R v Middlemiss CA213/02 [2003] NZCA 387 (14 March 2003)

Last Updated: 11 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA213/02



THE QUEEN




V




JANET MIDDLEMISS


Hearing: 13 March 2003

Coram: Glazebrook J
Hammond J O’Regan J

Appearances: B J Horsley for Respondent

Judgment: 13 March 2003

Reasons for Judgment: 14 March 2003

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] Ms Middlemiss was charged with indecently assaulting two girls under the age of 12 and of assaulting two girls under the age of 14 years. During the course of the trial in the Christchurch District Court one of the indecent assault charges was amended by substitution of a charge of assault of a child under the age of 14 years. The incidents allegedly happened at the Waitaki Aquatic Centre.
[2] Ms Middlemiss was, after a trial by jury, convicted on one charge of assault only and sentenced to one month’s periodic detention in respect of this count. She appealed against both conviction and sentence.

[3] On 13 March 2003 Ms Middlemiss’ appeal against conviction was allowed and the conviction quashed. No retrial was ordered. The reasons for that judgment are now given.

Reasons

[4] The assault on which Ms Middlemiss was convicted related to an allegation that she had “dumped” the complainant in the learner’s pool by holding her round the neck and waist and putting her into the water. She admitted that she had done this but said that it, like the other two alleged assaults, was part of a game of tag she had been playing with a number of girls.

[5] The appeal was originally set down for a hearing on the papers but on 18 December 2002 this Court issued a Minute setting the matter down for an oral hearing and asking for submissions on whether the judge, as well as directing on consent, should have directed on a necessity for the Crown to prove lack of belief in consent on Ms Middlemiss’ part.

[6] The Crown by memorandum of 10 March 2003 conceded that, as there was an evidential foundation laid for the proposition that Ms Middlemiss had a honest belief the complainant was consenting to the alleged assault, it was necessary for the Crown to prove a lack of belief in consent.

[7] The Crown also conceded that the judge’s summing up did not direct the jury on the necessity for the Crown to prove Ms Middlemiss did not have a lack of honest belief that the complainant was consenting to the assault. The judge’s summing up had concentrated on whether there was consent or whether the assaults were justified in the context of ordinary social contact. It did not cover belief in consent.
[8] The Crown therefore conceded that there had been a misdirection leading to a miscarriage of justice and therefore that the appeal should be determined in Ms Middlemiss’ favour. The Crown did not seek a retrial. This was because of the relatively minor nature of the assault, the expense of a retrial and concern for the young complainant being put through the trauma of giving evidence again in Court. These factors in the Crown’s view outweighed any public interest in pursuing a conviction.

[9] We agree with the reasoning set out by the Crown and it was on this basis that the appeal was allowed and no retrial ordered.

Solicitors:

Crown Solicitor, Wellington