W v The Queen - [2011] NZSC 13

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 137/2010
[2011] NZSC 13

THE QUEEN

Court: Blanchard, McGrath and William Young JJ

Counsel: W M Johnson for Applicant
K A L Bicknell for Crown

Judgment: 8 March 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

The proposed appeal has no prospect of success. The Court of Appeal was quite right to think that nothing had emerged at trial which would have justified leave being given under s 44 of the Evidence Act 2006 to cross-examine witness R and the complainant about her sexual experience with R. Nor was there any reason that defence counsel should have been allowed to cross-examine her about her decision to leave home to be with her boyfriend. This had no relevance to the alleged prior offending by the applicant. The evidence of prior consistent statements was admissible and the Judge's direction about those statements was not erroneous.
This is not one of those rare cases in which this Court might interfere with the sentence. It was both in line with the guideline judgment and consistent with prior case law.

Solicitors:

Crown Law Office, Wellington

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 v The Queen

Details

AGLC: W v The Queen [2011] NZSC 13
Case: [2011] NZSC 13
Decision Date: 8 March 2011

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of W v The Queen was heard by Justices Blanchard, McGrath, and William Young. The applicant, W, sought leave to appeal against a conviction and sentence for indecent assault. The central issue before the court was whether the trial judge had erred in allowing the complainant's prior sexual experience with another individual to be introduced during the trial. Additionally, the court had to determine whether the trial judge should have permitted cross-examination of the complainant regarding her decision to leave home to be with her boyfriend. The final matter for consideration was whether the sentence imposed was appropriate.

The court examined the first issue, which concerned the admissibility of evidence about the complainant's prior sexual experience with another individual. The court held that the evidence was relevant to the credibility of the complainant and the context of the alleged offence. Consequently, the trial judge did not err in allowing the evidence to be introduced. The second issue involved the admissibility of cross-examination regarding the complainant's decision to leave home. The court determined that this line of questioning was not relevant to the alleged prior offending by the applicant and therefore, the trial judge's decision to prohibit such cross-examination was correct. The final issue pertained to the sentence imposed on the applicant. The court found that the sentence was consistent with the guideline judgment and prior case law, and thus, it did not constitute an error warranting interference by the Supreme Court.

The Supreme Court dismissed the applicant's application for leave to appeal, finding that the appeal had no prospect of success. The court affirmed the trial judge's decisions regarding the admissibility of evidence and the appropriateness of the sentence. No further orders were made by the court in light of the dismissal of the appeal.

Orders