New Zealand Case Law: Decisions & Judgments

Topic

Consent

Legal area

Court

5 Oct 2023

HANNA v R [2023] NZCA 485

Citation

[2023] NZCA 485
Court

Court of Appeal

Although the judge misstated the defence by saying the complainant was "up for anything," his subsequent, explicit correction to the jury sufficiently cured the error; his question to the detective about height was a legitimate clarification of evidence and did not demonstrate bias; taken cumulatively the matters did not render the trial unfair or cause a miscarriage of justice, and the convictions are therefore upheld.
2 Oct 2023

TAYLOR v R [2023] NZCA 476

Citation

[2023] NZCA 476
Court

Court of Appeal

No miscarriage of justice occurred: the Judge correctly directed the jury on consent and reasonable belief consistent with s128A and Christian; there was no evidential basis to leave a grooming/consent narrative to the jury; the Question Trail appropriately summarized relevant subsections of s128A; the Judge's remark about timing was harmless; and an MPI of eight years was properly imposed under s86 given the scale, planning, breach of trust, harm and lack of offender responsibility.
29 Sept 2023

HEKE-GRAY v R [2023] NZCA 474

Citation

[2023] NZCA 474
Court

Court of Appeal

The Court held the neuropsychological evidence (FASD/ADHD) was admissible for sentencing purposes but not cogent to have altered the jury's verdicts because the complainant's evidence of non-consent on the key incidents was clear and the expert evidence did not provide a credible narrative that would render an honest belief in consent objectively reasonable; trial directions on consent and propensity were legally adequate and counsel error was harmless; on sentencing the fresh expert evidence changed the risk and rehabilitation assessment such that preventive detention was not the least restr…
12 Sept 2023

C (CA349/2022) v R [2023] NZCA 440

Citation

[2023] NZCA 440
Court

Court of Appeal

The Court held there was no miscarriage of justice: exclusion of the cross‑examination on the Family Court affidavit was correct because the material could not be objectively disproved, had only tenuous relevance to veracity and did not meet the 'substantially helpful' threshold; admission of evidence of the prior gang rape was correctly allowed under s 44 because it was directly relevant to the complainant's lack of consent and the defendant's knowledge and belief, and exclusion would have been contrary to the interests of justice. Consequently the appeal against convictions was dismissed.
7 Aug 2023

TE HIKO v R [2023] NZCA 347

Citation

[2023] NZCA 347
Court

Court of Appeal

Appellant failed to prove on the balance of probabilities that trial counsel committed errors that caused a real risk of a different outcome; cross-examination and closing consistently advanced a consent defence and were consistent with instructions available at trial, the issue of consent was squarely before the jury, and absent credible evidence of prejudice (and given lost files and deceased counsel) no miscarriage of justice is established; appeal dismissed and conviction upheld.
14 Apr 2023

MADHUR SHARMA v R [2023] NZSC 34

Citation

[2023] NZSC 34
Court

Supreme Court

Leave to appeal was dismissed because the issues were fact specific and not of general or public importance, there was no real risk of miscarriage of justice, and the jury could rationally have convicted on charge five alone on the basis of corroborative DNA evidence while rejecting other charges due to frailties in the complainant's evidence; R v Dhillon was distinguishable and the separate trials direction was not the main basis for the decision.
13 Apr 2023

SHANE STEVEN HOLMES v R [2023] NZSC 33

Citation

[2023] NZSC 33
Court

Supreme Court

Leave to appeal was refused because the alleged directions and evidential rulings did not disclose an error of law or a risk of miscarriage and the Court of Appeal and trial judge lawfully applied principles on consent, expert evidence and propensity evidence; no question of general or public importance was established.
20 Dec 2022

SHARMA v R [2022] NZCA 648

Citation

[2022] NZCA 648
Court

Court of Appeal

The Court held the guilty verdict on the single charge was not inconsistent with acquittals on others because DNA corroboration supported that conviction and jurors could reasonably have been unsure about other allegations; the proposed propensity evidence was irrelevant because the defendant conceded some sexual activity so the evidence had no tendency to disprove propensity to offend; sentencing was within the appropriate band, the sentencing Judge properly made factual findings for sentencing and applied lawful discounts; therefore both appeals dismissed.
1 Nov 2022

HF v R [2022] NZHC 2838

Citation

[2022] NZHC 2838
Court

High Court

The High Court held there was no error in the trial Judge's assessment of evidence: the Judge permissibly accepted the complainant's credible, consistent and detailed account and rejected the appellant's narrative as implausible; the undisputed fact that the complainant could have left the room did not support an inference of consent once the Judge accepted her evidence of protest and physical constraint; proposed further evidence (MM affidavit, statement and EVI) was not sufficiently fresh, credible or cogent to undermine the verdict, and only the objective text messages were admitted but di…
29 Aug 2022

MAKSHUD AHMED v R [2022] NZCA 411

Citation

[2022] NZCA 411
Court

Court of Appeal

Although the trial Judge should have drawn the jury's attention to evidence from the complainant that could support an inference of consent or reasonable belief in it, the directions given on consent and reasonable belief were legally adequate and the omission did not create a real risk of a different outcome in this case; extension of time to appeal was granted; convictions were upheld; the minimum period of imprisonment imposed at sentencing was unjustified and was quashed.