The Queen v Bryce Butler - [2003] NZCA 2

IN THE COURT OF APPEAL OF NEW ZEALAND

CA194/02

THE QUEEN

BRYCE BUTLER

Coram:McGrath J
Anderson J
Glazebrook J
Appearances: W Pyke for the Appellant

A Markham for the Crown
Judgment (on the papers): 27 February 2003

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.
The appellant was convicted following a jury trial on two charges of indecently assaulting a girl under the age of 12 years and one charge of inducing a girl under the age of 12 years to do an indecent act upon him. The first count was a representative charge relating to conduct over the period of nine months leading up to 27 September 2001. The other counts concern conduct on that date. The appellant originally gave notice of appeal against his conviction on all three charges but has abandoned the appeal against the offending that occurred only on 27 September 2001. The sole ground of appeal against conviction on the representative count is that the verdict is unreasonable and cannot be supported having regard to the evidence.

Background facts

At the time of the offending the complainant was nine and the appellant 34 years of age. They are related by marriage. The complainant and her younger sister regularly stayed overnight at the appellant’s house.
On 27 September 2001 the appellant and his wife stayed the night at the home of the complainant’s family. The Crown case at the trial was that, while the complainant and her sister were asleep in the lounge of the house, the appellant had kissed the complainant on her breast, awakening her, and had touched her vagina.
The appellant also asked the complainant if she had ever touched a boy’s penis. She told him that she had not and that she did not want to. The appellant ignored her response, picked up her hand, and placed it on his penis holding it there while moving her hand around. The complainant subsequently told her parents what had occurred during that night. During a police interview regarding these events the complainant disclosed that the appellant had also kissed her on her breast on previous occasions when she had been staying at his home. It is this conduct that resulted in the representative charge which is the subject of this appeal.

Submissions

The appellant’s written submissions advanced two main arguments. The first was that the verdict was unsupported by the evidence (s385(1) of the Crimes Act 1961). The second ground was that the act of kissing the complainant’s breast area, in the absence of any other evidence of activity indicating indecency, in itself was not indecent. We address the second argument first.
Counsel for…

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 Bryce Butler

Details

AGLC: The Queen v Bryce Butler [2003] NZCA 2
Case: [2003] NZCA 2
Decision Date: 27 February 2003

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal by Bryce Butler against his conviction was heard on the papers. The appellant was convicted by a jury of two counts of indecently assaulting a girl under the age of 12 years and one count of inducing a girl under the age of 12 years to do an indecent act upon him. The appeal against conviction on one of the charges was abandoned, leaving the challenge to the representative count, alleging conduct over a nine-month period, as the sole issue. The appellant contended that the verdict was unreasonable and not supported by the evidence.

The legal issues before the Court involved the interpretation of the term "indecent" and whether there was sufficient evidence to support the conviction on the representative count. The appellant argued that kissing a child on the breast was not inherently indecent and that there was insufficient evidence to convict him on the representative count without reliance on the other two counts. The Crown, on the other hand, submitted that the nature of the kissing, given the circumstances and the age of the complainant, was indecent and that there was ample evidence to support the conviction.

The Court considered that the term "indecent" was to be given the meaning it has in general use, and what is indecent was to be judged in light of time, place, and circumstances. The Court found that the act of lifting a young girl's pyjama top and kissing her on the breasts while she was asleep had the appearance of a preliminary step towards an indecent assault, and it was open to the jury to find that the conduct had actually reached that point. Furthermore, the Court concluded that the evidence provided by the complainant, which was uncontested at the trial, was sufficient to support the jury's finding of guilt on the representative count. The appeal was accordingly dismissed.

Orders