Whitham v The King - [2025] NZSC 155

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 Applicant
AND	THE KING Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	A J D Bamford for Applicant M H Cooke for Respondent
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…

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 Whitham v The King

Details

AGLC: Whitham v The King [2025] NZSC 155
Case: [2025] NZSC 155
Decision Date: 11 November 2025

CaseChat Overview and Summary

The applicant, Mr. Joshua Peter Whitham, appeals against his conviction for various charges including breach of a protection order, assault, strangulation, kidnapping, and indecent assault related to his former partner. The case was heard by Glazebrook, Ellen France, and Kós JJ in the Supreme Court of New Zealand. Mr. Whitham’s appeal against his conviction was previously dismissed by the Court of Appeal, and he now seeks leave to appeal to the Supreme Court on the basis that the complainant's evidence was unreliable, rendering the verdict unreasonable.

The legal issues before the Supreme Court were whether the Court of Appeal's determination that the verdicts were not unreasonable was correct, and if the principles applied in R v Owen were properly applied to the facts. The applicant argued that the complainant had resilded from her central allegations at trial and that her evidence was unreliable given her drug use and mental health issues. The Court of Appeal had considered these factors and found that the jury was entitled to assess the complainant's credibility and reliability. The Court of Appeal highlighted that the complainant's statement, the police officers' observations, and the circumstantial evidence all supported the Crown's case.

The Supreme Court found that the Court of Appeal had correctly applied the principles set out in R v Owen and that the application of these principles to the facts did not lead to an unreasonable verdict. The Court emphasised the importance of allowing the jury to assess the credibility and reliability of witnesses, a domain where juries have an advantage over appellate courts. Given the Court of Appeal's detailed examination of the complainant's evidence and the surrounding circumstances, the Supreme Court saw no reason to interfere with the Court of Appeal's decision. Consequently, the application for leave to appeal was dismissed.

No further orders were made by the Supreme Court beyond dismissing the application for leave to appeal.

Orders