| 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…
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- AGLC
- Whitham v The King [2025] NZSC 155
- Case
- [2025] NZSC 155
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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