THOMAS JAMES LUKE OLLIVER v R [2018] NZSC 52

THOMAS JAMES LUKE OLLIVER v R [2018] NZSC 52 [15 June 2018]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFWITNESSES/VICTIMS/CONNECTED PERSONS PURSUANT TO S 202CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlNOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS/ PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESSPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 28/2018[2018] NZSC 52BETWEEN THOMAS JAMES LUKE OLLIVERApplicantAND THE QUEENRespondentCourt: Elias CJ, O'Regan and Ellen France JJCounsel: A J Bailey for ApplicantM H Cooke for RespondentJudgment: 15 June 2018JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was convicted after trial of three charges of indecent assault inrelation to two complainants, G and H. He was acquitted on three other charges.[2] The applicant appealed unsuccessfully to the Court of Appeal againstconviction on the basis he had not had a fair trial.1 He seeks leave to appeal to thisCourt on the same basis.[3] The argument that the trial was unfair is based on what occurred with theempanelling of the jury. The applicant was originally to be tried in relation to threecomplainants. A jury was empanelled on Monday 19 September 2016. The balanceof the jury panel remained in Court until a foreperson was elected and the chargesread. The trial got underway but, on 20 September when complainant F was called,she became upset and could not give her evidence. Ultimately, the charges relating toF, which included a charge of sexual violation by rape and charges of sexualconnection with a child or young person, were dismissed. The trial was aborted andthe jurors on that panel were dismissed from further duty. A new trial began onWednesday 21 September relating only to the remaining two complainants, G and H.[4] The jury members for the second trial relating to G and H were selected fromthe panel which had been present at Court when the first trial commenced (minus thedischarged jurors). The second jury had accordingly heard the charges read out inrelation to all three complainants including the more serious charges relating to F.[5] The trial Judge addressed the point in his opening remarks to the jury. Nation Jsaid:I do need to say that on Monday you were in Court when the charges wereread out and there was a list of witnesses read out. It was anticipated at thatstage that a trial would proceed and that it would take up all of this week. Infact, for reasons that can quite often occur and sometimes do occur, that hasn'tbeen possible and that trial is completely at an end. What happened duringthat time, those first two days, is totally irrelevant to the matters which younow have to consider and you must put them out of your mind. If you don't dothat, there won't be a fair trial for the Crown or for Mr Olliver.1 Olliver v R [2018] NZCA 74 (Brown, Brewer and Collins JJ).[6] The Court of Appeal accepted it was undesirable for the second jury to bedrawn from the initial panel. But the Court said there was no risk of a miscarriage ofjustice given the Judge's direction and the limited nature of the jury's knowledge – thejury did not know any of the circumstances of F's allegations nor whether they hadbeen resolved. The Court also said there was nothing to suggest the outcome wasaffected because, for example, the applicant was acquitted on half of the charges.[7] On the proposed appeal, the applicant wishes to challenge the Court ofAppeal's approach and, particularly, the reliance on the Judge's direction.[8] No question of general or public importance arises. Rather, the Court ofAppeal made a factual assessment as to the impact of what had occurred. Nor doesanything raised by the applicant suggest there is an appearance of a miscarriage ofjustice arising out of that assessment.[9] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent