Mr Mikus was found guilty, at a trial in October 2002, of abducting, sexually violating (by rape and unlawful sexual connection) and murdering six-year-old Teresa Cormack on 19 June 1987.
On 1 November 2002 Mr Mikus was sentenced to life imprisonment on the murder charge. On the rape count he was sentenced to preventive detention with a seven year minimum term of imprisonment. In respect of the unlawful sexual connection and abduction counts, he was sentenced to 14 years’ imprisonment on each count.
Mr Mikus now seeks an extension of time to appeal against his conviction. His notice of appeal was received by the Court on 16 April 2008, approximately five and a half years out of time.
Mr Mikus also asks this Court to appoint counsel to act for him and to make orders for further DNA testing.
Background
Six-year-old Teresa Cormack was abducted, raped and murdered on 19 June 1987. Her body was found at Whirinaki beach, which is approximately 20 minutes north of Napier, one week later. She had been buried in a shallow shingle grave.
Teresa set out walking to school on 19 June 1987. The Crown case was that she never entered the school grounds. Rather, she was abducted by Mr Mikus sometime after she ought to have been in class, but was, instead, walking around Napier.
Teresa’s post-mortem was undertaken by Dr Peter Pedlow on 28 June 1987. He took swabs from her mouth and vaginal area. A pubic hair was recovered from her mouth during the post-mortem. Two pubic hairs had been located in her underpants on 27 June 1987.
The cause of death was asphyxia. Dr Pedlow testified that Teresa had light blood-staining around the entrance to her vagina and a small tear in her hymen. The interior lining to the vagina appeared intact. In the pathologist’s opinion, the absence of vaginal injury suggested that penile penetration had not taken place.
However, the Crown called Dr Patrick Kelly, who is a paediatrician at Starship Hospital, to testify on Teresa’s sexual injuries. His evidence was that the absence of injury did not exclude the possibility of penetration. Further, the fact that Teresa’s hymen was torn was indicative that some form of penetration had occurred. The most logical explanation for the fact that her hymen was damaged and spermatozoa found in her vagina was that there had been penile penetration.
Mr Mikus was a suspect for the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mikus v R [2011] NZCA 298
Case
[2011] NZCA 298
Decision Date
CaseChat Overview and Summary
Jules Pierre Mikus sought to appeal his conviction for the abduction, sexual violation, and murder of six-year-old Teresa Cormack. Mikus argued that the appeal was filed late due to his inability to secure legal counsel, and he proposed several grounds for appeal, including the reliability of the DNA evidence, the impact of media publicity, and allegations of police misconduct. The Court of Appeal considered whether extending the time for appeal was in the interests of justice and whether Mikus' proposed grounds of appeal had merit. The Court found that Mikus' reasons for the delay were inadequate, and that none of the proposed grounds of appeal had merit. The Court concluded that there was no proper excuse for the delay in filing the appeal, and declined Mikus' application for an extension of time to appeal, as well as his requests for the appointment of counsel to assist and for orders for further DNA testing.
Solicitors: Crown Law Office, Wellington for the Respondent.