ESTALL JHANA GLASSIE v R [2018] NZSC 101

ESTALL JHANA GLASSIE v R [2018] NZSC 101 [30 October 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 79/2018[2018] NZSC 101BETWEEN ESTALL JHANA GLASSIEApplicantAND THE QUEENRespondentCourt: William Young, Glazebrook and O'Regan JJCounsel: I M Brookie for ApplicantJ C Pike QC for RespondentJudgment: 30 October 2018JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was charged with nine counts involving violence and sexualviolation in relation to his partner, said to have been committed over a two day periodin April 2016. At the commencement of his District Court jury trial, he pleaded guiltyto three of the six violence charges and the jury found him guilty on all other charges.The trial judge, Judge M E Sharp, sentenced him to imprisonment for 12 years andeight months.1 The applicant appealed to the Court of Appeal raising three grounds of1 R v Glassie [2017] NZDC 27391 (Judge M E Sharp).appeal. All of these grounds failed and the appeal was dismissed.2 He now seeksleave to appeal against the Court of Appeal decision, but only in relation to one of thegrounds of appeal rejected by the Court of Appeal.[2] The proposed ground of appeal relates to the comments made by the prosecutorat the trial about the complainant having no motive to lie and the directions made bythe Judge in relation to that comment. The prosecutor qualified her comment aboutthe complainant not having a motive to lie by noting by there was no onus on adefendant to prove motive as to why a complainant may have exaggerated or made upher account. The Judge directed the jury that, regardless of the absence of evidenceof motive to lie, the onus of proof remained on the Crown throughout and there wasno onus on the defence to prove a motive to lie.[3] In the Court of Appeal the applicant argued that the Judge should have told thejury to set aside the Crown's submission in relation to the lack of a motive to lieentirely. The Court of Appeal rejected this, referring to the leading authority.3 TheCourt rejected the submission that the Judge was required to direct the jury to set thesubmission to one side and concluded that the direction given had been appropriate.[4] In support of his application, the applicant argues that there is difficulty withthe application of the leading authorities, R v Tennant, R v M and R v E (CA 308/06).4He seeks to argue that, because the absence of a motive to lie was characterised by theprosecutor as being one of the three main reasons why the complainant should bebelieved, the motive to lie issue became a "special feature" of the Crown closingaddress. This meant that a different approach from that taken in R v Tennant andR v M was required, given the comment made by the Court of Appeal in R v M thatno direction on the issue of motive to lie will usually be necessary "if the inquiry ismade briefly and in a low-key way and the point is not made a special feature of theCrown's closing address".52 Glassie v R [2018] NZCA 308 [CA judgment] (Williams, Wylie and Thomas JJ).3 R v Tennant [1998] 2 NZLR 257 (CA).4 R v Tennant, above n 3; R v M (2000) 18 CRNZ 368 (CA); R v E (CA 308/06) [2007] NZCA 404,[2008] 3 NZLR 145.5 R v M, above n 4, at [11].[5] The Court of Appeal rejected this submission on the facts, finding that thecomments made by the prosecutor in the present case were suitably moderate, andqualified by a reminder to the jury that the submission being made did not shift theonus of proof.6[6] We do not consider that there sufficient prospect of success on the argumentthat the prosecutor made a special feature of the absence of a motive to lie to justifythe granting of leave to appeal on this issue to this Court. Nor do we consider that thelaw is so unclear that a point of public importance arises in relation to this issue.[7] We therefore dismiss the application for leave to appeal.Solicitors:Crown Law Office, Wellington for Respondent6 CA judgment, above 2, at [43].