R v Davis

[2007] NZCA 577

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA386/07 [2007] NZCA 577

THE QUEEN

v

ALAN JAMES DAVIS

Hearing:         8 November 2007

Court:            Wilson, Ronald Young and Venning JJ Counsel:        A T Ellis and A W Rossiter for Applicant

G J Burston and J Murdoch for Respondent

Judgment:      13 December 2007         at 11.30am

JUDGMENT OF THE COURT

Leave to appeal is refused.

REASONS OF THE COURT

(Given by Wilson J)

[1]      The  applicant,  Mr  Davis,  was  convicted  on  one  count  of  unlawful  anal intercourse on a boy under 16 and two counts of doing an indecent act on a boy

under that age.  On 7 April 2006 Mr Davis was sentenced to a total of four years

R V ALAN JAMES DAVIS CA CA386/07  13 December 2007

imprisonment, comprising concurrent sentences of four years on the first count and three years each on the other counts.

[2]      Mr   Davis   filed   this   appeal   against   conviction   on   7   August   2007, approximately one year and two months out of time.   He was released on home detention on 16 July this year, and has since 8 October been on parole.

Background

[3]      The offences occurred in 1978 or early 1979, when the complainant was

13 years old.   The complainant said that Mr Davis and another man (who is the subject of separate proceedings) befriended his father following a car accident.  He described an initial incident at Mr Davis’ flat where Mr Davis forced him to submit to oral sex and anal penetration.  He estimated that another six incidents of indecent assault occurred at various times in Mr Davis’ car and one further incident, similar to the first, occurred at the flat.

[4]      The  complainant  gave  a  statement  to  police  on  24  June  2002,  and informations were laid against Mr Davis on 17 November 2004.

[5]      Mr Davis made a number of pre-trial applications, which were determined by

Gendall J in a Judgment dated 11 August 2005: R v Davis HC WN CRI-2005-085-

8899 9 August 2005.   The Judge dismissed applications for a permanent stay of prosecution, an order for a discharge pursuant to s 347 of the Crimes Act 1961, an order to exclude certain evidence and an order that the Crown disclose information about other complaints of sexual offending made by the complainant.  He allowed an application under s 23A of the Evidence Act 1908 to permit cross-examination of the complainant.

[6]      A  first  trial  was  abandoned  when  it  transpired  that  one  juror  knew  the accused and another knew the complainant.  The trial finally took place on 6 to 8

March 2006 before MacKenzie J and a jury.  The defence case was that Mr Davis never had any type of sexual contact with the complainant, although he was aware

that the complainant was being subjected to sexual abuse by four other men, with whom Mr Davis associated at the time.

Application for extension of time

[7]      Mr Davis, through counsel, applies under s 388(2) of the Crimes Act for an extension of time in which to appeal against his conviction.   He submits that the appeal   raises   a   significant   issue   of   law   regarding   historical   sexual   abuse prosecutions, that substantial research has been required to formulate the grounds of appeal, and that counsel was not trial counsel.

[8]      When at the commencement of the hearing of this appeal we asked Mr Ellis whether there was any evidence to explain the long delay in seeking leave to appeal, his only response was that it was “niggardly and mean-spirited” to be concerned with this delay when there had been a delay of more than 20 years in bringing his client to trial.

[9]      The Crown opposes the application for leave to appeal.  It submits that the interests of justice demand that the extension should not be granted in terms of the balancing test set out in R v Knight  [1998] 1 NZLR 583 (CA) and R v Lee [2006] 3

NZLR 42 (CA).  The Crown lists six factors that it says weigh against the extension of time in this case:

(a)       The lack of merit in the appeal grounds both severally and jointly, and the absence of a miscarriage of justice to the would-be appellant;

(b)      The strength of the Crown case at trial;

(c)       Society’s interest in the principle of finality;

(d)      The length of the delay and the lack of any legitimate reason for it; (e)          The liberty of the subject is not engaged; and

(f)      The impact on the administration of justice in granting an extension in these circumstances.

[10]     This Court discussed in Knight the discretion which s 388(2) confers on it to extend the time for appealing, and confirmed that approach in Lee.  In Knight at 589, Cooke P for the Court said:

The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given.  Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

[11]     The Court may refuse an extension where the appeal has no perceived merit: Lee at [108]. The Court will be more likely to grant an appeal where the delay is short and explained than where it is long and unexplained: Lee at [115].

[12]     Glazebrook  J  in  Lee  noted  that  a  person  making  an  application  for  an extension of the 28-day limit is seeking an indulgence.   The statute provides no guarantee that it will be granted.  This Court agreed with the Crown’s submission that:

… it cannot have been intended that those seeking to appeal out of time should be in exactly the same position as those appealing within time, no matter how long out of time, no matter what the reasons for the delay and no matter what the effect may be on any victims or on the due administration of justice.

[13]     The Court will only grant leave to appeal out of time if it is in the interests of justice to do so.  The applicant must provide enough information for the Court to be satisfied on this point.

[14]     On the facts of the present appeal, three of the criteria identified in Knight

point clearly to the declining of leave.

[15]     First, there is little practical utility in the remedy sought (the quashing of the conviction and a stay, or alternatively an order for a new trial) because, as we noted

at para [2] above, the applicant is now on parole.  While he does, we accept, have a legitimate interest in clearing his name if he were wrongly convicted, there must also be placed in the balance the interests of the complainant, particularly if a new trial were to be ordered.

[16]     Secondly, the delay is long; it is more than a year.

[17]     Thirdly, there is no evidence to explain the delay.  The assertions of Mr Ellis recorded at para [7] above do not do so.

[18]     While the delay between the alleged offending and the trial may well be relevant to the grounds of the appeal, if leave to appeal is given, it is not in our view relevant to the question of whether the time to appeal should be extended.

[19]     On the present facts, leave to appeal should be given only if one or more of the proposed grounds of appeal are so strong as to tip the balance against the matters which we have identified at paras [15], [16] and [17] above as pointing clearly to the declining of leave.

[20]     Against that background, we now turn to examine the proposed grounds.

Proposed grounds of appeal

[21]     Mr Davis sought in the written submissions of counsel to appeal against his conviction on the following grounds:

(a)       The  trial  Judge’s  response  to  a  question  from  the  jury  about

“reasonable doubt” amounted to a serious misdirection;

(b)The  structure  of  the  trial  Judge’s  summing  up  was  not  properly balanced and unduly favoured the prosecution;

(c)      The  trial  Judge  should  have  granted  a  stay or  a  s  347  discharge because of the undue delay between the point of time when the police became aware of the complaint and the time of trial;

(d)      The applicant suffered actual prejudice as a result of the delay;

(e)      The trial Judge failed to address the jury in summing up as to the difficulties  and  prejudice  faced  by the  applicant  in  presenting  his defence, due to the long delay between the alleged offending and the laying of the indictment and trial;

(f)      Those five grounds, viewed severally and jointly, caused a substantial miscarriage of justice.

[22]     In oral argument, and without prior notice to the Court or to the Crown, Mr Ellis advised that he “reserved” (apparently in anticipation of a further appeal to the  Supreme  Court)  the  further  argument  that  the  present  appeal  must  succeed because it was heard, unlawfully, by the Criminal Appeal Division of this Court.

[23]     That Division, counsel went on to submit in inappropriate language, cannot provide a “fair trial” (presumably a fair hearing of the appeal) but provides a “cheap and nasty” determination because the percentage of criminal appeals is much higher than the percentage of civil appeals heard by a Divisional Court.  (We do not pretend to understand the logic of this point).

[24]     When  asked  why  he  had  not  given  prior  notice  of  this  further  ground, Mr Ellis initially said that the reason was that, before the hearing, he did not know whether the appeal would be heard by the Criminal Appeal Division or by a Court comprising permanently-appointed Judges.

[25]    We then pointed out first that this information could readily have been ascertained from the Registry and secondly that, given the very basis of counsel’s complaint, he must have known that it was likely that the appeal would be heard by a Divisional Court.

[26]     Mr Ellis then acknowledged that the real reason why he had not given any notice of the further ground was his concern that, if he had done so, the Court to hear the appeal would have been reconstituted as a Court of permanent Judges.  He would then have been deprived of the ability to take the point.

[27]     We told Mr Burston that, if necessary, we would afford him the opportunity to make written submissions on the proposed further ground of appeal.  In the event, we do not find it necessary to do so.

[28]     We turn now to consider separately the proposed grounds of appeal, starting with the additional ground.

Constitution of the Court

[29]     There is nothing in this point.

[30]     The Judicature Act 1908 contains the following provisions: (a)         The Court of Appeal may sit in divisions (s 58(1)).

(b)      Any division may exercise all the powers of the Court (s 58(2)).

(c)      Where a criminal proceeding is heard by a division, the Court may comprise one Judge of the Court holding office permanently under s 57(2) and two Judges of the High Court nominated by the Chief Judge under s 58A(2) (s 58A(1)(c)).

(d)The assignment of Judges to divisions is to be in accordance with a procedure adopted by the permanent Judges of the Court (s 58C(1)) and published by the President of the Court in the Gazette (s 58C(2)).

(e)      Assignment  of  a  High  Court  Judge  to  a  division  requires  the concurrence of both the Chief Justice and the Chief High Court Judge (s 58C(3)).

[31]     The Notice required by s 58C(2) was duly published on 12 October 2006 in Gazette No 116 at page 3461.  It provides that “in the main” criminal appeals are to be heard by the Criminal Appeal Division, which “recognises the insights which Judges  with  current  trial  experience  bring  to  criminal  appeals”.    Counsel  for appellant or respondent may however request a direction that an appeal be heard by three or five permanent Judges of the Court of Appeal.

[32]     Conversely, the Notice provides, civil appeals will “in the main” be heard by a Court comprising permanent Judges, with counsel having the right to request a hearing by a Divisional Court.

[33]   The present Court was constituted in compliance with all the relevant requirements of the Act and the Notice.

[34]     The Act and the Notice provide a statutory basis for the hearing of a greater percentage of criminal than civil appeals in a Divisional Court.   The Notice also contains the reason for this, namely the advantage of current trial experience which High Court Judges bring to the hearing of these appeals.

[35]     If Mr Ellis had thought that the present appeal should be heard by a Court of permanent Judges, he should before the hearing have requested a direction accordingly.  He did not do so.

[36]     We also note that Mr Ellis has on two occasions been unsuccessful in seeking leave from the Supreme Court to challenge the hearing of appeals by the Criminal Appeal Division.

[37]     In refusing his application for leave in Jessop v R [2006] NZSC 14, the Court said:

[4]       Mr Ellis was disposed to renew in this Court the challenge he made to the membership of the division of the Court of Appeal which sat on the rehearing of the appeal.  He would contend that the appointment of a High Court Judge to sit on the appeal was unlawful. This contention is hopeless in the face of the statutory authorisation in s 58A of the Judicature Act 1908 for the assignment of the High Court Judges to divisions of the Court of Appeal and the statement in s 58G that the fact that a Judge of the High Court acts as a  Judge  of  the  Court  of  Appeal  is  conclusive  evidence  of  the  Judge’s

authority to do so and that no judgment or determination given or made by the Court of Appeal while the Judge so acts may be questioned on the ground that the occasion for the Judge so acting had hot arisen or had ceased to exist.  It should also be noted that since the judgment below was given the Privy Council has in devolution appeal from Scotland rejected the view that the use of temporary Judges is contrary to the European requirement for an independent  and  impartial  tribunal  [Kearney  v  Her  Majesty’s  Advocate [2006] UKPC D1].

[38]     In Manawatu v R [2007] NZSC 13, Mr Ellis’ first ground of appeal was directed at s 398 of the Crimes Act 1961, which restricts the delivery of separate judgments in this Court. His other grounds were summarised by the Supreme Court as follows:

[4]       The  second  complaint  concerns  the  regime  for  determination  of criminal appeals.   Counsel’s written submissions focus on the way the Criminal Appeal Division of the Court of Appeal operates.  The criticism of s 398 of the Crimes Act is joined in with this ground.

[5]       Another  complaint  concerns  what  is  said  to  be  a  discriminatory approach to criminal appeals in the Court of Appeal.  It relies on the very small number of dissenting judgments in criminal cases in relation to those in civil cases.  Obviously it is linked with the complaint concerning s 398.

[39]     In dismissing Mr Ellis’ application for leave to appeal, the Court said:

[6]       The application … seeks to bring a systemic challenge to aspects of the system for determining criminal appeals in the Court of Appeal.   The challenge is concerned with the policy of the legislation, in particular in relation to the Criminal  Appeal  Division  and the present restrictions  on delivery of separate judgments in the Court.   It is not suggested that it is open to the Court to interpret the legislation in a way that would be more consistent with rights protected by the Bill of Rights [Act 1990] and the [International] Covenant [on Civil and Political Rights].  Nor is it suggested that the Court of Appeal is acting outside of what the legislation demands.

[7]       In these circumstances the grounds concerned do not invoke the jurisdiction of this Court.   We do not consider that it is necessary in the interests of justice for the Court to hear and determine the appeal in respect of these three grounds.

Answer to the jury’s question

[40]     The Judge’s answer to the question of the jury about reasonable doubt was as follows:

JUDGE:  Ladies and gentlemen, you have asked a question, which is:

Would  the  Judge  restate  his  statements  on  credible  and reliable and reasonable doubt.

I propose to read to you what I said to you in the course of my summing up on both of those topics, and I propose also to elaborate on that a little, since it’s a matter that you are obviously in need of guidance on.

What I said on the subject of reasonable doubt was:

The standard to which the Crown must prove its case is that it must prove each element of the offence beyond reasonable doubt.   The words “beyond reasonable doubt” mean exactly what they say.  The Crown does not have to satisfy you to a degree of mathematical or scientific certainty, because we are dealing with human affairs, and, as you will be well aware, they just simply don’t work that way. What the words “beyond reasonable doubt” mean is that you must be sure, you must feel satisfied, of the accused’s guilt.  If you are not sure, if you are not satisfied, then you should acquit.  But equally, if you are sure, if you are satisfied, then it is your duty to convict.

[41]     MacKenzie  J  then  went  on  to  discuss  the  concepts  of  credibility  and reliability in the following terms:

On  the  topic  of  credible  and  reliable,  I said  in  coming  to  your decision on the facts, you must consider all of the evidence.   You must also consider what counsel have said to you about the evidence in  their  addresses,  and  the  matters  they  have  emphasised  as important from their respective points of view.   However, because you are the judges of fact, it is for you to decide what evidence you believe and what evidence you do  not.   What  you  make  of  the credibility and reliability of each witness is a matter for you. Credibility and reliability are not the same.  A person may be honest and sincere, but may be mistaken; so they may be credible but not reliable.  You do not have to accept everything a witness says.  You may accept some parts of what a witness says and reject other parts. Those are matters for you.

That is what I said earlier.  I will just elaborate on that a little.  As I said there, credibility and reliability are not the same.  Credibility is honesty and sincerity.   For a witness to be credible, you must be satisfied that that witness’s evidence is honestly, sincerely and truthfully given.  That involves you considering a number of matters: things such as the witness’s demeanour, whether there is other evidence which tends to confirm or contradict that evidence, your own experience.  Both counsel used the phrase in the course of their addresses  “the  ring  of  truth”.    You  may  consider  whether  the evidence does have “the ring of truth” to assist you in making your assessment of whether the evidence is credible.  But that is just part of the test.  It is a matter of considering all matters that you consider relevant; because, in giving you examples of the matters you might consider in deciding whether a witness has given evidence honestly, truthfully and sincerely, I do not intend those examples as being the only matters.  Because, as I have emphasised, the assessment is for

you to make, and it is for you to decide how you make it; so I don’t want you to take my guidance as indicating to you that you must take certain factors into account in deciding.  That is for you.  The question is: do you find the witness credible, that is, honest, sincere and truthful?

[42]     The Judge concluded his answer with the passage about which the applicant complains:

It’s important that I also emphasise that in respect of the complainant’s evidence,  …  you  must  be  satisfied  that  his  evidence  is  truthfully  and honestly given, to the extent that you can feel sure that it has been so given, that is, truthfully and honestly.  Because, if you are not sure that his evidence is truthful, honest and sincere, you will be left with a reasonable doubt, and in those circumstances, of course, you must acquit.  But, if you are satisfied that his evidence is honestly, truthfully and sincerely given, and that his evidence satisfies you, along with the other evidence, that all the elements of the offences are established, then you may be satisfied beyond reasonable doubt. That is a matter for you of course.

[43]     Mr Ellis submits that this is a misdirection.   He contends that the Judge should have advised the jury, as part of his answer to their question, that the complainant could be answering honestly and sincerely but be genuinely mistaken. The issue of genuine mistake was clearly a live one, given the significant period of time between the alleged offending and the trial, and the fact that the defence was one of mistaken or transferred identity of the offender.   If the jury accepted the applicant’s evidence, even in part, reasonable doubt would result.

[44]     The Crown submits that Mr Ellis is in effect taking issue with the explanation of the concepts of credibility and reliability.  It does not accept that there were any misdirections, much less any that could be said to be material “… in the sense that they could have given rise to a verdict which the jury might otherwise not have reached”: R v Timoti [2006] 1 NZLR 323 (SC) at [49]. The summing up, looked at in its entirety as it must be, and the response to the jury question made it clear to the jury that they needed to be sure of guilt before convicting. MacKenzie J clearly set out the standard of proof in the context of the appellant’s defence.

[45] With the great advantage of hindsight and unlimited time for consideration, we think that it would have been preferable if the Judge, in the final paragraph of his answer (set out at [38] above) had made the point again that an honest witness may

be a mistaken witness.   It would also have been preferable to explain again that, whatever view the jury took of the complainant’s evidence, they should acquit if they considered what the applicant said was or might reasonably be true.

[46]     It is however important to look at the final paragraph of the answer in the context of the summing-up and the answer as a whole.

[47]     When  summing  up,  MacKenzie  J  had  given  a  conventional  “tripartite”

direction in the following terms:

You might think that the defence evidence is credible and reliable and a convincing answer to the Crown’s evidence.   If that is your view, then of course your verdict would be not guilty.

The second possibility is that you may think that, although it is not entirely convincing, the defence evidence leaves you unsure of just what the real position was.  In other words, it raises a reasonable doubt in your minds.  If that is so, then it follows from what I have said that your verdict will be not guilty.

The third possibility is that you may think that the defence evidence, or part of it, is entirely unconvincing and reject it as unworthy of belief.  If that is your view, you should be careful not to jump from that conclusion to an automatic conclusion of guilt, or even regard that as adding to the case against the accused.  You should go back to the rest of the evidence and ask yourselves whether, on the basis of that evidence, you are satisfied about guilt. ([At 11]).

[48]     When the final paragraph of the answer to the jury’s question is looked at in the context of that direction and the answer as a whole, we think that the jury would have been clear as to the difference between credibility and reliability and that they should acquit if left unsure as to what had occurred as a result of the applicant’s evidence.

[49]     We are therefore not persuaded that the applicant has made out a ground of appeal in this respect.

Structure of summing up

[50]     Mr Ellis submits that the structure of the summing up was “pro-prosecution”. He refers to this Court’s comment in R v Miratana CA102/02 4 December 2002 at [26] that:

What is said in a summing up is stated by the presiding judge ex cathedra, from a position of authority, with the influence that his or her role as judge will carry in [the jury’s] eyes.   A judge must therefore be scrupulous in maintaining  balance  in  presenting  the  issues  to  the  jury.    The  balance referred to is not an artificial equalising of the competing cases, which are likely to be of different weight, but providing a careful synopsis of the major point advanced in each side.

[51]     Mr Ellis complains that the Judge summarised the defence case in a single paragraph, and that the paragraph comes between the paragraph summarising the prosecution case and a paragraph explaining that there may have been good reason for the delay between the offending and when the complainant laid his complaint. Mr Ellis also contends that the final words to the jury should have been about the defence case, not an explanation regarding the delayed complaint.

[52]     The Crown submits that this ground is unsustainable as it criticises the style, rather than the substance, of the summing up.  Judges are entitled to make comment on the cases before them: R v Boote [2007] NZCA 137 [at 39], R v Afele CA330/02

10 December 2002 at [23] – [24] and [27].  In the present case, MacKenzie J made no comment as to the strength or weakness of either case.   In the context of the summing up as a whole, the Judge in the final paragraph clearly reiterated the point he had made earlier in the summing up that the assessment of reasons for a delayed complaint was a matter for the jury, not for him.

[53]     Mr Burston also points out that defence trial counsel (Mr King) had raised in cross-examination the issue of the delay in the complaint.  It was therefore necessary for the Judge to direct on the point, and his direction complied with s 23AC of the Evidence Act 1908 (which was in force at the time of the trial).

[54]     On our reading of the summing up, it was fair and balanced.  MacKenzie J

was careful to ensure that he expressed no view as to the strength of either the

prosecution or the defence case.   He addressed all the necessary topics, and the sequence and style in which he did so was a matter for him.

[55]     There is nothing in this ground.

Delay

[56]     Mr Ellis submits that Gendall J was wrong to refuse to stay the proceedings. He submits that the applicant has suffered actual prejudice due to delay in three respects.   First, the pre-complaint delay between 1978 and 1980 when the alleged offending occurred and June 2002 when the complaint was laid.   Secondly, the pre-charge delay, between the time when the complaint was laid and  when the applicant  was  informed  of  the  allegations  in  August  2004.    And  thirdly,  the post-charge delay between the charge and the date of trial, 6 March 2006.

[57]     As to the pre-complaint delay, Mr Ellis submits that the applicant suffered prejudice because of the death of three potential defence witnesses, two of whom would have been able to give evidence in relation to the defence that the complainant mistakenly attributed to the applicant the abuse he had suffered at the hands of others.   The third witness was Mr Davis’ employer at the time.   Mr Ellis was however unable to point to any evidence which the employer could have given to the advantage of the defence.

[58]     The Crown submits that this point was correctly decided by Gendall J.  Given the applicant’s defence at trial, and the granting of the s 23A application allowing defence counsel to cross-examine the complainant, none of the three potential witnesses would have been “material” to the defence because it was not in issue that the complainant had been abused by others.

[59]    Mr Burston also made the point that the two men who had abused the complainant and who were alive at the time of trial were not called as witnesses for the defence, no doubt for good tactical reasons.

[60]     We agree with Gendall J that specific prejudice from the long pre-complaint delay has not been established.  While, we accept, that delay does in a general way make it more difficult to answer the allegations, that difficulty does not justify a stay. As this Court makes clear in R v O [1999] 1 NZLR 347 at 350, the passage of time is not itself sufficient to justify a stay.

[61]   In relation to the pre-charge delay, Mr Ellis submits that the delay of approximately two years between when the complaint was laid and when the police first contacted the applicant was unacceptable.   He submits that, given that the charges related to events that occurred 20 to 25 years previously, the investigation should have been carried out promptly to minimise the risk of further prejudice to the applicant.

[62]     The Crown submits that this case is not an example of “official delay” of investigations.  The delay is understandable, given that the complainant’s statement to police encompassed multiple allegations of sexual offending involving six men, two of whom were in Australia.

[63]     The delay was also due in part to the compassionate approach of the police in not pursuing their investigations while Mr Davis’ sister was terminally ill.

[64]     Against that background, the pre-charge delay does not appear to us to be excessive.

[65]     As to post-charge delay, Mr Ellis submits that the delay between the charge and the trial date constituted a breach of the applicant’s right under s 25(b) of the Bill of Rights Act 1990 to be tried without undue delay.  He contends that the time from which delay is measured, that is the time of the “charge”, should be taken as when the applicant was made aware of the complaint against him.  In this case, that date would be 8 August 2004, when the police first visited the applicant regarding the allegations.  Mr Ellis relies on European Court of Human Rights jurisprudence in support of this proposition, as well as R v Gibbons [1997] 2 NZLR 585 (HC).

[66]     The delay between the first contact made by the police and the eventual trial date was three years and seven months.  Mr Ellis submits that this constitutes undue prosecutorial  delay  on  the  analysis  of  Cooke  P  in  Martin  v  District  Court  at Tauranga [1995] 2 NZLR 419 (CA) at 424. He contends that, even if a more limited interpretation of “charge” is applied, the delay of one year and seven months between the laying of the informations and the trial date was unacceptable, given that the case related to events that allegedly occurred 20 to 25 years ago.

[67]     The  Crown  submits  that  remedies  under  the  Bill  of  Rights  must  be proportionate and flexible: Davies v New Zealand Police HC WHA CRI-2006-488-

56 26 April 2007 at [55]. Section 25(b) of the Bill of Rights was engaged when the informations were laid (17 November 2004). It contends that the applicant has failed to show actual prejudice and that, even if the Court is satisfied that the applicant has established a breach, a quashing of conviction is not a proportionate remedy.

[68]     Unsurprisingly, Mr King did not contend before Gendall J that post-charge delay justified a stay.

[69]     Whatever date is taken as the starting point in assessing past-charge delay, we do not think that the delay was so great as to constitute a breach of s 25(b).

[70]     While the delay was regrettable, particularly given the historic nature of the allegations, it was in significant part due to the necessity to determine the applicant’s pre-trial applications and to abandon the first trial.  The Crown was not responsible for either of those delays.

Failure to address delay in summing up

[71]     Mr Ellis submits that the current law on the issue of judicial warnings about delay in historical sexual offending cases needs to be revised.   He contends that, while it is accepted that an accused will suffer prejudice when defending him or herself against such historical charges, there is no requirement for routine judicial consideration of the need for a warning to the jury and the difficulties faced by the accused.    Mr  Ellis  submits  that  this  is  contrary  to  the  Bill  of  Rights  and  the

International Covenant on Civil and Political Rights.   To remedy this ill, Mr Ellis advocates the adoption of the Longman approach (which would make a direction on prejudice to the accused mandatory in historical sexual offending cases: Longman v The Queen (1989) 168 CLR 79).

[72]     As to the present case, Mr Ellis submits that MacKenzie J did not comment in his summing up on the difficulties faced by the applicant in defending charges relating to events that took place 20 to 25 years ago, and that he should have done so.

[73]     The Crown’s response is that the Longman approach has been consistently rejected in New Zealand, and that the current position in New Zealand requires a direction to the jury only if it is necessary to address prejudice suffered by the accused: R v M [2007] NZCA 217 at [28] – [31], R v W [2007] NZCA 408 at [65] – [71]. This position is reinforced by s 122(2)(e) of the Evidence Act 2006, which requires the judge to consider whether to give a warning when evidence is given about the conduct of the defendant if that conduct is alleged to have occurred more than ten years previously.

[74]     The Crown submits that MacKenzie J did all that was required by law in the present case.   He cautioned the jury regarding the uncorroborated evidence of the complainant and addressed the issue of delay in the final paragraph of the summing up.   There was no actual prejudice to the applicant.   The Judge was entitled to exercise his discretion not to give a Longman-type direction, particularly when the experienced counsel who appeared for the applicant at trial had not sought such a direction.  If such a direction were given, it could have prejudiced the defence that the complainant was mistaking the applicant for another abuser.

[75]     In our view, MacKenzie J was fully entitled, in the exercise of his discretion, not to give a Longman direction when there was no evidence of specific prejudice to the applicant and trial counsel, for understandable reasons, did not seek such  a warning.

[76]   The direction which the Judge did give on the question of delay was conventional and appropriate.

[77]     For the future, the position is governed by s 122, unless and until Parliament decides to make a change.

Result

[78]   Whether the proposed grounds of appeal are considered separately or cumulatively, they do not establish a substantial risk that a miscarriage of justice may have occurred.

[79]     There is therefore no reason to grant leave to appeal, notwithstanding the long and unexplained delay in seeking leave and the limited utility of the remedies sought.

[80]     Leave to appeal is refused.

Solicitors:

Nat Dunning Law, Wellington for Applicant

Crown Law, Wellington for Respondent