T v The the Queen - [2022] NZHC 189

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-000101

[2022] NZHC 189

BETWEEN
T

Appellant

AND

THE QUEEN

Respondent

Hearing: 8 February 2022 (via VMR)

Appearances:

Catherine Harold for the Appellant Ben Smith for the Respondent

Judgment:

16 February 2022

JUDGMENT OF MOORE J

[Appeal against conviction]

This judgment was delivered by me on 16 February 2022 at 10:00 am.

Registrar/ Deputy Registrar Date:

T v R [2022] NZHC 189 [16 February 2022]

Background

[1] On 14 May 2021, T was convicted of one charge of sexual violation by unlawful sexual connection following a judge-alone trial before Judge T R Ingram in the Tauranga District Court.1

[2]T now appeals his conviction. His grounds are that the Judge:

(a)relied on inadmissible propensity evidence; and

(b)as a consequence, erred by concluding on “the totality of the evidence” that T was guilty, having found that the victim’s evidence was insufficient to prove guilt in itself.

The offending

[3] T was formerly in a relationship and residing with the victim’s mother. The victim, B, is her four-year-old daughter. From time to time B was in T’s care, typically when B’s mother left the house for short periods to run errands.

[4] On 8 September 2020, B told her mother that T had entered her bedroom, woken her up, removed her pyjamas and “licked her bottom”. B’s mother reported this to Police. B subsequently underwent an evidential video interview. During that interview she described being licked by T’s tongue, that his tongue was hard, and that she did not like it. She later stated that T had licked her “mimi” and pointed to her groin.

District Court propensity decision

[5] Pre-trial, the Crown applied to adduce propensity evidence of the facts underlying T’s prior convictions for sexual offending against three girls, all aged under 12 years old. Judge Ingram found that T’s offending against one victim, for which he pleaded guilty to attempted rape and indecent assault, did not meet the threshold for admission.2 T’s offending against the other two victims, however, involved unlawful

1 R v [T] [2021] NZDC 7876.
2 R v [T] [2021] NZDC 7020 at [7].

sexual connection by oral contact with the victim’s genitalia and was admissible as propensity evidence.3 For this, he was convicted of three representative charges of sexual violation by unlawful sexual connection (and three charges of indecent assault).4

[6] The Judge identified T’s propensity as one for licking the genitalia and anus of young girls.5 While the 25 year gap between T’s prior convictions and the alleged offending pointed towards rejection of the evidence,6 the acts were “practically identical in all three cases”.7 There were an “undisclosed number of incidents” involving two complainants, with no suggestion of collusion or suggestibility.8 The Judge considered that oral sexual connection between an adult male and genitalia and…

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 the Queen

Details

AGLC: T v The the Queen [2022] NZHC 189
Case: [2022] NZHC 189
Decision Date: 16 February 2022

CaseChat Overview and Summary

The High Court of New Zealand, Tauranga Registry, heard an appeal by T against his conviction for sexual violation by unlawful sexual connection, as determined by Judge T R Ingram in the Tauranga District Court. T's grounds for appeal were that the Judge erred in relying on inadmissible propensity evidence and, consequently, erred in concluding that T was guilty based on the totality of the evidence, despite finding the victim's evidence insufficient to prove guilt alone. The core legal issues before the Court were whether the propensity evidence was properly admitted and if the Judge's assessment of the evidence was correct, thereby avoiding a miscarriage of justice. The Court found that the propensity evidence, showing T's prior sexual offending against young girls, was admissible as it demonstrated a significant and unusual propensity that was relevant to the issue of whether the victim's allegations were truthful. The probative value of this evidence, while challenged by the significant time gap since the prior offences, was deemed sufficient to outweigh the risk of unfair prejudice, particularly given the experienced nature of the District Court Judge. Furthermore, the Court concluded that the Judge did not err in finding T guilty as the combination of the victim's credible testimony, the circumstances surrounding the allegations, and the propensity evidence sufficiently established T's guilt beyond a reasonable doubt. Consequently, the appeal was dismissed.

Orders