to give evidence the following day. Given the lateness of this advice, the appellant's counsel could legitimately have either objected to the leading of the proposed evidence or sought an adjournment to enable him to consider and take advice on it. If that had occurred the Court thought it likely that the Judge would either have required the Crown to proceed without the additional evidence or granted an adjournment to allow time for the appellant's counsel to take advice. In his closing address, Crown counsel made much of Dr Earthrowl's evidence, saying that it was not contradicted. In these circumstances the Court considered that it should have regard to the material to which the appellant's counsel would have had access if he had sought and been granted an adjournment. Only in this way could the Court reach a view as to whether what occurred at trial created a real risk of a miscarriage of justice.

The Court noted that Dr Earthrowl's evidence was general in the sense that he said that a child's failure to complain promptly, or at all, or a child's continued association with a family member, were not inconsistent with the child having suffered sexual abuse by that family member. He did not say that this was the position in relation to the complainant. Rather, he said that such features were neutral – they did not indicate that a child had not been abused, nor did they indicate that he or she had. The Court considered that Professor Garry's evidence was substantially the same as that of Dr Earthrowl, although there was some difference of opinion between Dr Earthrowl and Professor Garry on the question of the frequency of non-disclosure in response to questions. This was significant given the Crown's emphasis on Dr Earthrowl's evidence not being contradicted.

The Court also considered that the Judge's directions on the expert evidence were inadequate. The Judge introduced this topic as follows: "I want now to deal with Doctor Earthrowl’s evidence and its relevance in this trial. Now Doctor Earthrowl is an expert and people who have specialised qualifications and experience are entitled to come along to a jury trial and give the jury the benefit of their opinions about matters within their expertise and they are allowed to do that because expert knowledge may help a jury understand subjects that are outside the ken of a layman." The Judge then carried on with the passage which the Court had quoted above and summarised other aspects of Dr Earthrowl's evidence. The Court considered that the Judge should have gone further than simply mentioning (in part) the complainant's explanations in his summary of the Crown's case. The Court considered that he should have addressed the explanations in the context of the discussion of the complainant's evidence and that of Dr Earthrowl, and the jury should have been told to focus on them in determining whether or not they believed the complainant. Without this focus, the jury were left with the Crown's assertion that Dr Earthrowl's evidence was "not contradicted" and with the Judge's indication that he could not imagine why they would want to reject Dr Earthrowl's evidence.

The Court considered that the conviction was unsafe in view of the combination of features to which it had referred. These were the Crown's late notification of the further evidence from Dr Earthrowl, the appellant's counsel's failure either to object to the further evidence or to seek an adjournment to allow him time to take instructions and advice about it, the significance of the difference of opinion between Dr Earthrowl and Professor Garry on non-disclosure and the Judge's emphasis in his summing up on the expert evidence, which was necessarily general in nature, rather than on the particular reasons that the complainant gave for her failure to disclose the abuse when questioned. For these reasons the appeal was allowed. The appellant's conviction on count 3 was quashed and a retrial was ordered. No doubt the retrial on this count would take place in conjunction with the retrial on count 2. The question of bail was to be dealt with by the District Court.

Orders