W(SC 71/2017) v The Queen - [2017] NZSC 154

NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 71/2017
[2017] NZSC 154

BETWEEN	W (SC 71/2017) Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Glazebrook and OʼRegan JJ
Counsel:	T Epati for Applicant K S Grau for Respondent
Judgment:	6 October 2017

JUDGMENT OF THE COURT

A An extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted after a jury trial on one count of sexual violation by unlawful sexual connection. The offence involved forcing the complainant to perform oral sex on him. He was sentenced to a term of imprisonment of six years.[1] He appealed against conviction and sentence to the Court of Appeal, but the appeal was dismissed.[2] He seeks leave to appeal to this Court against both conviction and sentence. His application was filed out of time but the delay was adequately explained and we grant an extension of time.
[1]R v [W] [2016] NZDC 12295 (Judge Ingram).
[2]W (CA378/2016) v R [2017] NZCA 235 (French, Mallon and Wylie JJ) [W v R (CA)].
The applicant and the complainant were in a relationship which was described by the Court of Appeal as “a volatile on‑off relationship”.[3] The complainant had obtained a final protection order against him some months before the present offending occurred. The sexual violation occurred in the context of a week-long period of the complainant being subjected to episodes involving violence on the part of the applicant. By the time the trial for the sexual violation count commenced, the applicant had pleaded guilty to a number of counts involving offences of violence against the complainant that had occurred during that week‑long period. He was sentenced to a term of imprisonment of two years and four months for those offences.[4]
[3]At [4].
[4]R v [W] [2016] NZDC 283 (Judge Bidois). The sentence for the sexual violation was cumulative on this sentence.
The complainant had been taken to hospital by her sister after one of the applicant’s assaults on her. After she was discharged from hospital the applicant took her home. He told her he wanted her to perform oral sex on him. She refused, because her mouth was sore as a result of an earlier assault. The Crown case was that he then forced her to perform oral sex on him. The complainant made the allegation of forced oral sex in a signed written statement and also in an evidential video interview. She also told both her sister and a doctor about it. The defence case was that oral sex had taken place but the complainant had not only consented to it, she had initiated it. The…

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 W(SC 71/2017) v The Queen

Details

AGLC: W(SC 71/2017) v The Queen [2017] NZSC 154
Case: [2017] NZSC 154
Decision Date: 6 October 2017

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal from W, who was convicted of sexual violation by unlawful sexual connection and sentenced to six years' imprisonment. The Court granted an extension of time for W to apply for leave to appeal but dismissed the application. W argued that the trial judge's direction on reasonable belief in consent caused a miscarriage of justice and that the sentence did not sufficiently account for his youth. The Court found no merit in W's arguments, holding that the direction on reasonable belief in consent was correct and that there was no miscarriage of justice. The Court also found that the sentence did not give rise to any point of principle or indicate a miscarriage of justice.

The legal issues before the Court were whether the trial judge's direction on reasonable belief in consent caused a miscarriage of justice and whether the sentence did not sufficiently account for W's youth. The Court held that the direction on reasonable belief in consent was correct and that there was no miscarriage of justice. The Court also found that the sentence did not give rise to any point of principle or indicate a miscarriage of justice. The Court noted that the issue of when a direction on reasonable belief in consent must be given had already been addressed by the Court in a recent case and that there was nothing in W's case that required the Court to revisit that decision. The Court also held that the sentence did not give rise to any point of principle and that there was no miscarriage of justice.

The Court's reasoning was based on its review of the trial judge's direction on reasonable belief in consent and the sentence imposed on W. The Court found that the direction on reasonable belief in consent was correct and that there was no miscarriage of justice. The Court also held that the sentence did not give rise to any point of principle or indicate a miscarriage of justice. The Court noted that the issue of when a direction on reasonable belief in consent must be given had already been addressed by the Court in a recent case and that there was nothing in W's case that required the Court to revisit that decision. The Court also held that the sentence did not give rise to any point of principle and that there was no miscarriage of justice.

The final orders of the Court were to grant an extension of time for W to apply for leave to appeal but to dismiss the application for leave to appeal against conviction and sentence. The Court noted that the issue of when a direction on reasonable belief in consent must be given had already been addressed by the Court in a recent case and that there was nothing in W's case that required the Court to revisit that decision. The Court also held that the sentence did not give rise to any point of principle and that there was no miscarriage of justice. The Court's decision was based on its review of the trial judge's direction on reasonable belief in consent and the sentence imposed on W.

Orders