D (SC 39/2018) v R [2018] NZSC 76

D (SC 39/2018) v R [2018] NZSC 76 [20 August 2018]NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011 REMAINS INFORCE. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlNOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF ANY CONNECTEDPERSON PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011REMAINS IN FORCE. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlNOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGEOF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlNOTE: PUBLICATION OF ANY INFORMATION THAT IDENTIFIES, ORTHAT MAY LEAD TO THE IDENTIFICATION OF JURORS PROHIBITEDBY S 32B OF THE JURIES ACT 1981. SEEhttp://www.legislation.govt.nz/act/public/1981/0023/latest/DLM1782661.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 39/2018[2018] NZSC 76BETWEEN D (SC 39/2018)ApplicantAND THE QUEENRespondentCourt: Elias CJ, William Young and O'Regan JJCounsel: F E Guy Kidd for ApplicantJ C Pike QC for RespondentJudgment: 20 August 2018JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was convicted of 41 sexual offences against three children in hiscare. He was acquitted on one charge. He was sentenced to a term of imprisonmentof 17 years, with a minimum period of imprisonment of eight years and six months.1[2] He appealed against his convictions to the Court of Appeal. That Courtallowed the appeal in part, setting aside the convictions in relation to three counts.2The appeal failed in relation to the other 38 convictions and no adjustment was madeto the applicant's sentence.[3] The applicant seeks leave to appeal against his convictions to this Court. Theapplication is advanced on two bases. The first relates to the way in which the trialJudge directed the jury in relation to the demeanour of the complainants when theywere giving evidence. The second relates to material that was before the jury which,the applicant argues, was prejudicial and led to a miscarriage of justice. The applicantargues that a miscarriage of justice has occurred or will occur if leave to appeal is notgranted.3 He does not suggest that the proposed appeal involves a matter of generalor public importance.4[4] The applicant wishes to argue on appeal that the directions made by the Judgeabout demeanour of witnesses (in this case, the complainants') in his opening addressto the jury and in his summing up led to a miscarriage of justice occurring. The Judgeindicated to the jury that they might be assisted by the body language and demeanourof the witnesses if they gave evidence (the complainants' evidence in chief was given1 R v [D] [2016] NZDC 11300 (Judge Ingram).2 D (CA533/2016) v R [2018] NZCA 109 (Brown, Brewer and Collins JJ) [CA judgment].3 Senior Courts Act 2016, s 74(2)(b); Supreme Court Act 2003, s 13(2)(b).4 This Court dealt with the issues relating to demeanour of witnesses in Taniwha v R [2016] NZSC123, [2017] 1 NZLR 116.by the playing of the evidential video interviews with the police). The Court of Appealconsidered these statements carefully and, while expressing some criticism, concludedthat they did not lead to a miscarriage of justice, particularly having regard to the factthat the criticised statements appeared as part of a much longer direction about how toevaluate evidence that was otherwise uncontroversial and was prefaced by theobservation that the demeanour of witnesses can be overstressed.5 We do not considerthat any miscarriage arises from the way this issue was addressed by the Court ofAppeal.[5] A subsidiary point that the applicant wishes to raise in relation to thedemeanour of witnesses is the fact that the Judge told the jury in his summing up thatit might help them if they asked for the evidential videos to be replayed and gave anindication that he thought that would be appropriate. The jury did in fact ask for oneof the video interview recordings to be replayed and this occurred without anyadditional directions from the Judge about demeanour. In an earlier Court of Appealdecision, that Court had said that it was not necessary or desirable for Judges orcounsel to suggest to juries that they may request to have a video replayed; rather, itwas better to leave this to juries to decide for themselves.6 While the Judge'ssuggestion was inconsistent with that statement, there is nothing in the material beforeus to indicate that the Judge's suggestion, the fact that the jury did view one of theevidential video interviews again or the fact that the Judge did not add to thedemeanour directions he had given in his summing up led to a miscarriage of justice.[6] The second issue that the applicant seeks to raise on appeal relates toprejudicial information that came to the attention of the jury. This included referencesto his time in prison, an earlier complaint of sexual abuse, a suggestion that he hadused drugs in the past and a reference to family violence issues. These points wereassessed by the Court of Appeal, which concluded that no miscarriage resulted fromthe information coming before the jury. In effect, the applicant seeks to pursue in thisCourt the same arguments as were rejected in the Court of Appeal. We do not considerthat there is any risk of a miscarriage resulting from the way the Court of Appeal dealtwith these points.5 CA judgment, above n 2, at [18]–[19].6 E (CA799/2012) v R [2013] NZCA 678 at [67](f).[7] We decline leave to appeal.Solicitors:Crown Law Office, Wellington for Respondent