Legal Research
Cases
The Queen v Hart

The Queen v Hart

Case [2009] NZCA 276 29 June 2009

Admissibility of Evidence

No judgment structure available for this case.

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND
CA609/2008
CA97/2009
[2009] NZCA 276
THE QUEEN
v
PHILIP WAYNE HART
Hearing:21 April 2009

Court:O'Regan, Hugh Williams and MacKenzie JJ
Counsel:S J Shamy for Appellant

J M Jelas for Crown

Judgment:29 June 2009 at 10.30 am

JUDGMENT OF THE COURT

A         An extension of time to appeal is granted.
B         The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hugh Williams J)
Introduction
[1]        On 28 February 2008 a Christchurch District Court jury convicted the appellant, Mr Hart, on one count of indecently assaulting one M, a girl under 12, and one count of sexual violation of M by digital penetration. The offences occurred between 7 March 1999 – 21 November 2002. Both were representative.
[2]        In the same trial, the jury acquitted Mr Hart on other counts of indecently assaulting M and inducing her to do an indecent act on him during the same period and representative counts of doing an indecent act on M and sexually violating her between 6 June 2005 – 31 December 2005.
[3]        On 16 April 2008 Judge Crosbie, from starting points of respectively three and six years’ imprisonment for the indecent assault and sexual violation, sentenced Mr Hart to concurrent terms of those lengths.
[4]        Mr Hart now appeals to this Court out of time against his convictions on two grounds which will be discussed as this judgment proceeds – two other grounds being abandoned – and against his sentence on the ground it was manifestly excessive.
Facts
[5]        For present purposes, no more than a broad outline of the facts is pertinent.
[6]        The offending allegedly occurred when M was aged between seven and thirteen. Mr Hart had an “on again, off again” relationship with M’s mother, M and M’s younger brother for most of that period.
[7]        That earlier offending took place when Mr Hart asked M to sit on his knees to read to him, regularly rubbed her genitalia and digitally penetrated her.
[8]        The offending was said to have begun when M and her family were living at an address in one suburb of Christchurch in 1999-2000. After a break, M and her family moved to an address in another Christchurch suburb in 2002 where it was alleged offending re-commenced. There was then a break of about two years in Mr Hart’s cohabitation with the family, though the children continued to visit him and further offending was said to have occurred.
[9]        M’s evidence did not clearly distinguish between the addresses at which the offending was alleged to have occurred, but it is reasonably clear the later alleged offending – that which resulted in at least some of the acquittals – was said to have occurred when the family was living out of Christchurch.
Course of prosecution
[10]     The appellant was originally charged with nine counts. A preliminary hearing took place in relation to those on 16 January 2007. The witnesses included a Mr Loos…

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 Hart

Details

AGLC: The Queen v Hart [2009] NZCA 276
Case: [2009] NZCA 276
Decision Date: 29 June 2009

CaseChat Overview and Summary

The appellant, Mr Hart, appealed against his conviction and sentence for indecently assaulting and sexually violating a minor, M. The appellant argued that the trial judge erred in admitting prior consistent statement evidence and that the jury’s verdicts were inconsistent. He also argued that his sentence was manifestly excessive. The Court of Appeal found no merit in any of the grounds of appeal. The Court held that the trial judge was entitled to conclude that M’s veracity had been attacked and that evidence of her prior consistent statement was admissible to counter that attack. The Court found that the jury could properly have convicted the appellant on some charges and acquitted him on others based on the evidence presented. Finally, the Court held that the sentence imposed was not manifestly excessive. The appeal was dismissed but an extension of time to appeal was granted.

Orders