Wright v The King - [2024] NZSC 55

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 7/2024
[2024] NZSC 55

BETWEEN	NICKOLAS KELVIN WRIGHT Applicant
AND	THE KING Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	K H Cook and S A Saunderson‑Warner for Applicant M J Lillico and L C Hay for Respondent
Judgment:	8 May 2024

JUDGMENT OF THE COURT

AAn extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant, Mr Wright, was found guilty after trial by jury of sexual violation by unlawful sexual connection, and sexual violation by rape in relation to the complainant, C. Mr Wright appealed his convictions to the Court of Appeal, where his appeal against both convictions was dismissed. He seeks leave to appeal to this Court from his unsuccessful appeal to the Court of Appeal against conviction.[1]

Background

[1]Wright v R [2023] NZCA 651 (Miller, Collins and Katz JJ) [CA judgment].

The incidents giving rise to the charges took place in August 2019. At the time Mr Wright was 17 years and 10 months old. A group, of which C was a part, had been socialising that evening. Mr Wright had not previously met C. The group ended up at an address where C engaged in consensual sexual activity with one of the others present, who we call M. Those present at the address included another man, P, who had previously been in a relationship with C.
During the course of the evening, M asked C on several occasions, in the presence of Mr Wright, if she would engage in a threesome with himself and Mr Wright. The Court of Appeal noted that each time he asked, the complainant said “no” and/or “it’s not happening”.[2] Mr Wright came in and out of the room several times. During these visits M again asked if C would agree to a threesome. She repeatedly made clear she was not interested. On one occasion Mr Wright tried to force her to perform oral sex on him but she resisted and said that she was not going to have sex with him. He left the room but returned on several more occasions while M and C were having sex.
[2]At [10].
At one point, during the early hours of the morning, P entered the room and encouraged Mr Wright to have sex with C. M and P left Mr Wright in the room with C. She said she was not going to carry out the sexual activity he had asked her to perform. He pinned her down on the bed with her face in the pillow and then digitally penetrated her vagina before engaging in sexual intercourse. The Court of Appeal observed that there was evidence M and P stood outside the room and could be heard…

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 Wright v The King

Details

AGLC: Wright v The King [2024] NZSC 55
Case: [2024] NZSC 55
Decision Date: 8 May 2024

CaseChat Overview and Summary

The applicant, Mr Wright, was convicted by jury of sexual violation by unlawful sexual connection and sexual violation by rape in relation to the complainant, C. His appeal against both convictions was dismissed by the Court of Appeal. Mr Wright seeks leave to appeal to the Supreme Court from his unsuccessful appeal to the Court of Appeal against conviction. The court was required to decide whether Mr Wright's age at the time of the offending was relevant to his reasonable belief in consent, and whether the trial judge should have directed the jury about motive to lie when the prosecutor, in her closing address, responded to suggestions made by the defence during the cross-examination of the complainant that there were possible motives for the complainant to lie.

The court considered the first proposed ground of appeal, relating to reasonable belief in consent. The court noted that there had been suggestions in case law that the age of a defendant might affect the reasonableness of the defendant's mistaken belief in consent. However, the court did not consider the present case was an appropriate vehicle for considering the issue. The court declined to admit evidence from Dr Bartle, a psychologist who provided information about research on the brain development of young people, on the basis that it was not substantially helpful. The court also noted that Mr Wright's case was "in reality a case about actual consent". The court agreed with the respondent's submission that this was not the case in which to address the point, essentially for the reasons given by the Court of Appeal. The court also considered the second proposed ground of appeal, which did not raise any more general question. The court noted that the Court of Appeal had said that it was desirable for the trial judge to remind juries that the defence has no onus when addressing issues about motive to lie, but there was no "hard and fast rule", and the context was important. The court also made the point that the prosecutor's closing address, when read as a whole, was not unbalanced. She acknowledged the absence of any onus on Mr Wright in this respect. The trial judge directed the jury in an orthodox manner on burden of proof and said that "Mr Wright did not have to prove anything". The court concluded that this was not the case in which to do so.

An extension of time to apply for leave to appeal is granted. The application for leave to appeal is dismissed.

Orders