Terrence Austin McFarland v The Queen - [2008] NZSC 11

IN THE SUPREME COURT OF NEW ZEALAND
SC 77/2007
[2008] NZSC 11
CAREY DEAN TURNER
v
THE QUEEN
Court:Elias CJ, Anderson and Wilson JJ
Counsel:C J Tennet for Applicant

M D Downs for Crown

Judgment:5 March 2008

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
REASONS
[1]        Following trial by jury, the applicant was convicted of sexual violation. Having appealed unsuccessfully to the Court of Appeal against his conviction, he now seeks leave to appeal to this Court on the ground that there has been a substantial miscarriage of justice in either or both of two respects.
[2]        First, the applicant contends, evidence of the conduct of the complainant following the offending was incorrectly admitted as “recent complaint” evidence. Secondly, the trial Judge misdirected the jury about a statement by the applicant to the Police which was recorded on a video and which the applicant adopted when giving evidence.
[3]        The first point rests on a misconception of what occurred at trial. Although the complainant gave evidence of what she did in the hours between the incident with the applicant and her going to the Police, including contacting a friend and her mother, she was not asked to and did not give evidence of anything she had said to any person during that time. The friend and the mother were not called as witnesses. The Crown relied on the evidence which the complainant did give as evidence of conduct which was consistent with the offending having occurred.
[4]        The Court of Appeal saw no difficulty with the evidence being given for this purpose. As it said, it was the complainant’s conduct which was used to support her credibility, not a prior consistent statement. We agree that the evidence was not in law “recent complaint” evidence, was unobjectionable and did not require any special direction.
[5]        We do however differ from the Court of Appeal on one minor and immaterial point in relation to the first proposed ground. That Court expressed the view that it would have been preferable for the trial Judge not to have referred to the evidence as a complaint. The Judge however used the word “complaint” in the ordinary sense of that word and the jury would have understood it as such, rather than attributing to it the technical legal meaning of “recent complaint”.
[6]        On the second point, it is important to understand what occurred at trial. The video on which the applicant’s statement to the Police had been recorded was played to the jury as part of the prosecution case. It did not include any admission of the offending. When he gave evidence, the applicant was after some formal introductory questions asked by his counsel “Is what you said in the video true” and answered “yes”. (We interpolate that that question was objectionably leading, but no objection appears to have been taken to it). The applicant then gave some brief supplementary evidence, including an assertion that any sexual involvement with the…

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.

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Details

Case: [2008] NZSC 11
Decision Date: 5 March 2008

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Terrence Austin McFarland, also known as Carey Dean Turner, sought leave to appeal against his conviction for sexual violation. Following a trial by jury, Turner was found guilty, and his subsequent appeal to the Court of Appeal was dismissed. Turner now appeals to the Supreme Court, contending that the trial court made errors that led to a substantial miscarriage of justice. The two primary issues Turner raises are: the admission of what he claims was "recent complaint" evidence and the trial judge's direction to the jury about his video-recorded statement to the police.

The first issue concerns the complainant's evidence of her conduct following the alleged offence, which Turner argues was wrongly admitted as "recent complaint" evidence. The Court of Appeal found no issue with this evidence being admitted as it pertained to the complainant's conduct rather than a prior consistent statement. The Supreme Court agreed, noting that the evidence was not legally "recent complaint" evidence and did not require special direction. However, the Supreme Court disagreed with the Court of Appeal on a minor point, stating that while the term "complaint" was used, it was in the ordinary sense rather than the technical legal meaning.

The second issue revolves around the trial judge's direction to the jury concerning Turner's video-recorded statement to the police. Turner argues that the judge's direction was incorrect because the video became sworn evidence once Turner adopted it in his testimony. The Court of Appeal held that the direction on the use of the videotaped statement did not undermine the "tripartite" direction given about the jury's approach to Turner's evidence. The Supreme Court, while acknowledging that the direction was not "proper," found that the error did not result in any miscarriage of justice because the jury understood the "tripartite" direction to apply to all of Turner's evidence, including the video-recorded statement.

Ultimately, the Supreme Court dismissed Turner's application for leave to appeal, finding no substantial miscarriage of justice in the trial court's handling of the evidence and directions.

Orders