Bishop aka Lowther v Police
[2023] NZHC 3679
•13 December 2023
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000499
[2023] NZHC 3679
BETWEEN MARC (MARK) WILLIAM BISHOP (LOWTHER)
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 December 2023 Appearances:
Appellant in Person
A Al-Janabi for Respondent
Judgment:
13 December 2023
JUDGMENT OF VENNING J
Application for leave to appeal out of time
This judgment was delivered by me on 13 December 2023 at 3.30 pm Registrar/Deputy Registrar
Date……………
Solicitors: Kayes Fletcher Walker Ltd, Manukau, Auckland Copy to: Applicant
BISHOP v NEW ZEALAND POLICE [2023] NZHC 3679 [13 December 2023]
[1] On 24 November 1997 Marc Bishop (as he wishes to be referred to) was convicted on his guilty plea to one charge of indecent assault on a boy under 12 and sentenced to 18 months’ imprisonment suspended for two years.
[2]Mr Bishop seeks leave to appeal out of time.
Procedural background
[3] In July 1996 the victim disclosed Mr Bishop’s offending to his maternal aunt. In October 1996 he conducted an evidential video interview with a specialist child interviewer. At the time of the interview the victim was 14 years old. He accused Mr Bishop of anally violating him and performing oral sex on him. The transcript of the interview is no longer available.
[4] On 14 August 1997 the appellant was arrested by Constable Armstrong. Mr Bishop underwent a video interview. Again a transcript does not appear to be available.
[5] Mr Bishop first appeared before the Papakura District Court on 15 August 1997. He faced two charges of sexual violation by unlawful sexual connection. On the day of his first appearance he was seen by a Forensic Court Liaison Nurse. Subsequently a psychiatric report was prepared on 27 August 1997 by Dr Lyndy Mathews. Dr Mathews concluded Mr Bishop could be defined as suffering from a mental disorder, being a disorder of mood and probably hallucinations. He understood right and wrong and concepts of guilty and not guilty and was able to critically evaluate the purposes of the interview. The report confirmed that “he is not currently under disability”. The report writer also confirmed that it was highly unlikely Mr Bishop could successfully submit a plea under s 23 of the Crimes Act 1961.
[6] There were then several further appearances on 29 August 1997, 9 October 1997, and on 16 October 1997. The appellant was represented at the appearances except for 9 October 1997 when assigned counsel was not available.
[7] On 16 October 1997 the two counts of unlawful sexual connection were withdrawn and replaced with a single count of indecent assault on a boy under 12 to which the guilty plea was entered.
[8] On 24 November 1997 Judge Sharp sentenced Mr Bishop to 18 months’ imprisonment, suspended for a period of two years.
[9] Mr Bishop represents himself on this proposed appeal. He has filed a variety of documents with the Court. The documents refer in detail to two injuries he sustained when he was aged six and eight respectively. He also describes seeing visions. It is apparent from the material Mr Bishop has filed and also his discussion with the Court that he is particularly aggrieved that his father seemed insensitive to his injuries and then he was relocated against his will to live with his father in a house with his father’s new partner. [REDACTED]. Mr Bishop also says that he was himself subjected to abuse.
[10] As Dunningham J observed in a recent case involving Mr Bishop’s attempt to appeal a conviction for breaching a protection order:1
I apprehend that the real miscarriage of justice in Mr Bishop's eyes arises out of his treatment as a child and the fact he was taken away from a “good safe environment” with his mother and then exposed to events which adversely shaped his life. …
Legal context
[11] As Mr Bishop’s conviction and sentence predates the Criminal Procedure Act 2011 the application for leave to appeal falls to be dealt with under the provisions of the Summary Proceedings Act 1957.2
[12] Under s 115 of the Summary Proceedings Act any appeal from the conviction should have been brought within 28 days of the imposition of the sentence, namely by 22 December 1997. The application for leave to appeal to this Court was lodged on 18 September 2023, some 25¾ years (approximately) out of time.
1 Lowther v Police [2023] NZHC 296 at [14].
2 Criminal Procedure Act 2011, s 397(2).
[13] The general principles in relation to an application to extend time for a criminal appeal were stated in R v Knight as:3
The touchstone is the interests of justice in the particular case. … The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed.
[14] The length of time from the entry of the conviction is also relevant. The Court will only entertain an appeal that is many years out of time in exceptional circumstances: Butcher v R:4
This Court has affirmed on numerous occasions that it will only entertain an appeal that is many years out of time, such as this, in exceptional circumstances. Applications for leave to appeal out of time involve a balancing test, in which relevant considerations include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedies sought. The extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown are also relevant. A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.
[15] In Butcher the application was almost four years out of time. The Court declined the application for leave.
Explanation for delay
[16] Even taking account of what Mr Bishop has said in support of his application, in particular the brain injury sustained at the age of six and the subsequent injuries, particularly to his foot when he was run over by a car when he was eight, any cogent explanation for the delay in seeking to appeal the conviction is lacking.
[17] Mr Bishop’s written submissions were delivered to the Court in a series of emails over several days. Both they and his oral submissions to the Court were difficult to follow, particularly as to their relevance to the application for leave. Mr Bishop is obviously concerned about the brain damage he sustained (amongst other issues). However, as noted, he was examined by a consultant psychiatrist, on 27 August 1997 and confirmed to not be under a disability.
3 R v Knight [1998] 1 NZLR 583. See also R v Lee [2006] 3 NZLR 42.
4 Butcher v R [2015] NZCA 102 at [7] (footnote omitted).
[18] I note that, as Ms Al-Janabi for the Crown submitted, Mr Bishop is apparently aware of his appeal rights. For example, in 2014 he successfully appealed a conviction in relation to infringement offences from 2013 in the High Court at Christchurch: Lowther v New Zealand Police,5 and in the decision referred to above he appealed against convictions entered on 22 November 2018 to the High Court.
[19] There is no satisfactory explanation for the lengthy delay in seeking leave to appeal.
Merits
[20] Another important consideration is the merits of the proposed appeal. Mr Bishop pleaded guilty and at the time was represented.
[21] Next, I note that the summary of facts to which Mr Bishop pleaded guilty to records that, when spoken to, he made full admissions to the offending (although as noted a transcript of the DVD interview is no longer available). The summary of facts records:
On Thursday the 14th August 1997, Police went to the defendant’s home.
Upon speaking with Police, the defendant admitted the facts as outlined stating he had put his penis in the victim’s anus and performed oral sex on the victim.
He offered no explanation for his actions.
[22] During the course of the hearing before the Court in support of this application Mr Bishop confirmed that he maintained he denies the anal intercourse (and he has denied it in his written material) but accepted the sexual connection by oral connection had occurred. In that context it is relevant that he pleaded guilty to one charge of indecent assault on a boy under 12, a lesser offence, and was sentenced accordingly. So, even on Mr Bishop’s own admission before the Court, quite apart from the earlier recorded admissions from the summary of facts, at the very least Mr Bishop had oral contact with the victim’s penis. The sole charge he has been convicted of was indecent assault on a boy under 12.
5 Lowther v New Zealand Police [2014] NZHC 472.
[23] There is an unusual feature of this offending and charging process in that the informations originally before the Court allege the offending occurred between what appears to be 1 January 1989 and 31 December 1990.6 Mr Bishop was born on 12 August 1975. He turned 14 and would not have been subject to the criminal processes for offending until 12 August 1989. The date range in the information commenced before that. However, I note that the summary of facts that Mr Bishop pleaded guilty to recorded that, at the time of the incident the victim was eight years old. The victim was born on 1 March 1982, so on that basis the offending must have occurred between 1 March 1990 and 31 December 1990 when Mr Bishop was 14 years old.
[24] On the information before the Court there is no apparent merit in the proposed appeal.
Other considerations
[25] A further consideration is the disadvantage to the Crown with the passage of time. As noted, it appears transcripts of the victim’s and also Mr Bishop’s interviews are missing and unavailable.
[26] There is also the interests of the victim to be considered. On any view of it, he was the victim of offending at the age of eight. He will now be in his early thirties and no doubt has attempted to put this matter behind him.
Result
[27] Given the egregious delay to date and the lack of any adequate or proper explanation for that delay, and having regard to the lack of merit in the proposed appeal, the application for leave to appeal out of time is dismissed.
Venning J
6 The copy of the information is difficult to read but it appears to be 1989.
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