Simpson v The Queen - [2016] NZCA 95

IN THE COURT OF APPEAL OF NEW ZEALAND

CA659/2014
[2016] NZCA 95

BETWEEN	MATTHEW FERGUSON SIMPSON Appellant
AND	THE QUEEN Respondent

Hearing:	1 March 2016
Court:	Ellen France P, Keane and Dobson JJ
Counsel:	N J Sainsbury for Appellant D R La Hood for Respondent
Judgment:	6 April 2016 at 11.30 am

JUDGMENT OF THE COURT

A An extension of time to file the notice of appeal is granted.

B The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Table of contents

Para No

Introduction  [1]
Background  [5]
         The facts  [6]
         The Crown case at trial  [7]
         The defence  [8]
The conviction appeal  [11]
A conflict of interest?  [12]
         Discussion  [13]
Incompetence in conduct of trial?  [26]
         Trial preparation  [27]
         The treatment of the appellant’s initial statement to the police  [32]
         Failure to put matters in cross-examination  [38]

Failure to challenge the admissibility of DNA evidence[43]

Actions of the complainant’s support person  [54]
The sentence appeal  [56]
Result  [59]

Introduction

The appellant was convicted after trial on one count of rape. He was acquitted on a charge of sexual violation by unlawful sexual connection involving anal penetration in relation to the same complainant. The appellant was sentenced by the trial Judge, Judge Davidson, to a term of nine and a half years imprisonment.[1] He appeals against conviction and sentence.
[1]R v Simpson DC Wellington CRI-2013-085-1975, 8 August 2014 [sentencing remarks].
The conviction appeal is advanced primarily on the basis the conduct of trial counsel, Keith Jefferies, has caused a miscarriage of justice. The challenge to trial counsel’s conduct focuses first, on the impact of a police search of Mr Jefferies’ home and office on the evening of the first day of trial and his subsequent conviction on drug‑related offending. Secondly, there is a challenge based on various matters in the conduct of the trial such as preparation of the appellant’s brief of evidence; the approach to cross-examination; and the failure to challenge the admissibility of DNA evidence. There is a further ground of appeal based on the impact of the complainant’s support person’s responses during some of the evidence of the complainant.
On sentence, the appellant says the starting point adopted was manifestly excessive.
After setting out the background we deal with the conviction and sentence appeals in turn.

Background

The incident giving rise to the charges took place on 1 February 2013.

The facts

On 31 January 2013 the complainant, a woman in her twenties, travelled to Wellington with friends for the Rugby Sevens weekend. She stayed at a friend’s apartment. What happened next is summarised by Judge Davidson in sentencing as follows:[2]
[3] The next day, Friday 1 February, she began to get ready for the Sevens. She dressed up in a costume and consumed a significant amount of alcohol over the course of the afternoon. By late afternoon, she was severely intoxicated. She then went with her friends to your workplace where there were leaving drinks…

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 Simpson v The Queen

Details

AGLC: Simpson v The Queen [2016] NZCA 95
Case: [2016] NZCA 95
Decision Date: 6 April 2016 at 11.30 am

CaseChat Overview and Summary

Matthew Ferguson Simpson appeals against his conviction and sentence in the Court of Appeal of New Zealand. The appellant was convicted of raping the complainant, who was severely intoxicated, after she had been left at an apartment where she was staying. The appellant was acquitted of an additional charge of sexual violation by unlawful sexual connection involving anal penetration. He was sentenced to a term of nine and a half years imprisonment. The appellant’s case focuses on the conduct of trial counsel, Keith Jefferies. The appellant contends the police search of Mr Jefferies’ home and office on the first day of trial gave rise to a conflict of interest and that the appellant’s fair trial rights were compromised as a result. The appellant also contends trial preparation, particularly of his brief, was inadequate and that there was a failure to properly cross-examine witnesses including the complainant. The appellant also contends trial counsel erred in not challenging the admissibility of DNA evidence. Finally, the appellant contends the sentence was manifestly excessive. The court found that the search of Mr Jefferies’ premises did not compromise his freedom to act in the best interests of his client. The court also found that trial counsel’s conduct did not give rise to a miscarriage of justice. The court found that there was no merit in the challenge to the admissibility of DNA evidence. Finally, the court found the sentence was within the available range and dismissed the appeal against conviction and sentence. An extension of time to file the notice of appeal is granted.

Orders