Supreme Court turns away child sex offender's claim of prejudicial judge

The Supreme Court turned away the appeal for the man sentenced to 17 years' imprisonment. Photo / File

A convicted child sex offender has seen his Supreme Court appeal bid turned away after claiming his trial judge unfairly directed the jury to the "demeanour" of his victims, while the jurors were also told of an earlier abuse complaint.

The offender, whose identity is suppressed, was initially convicted of 41 offences against three children in his care. He was acquitted on one charge.

The man was sentenced to 17 years' imprisonment with a minimum non-parole period of eight years and six months in 2016.

He appealed his convictions to the Court of Appeal, which heard the claims in part and set aside the convictions on three charges.

However, his appeal for the other 38 convictions failed and no adjustment was made to his sentence.

He then advanced his appeal and sought leave from the Supreme Court, arguing the trial judge directed the jury, in his opening address and summing up, to the victims' demeanour when they gave evidence.

The man also said references to the jury about his time in prison, an earlier complaint of sexual abuse, a suggestion he had used drugs, and a reference to family violence issues were prejudicial and resulted in a miscarriage of justice.

The trial judge had indicated to the jury watching the body language and demeanour of the witnesses when they gave evidence may help them.

The victims' evidence in chief was given via their video interviews with police.

The Court of Appeal, while expressing some criticism, said the judge's direction did not lead to a miscarriage of justice, and the statements were part of a longer direction about how to evaluate evidence which was otherwise uncontroversial.

The direction was also prefaced by the observation the demeanour of witnesses can be overstressed.

The Supreme Court agreed and ruled there was no miscarriage by the way the Court of Appeal addressed the issues.

The trial judge also told the jury in his summing up it might help them if they asked for the evidential videos to be replayed and said he thought it would be appropriate.

One of video interviews was replayed, at the jury's request, without any additional demeanour directions from the judge.

In an earlier Court of Appeal decision, that court has said it is not necessary or desirable for judges or counsel to suggest to juries they may request to have a video replayed, but rather, it was better to leave the decision solely to juries.

The Supreme Court said the trial judge's suggestion was inconsistent with the Court of Appeal's decision but there was nothing to indicate the judge's words led to a miscarriage of justice.

New Zealand's highest court also agreed with the Court of Appeal and concluded there was no miscarriage after the man's history was given to the jury.