TAINUI v R SC 29/2008 [31 July 2008]
IN THE SUPREME COURT OF NEW ZEALAND
SC 29/2008
[2008] NZSC 59
ALBANY TUHURU TAINUI
v
THE QUEEN
Court: Tipping, McGrath and Wilson JJ
Counsel: G King for Applicant
M D Downs for Crown
Judgment: 31 July 2008
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
REASONS
[1] The applicant seeks leave to challenge a decision of the Court of Appeal upholding his conviction for sexually
violating a 14 year old complainant. Two grounds are proposed.
[2] The first suggests that evidence given by the complainant was inadmissible. The challenged evidence was to the
effect that during the evening, an hour or so before the offending took place, the applicant had remarked to the
complainant that one in five women were the subject of sexual abuse. The Court of Appeal rejected the proposition that
this evidence was “propensity” evidence and should have been excluded. The Court was correct to reach that conclusion.
The challenged evidence was not evidence of propensity at all. It was evidence relevant to the applicant’s state of mind
on the particular occasion and supportive, according to the weight the jury chose to put on it, of the offending
charged. There is no point of principle involved in this ground and it cannot be said that the evidence should have been
rejected on any other basis.
[3] The second proposed ground concerns contact which the applicant asserted had taken place between the complainant and
a juror during the trial. The issue was raised with the trial Judge whose handling of the matter was endorsed by the
Court of Appeal. Both the trial Judge and the Court of Appeal concluded that conduct of the kind alleged did not take
place. Rather the contact was between the complainant and a court taker and was of an innocuous kind. We are not
persuaded that there is any basis upon which this Court should examine what is essentially a factual issue a third time,
there being concurrent findings below. There is no reasonable basis for asserting that the contact which actually took
place might have led to a miscarriage of justice. Nor does this point raise any matter of general principle.
[4] As the applicant has not established any qualifying ground for the granting of leave, his application must be
dismissed.
Solicitors:
Crown Law Office, Wellington