C v Police

[2021] NZHC 3560

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD(REN).

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-55

[2021] NZHC 3560

BETWEEN

C

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 December 2021

Counsel:

C J Tennet for the Applicant

H R Hancock for the Respondent

Judgment:

20 December 2021

JUDGMENT OF GWYN J

[1]                 Ms C, the applicant, was convicted on 8 March 1996 in the Wellington District Court, after pleading guilty to a charge of being a party to unlawful sexual intercourse with a girl aged 12-16 years.1 Ms C was sentenced on 18 April 1996 to a six-month suspended prison sentence and six months supervision. She now applies for an extension of time within which to appeal her conviction and/or appeal against sentence, seeking a discharge without conviction. Ms C also seeks permanent name suppression.

1      Crimes Act 1961, s 134(1) and s 66(1).

C v NEW ZEALAND POLICE [2021] NZHC 3560 [20 December 2021]

Background facts

[2]                 The summary of facts records that at the relevant times Ms C worked part time at a retail store where her then partner, Mr H, worked as a manager. The victim (A) also worked full time at the store. A was aged 15 at the time.

[3]The summary of facts records:

On Saturday 10 February 1996, the victim was invited to a party with both defendants at a local hall.

The victim, not accustomed to drinking, had several bottles of beer, and became quite intoxicated.

After the party, at approximately 11.30 pm, the defendants took the victim back to their flat.

[H]  undressed  the  victim,  and  then  undressed  the  defendant  [C].    [H] undressed himself and all three then got into bed.

[H] then got the victim to commit indecencies upon [C], while he watched.

[C] then instructed the victim to have intercourse with [H].

[H] then applied KY jelly to his penis, and had sexual intercourse with the victim, while [C] fondled the victim’s breasts. [H] did not use a condom.

Some time later, the victim went to the bathroom, and realised that the room was spinning, due to her level of intoxication.

She returned to bed, and [H] again had intercourse with her.

All three fell asleep, and were woken at approximately 5.30 am, by a friend of the victim’s who was looking for her.

Both defendant were spoken to by Police some days later. They admitted the fact as outlined.

In explanation, they stated that the victim was a willing party throughout the entire night, and that nothing would have happened had she not wanted it to.

[4]                 In her statement to police, A said that she had met both Ms C and Mr H soon after she started working at the store. She said Ms C had offered her the chance to be their nanny and to live with her and Mr H and offered to pay for her to go to nanny school. Ms C took her shopping on one occasion and paid for her nose to be pierced. A few days later she bought A some clothes. Over the next couple of weeks A went to Ms C and Mr H’s house three or four times. On one of those occasions they showed

her pornography. They asked her to move in with them and have a relationship with them.

[5]                 Ms C is now 41 years old. She left Mr H in 1999. She had two daughters with Mr H who were aged two and one at the time of their separation.

[6]                 Ms C was in a subsequent relationship for 20 years (she and her partner were married for part of that time), and she has two children from that relationship, both of whom have special needs. From 2004 to 2016, Ms C was an early childhood teacher, employed by a national provider of in-home childcare and early childhood education services. Ms C had told her employer about her criminal record when she commenced employment with them, but after the Vulnerable Children Act 20142 came into effect her employers terminated her employment, in June 2016, on the basis that her previous conviction was for a “specified offence” in Schedule 2 of the Act. The Act provides that a core worker convicted of a specified offence cannot be employed or engaged unless that person applies for an exemption. Ms C’s employer advised her that, while she was entitled to go through the exemption process, they would not re-register her given their internal policies.

[7]                 Subsequently Ms C has applied for more than 40 jobs in other areas but has been unsuccessful.

[8]                 Ms C says she did not seek to appeal her conviction earlier for a number of reasons: after she left the relationship with Mr H in 1999 she was fighting for custody of her two daughters. Her evidence is that she was involved in the Family Court process for nine years, from 1999 to 2008. In 2004, after the birth of her daughter S, Ms C was diagnosed with depression, PTSD, anxiety disorder and OCD. Ms C’s mother, who had taken her in as a foster child in 2014, died in 2008.

[9]                 Ms C’s earlier history is also relevant. She lived with her birth mother for the first five years of her life. Her mother was physically and mentally abusive, Ms C was raped by her brother. She was made a ward of the state, until she was 21 years old, and describes further sexual abuse while she was in foster care. Subsequently Ms C

2      Now the Children’s Act 2014.

was accepted by the ACC Sensitive Claim Unit as having an impairment (mental injury) as a result of that abuse. A 2005 ACC report sets out an impairment assessment.

[10]                Ms C also says that she had tried to put the conviction behind her, thinking that the provisions of the Clean Slate Act3 applied to her.

[11]              Two specific things triggered Ms C to take steps to appeal her conviction. The first was when she was refused a visa to travel to Australia in about 2009. The second was what occurred with her employment.

[12]              It is in those circumstances that Ms C has now applied for an extension of time to bring her appeal, as the appeal is 25 years’ out of time.

Applicable law and procedure

[13]              Ms C’s conviction was entered before enactment of the Criminal Procedure Act 2011. In accordance with s 397(2) of that Act, Ms C’s appeal must be heard and determined in accordance with the Summary Proceedings Act 1957, as if that Act was still in force.

[14]              Under s 115 of the Summary Proceedings Act, Ms C had a general right of appeal to the High Court against her conviction and sentence. Under s 116 of that Act, any appeal had to be lodged within 28 days of the sentence

[15]              Under s 123 of the Summary Proceedings Act, the High Court could extend the time for filing a notice of appeal. Section 388 of the Crimes Act 1961 is analogous to s 123 of the Summary Proceedings Act. The same considerations for extending time to appeal apply.4 The key considerations are:

(a)the length of and reasons for the delay;5

3      Criminal Records (Clean Slate) Act 2004.

4      R v Knight [1998] 1 NZLR 583 (CA); R v Lee [2006] 3 NZLR 42 (CA); R v Slavich [2008] NZCA 116.

5      R v Slavich, above n 4, at [14]; Douglas v Police [2013] NZHC 2651 at [28], citing R v Lee, above n 4, at [108]-[118].

(b)the merits of the proposed appeal;6

(c)whether the respondent has suffered any prejudice by the delay, being prejudice of a kind other than what is inherent in the extension of time itself;7 and

(d)overall, whether it is in the interests of justice for leave to be granted. This involves balancing the wider interest of society in the finality of decisions, against the interests of the individual applicant in having the conviction reviewed.8

[16]              There is an additional hurdle here because Ms C pleaded guilty to the charge against her. It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.9 The appellant must show that a miscarriage of justice will result if the conviction is not overturned. The Court of Appeal in R v Le Page set out three broad situations where a miscarriage of justice will be indicated:10

The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time the plea is entered, it may be difficult indeed to establish a vitiating element…

A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged. Examples are where a charge required special leave and such was not obtained, a charge was out of time or where as a matter of law the facts are insufficient to establish an essential ingredient of the offence…

The third category is where is can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law…

[17]              Leave will not be given if the guilty plea was entered by a competent defendant who had no viable defence.11

6      R v Slavich, above n 4, at [14].

7      Police v Hill (1990) 6 CRNZ 280 at 281; R v Knight, above n 4, at 589.

8      R v Knight, above n 4, at 587.

9      R v Le Page [2005] 2 NZLR 845 (CA) at [16].

10     At [17]-[19].

11     R v Ericson [2007] NZCA 18.

[18]              If time is extended, the substantive appeal would proceed under ss 119 and 121 of the Summary Proceedings Act. Under s 119 general appeals were to be held by way of rehearing. The Court had full discretionary powers to hear and receive further evidence, if that further evidence could not in the circumstances reasonably have been adduced at the hearing.12 Section 121 empowered the High Court to hear and determine every general appeal and to make such order in relation to it as the Court thought fit. On an appeal against conviction, the Court could:13

(a)Confirm the conviction; or

(b)Set it aside; or

(c)Amend it and, if the Court thought fit, quash the sentence imposed and either impose any sentence the convicting court could have imposed, or deal with the offender in any other way the convicting court could have done, which includes to discharge without conviction.

[19]              At the time of Ms C’s conviction, s 19 of the Criminal Justice Act 1985 provided the power to discharge without conviction:

19       Discharge without conviction

(1)Where a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction unless by any enactment applicable to the offence a minimum penalty is expressly provided for.

(2)A discharge under this section shall be deemed to be an acquittal.

…

[20]              In Police v Roberts, the Court of Appeal explained that the central consideration under s 19 was whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence:14

What the Court must do is “to balance all the relevant public interest considerations as they apply in the particular case”. The public interest may require a conviction to be entered because of the nature of the offence and the

12     Summary Proceedings Act 1957, s 119(3).

13     Section 121(2).

14     Police v Roberts [1991] 1 NZLR 205 at 210.

particular occupation or proposed occupation of the offender. On the other hand, the offence may be so trivial that public interest does not call for a conviction to be recorded… [In] the final analysis, after considering all the relevant circumstances, it is a proper exercise of the Court’s discretion “if the direct and indirect consequences of the conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence.” That must be the overriding consideration. The words, “out of all proportion” point to an extreme situation which speaks for itself.

[21]              The Court must consider the gravity of the offending and the consequences of a conviction for the individual offender. Then it must determine whether those consequences are out of all proportion to the gravity of the offending. Finally, the Court must decide whether to exercise its discretion to grant a discharge.

[22]              An appeal against a refusal to discharge without conviction is characterised as an appeal against both conviction and sentence. As the Court of Appeal said in Jackson v R,15 “the essence of the challenge is to the entry of a conviction; that is the nature of the decision against which the appeal is brought. The setting aside of the conviction is both the necessary prerequisite to and objective of the appeal.”

Approach on appeal

[23]              Because Ms C’s application is framed in the alternative as an appeal against conviction or sentence, I assess the merits of the time extension application, as Jagose J did in McNeil,16 through the lens of whether, when Ms C was convicted and sentenced in 1996, she ought to have been granted a discharge without conviction by the District Court Judge.17

The application for extension of time

[24]              The Police oppose the application to extend time for the appeal. I consider the competing public interest considerations below.

15     Jackson v R [2016] NZCA 627 at [8]. See also eg Lawrence v Police [2016] NZHC 148 at [7].

16     McNeil v Police [2018] NZHC 1685 at [16].

17     I note that in McNeil the parties had agreed that the leave application and the substantive appeal be dealt with at the same time. That is not the case here.

Length of and reasons for delay

[25]              The principal reason Ms C gives for the delay is that it was not until her employment was terminated in 2016, as a result of the conviction, and her subsequent inability to obtain other employment, that the impact of the conviction became apparent. Ms C also gives evidence that she is precluded from study, giving the example of an enquiry about doing an accounting course with the Careers Academy, a private training establishment, so that she could do accounting bookkeeping from home. She says she was not able to do so because of her conviction, although there is no supporting evidence before the Court on this point.

[26]Ms C says that other difficult issues in her life preceding that point (outlined at

[8] above) meant that she was not focussed on seeking leave to appeal.

[27]             Ms C’s evidence is that there were a number of reasons for the delay in actually implementing her decision to seek leave to appeal. For example, the Police file was not  received   until   2   September   2019.   Ms C   filed   her   first   affidavit   on  16 September 2019. In addition, it appears that Ms C was initially advised to file her application for leave in the District Court and was subsequently surprised when the District Court Judge (Judge Hastings) found that it could not be heard by the District Court. The first COVID-19 lockdown then ensued.

[28]             Ms C’s situation was complicated by the fact that during that lockdown, her relationship with her husband deteriorated and she was under considerable stress as a result. By the time the counsel she had ultimately instructed was free from trial commitments to proceed with the matter, Ms C’s personal circumstances had worsened. She refers to threatening and psychological and physical abuse by her husband which required her to get a Protection Order. That situation gave rise to another issue which is relevant to the effect of the conviction. On the breakdown of her marriage, Ms C was fearful of her safety and wanted to go into emergency housing but she was advised by the Porirua Women’s Refuge / Whare Manaaki Inc, that she could not be a resident there because of her conviction for sexual offending with a child. Ms C was also advised by WINZ that her conviction meant that she could not be placed in emergency housing with families and children.

[29]             Mr Hancock, for the Police, notes that the length of the delay is unprecedented. He refers specifically to the cases of Dijali v R,18 Brown v Police,19 and McNeil v Police,20 which involved 21, 20 and 29 year delays, respectively. Of those three cases, leave was granted only in McNeil.

[30]            Mr Hancock submits that the termination of Ms C’s employment in 2016 because of the conviction is insufficient explanation for the delay of 25 years. Her notice of appeal was not filed until 23 December 2019, although she first instructed counsel in 2016. The respondent says that the fact that such a conviction could potentially have consequences on employment must have been readily appreciable prior to the commencement of the Vulnerable Children Act 2014, in the same way that the consequences of a conviction for possession of cannabis were readily appreciable in McNeil v Police.21

[31]             Mr Hancock notes that the termination letter of 13 June 2016 from Ms C’s employer suggests that Ms C had known since 2012 that, because of her conviction, her employer would not directly refer any clients to her and that if her services were requested, Ms C must disclose her conviction to them within 24 hours. The implication of that submission is that Ms C must have appreciated the significance of her conviction at least at that point.

[32]             I have found it useful to consider the period of delay in two phases – pre-and post-Ms C’s dismissal on 13 June 2016, which was consequent on enactment of the Children’s Act 2014.

[33]             The earlier period, from the date of conviction in March 1996 until June 2016 is, on its face, problematic.

[34]             I accept that Ms C must have had some understanding at the time of her conviction and sentence of the potential consequences of a conviction for this offending. However, this case is somewhat different from McNeil, where Mr McNeil

18     Dijali v R [2017] NZCA 515.

19     Brown v Police [2018] NZHC 1083.

20     McNeil v Police above n 16.

21     McNeil v Police, above n 16.

was convicted for possession of a small amount of cannabis, and sought leave to appeal his conviction 29 years out of time. In that case Jagose J did grant leave, primarily because there was little or no prejudice to the respondent, but as to delay, said: 22

The fact the conviction was entered at a time where  the consequences  on Mr McNeil would not have been as significant, or the exact impact of those consequences was ambiguous, is not a compelling or understandable reason for the delay. The potential consequences themselves on Mr McNeil for general employment and travel prospects as well as the mark of a conviction at the age of 17 were, if not notorious, then at least known.

[35]             Here, Ms C was 21 years old at the time of the offending. She had been in a relationship with Mr H since she was 16 and she was three months’ pregnant. She says that Mr H was generally controlling and aggressive.23 At that time she worked part-time in a retail store. The 2005 ACC report records that Ms C had trained as a dental assistant, but had a history of lasting for a short while in jobs before leaving, because work was “too stressful”. Ms C’s evidence is that she did not begin working as an early childhood teacher until 2004. That is some eight years after her conviction. I infer that at the time Ms C pleaded guilty to the charge against her she did not anticipate that in the future she would be working in this area. Nor could she have anticipated the enactment of the Vulnerable Children Act 2014 and its impact on her.

[36]             I also note that Ms C and Mr H were originally charged with sexual violation but the charge was amended to unlawful sexual intercourse with a girl 12-16. Ms C said she never saw the Summary of Facts. She describes the decision to plead guilty as a “package deal”. Her evidence is that the lawyer who acted for her and Mr H told them the result was a very good one. She says she was told by both Mr H and their lawyer to sign a letter to the Police thanking them for the way they dealt with the case.

[37]             In those circumstances, and having been unaware of, or able to ameliorate, the effects of the conviction for a substantial period, it is not surprising that it was not until the conviction had a direct impact on her ability to work in her chosen field, with the economic and personal consequences that flowed from that, that Ms C appreciated the significance of the conviction and sought leave to appeal.

22 At [23].

23     Ms C’s evidence is that she was subsequently raped by Mr H and she left the relationship shortly after.

[38]             I now consider the latter period, after Ms C’s employment was terminated. The letter of termination is dated 13 June 2016. She instructed a lawyer, Keith Jeffries, sometime in 2016. Mr Jefferies wrote to the Hon Peter Dunne, Member of Parliament, on 22 March 2016 in relation to Ms C’s convictions. Nothing came of that. Subsequently, also in 2016, Ms C instructed her present counsel, Mr Tennet. The Police file was received on 2 September 2019; Ms C swore her first affidavit on 16 September 2019 and filed a notice of appeal in the District Court on 23 December 2019.

[39]             I am satisfied that the lapse of time from the termination of her employment until Ms C’s notice of appeal was filed is explicable.  It is not due to any delay on  Ms C’s part.

Merits of the proposed appeal

[40]             The statement of facts says “the victim is a 15 year old girl”. Later in the statement of facts it states that both defendants “admitted the fact (sic) as outlined”. The statement of facts does not include any more specific reference to indicate that either Ms C or Mr H acknowledged they knew A was 15. The complainant’s statement said “Everyone at work knows that I am 15.” Ms C’s evidence in this application is that Mr H had told her that A was 18; she says “I thought she was a lot older – at least 18.” Ms C also says she was a reluctant participant in what happened with A, but went along with it in the context of what she says was a relationship where Mr H had previously been violent and threatening to her, was preoccupied with pornography and constantly pestering her for sex, despite her being pregnant.

[41]             Initially Mr H and Ms C were charged with rape. Subsequently the charge was reduced to unlawful sexual intercourse with a girl aged 12-16 years. Ms C says the charge was reduced after she recorded a telephone conversation with A in which A admitted “everything had been voluntary”. Ms C provided that tape recording to their counsel.

[42]             Ms C says that she felt pressured to plead guilty to the lesser charge on the basis that if she pleaded not guilty and was subsequently found guilty her lawyer said she would likely go to prison and her (unborn) baby would go into care. Ms C says

their lawyer treated them like a unit. Mr H did all the talking. The proposal to plead guilty to the amended charge was put to her as a “package deal”, to avoid Mr H going to prison. Ms C says she had no separate legal advice; she was not advised about being a party (or not) to the offending or whether she had a defence. There is nothing in the material before the Court to suggest that counsel advised of, or sought, a discharge without conviction for Ms C.

[43]             The evidence before me on this application includes a 14 March 1996 pre- sentence report for Mr H, which refers to a pre-sentence report for Ms C being before the Court, but that is not in the material before me. The pre-sentence report for Mr H says of Ms C “It is apparent that … his de facto partner was a state ward from the age of 18 months, that she had a troubled upbringing and that she was dependent on him, as she had no other family or close friends.” The report also noted “[H] is a first offender who presents as an immature, anxious, self-centred individual with a strong inclination towards perceiving himself as a victim, in this matter.”

[44]             The Crown refers to  a  contemporaneous  news  report  which  refers  to  Paul Surridge  as   counsel   for   Mr H,   and   later   mentions   “[C]’s   lawyer Jackie Anderson”. The article suggests that Ms Anderson had taken instructions from Ms C. But Ms C says it was Mr Surridge who appeared on her behalf, both at the guilty plea and at sentencing. Mr Tennet has not been able to find out more about  Ms Anderson’s role, but suggests she may have been someone from Mr Surridge’s office.

[45]             As Jagose J said in McNeil v New Zealand Police,24 it is important to recognise that the merits must be relatively strong such that there is a real likelihood that an appeal would succeed if time was extended.25

[46]             As I have noted, my assessment of the merits of the appeal turns on whether Ms C should properly have received a discharge without conviction at the time she

24     McNeil v Police, above n 16, at [10].

25     R v Slavich, above n 4, at [13]; Douglas v Police, above n 5, at [31]; citing Cleggs Limited v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.

was convicted and sentenced. In terms of the assessment required under s 19 of the Criminal Justice Act 1985, I turn to the Police v Roberts factors:26

(a)The nature of the offence and the gravity with which it is viewed by Parliament;

(b)The seriousness of the particular offending;

(c)The circumstances of Ms C in terms of the effect on “[her] career, [her] pocket, [her] reputation and any civil disabilities consequential on conviction”; and

(d)Any other relevant circumstances.

[47]             Ultimately, that requires an assessment as to whether the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offence.

[48]             There is no doubt that the offence, sexual conduct with a young person under 16,27 is a serious one. It is liable to a maximum term of imprisonment of 10 years. However, there is a statutory defence.28 Ms C was charged as a party to the offence29 and, on the basis of the summary of facts and A’s statement, Ms C had a lesser role in what occurred. As I have noted, Ms C also says that she was a reluctant participant and she believed that A was a willing partner to what occurred and was at least 18 years old.

[49]             It is not clear on the facts before me whether Ms C would have been able to make out all three elements of the statutory defence to the charge under s 134A - that is, that before the act concerned she had taken reasonable steps to find out whether A was of or over the age of 16, and that at the time of the act she believed on reasonable grounds that A was of or over 16, and that A consented.

26     Police v Roberts, above n 14, at 210.

27     Crimes Act 1961, s 134.

28     Crimes Act 1961, s 134A.

29     Crimes Act, s 66(1).

[50]             But in any event, the evidence before me suggests that Mr H and Ms C’s interests were different and that, had they been separately represented, Ms C might have been able to obtain a discharge without conviction, having regard to the following factors:

(a)Ms C’s own difficult background;

(b)the nature of her relationship with Mr H;

(c)her pregnancy;

(d)her lesser, and reluctant, involvement in the offending;

(e)her belief that A was more than 18 years old;

(f)A’s subsequent admission that she was a voluntary participant; and

(g)the lack of any previous convictions and the potential impact on Ms C’s future employment.

[51]             I am satisfied there is sufficient merit in the appeal, at least for the purposes of extending time.

Prejudice to the respondent

[52]             Consideration of the difficulties must be limited to those which are due to the delay. Difficulties that would have been present, even had the appeal been timely should not be taken into account.30

[53]             Mr Hancock submits there will be significant impacts for the Crown, and potentially for A, if a retrial is ordered. This is not, he says, a straightforward case to retry, for a number of reasons including that it appears from Ms C’s evidence that there will be reliability and credibility issues. A number of specific factual matters will be in dispute including:

30     R v Lee, above n 4, at [118].

(a)Ms C’s knowledge of A’s age;

(b)The nature and degree of contact between Ms C and A both prior to and after the offending;

(c)Whether Ms C was or was not a reluctant participant in the offending.

[54]             Mr Hancock says the Police have not specifically explored the likelihood of a retrial, but the Court cannot assume a retrial could be likely.

[55]             In his submission, similar difficulties would arise on a sentencing appeal, and a disputed facts hearing would be required,31 as Ms C necessarily disputes the factual basis on which the appeal against sentence might proceed.

[56]             Mr Hancock acknowledges that Ms C’s application is at its strongest if she were to proceed on an application for discharge without conviction on the facts as pleaded to at the time.

[57]             Mr Tennet says the difficulties of a further trial are not insurmountable and would be of less significance on a sentence appeal only, where there is less likelihood of A having to give evidence.

[58]             In this case there would undoubtedly be difficulties with a retrial. At this stage, A’s availability and willingness to give evidence is unknown. It is not clear what impact a retrial for Ms C might have on Mr H.

[59]             On the other hand, a sentence appeal could proceed on a more confined basis than an appeal against conviction and any factual disputes more readily dealt with.

Interests of justice

[60]As the Court of Appeal said in R v Knight:32

31     Sentencing Act 2002, s 24.

32     R v Knight, above n 4, at 587, cited with approval by the Court of Appeal in R v Slavich, above n 4, at [8].

The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 338(1) is the interests of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 338(2) to appeal out of time. 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 individual applicant in having the conviction reviewed.

[61]             I accept that the wider interests of society and the finality of decisions does weigh against Ms C’s interest in having her conviction and sentence reviewed by this Court so many years out of time. “Appeal periods are set for a purpose: to ensure finality in decision-making and … the orderly administration of justice.” 33

[62]As Jagose J observed in McNeil:34

It would place serious strain on the court system if people convicted of offences nearly 30 years ago were able to relitigate their convictions when faced with specific obstacles arising from that conviction.”

[63]             On the other hand, it is arguable that the disposition of the proceedings resulted in an unjust outcome for Ms C.

[64]             It is also plain that the conviction has had significant consequences for Ms C in terms of her ability to obtain and retain paid employment in the area in which she has experience and, in times of crisis, to access appropriate emergency support. If she were ultimately successful in her appeal against conviction or in obtaining a discharge without conviction (which is deemed to be an acquittal)35 that would remove an impediment to her working as an early childhood teacher and be of substantial benefit to her, particularly given her need to be able to support her children.

[65]             In C v R the Court of Appeal did not consider that the effect of s 28 of the Children’s Act was a persuasive ground for the grant of a discharge without conviction.36 The Court discussed s 35 of that Act which provides a process to seek an exemption (which may be qualified or contain conditions) from the chief executive

33     Brown v Police, above n 19, at [30].

34     McNeil v Police, above n 16, at [32].

35     Sentencing Act 2002, s 106(2); Criminal Justice Act 1985, s 19(2).

36     C v R [2020] NZCA 443 at [25].

of any key agency.37 C had applied for an exemption and the Chief Executive of Oranga Tamariki had made a preliminary decision to decline her application, but provided C with an opportunity to provide further information targeted on specific areas of concern . The Court of Appeal said that, in the circumstances of that case, the ability to seek a statutory exemption provided “sufficient scope to look beyond the mere fact of a conviction and engage in a robust examination of C’s offending and later rehabilitative efforts.”38

[66]             The circumstances of that case were somewhat different. In Ms C’s case her former employer, a national provider of in-home childcare and early childhood education services, who was aware of Ms C’s conviction from the outset, on the enactment of the Vulnerable Children Act, advised her that “While you are entitled to go through this exemption process, we would not re-register you given our internal policies on the matter.”

[67]             That in itself differentiates this case from C v R and be a persuasive ground for a discharge without conviction. Added to that is Ms C’s inability to access emergency housing or live-in Women’s Refuge services at a time of critical need. In my view, that combination of effects, all of which would have been largely unforeseen or foreseeable, means that there is clear practical utility to the remedy sought and Ms C may ultimately be able to make out the test for a discharge without conviction.

[68]             Overall, I agree with Mr Hancock that the prejudice to the respondent (including likely prejudice to A) means the interests of justice test is not made out in relation to Ms C’s proposed appeal against conviction. However, I am satisfied that it is in the interests of justice to grant Ms C an extension of time to appeal her sentence. It may well be that, as counsel for the Police suggests, that will be a less difficult exercise (though still opposed by Police) if Ms C were to proceed with that appeal on the basis of the facts as pleaded. That will ultimately be a question for Ms C and her

37 Children’s Act 2014, s 35: “key agency” is defined as the Ministry of Social Development, the Ministry of Health, the Ministry of Education, the Ministry of Justice, the department responsible for the administration to the Oranga Tamariki Act 1989.

38 The Supreme Court subsequently declined C’s application for an extension of time for leave to appeal: C v R [2021] NZSC 177.

counsel. I am also satisfied that exceptional circumstances exist, in terms of the first category set out in R v Le Page.39

Name suppression

[69]             Ms C has interim name suppression until resolution of this application.40 I grant continued interim name suppression pending the final outcome of her appeal against sentence.

Result

[70]Ms C’s application for extension of time to appeal her sentence is allowed.

Gwyn J

Solicitors:

Mr O’Connor, Wellington Crown Solicitor, Wellington

39     R v Le Page, above n 9.

40     Minute of Simon France J, 6 September 2021; confirmed by Gwyn J at the preliminary hearing on 1 December 2021.