Tidey v The Queen - [2010] NZCA 151

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND
CA604/2009
[2010] NZCA 151
BETWEENPHILIP ALAN TIDEY

Appellant

ANDTHE QUEEN

Respondent

Hearing:12 April 2010

Court:Hammond, Chisholm and Priestley JJ
Counsel:A G V Rogers and J L Cagney for Appellant

J M Jelas for Respondent

Judgment:27 April 2010 at 4.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]        The victim in this case, X, was Mr Tidey’s long term partner. The Crown alleged that he had committed a number of offences against X over a period of some fourteen years.
[2]        The indictment contained ten counts against Mr Tidey. He pleaded guilty to one count of male assaults female. He went to trial in relation to another nine counts including two counts of male assaults female plus one other representative count of the same character, one count of injuring with intent to injure, four counts of sexual violation by unlawful sexual connection, and one of rape.
[3]        Mr Tidey was convicted of one charge of injuring with intent to injure (count four), a representative charge of male assaults female (count five) and one charge of unlawful sexual connection (count nine). The appellant was acquitted on the other six charges that went to trial.
[4]        The trial judge, Judge Field, imposed a sentence of three years’ imprisonment on the count of sexual violation and a cumulative sentence of nine months’ imprisonment on the count of injuring with intent to injure. In all, a total sentence of three years nine months’ imprisonment.
The sexual violation count
[5]        The appeal against conviction is solely with respect to count nine, which alleged unlawful sexual connection by connection of Mr Tidey’s mouth with X’s genitalia on 4 June 2007.
[6]        X’s account was that she was in bed reading a book, dressed in a nightie with her knickers on when Mr Tidey came into the room. He took his clothes off and jumped into bed next to her. He wanted sex. She said ‘no’. He would not take ‘no’ for an answer and he pulled her knickers off her. He began to perform oral sex on her against her wishes. While doing so he bit her clitoris, which caused her to scream out in pain. In evidence X said “I thought he may have bitten it off”, implying the bite was deliberate, and consistent with behaviour in a scenario in which she was not consenting. She said he was told to “get away” from her “and he wouldn’t and he then forced himself onto me and raped me”.
[7]        In evidence Mr Tidey said that he had just started having oral sex with X; that she said “I am reading” and that she then “just flew up” and “just about took my head off” and jumped out of bed and started “acting like she had…

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 Tidey v The Queen

Details

AGLC: Tidey v The Queen [2010] NZCA 151
Case: [2010] NZCA 151
Decision Date: 27 April 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Philip Alan Tidey, appealed both his conviction and sentence. The case involved serious allegations of sexual and physical offences against his long-term partner, X, spanning over fourteen years. The appellant pleaded guilty to one count of male assaults female but went to trial on nine other counts, including sexual violation and rape. The jury found him guilty of one charge of injuring with intent to injure, a representative charge of male assaults female, and one charge of unlawful sexual connection. The appellant was acquitted on the remaining six charges.

The legal issues that the court needed to decide included whether the medical evidence provided by Dr Anne Williamson, a general practitioner and forensic medical examiner, was admissible under the Evidence Act 2006. The appellant argued that the evidence was irrelevant and did not meet the "substantial helpfulness" threshold required for expert opinion evidence. The court found that the evidence was relevant as it demonstrated that the complainant had suffered some form of trauma in the genital area, consistent with the Crown's case. The court also held that the evidence met the substantial helpfulness test and was therefore properly admitted.

The court further examined the appellant's argument that the medical evidence was misdescribed to the jury, resulting in a miscarriage of justice. The court found that while there were some inaccuracies in the description of the injury, they were minor and did not significantly impact the trial's outcome. Additionally, the court considered the appellant's argument that the sentence imposed was too severe, but found that the sentence fell within the appropriate range for the crimes committed.

In conclusion, the Court of Appeal dismissed the appellant's appeal against both his conviction and sentence. The court held that the medical evidence was properly admitted and did not result in a miscarriage of justice, and that the sentence imposed was within the appropriate range for the crimes committed.

Orders