Introduction [1] Evidence from friends of the complainant [6] Evidence of A [8]
Evidence of B [10] A’s evidence: the propensity issue [11] The summing-up [27] Submissions [29] Application [42] B’s evidence [53]

Prior out of court statements
The re-examination and admission of out of court statements [56]
Section 35(2) [59] The Judge’s ruling [61] The evidence given by C [66] The evidence given by D [68] Submissions [69] Discussion [73] The direction in respect of C and D [88]

Warning on use of historical evidence  [90]
The remaining grounds  [101] Late admission of D’s evidence  [102] Erroneous ruling to permit re-examination of complainant             [103] The trial Judge failed to control the complainant from giving
evidence in a prejudicial and irrelevant manner  [104] Breach of pre-trial undertaking as to evidence of anal injury  [106] Misstatement of defence case  [109] Evaluation  [116] Result                 [127]

Introduction

[1] In December 2007 the appellant was convicted by a High Court jury of offences alleged to have been committed up to 40 years previously: five counts of indecency with a child under the age of 12, one count of sodomy, and one count of

rape. He was sentenced by the trial judge, Panckhurst J, to three and a half years imprisonment. He appeals against conviction on the ground that his trial was unfair.

[2] At the time of the alleged offending, between 1967 and 1974, the complainant was aged between eight and 14 years and the appellant between 22 and
28 years. Her complaint to the police was made in August 2004 and the appellant was charged in February 2006.

[3] During the period covered by the charges the complainant and the appellant were on terms of close friendship resulting from family links. The appellant denied any sexual contact with her except for a single occasion, when she was 16 or
17 years old, on which he said she had consented to an act of sexual intercourse.

[4] The principal grounds of appeal are:

(1)The trial Judge erred, first in admitting, and then in directing the jury as to how they might use, evidence from friends of the complainant of lesser sexual offending…

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 Stewart (Peter) v R

Details

AGLC: Stewart (Peter) v R [2008] NZCA 429
Case: [2008] NZCA 429
Decision Date: 22 October 2008

CaseChat Overview and Summary

In the case of Stewart v R, the appellant, Peter Maxwell Stewart, was convicted of multiple counts of indecency with a child under the age of 12, sodomy, and rape. The alleged offences occurred between 1967 and 1974, with the complainant being between eight and 14 years old at the time, and the appellant between 22 and 28 years old. Stewart appealed against his conviction, arguing that his trial was unfair. The Court of Appeal considered several grounds of appeal, including the admissibility of evidence from friends of the complainant, the summing up on the use of propensity evidence, the admission of out of court statements, and the warning on the use of historical evidence.

The Court of Appeal found that the evidence from friends of the complainant was admissible and properly used, and that the trial judge's summing up on the evidence was not materially deficient. The Court also held that the admission of out of court statements was proper, and that the warning on the use of historical evidence was adequate. The Court concluded that, while there were some minor errors in the summing up, there was no substantial miscarriage of justice, and the appeal was dismissed.

The final orders of the Court of Appeal were to dismiss the appeal and to prohibit the publication of the names or identifying particulars of witnesses A, B, C, and D.

Orders