Samuel Owen Weenink v The Queen - [2017] NZSC 4

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 113/2016
[2017] NZSC 4

BETWEEN	SAMUEL OWEN WEENINK Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	D P H Jones QC for Applicant J E L Carruthers for Respondent
Judgment:	9 February 2017

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was one of five men convicted at trial of sexual offending against a single complainant. His appeal and those of three of the other men against convictions for rape as principals were dismissed by the Court of Appeal.[1] The fifth man, Richard Morton had been found guilty of being a party to those rapes. His appeal was allowed and a retrial was directed.[2] The background to all of this is fully discussed in the judgment of this Court in Morton v R which was delivered last year.[3] At the first trial none of the five men gave evidence. At the retrial which took place after our judgment, they all gave evidence and the jury returned verdicts of not guilty in respect of Mr Morton.
[1]Morton v R [2013] NZCA 667 (White, Venning & Andrews JJ). Their appeals against convictions as parties in relation to the rapes committed by the others were allowed.
[2]At [150](e)–[150](f).
[3]Morton v R [2016] NZSC 51 [Morton (SC)]. By this stage there had been an attempt to retry Mr Morton, but this trial was aborted. The details as to this are not material for present purposes.
The applicant now seeks leave to appeal against the judgment of the Court of Appeal dismissing his initial conviction appeal. The application is well out of time. This is material to one of the proposed grounds of appeal as we will explain. But given the other two proposed grounds, we grant an extension of time. We note that in the aftermath of Mr Morton’s acquittal, the other three men applied unsuccessfully to the Court of Appeal to re‑open the dismissal of their conviction appeals.[4]
[4]McMaster v R [2016] NZCA 612.
Mr Morton’s retrial was complicated by awkward issues as to the application of s 49 of the Evidence Act 2006 and, in particular, the weight to be placed on the convictions of the applicant and the other three men for rape. Section 49 prevented Mr Morton advancing the defence that the complainant had consented to the sexual activity with the applicant and the other three men. It did not, however, preclude Mr Morton claiming that he had honestly and reasonably believed that the complainant had consented. As well, s 49 had no bearing on the separate question whether Mr Morton had assisted or encouraged the other men to commit rape and related questions as to the application of s 66(2) of the Crimes Act 1961. It is fair to say, however, that on…

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 Samuel Owen Weenink v The Queen

Details

AGLC: Samuel Owen Weenink v The Queen [2017] NZSC 4
Case: [2017] NZSC 4
Decision Date: 9 February 2017

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Samuel Owen Weenink v The Queen involves an appeal against the dismissal of Weenink's appeal of his conviction for sexual offending against a complainant. The Court of Appeal had dismissed Weenink's appeal against his conviction for rape as a principal. Weenink now seeks leave to appeal against the Court of Appeal's decision. The legal issues for the court to decide include whether the verdicts at the first trial and the retrial are inconsistent in a way that warrants a grant of leave to appeal and whether the new evidence presented should be considered. The court noted that while the evidence adduced at the trials differed, the different assessments by the juries at the two trials were not surprising. The asserted inconsistency of the verdicts at separate trials did not raise any doubt as to the reasoning of the first jury. The court also found that the new evidence presented was not applicable to the case as it had not been assessed by the Court of Appeal and was raised more than three years after the Court of Appeal dismissed Weenink's conviction appeal. Therefore, the application for leave to appeal was dismissed.

Orders