The Queen v Turner - [2007] NZCA 427

IN THE COURT OF APPEAL OF NEW ZEALAND
CA181/07
[2007] NZCA 427
THE QUEEN
v
CAREY DEAN TURNER
Hearing:28 August 2007

Court:Glazebrook, Baragwanath and Heath JJ
Counsel:C J Tennet for Appellant

D La Hood for Respondent

Judgment:1 October 2007 at 3pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
[1] Mr Turner was tried before Judge Adeane and a jury in the District Court at Napier on one count of sexual violation by rape and two counts of sexual violation by unlawful sexual connection. He was found guilty on all counts. He appeals against the convictions.
[2] Six grounds of appeal were advanced. They were:
(a)Comments made by Mr Turner during the course of a videotaped interview with the Police ought to have been excised from both the videotape played to the jury and the transcript produced as an exhibit. Mr Turner acknowledged that he had previously been convicted of other offences.
(b)Evidence given by the complainant was incorrectly admitted as recent complaint evidence. Further, no recent complaint direction was given by the Judge.
(c)The Judge failed to give an appropriate direction on the standard of proof to which the Crown was required to prove its case. In short, this complaint is that the Judge did not direct in accordance with the formula set out in the majority judgment in R v Wanhalla [2007] 2 NZLR 573 at 49 (CA).
(d)The Judge erred in directions given on the status of the accused’s videotaped interview with the Police. It is contended that the way in which the Judge directed the jury on that issue undermined the tripartite direction on the way in which the jury ought to consider evidence given by the accused at trial.
(e)The Judge erred in raising the issue of corroboration with the jury, notwithstanding the fact that it was raised in order to make clear that corroboration of the complainant’s evidence was not required in order for the jury to convict.
(f)The directions given by the Judge on the issue of consent were inadequate.

[3]        The first ground of appeal was abandoned at the hearing of the appeal. Mr Tennet, for Mr Turner, recognised, rightly in our view, that in the absence of any counsel error complaint the issue raised went to a tactical decision which was open to trial counsel.
[4]        Mr Tennet, for Mr Turner, submits that, individually or collectively, the remaining five alleged errors rendered the verdicts unsafe.
The facts
[5]        Mr Turner elected to give evidence at trial. In order to return guilty verdicts, the jury must have rejected his evidence. On that basis, the jury must have been satisfied of the following facts.
[6]        In August 2006, Mr Turner and the complainant were casual labourers. They had known each other for about four years. Both travelled around the country, obtaining seasonal work when available. At the time of the incidents, Mr Turner was 38 years old, while the complainant was aged 24…

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 Turner

Details

AGLC: The Queen v Turner [2007] NZCA 427
Case: [2007] NZCA 427
Decision Date: 1 October 2007

CaseChat Overview and Summary

The appeal in The Queen v Turner was brought by the appellant, Carey Dean Turner, against his convictions on one count of sexual violation by rape and two counts of sexual violation by unlawful sexual connection. Turner was found guilty by Judge Adeane and a jury in the District Court at Napier. Turner's counsel submitted six grounds of appeal, including issues surrounding the admission of evidence, the judge's directions on the standard of proof, the status of Turner's videotaped interview, the issue of corroboration, and the adequacy of the judge's directions on consent. However, the first ground of appeal was abandoned during the hearing.

The Court of Appeal found that four of the five remaining grounds of appeal had no merit. Regarding the admission of evidence, the Court concluded that the complainant's evidence about what was said to her friend in Wellington was not recent complaint evidence and was properly admitted. The Court also found that the judge's directions on the standard of proof, the status of Turner's videotaped interview, and the issue of corroboration were all appropriate. Finally, the Court determined that the judge's directions on consent were adequate and in line with established legal principles.

Ultimately, the Court of Appeal dismissed Turner's appeal, upholding the convictions against him for the charges of sexual violation by rape and unlawful sexual connection.

Orders