Shane Steven Holmes v The King - [2023] NZSC 33

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 85/2022
[2023] NZSC 33

BETWEEN	SHANE STEVEN HOLMES Applicant
AND	THE KING Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	N Levy KC for Applicant C A Brook and L C Hay for Respondent
Judgment:	13 April 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Following retrial in the District Court, a jury found Mr Holmes guilty of three charges of rape (one of which was representative), two charges of sexual violation by unlawful sexual connection, and one charge of male assaults female.[1] He was sentenced to 15 years and six months imprisonment on the lead sexual offences.[2] An MPI of nine years, two months (or approximately 60 per cent of the sentence) was also imposed. His appeals against conviction and sentence were dismissed in the Court of Appeal.[3]

Background

[1]At the first trial Mr Holmes had been found guilty of threatening to kill the complainant and to do grievous bodily harm to her children. He had earlier pleaded guilty to pointing a firearm at the complainant. He had also faced 12 rape and sexual violation charges. The first jury found Mr Holmes not guilty of all but the charges that were the subject of retrial. On those charges the jury had been unable to reach verdicts.

[2]R v Holmes [2021] NZDC 7592 (Judge D J McDonald) [Sentencing notes].

[3]Holmes v R [2022] NZCA 340 (Cooper P, French and Collins JJ) [CA judgment].

Mr Holmes was in a relationship with the sole complainant. They had a child together. The relationship lasted around two years. The relevant events occurred during that period.
According to the complainant’s evidence (obviously accepted by the jury), the relationship was characterised by verbal threats and other emotionally or psychologically controlling behaviour deployed by Mr Holmes to get his way. Her evidence was that Mr Holmes bit her ear (male assaults female) during one of the incidents leading to a rape charge. At the end of their relationship, when she threatened to leave him, he held a .22 rifle to her head.[4] But, apart from the ear incident and the sexual violence, there was no evidence he was physically violent in the orthodox sense.
[4]As noted above n 1, Mr Holmes pleaded guilty to this charge prior to the first trial.
It was in that overall context that three specific incidents occurred. In the first, he made advances to her in the kitchen of their home. She told him that she was not interested. They then went into the bathroom, he locked the door behind him and he raped her. The second event occurred on mattresses in the lounge where Mr Holmes penetrated her digitally and forcefully, after she had told him she did not want sex. The third incident occurred…

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 Shane Steven Holmes v The King

Details

AGLC: Shane Steven Holmes v The King [2023] NZSC 33
Case: [2023] NZSC 33
Decision Date: 13 April 2023

CaseChat Overview and Summary

In this appeal, Shane Steven Holmes sought leave to appeal against his convictions and sentences for various sexual offences and other related charges. The case was heard by Glazebrook, Williams, and Kós JJ in the Supreme Court of New Zealand. Holmes' appeal against conviction and sentence was dismissed by the Court of Appeal and he now sought to appeal against that decision. The primary legal issues were whether the Court of Appeal erred in its assessment of the evidence regarding consent, the admissibility of propensity evidence, and the appropriateness of the sentence imposed.

The Supreme Court considered whether the Court of Appeal had erred in its interpretation of consent, particularly regarding the distinction between true but reluctant consent and mere submission without consent. The Supreme Court noted that the complainant had consistently rejected Holmes' advances and had shown resistance during the incidents in question. Therefore, the distinction between reluctant consent and submission was not clearly applicable in this case.

The Supreme Court also examined the admissibility of propensity evidence, which related to Holmes' previous convictions for violence against a former partner. The Court of Appeal had carefully assessed this evidence against the criteria set out in the Evidence Act 2006 and concluded that it was admissible. The Supreme Court agreed with this assessment, considering it appropriate in the context of the specific facts and relationships involved.

Regarding the sentence, the Supreme Court found no issue of principle or risk of miscarriage in the sentence imposed by the District Court, given the broader context of the relationship and the trial Judge's familiarity with both trials.

Ultimately, the Supreme Court concluded that no question of general or public importance arose, nor was there a risk of miscarriage of justice on any of the grounds advanced by Holmes. Therefore, the application for leave to appeal was dismissed.

Orders