Ms Stewart and a Ms Oliver were jointly charged with sexual violation of a third woman by unlawful sexual connection. The Crown case was that Ms Oliver was the principal offender who had actually violated the complainant. Ms Stewart was alleged to have been a party to that offence by the encouragement she gave to Ms Oliver. Both the accused were found guilty at trial in the District Court at Wellington in late 2005.
The Crown case at trial was that Ms Oliver had physically and sexually assaulted the complainant over the course of an evening in December 2003 after Ms Oliver and Ms Stewart had invited the complainant to the house they shared in Masterton for a meal. The Crown alleged that Ms Oliver had assaulted the complainant by manual penetration of her vagina while Ms Stewart had encouraged Ms Oliver’s behaviour. The jury found Ms Oliver guilty on two counts of assault and one of sexual violation, and Ms Stewart guilty as a party to the count of sexual violation.
Ms Stewart appealed unsuccessfully to Court of Appeal against her conviction on grounds unrelated to those presently before the Court.[1] At a later time the Court of Appeal heard an appeal against conviction by Ms Oliver. On that appeal counsel for Ms Oliver led fresh medical evidence from Dr Wilde, an obstetrician and gynaecologist, which suggested that the complainant’s injuries were inconsistent with her account of the assault. Ms Oliver’s conviction appeal was allowed and a retrial ordered.[2] At her retrial the Crown offered no evidence and Ms Oliver was discharged pursuant to s 347 of the Crimes Act 1961, thus being deemed to be acquitted.[3]
[1] R v Stewart CA515/05, 15 August 2006.
[2]R v Oliver [2007] NZCA 326.
[3] Crimes Act 1961, s 347(4).
Ms Stewart now appeals out of time to this Court against her conviction on the ground that, in circumstances where her co-accused at trial has subsequently been acquitted after a successful appeal, it is unsafe for Ms Stewart’s conviction as a secondary party to the offence to stand and it ought to be quashed. The Crown concedes that a substantial miscarriage of justice has occurred and seeks no order for retrial, but it is necessary for this Court to explain why this must be so.
It will not always be the case that a secondary party must also be acquitted in the absence of the conviction of a principal offender. There will be circumstances in…

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 v R

Details

AGLC: Stewart v R [2011] NZSC 62
Case: [2011] NZSC 62
Decision Date: 2 June 2011

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Lynette Kaye Stewart appealed against her conviction for being a party to a sexual violation offence. This appeal followed the acquittal of her co-accused, Ms Oliver, who was the alleged principal offender. The case involved a sexual assault on a third woman in December 2003, where Ms Oliver was alleged to have committed the act and Ms Stewart to have encouraged it. Both women were convicted in the District Court in 2005. Ms Stewart's initial appeal to the Court of Appeal was unsuccessful, but Ms Oliver's appeal was allowed due to fresh medical evidence casting doubt on the complainant's account. Ms Oliver was acquitted at her retrial, prompting Ms Stewart's current appeal to the Supreme Court.

The legal issue before the court was whether Ms Stewart's conviction as a secondary party could stand in light of Ms Oliver's acquittal. The court considered whether a conviction for secondary liability could be sustained when the principal offender's conviction had been overturned due to reasonable doubt about the commission of the offence. The court referenced various precedents where secondary party convictions could stand despite issues with the principal offender's guilt, but noted that such cases did not apply when the acquittal of the principal offender suggested that the primary offence did not occur.

The court determined that because Ms Oliver was the only possible principal offender and her acquittal indicated reasonable doubt about the offence's occurrence, Ms Stewart's conviction as a secondary party was unsustainable. This conclusion was reached based on the principle that if the primary offence did not occur, the secondary party could not have assisted in its commission. The court found that allowing Ms Stewart's conviction to stand would create an "unjust inconsistency" and a substantial miscarriage of justice. Consequently, the court quashed Ms Stewart's conviction and made no order for a retrial.

Orders