T v The Queen

NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 117/2016
[2017] NZSC 6

BETWEEN	T (SC 117/2016) Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and OʼRegan JJ
Counsel:	Applicant in person M J Lillico for Respondent
Judgment:	10 February 2017

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was found guilty on 29 charges involving offending against his former wife, his three daughters, a son and a step-daughter. The charges encompassed sexual violation, indecent assault, various assaults and a threat to kill. There was also a charge of possession of an offensive weapon. The offending started in 1997 and concluded in 2009. The Court of Appeal dismissed his appeal against conviction and sentence[1] and he now seeks leave to appeal.
[1]T (CA561/2014) v R [2016] NZCA 235 (Stevens, Asher and Williams JJ).
The applicant was represented by counsel in the Court of Appeal. In his application to this Court for leave to appeal he provided marked up copies of extracts from (a) the submissions made to the Court of Appeal and (b) the judgment of the Court of Appeal. From this material, we take it that he has raised three issues.
The first relates to the use of representative charges of rape and unlawful connection in relation to offending against the applicant’s wife. The date range for these charges covered 12 years. The appropriateness of these charges was reviewed carefully by the Court of Appeal and we see no appearance of error in that Court’s analysis.[2]
[2]At [42]–[61].
The second is the absence of a warning under s 122 of the Evidence Act 2006. As to this, we note that his trial took place before the judgment of this Court in CT (SC88/2013) v R and there was no request from counsel for a direction.[3] Had such a direction been sought, the lengthy period of the offending alleged, not all of which was 10 years before trial, would have been material. As the Court of Appeal noted, the defences advanced were that the applicant’s wife had fabricated the allegations of offending against her and coached the children in respect of their evidence. Documentary evidence which was contemporaneous with the offending (for instance Plunket records) assisted the applicant. Nothing specific by way of prejudice was alleged. In respect of this aspect of the case too, we see no appearance of error in the approach taken by the Court of Appeal.[4]
[3]CT (SC88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465. The judgment date was 30 September 2014 and the applicant was sentenced on 17 September 2014.
[4]At [34]–[41].
The third issue is the absence of a propensity direction, particularly in light of some general comments made by the prosecutor to the jury in relation to the applicant’s temper, violence and use of alcohol. The Court of Appeal concluded that the Crown was not invoking coincidence or tendency reasoning.[5] In light of this, and the general directions given by the trial Judge (as to individual consideration of each charge and putting prejudice to one side), it concluded that there had been no miscarriage of justice. In doing so, the Court applied the approach proposed in Mahomed.[6] Once again we see no appearance of error.
[5]At [14]–[33].
[6]Mahomed v R[2011] NZSC 52, [2011] 3 NZLR 145.
The proposed appeal does not give rise to any question of public or general importance nor is there any appearance of a miscarriage of justice. Accordingly, the application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

In the Supreme Court of New Zealand, T, the applicant, sought leave to appeal against his conviction and sentence for a series of charges including sexual violation, indecent assault, various assaults, and a threat to kill. The offending occurred between 1997 and 2009 against his former wife, three daughters, a son, and a step-daughter. The Court of Appeal had previously dismissed his appeal against conviction and sentence, and T now sought leave to appeal to the Supreme Court. The applicant was represented in person and by counsel in the Court of Appeal, but he appeared in person for this appeal. The central legal issues raised by T were the use of representative charges, the absence of a warning under section 122 of the Evidence Act 2006, and the absence of a propensity direction by the trial Judge.

The Supreme Court considered each of the issues raised. Regarding the representative charges, the Court of Appeal had carefully reviewed their appropriateness and found no error. The Court agreed, noting that the charges spanned a twelve-year period but were supported by documentary evidence and did not result in any specific allegation of prejudice. The Court also noted that T's trial took place before the Supreme Court's decision in CT v R, which dealt with section 122 warnings, and there was no request from counsel for a direction. The Court of Appeal had concluded that the absence of such a warning did not result in a miscarriage of justice, and the Supreme Court saw no error in this approach. Finally, regarding the propensity direction, the Court of Appeal had concluded that the Crown was not invoking coincidence or tendency reasoning and that the trial Judge's general directions to the jury were sufficient. The Court of Appeal applied the approach proposed in Mahomed v R, and the Supreme Court found no error in this conclusion.

The Supreme Court found that the proposed appeal did not raise any question of public or general importance and did not appear to involve a miscarriage of justice. Accordingly, the application for leave to appeal was dismissed. The Court's decision underscores the high threshold for leave to appeal and the importance of ensuring that any appeal raises significant legal issues of general importance.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established