T v The Queen - [2016] NZSC 71

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 140/2015
[2016] NZSC 71

BETWEEN	T (SC 140/2015) Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and O'Regan JJ
Counsel:	W C Pyke for Applicant I R Murray for Respondent
Judgment:	20 June 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted after a jury trial of one charge of sexual violation of his grand‑niece, A, who was 12 years of age at the time of the offending. He appealed against conviction and sentence to the Court of Appeal. His appeal against conviction was dismissed, but his sentence was reduced from five years and two months’ imprisonment to four years and eight months’ imprisonment.[1]
[1]T(CA117/2015) v R [2015] NZCA 572 (Randerson, Lang and Clifford JJ) [CA conviction appeal].
The applicant seeks leave to appeal against his conviction on the same points as he advanced unsuccessfully in the Court of Appeal. None of these points involves matters of general or public importance so the application is advanced on the basis that a substantial miscarriage of justice may have occurred or may occur unless leave is granted.[2]
[2]Supreme Court Act 2003, s 13(2)(b).
Propensity evidence was given at the trial by a young relative of the applicant, W.[3] She gave evidence that she was raped by the applicant when she was 13 years of age in 2008. The applicant had been discharged under s 347 of the Crimes Act 1961 in respect of W’s allegations when the matter came to trial in 2010. This was because of conflicting accounts given by W of the precise nature of the sexual assault on her. W’s evidence at the applicant’s trial in the present case was that the applicant had penetrated her vagina with his penis. She explained that the differences between her various accounts at the applicant’s trial for offending against her and her evidence in the present case was because she had not experienced sex before the 2008 incident and was not confident in describing the anatomical details at the time she gave her evidential video and at the 2010 trial. She was 19 at the time of the trial in the present case, and said she was now more confident in relation to these matters.
[3]There was also propensity evidence at the trial of another relative, G. The applicant had been convicted in 1995 of indecently assaulting G, who was aged 15 at the time.
The applicant wishes to raise two matters in relation to W’s evidence: its admissibility and the fact that the trial Judge in the present case did not give a reliability warning.[4]
[4]Evidence Act 2006, s 122(1).
In relation to admissibility, the applicant wishes to argue that W’s evidence, having been found sufficiently unreliable to justify a s 347 discharge at the 2010 trial, should not…

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 T v The Queen

Details

AGLC: T v The Queen [2016] NZSC 71
Case: [2016] NZSC 71
Decision Date: 20 June 2016

CaseChat Overview and Summary

The case of T v The Queen involved an applicant, referred to as T, who was convicted of sexually violating his grand-niece, A, when she was 12 years old. T's appeal against the conviction was dismissed by the Court of Appeal, though the sentence was reduced from five years and two months to four years and eight months. T sought leave to appeal against his conviction to the Supreme Court, arguing that a substantial miscarriage of justice might occur if leave was not granted. The key issues revolved around the admissibility of propensity evidence from a previous rape allegation by another relative, W, and the trial judge's failure to issue a reliability warning regarding this evidence. Additionally, T challenged certain remarks made by the prosecutor during the closing address.

The Supreme Court evaluated the admissibility of W's evidence, considering that it had already been determined to be admissible by the Court of Appeal. The Court found no new grounds for a third review of this issue and concluded that refusing leave on this point did not risk a miscarriage of justice. Regarding the reliability warning, the Court of Appeal had acknowledged that such a warning would have been appropriate but concluded that its absence did not lead to a miscarriage of justice. The Supreme Court agreed, emphasizing that the trial judge's omission did not pose a risk of miscarriage in this case. Lastly, the Court addressed the prosecutor's remarks about the basis of T's acquittal in a previous case and a comment about the age of T's partner. Although these remarks were inappropriate, the Court of Appeal had deemed them unlikely to have significantly impacted the trial, a conclusion the Supreme Court endorsed.

The Supreme Court ultimately dismissed T's application for leave to appeal, finding no substantial risk of a miscarriage of justice if leave was not granted. The Court upheld the Court of Appeal's decisions on the admissibility of the evidence, the reliability warning, and the impact of the prosecutor's remarks. The conviction and reduced sentence remained in place.

Orders