BORLEY V R SC 14/2006
Leave to appeal was refused because the alleged inconsistencies were matters for the jury and did not constitute a miscarriage of justice, and the claim that counsel's advice caused the applicant not to give evidence failed because the applicant retained final control over that decision and the Court of Appeal...
Source-derived case information.
- Citation
- SC 14/2006
- Parties
- Applicant: Allan Borley; Respondent: The Queen
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 11 April 2006
- Procedural Posture
- Criminal Application for Leave to Appeal to Supreme Court / Application for Leave to Appeal Following Conviction and Unsuccessful Appeal to the Court of Appeal
- Outcome
- Application for leave to appeal dismissed.
- Legal Topics
- Leave to Appeal, Miscarriage of Justice, Cross Examination About Prior Convictions, Complaint Evidence Reliability, Jury Discretion
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Borley
Applicant
The Queen
Respondent
Procedural Posture
Criminal Application for Leave to Appeal to Supreme Court / Application for Leave to Appeal Following Conviction and Unsuccessful Appeal to the Court of Appeal
Legal Issues
- 1 Whether discrepancies between viva voce evidence and videotaped evidential interviews rendered convictions unsafe or amounted to a miscarriage of justice
- 2 Whether incorrect advice by trial counsel about possible cross-examination on prior sexual convictions caused the applicant to refuse to give evidence and thereby resulted in a miscarriage of justice
- 3 Whether the matters raised involve questions of general or public importance warranting leave to appeal
Ratio Decidendi
Leave to appeal was refused because the alleged inconsistencies were matters for the jury and did not constitute a miscarriage of justice, and the claim that counsel's advice caused the applicant not to give evidence failed because the applicant retained final control over that decision and the Court of Appeal concluded he would not likely have benefited from giving evidence.
Court Disposition
Application for leave to appeal dismissed.
Orders
- Application for leave to appeal dismissed
Full Case Text
Judgment text and source record
1 paragraphs
BORLEY V R SC 14/2006 11 April 2006IN THE SUPREME COURT OF NEW ZEALAND SC 14/2006 [2006] NZSC 29 ALLAN BORLEYvTHE QUEENCourt: Elias CJ, Blanchard and Anderson JJ Counsel: D P H Jones QC for Applicant K B F Hastie for Crown Judgment: 11 April 2006JUDGMENT OF THE COURT The application for leave to appeal is dismissed. REASONS[1] The applicant was convicted on indictment of sex offences against two infant girls. He appealed unsuccessfully to the Court of Appeal and now applies to this Court for leave to appeal on the grounds that a substantial miscarriage of justice has occurred. This Court has considered the written submissions in support of and in opposition to this application and has determined that it is unnecessary to have oral submissions.[2] The applicant takes issue with discrepancies between the girls' viva voce evidence and what they had said in their videotaped evidential interviews. However, the girls' reliability was a matter for the jury. It raises no question of general or public importance and we are satisfied that there has been no miscarriage of justice. [3] The applicant also complains that his trial counsel gave incorrect advice about the possibility of the applicant being cross-examined about previous convictions for sexual offences against children. He says that this bore on his decision not to give evidence himself. But in the Court of Appeal, before which he gave evidence, he accepted that even if he had not been concerned about the possibility of such cross-examination, he would not necessarily have given evidence. He was aware that he had the final say on whether or not he gave evidence and there was at least some basis for concern about the possibility of cross-examination about his previous crimes. The Court of Appeal expressed a firm view, in light of how he had presented there, that he would have diminished his prospects of acquittal had he given evidence. In all the circumstances we are satisfied that no miscarriage of justice has occurred through the applicant not having given evidence at trial. There is no question of general or public importance. [4] The application is dismissed.Solicitors: Mahon & Associates, Auckland for Appellant Crown Law Office, Wellington