Geoffrey Paul Affleck v The Queen

IN THE SUPREME COURT OF NEW ZEALAND
SC 78/2006
[2006] NZSC 103
GEOFFREY PAUL AFFLECK
v
THE QUEEN
Court:Blanchard, Tipping and McGrath JJ
Counsel:P F Gorringe for Appellant

M F Laracy for Crown

Judgment:4 December 2006

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
REASONS
[1]       Mr Affleck seeks leave to appeal against the Court of Appeal’s dismissal of his appeal against convictions for sexual violations of a girl who was visiting his home as the friend of his daughter. The offending took place in the lounge and bedroom of the home during the course of one evening. Cannabis and alcohol had been consumed. Both the complainant and Mr Affleck’s daughter testified that Mrs Affleck was asleep in the lounge at the time of the offending. Mr Affleck was of course present in Court when this evidence was given. Mrs Affleck was also in Court when the evidence of Mr Affleck’s daughter was given. Neither sought to have trial counsel contradict the evidence that Mrs Affleck was asleep.
[2]       The appeal to the Court of Appeal was, however, conducted on the basis that Mrs Affleck should have been called to give evidence that she was in fact awake at the relevant time, was in a position to see if any sexual offending had occurred and in fact saw nothing of that kind. Trial counsel gave evidence in the Court of Appeal that, if he had been instructed to that effect, which he was not, he would not have run the defence as he did.
[3]       The Court of Appeal heard evidence from Mr and Mrs Affleck and from trial counsel. It did not accept Mrs Affleck’s evidence of being awake and of having told trial counsel of that fact. It concluded that her evidence was implausible.
[4]       We agree. The Court of Appeal was fully entitled to accept the evidence of trial counsel and to conclude that Mrs Affleck’s proposed evidence was not credible. Nor of course was it fresh.
[5]       No question of general or public importance arises and we are not persuaded that there has been any miscarriage of justice.
Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with an application for leave to appeal from Geoffrey Paul Affleck against the Court of Appeal’s dismissal of his appeal. The appeal related to Affleck's convictions for sexual violations of a young girl who was visiting his home. The incidents occurred during an evening when cannabis and alcohol were consumed, and both the complainant and Affleck's daughter testified that Mrs Affleck was asleep in the lounge. However, the Court of Appeal heard evidence suggesting that Mrs Affleck was awake and in a position to witness the alleged offences but saw nothing. The appeal court found her evidence implausible and dismissed the appeal.

The central legal issues before the court were whether the Court of Appeal was correct in rejecting Mrs Affleck’s evidence and whether there was a miscarriage of justice. The court needed to determine if the Court of Appeal's decision to dismiss the appeal was sound and if the trial counsel’s defence was appropriately executed given the information available at the time. Additionally, the court examined if the appeal raised any matters of general or public importance or if there was any miscarriage of justice in the proceedings.

The Supreme Court concluded that the Court of Appeal was entitled to accept the evidence of the trial counsel and to find Mrs Affleck’s proposed evidence implausible. The court held that the appeal did not raise any question of general or public importance and found no evidence of a miscarriage of justice. Consequently, the application for leave to appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established