K v The Queen

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 133/2015
[2016] NZSC 26

BETWEEN	K (SC 133/2015) Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and OʼRegan JJ
Counsel:	J C Gwilliam for Applicant A Markham for Respondent
Judgment:	15 March 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was found guilty by a jury of sexual offending (rape and indecent assault) against three of his children and the daughter of a neighbour and of injuring one of them with intent to injure. The charges related to events which occurred between 1972 and 1983. One of the complainants made a complaint to a social worker in 1984. Formal complaints to the police were made in December 2004 as well as May and June 2005. The applicant was by then living in Australia. There were substantial delays with extradition (apparently the result of the ill-health of the responsible police officer) and the applicant was not approached over the allegations until October 2011.
The applicant’s trial preceded the release of the judgment of this Court in CT v R and the trial Judge did not give the jury a warning under s 122 of the Evidence Act 2006.[1]
[1]CT v R [2014] NZSC 155, [2015] 1 NZLR 465.
The applicant’s conviction appeal was dismissed by the Court of Appeal.[2] That Court concluded that, despite the delays, the applicant had received a fair trial.[3] And although the Court recognised that the Judge ought to have given a s 122 warning, it concluded that failure to do so had not resulted in a miscarriage of justice.[4]
[2]K v R [2015] NZCA 566 (Ellen France P, Asher and Collins JJ).
[3]At [45].
[4]At [59].
The applicant wishes to challenge the conclusions reached by the Court of Appeal in the two respects just mentioned. That Court, however, gave both points extremely careful and thorough consideration. The applicant’s submissions do not identify any error in the approach taken and we see no appearance of a miscarriage of justice. As well, there is no point of public or general importance raised by the proposed appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The case before the Supreme Court of New Zealand was an appeal brought by K against the Crown. K was found guilty of multiple sexual offences against his children and the daughter of a neighbour, as well as injuring one of the victims with intent. The offences occurred between 1972 and 1983, with formal complaints made to the police in 2004 and 2005. After substantial delays in extradition, K was tried in 2011. The trial court did not issue a warning to the jury under section 122 of the Evidence Act 2006, and K's conviction appeal was dismissed by the Court of Appeal. K sought leave to appeal to the Supreme Court, arguing that the delays in proceedings affected the fairness of his trial and that the failure to issue a section 122 warning constituted a miscarriage of justice.

The Supreme Court was required to determine whether the delays in bringing K to trial and the failure to give a section 122 warning constituted a miscarriage of justice, and whether there was any point of public or general importance that warranted the appeal being heard. The Court of Appeal had already considered these issues and concluded that K had received a fair trial and that the failure to issue the warning did not result in a miscarriage of justice. The Supreme Court needed to assess whether there was any error in the Court of Appeal's reasoning or whether the proposed appeal raised a significant legal issue.

The Supreme Court found that the Court of Appeal had given careful and thorough consideration to both points and identified no error in their approach. The Court of Appeal had concluded that the delays did not affect the fairness of the trial and that the failure to issue a section 122 warning did not result in a miscarriage of justice. The Supreme Court agreed with the Court of Appeal's conclusions, finding no appearance of a miscarriage of justice and no point of public or general importance raised by the proposed appeal. The application for leave to appeal was dismissed.

In light of the above, the Supreme Court dismissed K's application for leave to appeal, upholding the decision of the Court of Appeal. The Court of Appeal's conclusions regarding the fairness of the trial and the impact of the failure to issue a section 122 warning were upheld. The Supreme Court found no basis to interfere with the Court of Appeal's decision, and therefore, K's 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