J v The Queen

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeClifford J
Judgment Date14 February 2011
Neutral Citation[2011] NZCA 10
Docket NumberCA856/2010
Date14 February 2011

[2011] NZCA 10



Ellen France, Miller and Clifford JJ


J (CA856/2010)

A J McKenzie and A J Bailey for Appellant

N P Chisnall for Respondent

  • A Leave to appeal is granted but the appeal is dismissed..

  • B Order prohibiting publication of the reasons for judgment in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted..


(Given by Clifford J)


J seeks leave to appeal against a decision of Judge Philip Moran in the District Court allowing the Crown, under s 345D of the Crimes Act 1961, to consolidate two separate indictments laid against him and S. 1 J and S are both charged with sexual violation of the complainant (Ms B). The Crown alleges that in separate incidents J and S, neither of whom knew each other at the time nor had any other connection with each other, raped Ms B at a camping ground in Nelson in late December 2009.


J and S's joint trial was set down to start in the District Court at Christchurch on Monday 14 February 2011. For that reason, at the end of the hearing of this appeal on 10 February we announced our decision, granting J leave but dismissing his appeal. We said we would provide written reasons later. We now do so.


J and S and the complainant were all, separately, celebrating New Year 2009/10 at a camp site in Nelson. On the evening of 29 December, the complainant became extremely intoxicated and was put to bed in her tent by a friend at approximately 8.30pm. At around 10.30pm witnesses saw her engaged in sexual intercourse with a man who was later identified as the appellant, J. Those witnesses will say that when they first observed that activity they gained the impression that the complainant may have been consenting. They will say she then asked J to get off, but that he did not do so. The witnesses intervened, and J left. The complainant was then taken to a first aid tent, and subsequently examined.


The depositions' DNA evidence establishes that J had contact with the complainant, as his saliva was on her neck. That evidence also establishes that S had intercourse with her because his DNA was found on an internal examination of the complainant. Furthermore there can be no dispute that S had sexual intercourse with the complainant prior to J. This is because S's DNA profile was also obtained from a semen stain on the appellant's shirt, and because the medical examination took place very soon after the second alleged rape.


The Crown does not assert that J and S acted in concert. There is no suggestion that either of them knew each other, nor that J, at the time he is alleged to have raped the complainant, had any knowledge of the prior sexual activity between S and the complainant. Further, the complainant did not know either of her alleged assailants and, by virtue of her level of intoxication on the night, told the Police she has no memory of sexual intercourse with either man.


The two alleged rapes are said to have occurred within a narrow timeframe, between the complainant's friends putting her to bed in her tent in a severely intoxicated state at approximately 8.30pm, and the eye witnesses observing a man alleged to be J having sexual intercourse with her at about 10.30pm.


It is the Crown's case that on both occasions of sexual intercourse that evening the complainant was so intoxicated that she could not have given consent. Moreover the Crown contends that that state of intoxication is relevant to the issues of whether either of the accused believed on reasonable grounds that she was consenting and, further, whether a reasonable person could have had such a belief.


Both accused were committed for trial independently on separate indictments. The Crown made application pursuant to section 345D to amend the indictment, effectively joining the two accuseds' trials. S, who is alleged to have committed the rape that occurred first in time, supported the Crown's joint application. This would appear to indicate that S may say in his defence that intercourse was consensual or, if not, that he had a reasonable ground of belief that it was. The evidence of the eye witnesses who observed intercourse between J and the complainant would, although this is a matter for the trial judge, appear to be relevant to S. During the hearing of this appeal Mr McKenzie, for J, said that it was his understanding that if this appeal succeeded, the Crown would oppose that evidence being admitted in S's trial. Mr Chisnall responsibly acknowledged that, given the position taken by the Crown on this appeal, that was not a position the Crown could take. We make that observation, should it become relevant in the trial that is to start on Monday.

The law

The starting point for joinder is s 345D of the Crimes Act, which provides that an amended indictment may be filed if it is conducive to the ends of justice to do so.


The settled law starts from the premise that people who are separately charged with separate offences should be separately tried. Where, however, there is some commonality running through the two crimes, it may be conducive to the ends of justice for there to be one trial and not two.


It will not, however, be conducive to the ends of justice if illegitimate prejudice to one accused is occasioned by combining complaints against two accused into one indictment.


This Court has, in very similar circumstances, considered the question of whether or not joinder was conducive to the ends of justice in two recent decisions.


In R v S, 2 a 2006 decision, the complainant was allegedly raped by two taxi drivers, R and S, in separate but successive incidents. There was no evidence R and S communicated with or knew each other. R had no knowledge of the alleged rape by S. The Crown's case was the complainant had told S of the earlier incident involving R. R did not oppose joinder. He denied that any sexual contact had occurred notwithstanding that his DNA was found on the complainant's body. By contrast, the appellant S intended to run the defence of consent or reasonable belief in consent.


The High Court allowed the separate indictments against R and S to be joined. S, who was allegedly responsible for the second rape, appealed successfully to this Court. The Court was not persuaded of the extent of the evidential overlap the High Court had identified. Moreover, the Court essentially accepted the submission that, in ruling in favour of joinder, the Judge had failed to give proper weight to the prejudice implicit in a jury having to determine at S's trial whether the complainant had been raped by another unrelated accused earlier that same evening. That prejudice, the Court considered, was not outweighed by any closely connected factual issues justifying a joint trial.


In R v L, 3 an order had again been made joining separate indictments filed against two accused, D and L. Both accused faced charges of rape involving the same complainant in separate and generally unrelated incidents on the same evening.


L was accused of raping the complainant at a party. D, the second accused, had been charged with two counts of sexual violation by rape and unlawful sexual connection against the complainant on the same evening. Other than the fact that D and L were acquaintances, the incidents were unrelated and neither D nor L...

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