Shaw v The King

[2025] NZHC 1542

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000158

[2025] NZHC 1542

BETWEEN

MURRAY SHAW

Appellant

AND

THE KING

Respondent

Hearing:

9 June 2025

Counsel:

S J Galler for Appellant

K F R Karpik for Respondent

Judgment:

12 June 2025

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 June 2025 at 2.30 pm

Registrar/Deputy Registrar

Solicitors/Counsel:

Sam Galler (Auckland) for Appellant

Kayes Fletcher Walker (Manukau) for Respondent

SHAW v R [2025] NZHC 1542 [12 June 2025]

Introduction

[1]                 Mr  Shaw  appeals  two  convictions  for  sexual  offending  entered  by  Judge McNaughton on 10 October 2024 following a trial.1 Mr Shaw faced five charges alleging sexual offending against the complainant. The offending covered a period of four or five years during which the complainant was aged eight or nine years through to 14 years. Mr Shaw does not challenge his convictions on the first three charges (two representative charges of doing indecent acts and one specific charge of doing an indecent act).

[2]                 The appeal relates to an incident alleged to have occurred in 2019 when the complainant was aged 14. The complainant was at her grandmother’s unit by herself. Mr Shaw lived in an adjacent unit. The complainant says she was watching television when Mr Shaw came into the room and sexually assaulted her. The charges arising from this incident were sexual violation by unlawful sexual connection and doing an indecent act.

Grounds of appeal

[3]Mr Galler sets out the grounds of appeal as follows:

8.… the learned District Court Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred by:

a.Dismissing the unchallenged evidence of the complainant’s grandmother stating that she locked the back door of the property before she left the complainant home alone on the day of the sexual violation. Despite the witness confirming she had locked the door that day and despite the lack of challenge to this point on re-examination, the learned judge concluded that it would be “impossible” for her to remember this, despite that not being her evidence. It is submitted that this suffices as erring in the assessment of the evidence to such an extent that a miscarriage of justice occurred.

b.The District Court Judge when dealing with this evidence, stated that he “cannot exclude as a reasonable possibility that she simply forgot to lock the door that day…” It is submitted that treating the evidence in this way altered the onus and standard of proof in a criminal trial, which has caused a miscarriage of justice.

1      R v Shaw [2024] NZDC 23817.

[4]                 It is submitted that there is no evidence that Mr Shaw could have got into the grandmother’s unit other than through the back door. That was the complainant’s presumption. Therefore, given the grandmother’s unchallenged evidence, the Judge should have concluded that it was impossible for Mr Shaw to have committed the offences.

The Judge’s reasoning

[5]                 The complainant first made a complaint against Mr Shaw on her 17th birthday. The complainant told her mother Mr Shaw had touched her but did not go into detail. The complainant spoke to the police in late 2022 and gave a preliminary statement on 10 September 2022. Mr Shaw was arrested on 3 March 2023. The grandmother was not interviewed about the 2019 incident until nearly five years after it had occurred. The Judge said:

[64]      In relation to charges 4 and 5 Mr Galler submitted the complainant’s evidence must be rejected because if the back door was locked by means of the tower bolt the defendant would have no means of accessing the unit other than the front door. The complainant was sure that he had come in through the back door because she was sitting in the lounge watching TV with the front door in her direct sight.

[65]      No doubt [the grandmother’s] routine was to check the back door was locked every time she left the flat. That was her evidence. But other than a reliance on routine it would be impossible for her to say definitively the door was actually locked and bolted that day, based on a specific memory from five years ago. I cannot exclude as a reasonable possibility she simply forgot that day, no doubt conscious she was catching a bus to Papatoetoe and would need to catch a bus to return in time for her [granddaughter’s] arrival around midday.

The argument on appeal

[6]                 Mr Galler relies on cases where convictions have been set aside because unchallenged evidence was  not  given  due  weight.  The most  significant  case  is H (CA742/2020) v R.2 In that case, the appellant was accused of sexual offending against a 13-year-old relative in a lounge where a number of people were sleeping. The appeal was brought (relevantly) on the ground that the verdicts of the jury were

2      H (CA742/2020) v R [2021] NZCA 139.

unreasonable because the evidence established that the appellant had no opportunity to commit the offences.

[7]                 The appellant gave and called evidence at the trial. The defence evidence was to the effect that the appellant’s mother and aunt were in the room and would have seen the alleged sexual assault if it had occurred. The aunt fell asleep at about 3.40 am and the mother went to bed at about 4 am. At that stage, the complainant was alone on a couch. Shortly afterwards, the appellant’s father woke everyone for family prayers. At that time, the complainant was on a mattress with the appellant, but there were two other people on the mattress sleeping between them. No-one in the room saw anything untoward.

[8]                 The Crown’s case was that there was a period between 3.45 am and 4.30 am when the offending could have occurred, and the Crown emphasised that during this period the complainant had moved, or been moved, from the couch to the mattress without anybody noticing.

[9]The Court of Appeal said:

[88]      We need not survey the authorities on unreasonable verdict, as the test is well settled. In Owen v R the Supreme Court approved the test that this Court encapsulated in Munro v R:3

… a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.

[89]      When examining that question the appellate court must bear in mind that it is not the arbiter of guilt and that reasonable minds may disagree on questions of fact. The weight to be given to individual pieces of evidence is essentially a jury function, and the appellate court must give appropriate weight to such advantages as the jury may have had.4

…

[93]   The question was one of opportunity for the events as described by   the complainant in circumstances where the evidence of defence witnesses (other than the appellant) about what they did and saw was essentially undisputed. We say “essentially” because the prosecutor implicitly invited the jury to discount the accounts of the defence witnesses. He noted that RH and AS might wish the evidence to be otherwise and suggested it defied logic that

3      Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17], referring to Munro v R [2007] NZCA 510, [2008] 2 NZLR 87 at [21].

4      At [13]–[14], endorsing Munro v R, above n 3, at [86]–[87].

the complainant would talk to KH about her friendship group the very same morning. But we cannot assume that their unreliability was so obvious to everyone in the courtroom that it went without saying. We must take the record as we find it. On the record, their evidence went unchallenged in important respects.

[10]              The Court then analysed the evidence in detail, including that of the complainant who had described an assault, a period of sleep, and a second assault.

[11]              The Court found that on an overall consideration of the evidence, and given that the jury must have found the complainant to be credible and reliable, the jury should have had a reasonable doubt about the appellant’s guilt.

Discussion

[12]              This case is very different to H v R. In that case, there was evidence for the Crown and evidence for the defence. It concerned the movements and observations of a number of people, and the inferences which could safely be drawn from the evidence as a whole. There were uncertainties in the evidence arising, to a real extent, from a failure by the prosecutor to cross-examine defence witnesses.

[13]              Mr Galler also referred me to Pell v R.5 I find that case to be of little relevance to the present appeal. The facts in Pell, which are notorious, differ entirely from those at hand. Moreover, and putting to one side the obvious difference that there were multiple witnesses corroborating the unchallenged evidence at issue in that case, the High Court of Australia’s concern with the Court of Appeal’s decision was largely that the Court discounted the unchallenged evidence because of the potential effect of delay on the accuracy of the witness’s evidence.6 In this case, Judge McNaughton took delay into account in weighing the evidence.

[14]              Here, the sole point is whether the Judge7 was entitled to give the grandmother’s evidence little weight. To find that it was more likely than not that,

5      Pell v R [2020] HCA 12, (2020) 376 ALR 478.

6      At [91]–[93].

7      I do not think that in this area there is a functional difference between a jury and a judge sitting alone.

although honest, she was honestly mistaken about whether, five years before, the back door was locked.

[15]              The evidence that Mr Shaw had sexually offended against the complainant on multiple occasions over the years was very strong. I will not go into detail except to say that, in addition to the complainant’s evidence, and observations of family members, there was propensity evidence from five other children in respect of whom convictions had been entered.

[16]              The Judge was entitled to find, as he did, that the complainant was credible and reliable. He was entitled to find that the surrounding evidence supported her allegations. The Judge did not have to give the grandmother’s evidence primacy because it was unchallenged. He was entitled to assess the quality of her evidence and conclude that there was a reasonable possibility that she was mistaken. That is not a reversal of the onus of proof. The Crown had to prove the elements of the charges beyond reasonable doubt. It did not have to prove to that standard that the back door was unlocked — just that, more likely than not, it was unlocked.

Decision

[17]              I do not find that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.

[18]The appeal is dismissed.

Brewer J