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Convicted child rapist loses bid to appeal judge’s prejudice and sympathy directions to jury

19 May 2023

| Author: Anna Longdill

Application for leave to appeal – convictions for violent and sexual offending – extensive relationship evidence given at trial – need for tailored directions regarding purpose and proper use of the evidence – relevance of acquiescence of experienced trial counsel 

W v R [2023] NZSC 50

W was convicted of causing grievous harm with reckless disregard, rape (x 2), unlawful sexual connection (x 2) and doing an indecent act on a young person under 16, against a single complainant, who was between six and 16 years old.

At trial, there was relatively extensive evidence given as to the nature of the relationship between the complainant and W, suggesting the complainant was ill-treated by W during her childhood. The ill-treatment allegations included a range of conduct from verbal threats and psychological abuse to assaults and other mistreatment (e.g., making her remain in her wet bed, spitting in her food, trying to make her eat her own vomit and soap, locking her in a cupboard with spiders and preventing her from having contact with her mother).

The trial judge gave a standard prejudice and sympathy direction to the jury both in opening comments and in summing up.  W argued this was insufficient and there needed to be tailored directions about the potential prejudicial effect of the relationship evidence.

The Court of Appeal rejected this, taking the view that the jury directions were adequate in the wider trial context, but did note that it might have been better if the judge had provided additional assistance on the relevance and use to which the relationship evidence could properly be put.

The court noted that an appeal court was entitled to bear in mind the absence of any request for a specific direction by experienced counsel, and concluded that it was satisfied there was no real risk that justice miscarried because no further tailored directions were given by the experienced trial judge.

In his application for leave to appeal, W argued that tailored directions were required and further that the Court of Appeal was wrong in relying on the lack of objection from ‘experienced trial counsel’ and the experience of the trial judge when assessing whether the failure to provide tailored directions caused a miscarriage of justice.

Application for leave to appeal – miscarriage of justice – admissibility and treatment of relationship evidence – preferable to give a tailored direction – failure to do so does not give rise to any risk of miscarriage – the court must assess the adequacy of trial directions for itself – acquiescence of experienced trial counsel is not, in itself, sufficient to reject an appeal ground – Court of Appeal decision doesn’t say anything different – no risk of a miscarriage of justice – no matter of public importance arises.

Held: The application for leave to appeal is dismissed.

W v R 2023-NZSC-50

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