Ricardo Aryan v The Queen

IN THE SUPREME COURT OF NEW ZEALAND

SC 128/2011
[2012] NZSC 14

RICARDO ARYAN

THE QUEEN

Court: Blanchard, Tipping and McGrath JJ

Counsel: M W Ryan for Applicant
M J Lillico for Crown

Judgment: 13 March 2012

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

Mr Aryan was convicted of sexual offending against a young member of his family. His appeal to the Court of Appeal on various grounds was unsuccessful.[1] He now seeks leave to appeal to this Court some 18 months out of time on a completely new basis. He tenders a brief affidavit from the complainant, made after the decision of the Court of Appeal, in which she says that she agreed to the incidents that happened between her and Mr Aryan and did not tell the truth because she did not want her family to blame her.
[1] Aryan v R [2010] NZCA 57.
We do not grant leave. The matter sought to be raised is entirely factual and raises no question of general principle. This Court is not the appropriate forum for an appeal of this kind which requires an assessment of the credibility of the key witness against the evidence she and others gave at trial. The Court will be in no position to say that a substantial miscarriage of justice has occurred in the absence of an investigation which the Court cannot undertake.
If the applicant wishes to pursue the matter, the appropriate course is by way of an application under s 406 of the Crimes Act 1961, where it would be possible for a full investigation to be undertaken, if that is shown to be warranted.

Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

Ricardo Aryan, the applicant, appealed against his conviction for sexual offending against a young family member. The appeal was dismissed by the Court of Appeal. The Supreme Court of New Zealand, consisting of Blanchard, Tipping, and McGrath JJ, was asked to consider an application for leave to appeal on a new basis, submitted 18 months out of the prescribed time. The central issue was whether the Court should grant leave to appeal based on a new affidavit from the complainant, who claimed she had not told the truth at trial due to family pressure.

The Court held that the new matter was entirely factual and did not raise any questions of general principle. The Court concluded that it was not the appropriate forum for this type of appeal, which required an assessment of the credibility of the key witness against the evidence she and others gave at trial. The Court emphasised that it would be unable to determine if a substantial miscarriage of justice had occurred without an investigation that the Court could not undertake. The Court suggested that if Aryan wished to pursue the matter further, the appropriate course would be an application under section 406 of the Crimes Act 1961, which would allow for a full investigation if warranted.

The Court dismissed the application for leave to appeal. The final orders were that 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