V (CA428/2012) v R - [2013] NZCA 211

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA428/2012
[2013] NZCA 211

BETWEEN	V (CA428/2012) Appellant
AND	THE QUEEN Respondent

Hearing:	1 May 2013
Court:	Arnold, Chisholm and Keane JJ
Counsel:	F P Hogan for Appellant B D Tantrum for Respondent
Judgment:	6 June 2013 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)

Introduction

The appellant, V, was charged with three counts of sexual violation by rape and two counts of unlawful sexual connection, occurring over a four year time period. The alleged victim was a relative, who was aged from 9 to 13 over the period.
The proceedings had a fraught history:
(a)V stood trial first between 29 March and 10 April 2010. The jury retired to consider its verdict on 9 April 2010. On 10 April, when the jury were to continue their deliberations, one of the jurors refused to continue deliberating with the other members of the jury, as a result of which Judge Singh aborted the trial.
(b)V stood trial a second time between 8 and 19 November 2010. On that occasion, the jury was unable to reach a verdict on any count.
(c)A third trial was scheduled to commence on 11 April 2011 but was adjourned as both prosecuting and defence counsel were unavailable. V then sought a stay of proceedings on the ground of undue delay. Judge Moses declined that application.[1]
(d)The third trial was ultimately held before Judge Andrée-Wiltens between 13 and 22 June 2011. The jury acquitted V on all counts.
[1][V] v R DC Manukau CRI-2008-092-18048, 8 June 2011.
V then applied for costs against the Crown under s 5 of the Costs in Criminal Cases Act 1967 (the Act), on the basis that the investigation and prosecution of the case was not conducted reasonably. Judge Andrée-Wiltens declined his application.[2] V now appeals against that decision.

Factual background

[2][V] v R DC Manukau CRI-2008-092-18048, 9 July 2012.

For V, Mr Hogan accepted that Judge Andrée-Wiltens’ outline of the factual background was accurate.[3] The brief summary which follows is based substantially on the Judge’s account.
[3]At [4].
The complainant immigrated to New Zealand with her mother and siblings in 2001. She and her family stayed with V until her father arrived in New Zealand in mid-2002, when they found their own accommodation.
The Crown alleged that shortly after the beginning of the school year in 2002, while the complainant and her family were still staying with V, V raped the complainant. After her family moved into their own accommodation, the complainant and her siblings often stayed at V’s house during the weekends. The Crown alleged that V sexually violated the complainant during those visits on several occasions.
The allegations against V emerged when the complainant told her parents about them in November 2008, over a year after the last…

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 V (CA428/2012) v R

Details

AGLC: V (CA428/2012) v R [2013] NZCA 211
Case: [2013] NZCA 211
Decision Date: 6 June 2013 at 3.30 pm

CaseChat Overview and Summary

In the case of V v R, V, the appellant, sought costs against the Crown under s 5 of the Costs in Criminal Cases Act 1967, claiming that the investigation and prosecution of the case was not conducted reasonably. V was acquitted on all counts after three trials and Judge Andrée-Wiltens declined the application. V now appeals against that decision. The court was required to decide whether the appeal against the decision to deny costs was valid.

The court examined the arguments presented by Mr. Hogan on behalf of V, which were essentially the same as the ones presented before Judge Andrée-Wiltens. The arguments focused on factors (c) and (e) of s 5 of the Act. The court noted that the decision to award or not award costs under the Act involves the exercise of a broad discretion and that an error of principle by the judge must be established if the exercise of the discretion is to be challenged successfully on appeal. The court agreed with Judge Andrée-Wiltens' assessment that the focus of the analysis should be on the decision of the police to proceed with the prosecution rather than on their decision to arrest V. The criticisms of police conduct were more relevant to their subsequent investigation of the alleged offending. The court found that Judge Andrée-Wiltens understood the points being advanced by Mr. Hogan and had a proper basis on the evidence for considering that the prosecution was properly initiated and continued. The court saw no basis for interfering with the exercise of the trial judge's discretion.

The appeal is dismissed.

Orders