Convicted man’s proposed appeal addresses motive to lie, question trail, relevance of consent
The New Zealand Supreme Court has denied leave for a proposed appeal assailing a judge’s summing up on whether an underage girl’s consent was relevant to age‑related indecency charges, whether she had a reason to lie, and how the jury should utilise the question trail.
In Fawcett-Kay v R [2026] NZSC 137, the applicant faced sexual offending charges against the complainant when she was between around five and 14 years old. A jury trial proceeded before the District Court of New Zealand.
The defence claimed that the complainant lied about the offences, which allegedly did not occur. In closing, the Crown asserted that the complainant had no motive to lie. The defence responded that it had no obligation to identify such a motive.
The judge made certain directions while summing up. First, regarding motive to lie, the judge acknowledged the Crown’s position and confirmed that the defence did not need to establish such a motive.
Second, regarding the question trail, the judge commented that it was a tool without legal status, which the jury could decide whether to utilise.
However, the judge urged the jury to use the question trail as a guide and referred to it when summing up the individual charges. Later, he clarified that the jury had to determine that the case satisfied all the elements in the question trail prior to arriving at a guilty verdict.
Third, regarding the complainant’s consent, the judge commented that it was irrelevant to the age-related indecency charges.
After the summing up, the prosecutor asked the judge to recall the jury to clarify his directions.
According to the prosecutor, the judge improperly suggested that the complainant might have consented and might have had a motive to lie, as these suggestions conveyed the judge’s views on significant factual issues.
With regard to the question trail, counsel claimed that the judge might have confused the jury and made them set aside this tool during their deliberations.
Thus, the judge recalled the jury to provide additional directions. However, in a formal memorandum, the prosecutor called for further clarification on the same concerns. In a minute issued the next day, the judge rejected the prosecutor’s request.
The jury convicted the applicant of 18 sexual offending charges, including five age-related indecency charges and 11 sexual violation charges.
The appeal court accepted that the judge’s directions when summing up departed from best practice in connection with the motive to lie and the question trail.
However, the appeal court ruled that the judge’s concerning comments favoured the applicant. The appeal court added that the summing up as a whole did not result in the prejudicial impacts alleged by the applicant and did not make the trial unfair.
The applicant sought leave to appeal.
Regarding the Court of Appeal’s conclusion that, to the extent the comments resulted in prejudice, such prejudice accrued to the Crown, the applicant argued that the appeal court wrongly used this finding to consider his trial fair.
In denying the application for leave to appeal, the Supreme Court acknowledged a potential issue of general or public importance raised in the applicant’s proposed appeal.
The Supreme Court saw no reason to depart from the Court of Appeal of New Zealand’s assessment that the alleged errors did not cross the unfairness threshold, such that it jeopardised the trial’s integrity.
Lastly, the Supreme Court noted that the suppression of the applicant’s name lapsed with the delivery of its judgment.
Here are some other recent decisions by the Supreme Court of New Zealand.
In a proceeding arising from the Crown’s intention to cross-examine a proposed expert witness about previous misconduct, the court issued a 9 September 2026 decision finding an application for leave to appeal moot, given the guilty finding against the applicant.
On 4 September 2026, the court declined to reconsider the law to uphold tort claims for secondary victims’ mental injuries arising from tortious acts beyond those resulting in a recognisable psychiatric illness or disorder.
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