R v Skipper

[2007] NZCA 267

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT OR ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST

PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA73/07 [2007] NZCA 267

THE QUEEN

v

DANIEL WAYNE SKIPPER

Hearing:         20 June 2007

Court:            O’Regan, Harrison and Heath JJ Counsel:        M B T Turner for Appellant

S B Edwards and K Laurenson for Crown

Judgment:      20 June 2007         at 4.30 pm

Reasons:        29 June 2007

JUDGMENT OF THE COURT

A        We grant leave to appeal out of time.

B        We allow the appeal against conviction.

R V DANIEL WAYNE SKIPPER CA CA73/07  20 June 2007

C        We direct the entry of acquittals on counts 1 and 4 of the indictment. D We direct a retrial of count 3 in the indictment.

E        The appeal against sentence is dismissed.

FOrder  prohibiting  publication  of  the  judgment  or  any  part  of  the proceedings (including the result) in new media or on Internet or other publicly accessible database until final disposition of retrial.  Publication

in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]      On 20 June 2007, at the conclusion of oral argument, we allowed an appeal by Mr Daniel Skipper against his convictions in the District Court at Nelson on

31 October 2006 on counts of, first, permitting a girl between the ages of 12 and 16 to do an indecent act (count 1) and, second, two counts of having sexual intercourse with a girl between the same ages who was not his wife (counts 3 – a representative charge – and 4).   Mr Skipper was sentenced to  a total of four-and-a-half  years imprisonment to be served cumulatively upon a sentence imposed in the High Court for possessing and supplying methamphetamine.

[2]      The brief  reasons  for our decision to quash Mr Skipper’s convictions  on counts 1 and 4 and direct a retrial of count 3 now follow.

Background

[3]      In April 2004 Mr Skipper met and formed a relationship with two teenage girls,   the   complainant   and   her   friend,   A.   The   girls   were   addicted   to methamphetamine but were unable to afford the cost.  The Crown’s case, which was accepted by the jury, was that over a lengthy period Mr Skipper regularly indulged in a routine of giving the girls methamphetamine in exchange for sex.

[4]      In   August   2005   the   complainant   made   a   complaint   to   the   police. Informations were laid in the District Court at Christchurch on 1 September 2005. Two were drug-related and were subsequently withdrawn.   The third information alleged that Mr Skipper engaged in unlawful sexual activity with the complainant and A between 31 August and 15 September 2004.

[5]      A  depositions  hearing  was  held  in  the  District  Court  at  Blenheim  on

8 December 2005.   Mr Skipper was committed for trial on the charge of unlawful sexual intercourse with the complainant.   In February 2006 the Crown filed an amended indictment including counts 1, 3 and 4 and two other counts.   At trial Mr Skipper conceded that he had supplied methamphetamine to A and had sex with her.   However he denied having had sex with the complainant.   The jury found Mr Skipper guilty on counts 1, 3 and 4 but not guilty on counts 2 and 5.

Decision

[6]      Counts  1,  3  and  4  were  laid  pursuant  to  s 134  Crimes  Act  1961.    On

1 September 2005, when the first informations were laid, s 134 relevantly provided:

134     Sexual intercourse or indecency with girl between 12 and 16

(1)Every one is liable to imprisonment for a term not exceeding 7 years who has or attempts to have sexual intercourse with any girl of or over the age of 12 years and under the age of 16 years, not being his wife.

(2)Every one is liable to imprisonment for a term not exceeding 7 years who—

…

(c)       Being a male, induces or permits any such girl to do any indecent act with or upon him.

…

(7)No one shall be prosecuted for any offence against this section … unless the prosecution is commenced within 12 months from the time when the offence was committed.

[Emphasis added]

[7]      This provision was subsequently amended by s 7 Crimes Amendment Act

2005.  Materially for these purposes the new s 134 contains no time limit equivalent to the original s 134(7).

[8]      Section 12 Crimes Amendment Act provides:

12       Acts done before commencement of amending provisions

(1)Every provision of the principal Act amended  or  repealed  by a section of this Act applies to an act or omission occurring before the commencement of the section as if the section had not been enacted.

[9]      Accordingly, s 134 in its original form including the time limitation applied to Mr Skipper’s offending.   The Crown was required to commence a prosecution under s 134 within 12 months of the date on which the offence was committed.  The informations were  laid  on  1 September  2005.    Thus,  Mr Skipper  could  only be charged for offending occurring after 1 September 2004.   Counts 1 and 4 alleged offending  between  1 March  and  30 April  2004.     Ms Edwards  for  the  Crown conceded that both prosecutions were commenced out of time and that the District Court had no jurisdiction to determine them.

[10]     Count  3  is  in  a  different  category  because  it  alleged  offending  between

1 March and 30 September 2004.  Ms Edwards accepted that Mr Skipper’s appeal on count 3 must be allowed on the ground of a miscarriage of justice because the jury might have convicted on the basis of offending which it was satisfied occurred in the period  prior  to  1 September  2004:  s 385(1)(c)  Crimes  Act  1961.     However, Ms Edwards submitted that Mr Skipper should be retried on that count in the District Court provided the information is amended to allege offending limited to the period

between 1 September 2004 and 15 September 2004 (when Mr Skipper was taken into police custody).   Ms Edwards advised that the Crown Solicitor in Nelson has been unable to brief the complainant’s evidence to establish whether in fact she had sexual activity with Mr Skipper in that 15 day period.  She submitted that the proper course would be to direct a retrial on count 3 in an amended form.

[11]     Mr Turner  for  Mr Skipper  was  not  in  a  position  to  offer  argument  in opposition  to  the  Crown’s  application.    We  confirm  that  Mr Skipper  should  be retried in the District Court on count 3, amended to limit the relevant period of offending to between 1 September and 15 September 2004.   That Court will have jurisdiction to discharge Mr Skipper from trial in the event that the Crown is unable to establish a satisfactory evidential basis for the amended charge.

[12]     Mr  Skipper  appealed  separately  against  sentence.     The  result  of  his conviction appeal makes it unnecessary to consider it and we formally dismiss it.

Solicitors:

Crown Law Office, Wellington