The Queen v Gerrard Joseph Kora - [2000] NZCA 47

PUBLICATION OF NAMES IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA489/99

THE QUEEN

GERRARD JOSEPH KORA

Hearing:	30 March 2000
Coram:	Elias CJ Gault J Fisher J
Appearances:	S J Lance for Appellant S P France for Crown
Judgment:	11 May 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

This is an appeal against conviction after jury trial on two representative counts of sexual violation by unlawful sexual connection. The complainant in each was a girl who lived at times in the home of her sister and the appellant. One count alleged digital penetration of her anus the other penile penetration of her anus. The appeal is on the ground that hearsay evidence was wrongly admitted or, if admissible, was left with the jury without directions on how it might be used.
The complainant who was 15 at the time of the trial gave evidence of sharing a bed with her older sister [J] and the appellant and of the frequent absence of her sister who worked at nights. She told the jury that in the period when she was between the ages of eight and 13 the appellant repeatedly penetrated her anus with his finger or his “dick”. In the course of her evidence in chief she was asked if she spoke to anyone about it. She said she spoke to her mother (who lived elsewhere) and her sister at separate times. It is convenient to deal with the evidence relating to the conversation with her mother first. She said she spoke to her mother at her place, she thought when she was about 12. Her evidence was:
I just said mum I need to tell you something? I said to her that Gerry touched me and she said how and I told her well didn’t actually tell her, it was hard to tell her … Do you think she understood … yes I think. What did she say to you … she said don’t tell your father or your brothers ‘cause they will kill him.
The notes of evidence record the cross-examination as follows:
What did you actually say to your mother … I just said to her that Gerry touched me and she goes where and it was kind of hard to explain but I told her and she just told me don’t tell your father or your brothers ‘cause they will kill him and she talked to Gerry on the phone and asked him about it.
The complainant’s mother gave evidence. Her evidence on the point was:
Was there an occasion where [the complainant] came and spoke to you about Gerry … um only once, she said she had a secret or Gerry and her had a secret but she never ever told me what it was, she just said it didn’t matter …How long ago was that … a couple of years ago. Did she speak to you on any other…

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: [2000] NZCA 47
Decision Date: 11 May 2000

CaseChat Overview and Summary

The Queen appealed against the conviction of Gerrard Joseph Kora on two counts of sexual violation by unlawful sexual connection. The complainant, who lived at times in the home of her sister and the appellant, alleged that the appellant repeatedly penetrated her anus with his finger or his penis. The appeal was on the ground that hearsay evidence was wrongly admitted or, if admissible, was left with the jury without directions on how it might be used.

The court considered the legal issues of whether the hearsay evidence was admissible and whether the judge should have directed the jury on the limited purpose for which recent complaint evidence may be used. The court concluded that the evidence was admissible in terms of the principle discussed in R v Duffy and Parkes v The Queen. The court also considered the recent complaint evidence and determined that the judge should have directed the jury on the limited purpose for which it may be used, but found no miscarriage of justice in the judge's decision not to do so.

The Court of Appeal dismissed the appeal and confirmed the conviction of the appellant. The Court found that the evidence was admissible in terms of the principle discussed in R v Duffy and Parkes v The Queen. The court also found that the judge should have directed the jury on the limited purpose for which recent complaint evidence may be used, but found no miscarriage of justice in the judge's decision not to do so. The Court confirmed the conviction of the appellant and dismissed the appeal.

Orders