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,…

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 Shaw v The King

Details

AGLC: Shaw v The King [2025] NZHC 1542
Case: [2025] NZHC 1542
Decision Date: 12 June 2025

CaseChat Overview and Summary

The appeal in Shaw v The King involves Murray Shaw, who contests his convictions on two counts of sexual offending against a complainant, who was aged between eight and fourteen years old during the alleged offences. The specific charges that Shaw contests pertain to an incident that allegedly occurred in 2019 when the complainant was fourteen. Shaw appeals against his convictions for sexual violation by unlawful sexual connection and doing an indecent act, arguing that the District Court judge made errors in assessing the evidence that led to a miscarriage of justice. The primary contention is that the judge dismissed unchallenged evidence from the complainant's grandmother, who testified that she had locked the back door of her unit before leaving the complainant alone, which, according to Shaw, meant he could not have entered the unit through that door.

The legal issues revolve around whether the District Court judge erred in his assessment of the evidence, particularly concerning the grandmother's testimony regarding the locking of the back door, and whether this error was so significant as to constitute a miscarriage of justice. Shaw argues that the unchallenged evidence of the grandmother should have led the judge to conclude that it was impossible for Shaw to have committed the offences, given that the complainant believed Shaw entered through the back door and she was watching the front door.

The court considered whether the judge was entitled to give the grandmother's evidence little weight, despite it being unchallenged. The High Court found that the judge was not obliged to give the grandmother's evidence primacy simply because it was unchallenged. The judge was within his rights to assess the quality of the evidence and conclude that there was a reasonable possibility the grandmother was mistaken about whether the door was locked five years prior. This conclusion did not amount to a reversal of the onus of proof, as the prosecution only needed to prove beyond reasonable doubt that it was more likely than not that the door was unlocked, not that it was definitively unlocked.

Ultimately, the High Court held that the judge did not err in his assessment of the evidence to such an extent that a miscarriage of justice occurred. The appeal was dismissed, affirming the convictions as originally entered by the District Court.

Orders