Whitham v The King
[2025] NZSC 155
•11 November 2025
| 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 87/2025 [2025] NZSC 155 |
| BETWEEN | JOSHUA PETER WHITHAM |
| AND | THE KING |
| Court: | Glazebrook, Ellen France and Kós JJ |
Counsel: | A J D Bamford for Applicant |
Judgment: | 11 November 2025 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
____________________________________________________________________
REASONS
Introduction
Mr Whitham, the applicant, was convicted after trial on, relevantly, four charges of breach of a protection order; assault of a person with whom he had been in a family relationship; strangulation; kidnapping; and indecent assault.[1] All of these charges related to his former partner.[2] He appealed unsuccessfully against conviction to the Court of Appeal arguing that these verdicts were unreasonable because the complainant’s evidence was so unreliable that the jury could not have been sure of his guilt.[3] He seeks leave to appeal to this Court on the same basis.
Background
[1]He was also convicted on a charge of unlicensed driving but there was no challenge to that in the Court of Appeal.
[2]The applicant was acquitted on a second charge of strangulation and on another charge of breaching a protection order. A charge of breach of release conditions was dismissed.
[3]Whitham v R [2025] NZCA 313 (Thomas, Fitzgerald and Eaton JJ) [CA judgment].
The background to the proposed appeal is summarised in the Court of Appeal judgment.[4] The relevant events began on 19 April 2023, when, late in the morning, the complainant activated the family violence panic button after what she said was violent behaviour by the applicant. The device immediately began recording. The recording included conversations between the complainant and others consistent with her subsequent statements to police. At one point, it appeared she was speaking to the applicant, who she referred to by name, asking him not to touch her and to “get away” from her. On the recording she described to an unknown individual the applicant choking her and raping her whilst he was “f[…]g cooked”.
[4]At [4]–[57].
That same day, a police officer took a statement from the complainant. The statement referred to the applicant pushing her on the bed, ripping off her clothing and strangling her. On 18 May 2023, the complainant gave an evidential video interview (EVI) which gave some more detail about the offending. She referred, for example, to being strangled. She also said that things were something of a blur “coming from [the applicant] strangling and suffocating me”.[5]
[5]At [16].
As the Judge in sentencing noted, the complainant was a reluctant witness.[6] She gave her evidence at trial virtually by VMR from a police station after being arrested for not answering her summons. Her EVI was played at trial, as was the panic alarm recording. Her general approach in her evidence at trial was to say that she did not recall things, and she too was “off [her] face” at the time.[7]
[6]R v Whitham [2024] NZDC 20411 at [7] (Judge Barkle).
[7]See CA judgment, above n 3, at [27].
The police officer who attended the complainant’s address on 19 April gave evidence at trial noting the complainant had been “visibly upset”. The complainant told her that the applicant had attempted to rape her. The officer who took the notebook statement from the complainant that same day also gave evidence. She too said the complainant had been visibly upset.
The jury also heard evidence that tracking data showed the applicant’s ankle bracelet had been removed for a period coinciding with the period over which the complainant said he was at her home. There was also propensity evidence of earlier convictions for similar offending, most involving the complainant.
The defence at trial was that the applicant was not at the house but, even if he was, the offending did not occur and the jury could not be sure it did based on the complainant’s account.
The trial Judge in summing up emphasised the centrality of the complainant’s reliability and credibility, noting as follows:[8]
[21] When [the complainant] gave evidence she said that in April 2023 she was addicted to [using] methamphetamine and was also taking zopiclone, which are sleeping tablets. In addition, [the complainant] accepted she had mental health issues and suffered from depression. It is common knowledge that the consumption [of] drugs can have a negative effect on memory in terms of the ability to form memories and the ability to recall memories. Now, members of the jury, just like any part of the evidence, it is a matter for you to determine what impact the consumption of drugs together with [the complainant’s] acknowledged life situation in April 2023 had on the credibility and reliability of her evidence. It is for you to decide if [the complainant] was telling the truth or if, taking account of her drug and pill consumption together with other matters, she was honest but mistaken. That is, she did not form memories or could not remember parts of the incident on 19 April 2023, or her memories are not accurate because of the impact of the drugs and pills she was taking.
[8]The Judge rejected the suggestion from defence counsel there should be a specific direction to the effect that, just because a witness had said something on a number of occasions, that did not make it necessarily reliable or correct. The Judge was “comfortable that these issues [had] been adequately covered for the jury”: see CA judgment, above n 3, at [57].
As the Court of Appeal also noted:
[55] The Judge summarised the Crown and defence cases, noting in particular [defence] counsel’s submission that [the complainant] was hysterical, with mental health issues, having consumed substances that day and asking whether she was hallucinating or delusional. There were no injuries and no photographs were taken of [the complainant]. In contrast, there were affectionate messages and emails from [the complainant] to Mr Whitham.
The proposed appeal
In support of the submission the verdicts were unreasonable, the applicant says that, contrary to the finding of the Court of Appeal, the complainant did resile from her central allegations at trial. It is also said that although she was “clean” by the time of trial, it is unlikely she could address the reliability of her statements at trial (about a year later). Finally, it is submitted the circumstantial evidence was insufficient.
There is no challenge to the principles applied by the Court of Appeal to the review of jury verdicts, namely, those set out by this Court in R v Owen.[9] No question of general or public importance accordingly arises.[10] Rather, the proposed appeal would turn on the application of the settled principles to the particular facts. As to that, in addressing these issues, the Court of Appeal made the following points:
(a)The statement of 19 April would not ordinarily be admissible (a prior consistent statement) but defence counsel had put it in evidence and cross‑examined the complainant on it. The jury was entitled to view it as the truth particularly where it was corroborated by the recording of the alarm call.
(b)The two police officers immediately on the scene could attest to the complainant’s state and her willingness to provide a statement. While upset, there was nothing to suggest she was affected by drugs and unable to “distinguish between fantasy and reality”.[11] It was not put to either police officer that the complainant was not in a fit state to make a statement.
(c)By the time of her EVI, the complainant’s recollection was not as clear, but she restated “her core allegations”.[12] Her reliability and credibility were properly dealt with in closings and in the summing up.[13]
(d)The circumstantial evidence was supportive of the Crown case. The Court rejected the argument reprised in the leave application by the applicant’s counsel that the circumstantial evidence did not add anything. The Court of Appeal noted that it put him at the complainant’s home and provided support for the fact that something upset her whilst he was there.
[9]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].
[10]Senior Courts Act 2016, s 74(2)(a).
[11]CA judgment, above n 3, at [63].
[12]At [64].
[13]Trial counsel did not ask the Judge to give a reliability warning under s 122 of the Evidence Act 2006.
Nothing raised by the applicant calls into question the Court of Appeal’s assessment, in reliance on these points, that the verdicts were not unreasonable. As the Court of Appeal said:[14]
That [the complainant] would have preferred not to have been a witness at trial would have been obvious to [the jury]. They would likely have regarded the fact she may have had conflicting emotions about Mr Whitham, as reflected in her emails when he was in custody, as not particularly unusual. As the Supreme Court observed in R v Owen, assessment of the honesty and reliability of witnesses is an example of the advantages that jury has over the appellate court. Appellate courts will not lightly interfere in this area of fact‑finding and in the present case we see no reason to do so.
Result
[14]CA judgment, above n 3, at [65] (footnotes omitted).
The application for leave to appeal is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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