W (SC 120/2022) v The King - [2023] NZSC 50

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 120/2022
[2023] NZSC 50

BETWEEN	W (SC 120/2022) Applicant
AND	THE KING Respondent

Court:	O’Regan, Williams and Kós JJ
Counsel:	A J Bailey for Applicant W P So for Respondent
Judgment:	12 May 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant seeks leave to appeal against a Court of Appeal decision dismissing his conviction appeal in relation to violent and sexual offending against a single complainant.[1] The applicant was sentenced to 11 years imprisonment.[2]

Background

[1][W] v R [2022] NZCA 474 (Gilbert, Brewer and Moore JJ) [CA judgment].

[2]R v [W] [2021] NZDC 21772 (Judge M A Crosbie).

The complainant brought these matters to the notice of the Police in 2018. The first charge — causing grievous bodily harm with reckless disregard — arose out of an incident in 2003 when the complainant was six. The applicant fractured the complainant’s femur while pulling her out of bed. The other five charges on which the applicant was convicted comprised rape (x2), unlawful sexual connection (x2) and the doing of a single indecent act on a young person under 16. These arose from events between June 2010 and June 2015, beginning when the complainant was around 13 or 14 years old.
The jury found the applicant not guilty of three other charges: rape, unlawful sexual connection, and indecent assault.[3] The sexual violations were alleged to have occurred between April 2012 and May 2014 when the complainant was around 15 or 16 years old. The indecent assault was alleged to have occurred in April 2018.

Relationship evidence

[3]Two other charges were dismissed.

The focus of the proposed appeal to this Court is the relatively extensive evidence given at trial about the nature of the relationship between the complainant and the applicant. That evidence suggested that the complainant was ill‑treated by the applicant during her childhood. The first source of this relationship evidence was the complainant’s EVI, made four days after the last of the alleged incidents (the second indecent assault, on which the applicant was found not guilty). The second source of relationship evidence was the complainant’s older stepsister. The ill‑treatment allegations were generally as follows:[4]
[4]As summarised by the applicant’s counsel in the CA judgment, above n 1, at [10].
(a)       Verbal threats.
(b) Attempting to force the complainant to get her to eat her own vomit (when she was five years of age).
(c) Putting a block of soap in the complainant’s mouth and trying to make her eat it.
(d)       Locking the complainant in a cupboard with spiders.
(e)       Hitting her with an alkathene pipe.
(f)       Preventing her from having contact with her mother.
(g)       Ripping the complainant’s hair out (regularly).
(h)       Threatening to hit the complainant.
(i)        Having a bad temper.

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: [2023] NZSC 50
Decision Date: 12 May 2023

CaseChat Overview and Summary

The applicant, W, seeks leave to appeal against a Court of Appeal decision dismissing his conviction appeal in relation to violent and sexual offences against a single complainant. The applicant was sentenced to 11 years imprisonment. The appeal focuses on the extensive relationship evidence given at trial, which suggested that the complainant was ill-treated by the applicant during her childhood. The Court of Appeal considered the evidence was admissible as it illustrated the bad relationship between the applicant and the complainant. The applicant argues that the trial Judge failed to give tailored directions regarding the purpose of the relationship evidence and the use to which it could properly be put. He also argues that the Court of Appeal wrongly relied on the lack of objection from experienced trial counsel and the experience of the trial Judge when assessing whether failure to provide such directions caused a miscarriage of justice.

The court considered the principles regarding the admissibility and treatment of relationship evidence, which were endorsed by the Supreme Court in Mahomed v R and Taniwha v R. The court found that while it would have been preferable if the trial Judge had referred to the relationship evidence specifically when giving a prejudice and sympathy direction, the failure to do so did not raise an issue of principle nor did it give rise to any risk of miscarriage of justice. The court also found that the stance taken by trial counsel may bring an air of trial reality to the picture and affirm the appeal court's analysis, but the analysis must stand on its own feet. The court concluded that the lack of tailored directions did not cause the jury to view the applicant in a prejudicial light for all purposes and that the appeal court was entitled to bear in mind the lack of objection from experienced trial counsel when assessing whether the omission of a direction caused a miscarriage of justice.

The application for leave to appeal is dismissed. The court did not find any risk of miscarriage of justice or any matter of public importance arising from the Court of Appeal's decision.

Orders