| 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 |
| AND | THE QUEEN |
| Court: | William Young, Glazebrook and Ellen France JJ |
Counsel: | D P H Jones QC for Applicant |
Judgment: | 9 February 2017 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
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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]
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…
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- Samuel Owen Weenink v The Queen [2017] NZSC 4
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- [2017] NZSC 4
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