Wallace v The King - [2024] NZSC 8

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE cellpadding="0" cellspacing="0">

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA
SC 106/2023
[2024] NZSC 8

BETWEEN
AARON LEE WALLACE
Applicant

AND

THE KING
Respondent

Court:
Glazebrook, O’Regan and Ellen France JJ

Counsel:

W C Pyke for Applicant
B C L Charmley for Respondent

Judgment:

9 February 2024

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

In February 2022, following a retrial before Judge Greig and a jury, Mr Wallace was convicted of charges of sexual violation, kidnapping and male assaults female, all relating to the same complainant.[1]
[1]Crimes Act 1961, ss 128(1)(b), 209 and 194(b) respectively.
His appeal against conviction was dismissed by the Court of Appeal.[2] Mr Wallace seeks leave to appeal against that decision.

Grounds of proposed appeal

[2]Wallace v R [2023] NZCA 422 (French, Ellis and Churchman JJ) [CA judgment].

Mr Wallace’s application for leave to appeal relates to two rulings made by the trial Judge. The first directed that unvaccinated members of the jury pool would not be allowed in the courtroom. One juror was turned away.[3] The second was that the unvaccinated complainant wear a mask and give evidence behind a Perspex screen.
[3]At [110] per Ellis J.
In essence, he wishes to argue with regard to the first ruling that the trial Judge had no power to make the ruling and that the illegality of the process was fundamental. It deprived the trial Court of its jurisdiction to try the applicant, rendering the trial a nullity or unfair. On the second ruling he wishes to argue that this gave rise to a miscarriage of justice.
The rulings were given in the context of the COVID-19 Protection Framework (known as the traffic light system) that had been put in place on 2 December 2021.[4] On 23 January 2022 New Zealand’s first community cases of the Omicron variant of COVID-19 were confirmed and the country moved to the Red setting at 11.59 pm that day.[5] Mr Wallace’s retrial ran from 8‍–‍15 February 2022.
[4]At [18] per Ellis J.
[5]At [20] per Ellis J.
On 8 February there were 202 new community cases of Omicron, although the numbers increased exponentially over the next three weeks.[6] Relevant too is that, in March 2020, an Epidemic Notice under s 5 of the Epidemic Preparedness Act 2006 (EPA) had been issued and this remained in force. While an epidemic notice is in force, ss 24 and 24A of the EPA permit judges and Heads of Bench to modify the rules of court.[7]
[6]At [30] per Ellis J.
[7]At [87]–[88] per Ellis J.
We also note that, subsequent to Mr Wallace’s retrial, the COVID-19 Response (Courts Safety) Legislation Act 2022 (Courts Safety Act) was passed. The purpose was to “remove current legal barriers facing the judiciary … when addressing health and safety risks in 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 Wallace v The King

Details

AGLC: Wallace v The King [2024] NZSC 8
Case: [2024] NZSC 8
Decision Date: 9 February 2024

CaseChat Overview and Summary

In February 2022, Aaron Lee Wallace was convicted of sexual violation, kidnapping, and male assaults female by a jury following a retrial. His appeal against conviction was dismissed by the Court of Appeal, and he now seeks leave to appeal to the Supreme Court of New Zealand. Wallace's application focuses on two rulings by the trial judge: one that unvaccinated jurors would not be allowed in the courtroom, resulting in one juror being turned away, and another that the unvaccinated complainant would wear a mask and give evidence behind a Perspex screen. Wallace argues that these rulings were unlawful, deprived the trial court of jurisdiction, and caused a miscarriage of justice.

The Supreme Court considered the legality and impact of these rulings in the context of the COVID-19 Protection Framework and the Epidemic Preparedness Act 2006. The Court of Appeal had previously ruled that the complainant's mask did not cause a miscarriage of justice, as demeanour could still be assessed, and that the trial was not unfair or invalid even if the juror exclusion was unlawful. The Supreme Court agreed, holding that there was no risk of a miscarriage of justice and that the issues were no longer of public or general importance given the changes in COVID-19 measures.

The Supreme Court dismissed Wallace's application for leave to appeal, finding no grounds to justify a second appeal. The Court concluded that the rulings did not undermine the fairness of the trial or raise significant issues of public importance. Consequently, the appeal was rejected, and the original conviction stands.

Orders