Worters v The Queen - [2014] NZCA 371

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA164/2013
[2014] NZCA 371

BETWEEN	LANCE NGAMOKO WORTERS Appellant
AND	THE QUEEN Respondent

Hearing:	30 July 2014
Court:	Harrison, Goddard and Andrews JJ
Counsel:	K H Maxwell for Appellant K A L Bicknell for Respondent
Judgment:	5 August 2014 at 3 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against conviction is dismissed.

C The application for leave to call further evidence is dismissed.

D The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

Lance Worters was found guilty and convicted on a charge of sexual violation by rape following his trial before Judge Wilson QC and a jury in the Tauranga District Court. He appeals against his conviction and also applies for leave to call further evidence.
Mr Worters has filed an appeal against the sentence imposed of six years and six months imprisonment.[1] However, Ms Maxwell did not pursue this appeal in written submissions or in argument. We are not satisfied the sentence is manifestly excessive and we dismiss the appeal against it.
[1]R v Worters DC Tauranga CRI-2011-070-6055, 23 January 2013.
In support of Mr Worters appeal against conviction Ms Maxwell advances the single ground that trial counsel erred by failing to call psychiatric evidence, leading to a miscarriage of justice.
Mr Worters’ appeal was filed three weeks out of time. Ms Bicknell does not oppose an application for an extension of time given that the delay is relatively short and the Crown is not prejudiced. Mr Worters’ application is accordingly granted.

Facts

We respectfully adopt Judge Wilson’s summary of the relevant facts from his sentencing notes as follows:
[2]       The background is that … there was a social gathering there on the night of the last Wednesday in September at which [“Y”, the victim] attended. …
[3]       You were drinking Steinlager and consuming cannabis. I must say immediately that I reject the proposition that any blame for your offending relates to responsibility by your nephew. There is no evidence that he spiked your drink and this is part of the ongoing problem, that you have not accepted responsibility for your actions. That is something that your counsel wisely said you are going to have to work on.
[4]       People had retired for the evening and … the victim, feeling the effects of alcohol, went to a bed on a mattress on the floor in one room and you went to bed with your partner in a room across the hall. At about six or 6.30 the following morning, you crept into [Y’s] room, removed your pants and underpants and got under the blanket which [Y and her partner] had over them. You then removed her pyjama pants and underwear, lay on top of her and commenced sexual intercourse with…

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 Worters v The Queen

Details

AGLC: Worters v The Queen [2014] NZCA 371
Case: [2014] NZCA 371
Decision Date: 5 August 2014 at 3 pm

CaseChat Overview and Summary

Lance Worters was found guilty of sexual violation by rape by the Tauranga District Court and appeals his conviction and sentence. He also applies for leave to call further evidence. The Court of Appeal of New Zealand granted the application for an extension of time to appeal but dismissed the appeal against conviction and sentence. The application for leave to call further evidence was also dismissed.

The appeal against conviction was based on the contention that trial counsel erred by failing to call psychiatric evidence, which led to a miscarriage of justice. The Court held that the trial counsel's decision not to call psychiatric evidence was not an error and that the absence of such evidence did not result in a miscarriage of justice. The Court found that the trial counsel had reasonably concluded that the medical evidence was unlikely to assist the defence and could have been counterproductive. The Court further held that the jury's adverse verdict reflected its rejection of the defence but did not undermine its availability on the evidence.

The Court also rejected the application for leave to call further evidence in the form of an affidavit from another psychiatrist. The Court held that the evidence was not fresh and could have been obtained for trial with reasonable diligence. The Court further held that the evidence was not credible as it was based on speculation and would not have altered the Court's conclusion that the absence of psychiatric evidence in support of Worters' defence at trial did not cause justice to miscarry.

The appeal against conviction and sentence is dismissed. The application for leave to call further evidence is also dismissed.

Orders