S v The Queen

[2020] NZHC 766

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-425-000026

[2020] NZHC 766

BETWEEN

S

Appellant

AND

THE QUEEN

Respondent

Hearing:

On the papers

Counsel:

S Vidal for the Appellant

F Sinclair for the Respondent

Judgment:

20 April 2020

JUDGMENT OF NATION J

To avoid identification of the victim, certain information has been redacted.

[1]                  On 22 March 2016, S was convicted for unlawful sexual connection of a female under 12 and of indecently assaulting a female. On 1 August 2019, he filed an appeal against his convictions and sentence. Because the appeal was lodged so far out of time, S had to apply for leave to appeal.

[2]                  In a minute of 11 December 2019, I said the Court would treat the filing of the appeal as an application for an order extending the time for filing a notice of appeal. I said that application for leave would be determined based on written material provided to the Court.

S v R [2020] NZHC 766 [20 April 2020]

[3]                  In that minute, I directed S to file with the Court material explaining his delay in filing his notice of appeal and the submissions he wished to make to show his appeal had merit.

[4]I said:

It appears his proposed appeal challenges a factual finding in the decision to be appealed. In the written material he must refer specifically to the evidence from the trial which he relies on in challenging the decision which he wishes to appeal. If [S] continues to rely on complaints against the lawyer who represented him at the trial, he must give particulars of the conduct on the part of the lawyer he complains of. He must also file any affidavit he wishes to rely on to support the complaint he wishes to make.

Principles to be applied

[5]                  The touchstone for granting leave to appeal out of time is whether it is in the interests of justice in the particular case considering the strength of the proposed appeal, the utility of the remedy sought, the length of delay and the reasons for 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.1

Submissions

[6]                  S’s counsel, Ms Vidal, filed submissions in support of the application for leave to appeal on 7 February 2020. In those submissions she confirmed S was seeking leave to appeal his conviction only on the charge of sexual violation. The particular charge was of sexual violation that S had inserted a finger into the complainant’s vagina on or before 1 November 2014 at […]. Counsel referred to the Judge’s finding that he was satisfied beyond reasonable doubt the charge of sexual violation by digital penetration of the complainant’s vagina had occurred.2 S was wanting to appeal on the basis that particular finding was wrong and, in reaching it, the Judge erred in fact and law.

[7]                  Counsel referred to S having admitted in a DVD interview of 28 November 2014 that he had offended against the complainant in New Zealand by touching her

1      R v Knight [1998] 1 NZLR 583 (CA) at 589 confirmed in R v Lee [2006] 3 NZLR 42 (CA).

2      R v S [2016] NZDC 4803.

over her clothing, and also that he had admitted allegations of sexual violation and indecent assault of the complainant in Australia.

[8]                  Counsel contended that, to be guilty of the offence of sexual violation as opposed to indecent assault, it had to be proved that he had intentionally undertaken the specific act with the specific intention, that is with the required “mens rea”, and not accidentally or inadvertently.

[9]Counsel contended there were errors in that the Judge:

(a)        had not identified exactly where the child was touched and the basis for his finding as to that;

(b)        had not determined the nature of the touching, whether there was insertion of the finger within the vagina versus a touching in that area but over clothing; and

(c)        therefore, had not considered the required mens rea at the time of the touching.

[10]              Ms Vidal referred to a particular part of S’s interview where he acknowledged he had touched the complainant “in the area of her clitoris”. In that paragraph, S had referred to his finger moving up and down but said the victim manipulated his hand. He said he had touched her on the outside of the clothes but there was this exchange:

Detective: yeah but obviously to touch her clitoris area your finger would have had to be in between her vaginal flaps

S:            I suspect it would be yeah Detective: yeah

S:            I don’t really know what area it was.

[11]              Ms Vidal submitted the evidence from the child was not sufficient to have established there was penetration.

[12]              Counsel explained the delay in appealing by saying S knew what he had done in Australia, had admitted his guilt/had admitted his offending and wanted help. He

considered his imprisonment here was punishment for what he did to the complainant and that was the end of matter. He had sought to advance his appeal only when he knew this was not the situation and he would be extradited because of what had happened in Australia.

[13]              However, counsel submitted there was a real issue that ought to be considered as to the appeal on which his counsel should be heard.

[14]              Counsel for the Crown said the Judge did make the specific findings necessary for the Crown to have proved the essential elements of the charges beyond reasonable doubt. He referred to the evidence which justified the Judge’s determinations on the evidence. His submissions are reflected in this judgment.

Discussion

[15]              In his oral judgment, Judge Callaghan noted that S had originally faced three charges at a Judge alone trial. One of the charges, laid on a representative basis, was that he had indecently assaulted a child. At the conclusion of the Crown case, it was amended to a charge of “indecently assaulting a child by permitting an indecent act, namely, allowing the hand of the child to remain on his penis”. It was not a representative charge. S pleaded guilty to the amended charge.

[16]              There was a second charge, originally of sexual violation, but amended on a Crown application to a representative charge of indecent assault of a child between 17 October 2014 and 23 November 2014.

[17]              There was another charge of sexual violation, an allegation of insertion of the finger into the complainant’s vagina, alleged to have occurred on or before 21 November 2014 at […].

[18]              Judge Callaghan found S guilty of the sexual violation charge but not guilty of the amended indecent assault charge laid on a representative basis.

[19]              It is clear from the Judge’s oral decision at trial that, on the specific sexual violation charge, the issue was whether the Crown had proved there was penetration

of the complainant’s vagina. The Judge referred to s 2(1A) Crimes Act 1961. He said he had to be satisfied that S inserted a finger into the complainant’s vagina and noted that the slightest degree of penetration was sufficient to effect the connection.

[20]              In identifying the issues, the Judge noted there was no dispute that, on or about 19 to 21 November 2014, the complainant did touch S’s penis and he put his hand on her vaginal area. He said the first issue was whether there was skin-on-skin contact or whether it was on top of her clothing and, secondly, whether there was any digital penetration. After referring to the general nature of the evidence he had to consider, he noted that, on the evidence, he had to make a finding beyond reasonable doubt whether or not S had “digitally penetrated the vagina of the complainant”.

[21]              The Judge referred to the evidence of the complainant which, if accepted, established that on a specific occasion there had been digital penetration. The Judge then noted S had said, in respect of the allegation of digital penetration, he had only placed his hand in the genital area of the complainant. The Judge referred to S’s specific evidence as to this. He considered what S said in his Police interview was consistent with there having been digital penetration of the complainant’s vagina in New Zealand but said, to the extent there was a conflict between his statement and the evidence of the complainant, he preferred the evidence of the complainant. He found her to have been an honest witness. He was thus satisfied beyond reasonable doubt that S did digitally penetrate the complainant’s vagina.

[22]              There had been a clear account of digital penetration on numerous occasions in Australia.

[23]              S said what happened in New Zealand was exactly the same as what happened in Australia.

[24]              The Judge referred to evidence from the complainant that there had been incidents of penetration of her vagina by S’s finger. As is apparent from her DVD interview, she said that occurred not only in Perth but also in New Zealand. The Judge also noted she had made a disclosure about that to her mother on 23 November 2014 when she was not wearing any underwear, a matter which had been observed by her

mother. The Judge referred to the complainant having said this happened once in a motel and at least once in the house at […] and that it had happened there since they had come to New Zealand.

[25]              The Judge noted what S had to say as to what happened in the lounge area in […] and what S had to say about that when he was interviewed. The Judge found S had tried to minimise his actions against what had actually occurred. He referred to statement S had made in his interview that such incidents had occurred around 20 occasions within the last six months and to such an incident occurring in New Zealand.

[26]              The Judge thus found S had digitally penetrated the complainant’s vagina in a number of incidents that occurred in Australia, the complainant was clear in giving evidence as to that, and she was also clear the same conduct had occurred in New Zealand. The Judge thus explained how, in accepting her evidence as to what happened in both Australia and New Zealand, he could find and did find there was digital penetration of her vagina. He referred in his decision expressly to what S had said as to the possibility of digital penetration in an incident in New Zealand and noted the equivocal nature of what he had to say about that.

[27]              The Judge explained the approach he had taken in assessing the credibility of witnesses. In the submissions of counsel for S, there is no criticism of the way he did that. He explained with reasons why he considered the complainant to have been an honest witness, noting she had made concessions where appropriate and had answered appropriately where she was not sure of the answer. He said he had paid particular attention to s 125 Evidence Act 2006 regarding the evidence of children.

[28]              Consistent with the care he took in assessing the evidence, he reasoned that the evidence did not support the further representative charge of another incident of indecent assault occurring.

[29]              At trial, the issue was whether the Crown had proved there had been digital penetration. The defence, consistent with S’s responses in the Police interview, said there had been no such penetration. It was not suggested that, if there had been penetration, it could possibly have been accidental or inadvertent. If there was digital

penetration as the complainant described, through S inserting his finger into the young complainant’s vagina, this could not have been inadvertent or accidental. If there was digital penetration, as the complainant described and as the Judge had accepted, S must have intended to do that.

[30]              Accordingly, on the application for leave to appeal, S has not persuaded me there could have been a miscarriage of justice when he was found guilty on the charge for which he was convicted and sentenced.

[31]              S was sentenced almost two months after he had been found guilty on 22 March 2016. In his sentencing remarks, the Judge referred to S having been able to insert his finger into her vagina as well as the way she had touched his penis and he had allowed that to continue for a period of minutes.

[32]              As could be expected, on sentencing, S’s submissions as to the appropriate sentence were framed on the basis there had been digital penetration and thus sexual violation. The Judge arrived at a five year starting point for the offending. He gave S a 25 per cent discount for the guilty plea on the indecent assault charge, a 10 per cent discount because of the way the offending had been contributed to by a head injury suffered in Australia and a 10 per cent discount for previous good character, despite evidence the Judge had heard as to previous offending which had occurred in Australia. The end sentence was thus one of three years and nine months’ imprisonment.

[33]              S then accepted the verdicts reached in his trial through serving his sentence without lodging any appeal.

[34]              S seeks leave to appeal and explains his delay on the basis it has only been by reason of the extradition proceedings that he considered an appeal was necessary.

[35]              S sought to lodge an appeal against his conviction only in August 2019. The Commonwealth of Australia requested S’s extradition to face charges based on offending in Australia. The Judge endorsed the arrest warrant as to that request on 21 July 2017. S was found eligible for surrender in a decision of the District Court on 22

January  2019.3   On 16 July 2019, this Court dismissed an appeal against the determination of eligibility.4

[36]              It is thus clear the appeal has been lodged not because of S’s concern that he suffered a miscarriage of justice with the verdict reached in the District Court but because of what he perceives to be an injustice in the way he is subject to extradition to Australia to face charges in respect of offending there. Both in the District Court and on appeal to the High Court, the issue was whether or not, if he was extradited to Australia, he would be subject to prosecution there for offending for which he had already been sentenced in New Zealand. Had that been the case, there would have been a mandatory restriction on surrender under s 7(e) Extradition Act 1999.

[37]              That is now an issue he wishes to have considered by the Court of Appeal. He has applied for leave to appeal the High Court’s dismissal of the judgment as to that. His application for leave in the Court of Appeal awaits the determination of the High Court in the proceedings I am now considering.

[38]              On his notice of appeal against conviction, S said he had been assisted by counsel in preparing his appeal. In that document, referring to issues raised by his appeal, he said:

This is to prove that the defendant was convicted and sentenced on evidence from Australia. The NZP then sent via Interpol to have the defendant charged and extradited to face charges that the defendant has already been charged and sentenced on. Double jeopardy.

[39]              Allowing S to proceed with an appeal against his convictions is not however even potentially going to assist him in advancing his case as far as extradition is concerned.

[40]              S is not seeking to appeal his conviction for the offence of indecent assault on which he has been sentenced. He pleaded guilty to that charge. The sentence he served was, in part, for that offence. Even if he were to be granted leave to appeal his conviction for sexual violation in New Zealand, that would not change the fact he has

3      Commonwealth of Australia v S [2019] NZDC 1119.

4      Commonwealth of Australia v S [2019] NZHC 1635.

been convicted and sentenced in New Zealand for an indecent assault that occurred here.

[41]              For reasons already discussed, S would be unable to persuade a Court there had been a miscarriage of justice in his being found guilty of sexual violation for an offence committed while in New Zealand. In the unlikely event he could be successful on such an appeal, such a determination would have determined only that the evidence before the Court was not sufficient for the Judge to have found him guilty of sexual violation in New Zealand. A successful appeal would not require the Court to make any determination that he had been punished in New Zealand for offending committed in Australia. Granting S leave to appeal his conviction would thus not require the High Court to make the determination he seeks, which is the reason for his seeking to pursue an appeal so long after he was convicted.

[42]              Refusing S leave to appeal will also not unfairly prejudice him on the steps he is taking to try and avoid extradition to Australia. The District Court and the High Court have found that, with his trial, conviction and sentencing, he had not been punished in New Zealand for the offending for which the Commonwealth of Australia has sought and been permitted extradition. The Judge initially, and the High Court on appeal, both reached that decision, as they had to, based on the record of proceedings in the District Court. The reasoning in both courts is apparent from the judgments that were given. S is seeking to appeal the High Court’s dismissal of his appeal to the Court of Appeal. The Court of Appeal will still be considering that application against the record of proceedings when they were before the District Court and the judgments given in both the District and High Courts.

[43]              Permitting S to proceed with an appeal against his conviction would thus not change the basis on which he wishes to pursue an appeal against the High Court judgment as to his eligibility for surrender.

[44]              S’s appeal against conviction would also be moot because S has served his sentence for the offences of which he was convicted.

Conclusion

[45]              For all the above reasons, S’s application for leave to appeal his conviction is declined.

Solicitors:

Southern Law, Invercargill Crown Law.