The Queen v Adams - [2007] NZCA 211

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA218/06
[2007] NZCA 211
THE QUEEN
v
WAYNE ANDREW HERBERT ADAMS
Hearing:21 March 2007

Court:Chambers, Robertson and Arnold JJ
Counsel:S J Shamy for Appellant

T M Gresson and I R Murray for Crown

Judgment:29 May 2007 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Two sexual incidents in Timaru
[1]       Following trial before Judge Philip Moran and a jury, the appellant was found guilty of various crimes arising from two sexual incidents which took place in Timaru back in 2002.
[2]       The first occurred on 19 July. The jury found the appellant had unlawfully entered the complainant’s home and raped her twice. The appellant’s defence was that the complainant had invited him in and they had engaged in consensual sex.
[3]       The second incident occurred on 6 December. The jury found the appellant had returned to the complainant’s home and once again unlawfully entered it. On this occasion, sexual intercourse did not take place, but the jury found the appellant had indecently assaulted the complainant. The defence to this incident had been that the appellant never entered the house on the second occasion and that no indecent assault ever occurred.
[4]       Judge Philip Moran subsequently sentenced the appellant to a total sentence of 10 years’ imprisonment. He also ordered the appellant serve a minimum period of imprisonment of five years.
[5]       Because it has some bearing on the issues arising in this case, we should point out this was in fact the appellant’s third trial. He was convicted at the first trial, but those convictions were quashed on appeal. The jury were unable to agree at the second trial.
Issues on the appeal
[6]       The appellant appeals against both his convictions and the sentence.
[7]       The appeal against conviction is principally based on alleged trial counsel incompetence. The appellant swore an affidavit for the purposes of the appeal which made a number of allegations against his counsel at the third trial, Michael Radford and his junior, Sarah Saunderson-Warner. Mr Radford did not respond to the appellant’s affidavit as, since this trial, he has become a judge of the District Court. Ms Saunderson‑Warner did, however, respond. Her affidavit made it clear that the appellant’s complaints in certain respects could not be sustained. Mr Shamy, the appellant’s counsel on this appeal, responsibly acknowledged that, but submitted there were two relevant complaints.
[8]       The first related to the way in which the defence team dealt with an incident that occurred just outside the Hoyts cinema in Dunedin on 21 February 2004. It was on that occasion that the complainant recognised the appellant as the man who had raped her. The police were called. Subsequently the police interviewed the appellant and he was arrested and charged.
[9]       The second issue related to the way in which the defence team…

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 The Queen v Adams

Details

AGLC: The Queen v Adams [2007] NZCA 211
Case: [2007] NZCA 211
Decision Date: 29 May 2007

CaseChat Overview and Summary

In the case of The Queen v Adams, the appellant, Wayne Andrew Herbert Adams, was appealing against his convictions and sentence arising from two sexual incidents in Timaru in 2002. The Court of Appeal of New Zealand dismissed the appeal against both conviction and sentence. The appeal against conviction was based on alleged trial counsel incompetence, but the Court found that the defence tactics were well thought through, carefully discussed with the appellant, and agreed by him. The appeal against sentence was also dismissed, as the Court found the sentence of ten years' imprisonment was not manifestly excessive and the imposition of a minimum period of imprisonment order was appropriate.

The appellant was found guilty of various crimes arising from two sexual incidents in Timaru in 2002. The first incident occurred on 19 July, where the appellant unlawfully entered the complainant's home and raped her twice. The second incident occurred on 6 December, where the appellant returned to the complainant's home and indecently assaulted her. The appellant was sentenced to a total of 10 years' imprisonment, with a minimum period of imprisonment of five years. The appellant appealed against both his convictions and the sentence.

The Court of Appeal found that the defence tactics with respect to the Hoyts incident were well thought through, carefully discussed with the appellant, and agreed by him. No miscarriage of justice could have arisen in those circumstances. The Court also found that the defence counsel's handling of the evidence of Detective Constable Leishman and Detective Glover was adequate in the circumstances. The Court further found that the judge's lies direction was not flawed, and that the sentence of ten years' imprisonment was not manifestly excessive. The imposition of a minimum period of imprisonment order was also deemed appropriate.

Orders