Oketopa Aka October v The Queen - [2020] NZSC 75

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 140/2019
[2020] NZSC 75

BETWEEN	MIKAERE OKETOPA Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	K H Cook for Applicant P D Marshall for Respondent
Judgment:	31 July 2020

JUDGMENT OF THE COURT

The application for an extension of time to apply for leave to
appeal is dismissed.

____________________________________________________________________

REASONS

After a trial in the High Court in Christchurch in October 1995 Mikaere Oketopa[1] was convicted, together with two other men (Richard Genge and Samuel Kirner), of the rape and murder of Anne Marie Ellens. Her body had been found in the grounds of a Christchurch school on the morning of 17 September 1994.
[1]At the time, Mr Oketopa was known as Michael Wayne October. He has since changed his name.
Mr Oketopa was sentenced to life imprisonment. Both Mr Oketopa and Mr Kirner appealed unsuccessfully to the Court of Appeal against conviction.[2] Mr Oketopa now applies out of time to this Court for leave to appeal against the decision of the Court of Appeal.[3] He seeks an extension of time to make this application.

The trial

[2]R v October CA477/95, 31 July 1996 (Eichelbaum CJ, McKay and Heron JJ) [CA judgment]. Mr Genge abandoned his appeal to the Court of Appeal against conviction for rape and the imposition of a minimum period of imprisonment for murder. The Court of Appeal subsequently declined his applications to withdraw the notice of abandonment and to extend time to appeal against the conviction for murder and the rape sentence: Genge v R [2017] NZCA 466 (leave to appeal declined: Genge v R [2019] NZSC 35).

[3]The Crown consented to Mr Oketopa filing his application for leave in this Court rather than the Privy Council: Senior Courts Act 2016, sch 5 cls 3(2)(b) and 4(2)(d); and Supreme Court Act 2003, ss 50(2)(b) and 51(2)(d).

Mr Genge accepted responsibility for the injuries inflicted on the victim and there was forensic evidence linking him with the crime scene. Neither Mr Kirner nor Mr Oketopa made any such concession and, beyond their admissions of having intercourse with the victim,[4] there was no forensic evidence linking them to the scene. The evidence was that Mr Oketopa was not previously known to Mr Genge and Mr Kirner. It was also unclear at what stage Mr Oketopa joined the group.
[4]A DNA match confirmed Mr Kirner’s admission of intercourse.
In the absence of evidence of any direct involvement, the Crown case against Mr Oketopa was on the basis of ss 168 and 66(2) of the Crimes Act 1961. That is, it was contended that the three men had formed a common intention to commit rape and to assist each other in doing so, and that Mr Oketopa knew there was a real and substantial risk that Mr Genge could well inflict some grievous bodily injury for the purpose of committing rape and/or avoiding detection.
As the submissions for the Crown…

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

Case: [2020] NZSC 75
Decision Date: 31 July 2020

CaseChat Overview and Summary

Mikaere Oketopa, previously known as Michael Wayne October, was convicted in 1995 of the rape and murder of Anne Marie Ellens. His conviction was upheld by the Court of Appeal. He now applies to the Supreme Court of New Zealand for leave to appeal against the decision of the Court of Appeal. The key legal issues in this case are whether there are compelling reasons to extend the time to apply for leave to appeal and, if so, whether leave to appeal should be granted.

The Supreme Court found that the delay in applying for leave to appeal was significant and largely unexplained. The Court also found that the Crown was prejudiced by the delay, including the deaths of key witnesses and the unavailability of crucial documents and physical evidence. The interests of the victim’s family and the importance of finality were also considered. The proposed grounds of appeal did not provide a compelling reason to extend time. The Court found that the strength of the proposed appeal was not such as to warrant an extension of time, and there were alternative remedies available to the applicant.

The Supreme Court dismissed the application for an extension of time to apply for leave to appeal. The Court also noted that, on the information before it, the criteria for granting leave to appeal were not met.

The final orders of the Court were that the application for an extension of time to apply for leave to appeal is dismissed.

Orders