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S (SC 39/2017) v R

S (SC 39/2017) v R

Case [2017] NZSC 169 16 November 2017

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NOTE: PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 39/2017
[2017] NZSC 169

BETWEEN	S (SC 39/2017) Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and OʼRegan JJ
Counsel:	Applicant in person J A Eng for Respondent
Judgment:	16 November 2017

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is allowed.

BThe application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant applies for an extension of time to apply for leave to appeal against a decision of the Court of Appeal in which that Court dismissed his appeal against conviction and, if the extension is given, for leave to appeal.[1] The Court of Appeal decision was delivered on 30 May 2013 and the present application was made on 18 April 2017, nearly four years out of time.
[1]S (CA361/2010) v R [2013] NZCA 179 (Stevens, Allan and Clifford JJ) [S v R (CA)].
The convictions against which the applicant appealed to the Court of Appeal were entered after a District Court jury trial before Judge Gittos in 2010. The applicant was convicted of four counts of rape (two of which were representative charges) and three counts of sexual violation by unlawful sexual connection (one of which was representative). The victim was his stepdaughter, J. The offending occurred over a period of about five years, when J was between nine and 14 years of age.
Although the applicant has delayed in seeking to appeal to this Court for nearly four years, he has challenged his convictions (directly and indirectly) in a number of different fora in the years since his conviction.[2]
[2]Two applications for habeas corpus: S v Chief Executive of the Department of Corrections [2014] NZHC 1157 and [S] v Attorney-General [2014] NZHC 1232; three applications for recall of S v R (CA), above n 1: S (CA361/2010) v R [2013] NZCA 359, S (CA361/2010) v R [2015] NZCA 259 and S (CA361/2010) v R [2015] NZCA 358; an appeal against the habeas corpus decisions: [S] v Chief Executive of the Department of Corrections [2014] NZCA 308; an application to this Court to appeal against the Court of Appeal decision in [2014] NZCA 308: [S] v Chief Executive of the Department of Corrections [2014] NZSC 120; and an application for recall of that decision: [S] v Chief Executive of the Department of Corrections [2014] NZSC 128.
The applicant wishes to argue on appeal that the Court of Appeal judgment contains an error of fact and this error has led to a substantial miscarriage of justice.
The background to this is the evidence given at his trial by a Crown witness, Dr McLaren, who conducted a medical examination of J soon after J’s complaint to the police. In the Court of Appeal, the applicant argued that his trial counsel failed…

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 (SC 39/2017) v R

Details

AGLC: S (SC 39/2017) v R [2017] NZSC 169
Case: [2017] NZSC 169
Decision Date: 16 November 2017

CaseChat Overview and Summary

In this case, S (SC 39/2017) sought an extension of time and leave to appeal against a decision of the Court of Appeal which dismissed his appeal against conviction. The convictions were for four counts of rape and three counts of sexual violation by unlawful sexual connection, involving his stepdaughter, J. The applicant argued that the Court of Appeal judgment contained an error of fact which led to a substantial miscarriage of justice. Specifically, the applicant contended that trial counsel failed to adequately cross-examine Dr McLaren on her evidence relating to her examination of J’s hymen. The Court of Appeal had held that Dr McLaren knew the number of alleged rapes, but the applicant provided a police jobsheet stating Dr McLaren was not given a copy of the victim’s evidential video interview, contrary to the Court of Appeal judgment. The applicant argued this provided justification for his delayed application for leave to appeal.

The primary legal issue was whether the applicant's application for an extension of time to apply for leave to appeal was justified and whether the application for leave to appeal should be granted. The Court had to consider whether the applicant's challenge to his convictions was sufficiently justified by the recent disclosure of information which contradicted the Court of Appeal judgment. The Court also had to assess whether there was an error of fact in the Court of Appeal judgment that led to a substantial miscarriage of justice. The Court considered the impact of Dr McLaren's evidence on the applicant's case and whether the limited nature of the medical examination reduced the utility of the evidence.

The Court granted the application for an extension of time but dismissed the application for leave to appeal. The Court found that the recent disclosure of the police jobsheet provided a sufficient justification for the delayed application for leave to appeal. However, the Court was not persuaded that the error in the Court of Appeal judgment about Dr McLaren's knowledge of the number of alleged rapes led to a substantial miscarriage of justice. The Court noted that Dr McLaren had been asked about the likelihood of finding evidence of damage to the hymen given the frequency of the alleged offences and she had answered in the negative, indicating she was aware of the scale of the alleged offending. The Court concluded that none of the arguments provided a basis for apprehension that a substantial miscarriage of justice had occurred. Therefore, the application for leave to appeal was dismissed.

The Court allowed the application for an extension of time to apply for leave to appeal but dismissed the application for leave to appeal. The Court did not grant leave for the applicant to appeal against the Court of Appeal's decision.

Orders