Snell-Scasbrook v The Queen - [2014] NZCA 131

IN THE COURT OF APPEAL OF NEW ZEALAND

CA780/2013
[2014] NZCA 131

BETWEEN	ANDREW GREGORY SNELL-SCASBROOK Applicant
AND	THE QUEEN Respondent

Hearing:	1 April 2014
Court:	O’Regan P, Keane and Andrews JJ
Counsel:	N J Sainsbury for the Applicant J E Mildenhall for the Respondent
Judgment:	8 April 2014 at 4.30 pm

JUDGMENT OF THE COURT

The application for extension of time to appeal against conviction is allowed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Introduction

On 27 August 2010, following a trial in the District Court at Wellington before Judge Tuohy and a jury,[1] the applicant was found guilty of two charges of sexual violation by unlawful sexual connection and one charge of doing an indecent act with intent to offend. He was subsequently sentenced to a total of seven years imprisonment.
[1]R v Snell-Scasbrook DC Wellington CRI-2009-032-5213, 27 August 2010.
On 15 November 2013, the applicant filed a notice of appeal, just over three years out of time. This Court has directed that his application for extension of time should be determined separately from the proposed appeal.

Background

The applicant was accused of sexual offending against a five to six year old girl. The offending involved the defendant kissing the girl’s genital area, and on one occasion exposing himself to her. Some four years after the alleged offending, the applicant’s house was searched and the police found photographs of children on the wall, and a number of pairs of children’s underpants in the drawer next to his bed. Some of the underpants had stains on them. In evidence at trial, a police officer said that it was her personal opinion that the underwear smelt of semen. The underwear had not been tested.
The applicant says that he wanted to appeal immediately following his conviction, but was advised (in April 2011) that he did not have grounds. He tried to get a second opinion, but this was difficult as he was in custody. His mother has sworn an affidavit setting out her attempts to find a lawyer to help with an appeal. She contacted another lawyer in May 2011, but he advised her (in about December 2011) that he could not help. She spoke to a third, then a fourth, lawyer, but still could not find someone prepared to help. In August 2012, she contacted a firm of solicitors who had done legal work for the family. Contact was eventually made with the appellant’s current counsel through that firm in early 2013.

Submissions

Mr Sainsbury submitted that the reasons for the appeal being lodged out of time (and the time taken to file the appeal) were well explained in the affidavit of the applicant’s mother. Mr Sainsbury also submitted that there is sufficient strength in the appeal to balance against other factors such as the desirability of finality in criminal proceedings, especially in the case of sexual offending against a child.
He submitted that the essence of the appeal turned on the admissibility of the evidence…

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.

Continue reading Snell-Scasbrook v The Queen

Details

AGLC: Snell-Scasbrook v The Queen [2014] NZCA 131
Case: [2014] NZCA 131
Decision Date: 8 April 2014 at 4.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the case of Andrew Gregory Snell-Scasbrook who applied for an extension of time to appeal against his conviction. Snell-Scasbrook was found guilty of two counts of sexual violation by unlawful sexual connection and one count of doing an indecent act with intent to offend. He was sentenced to a total of seven years imprisonment. The application for the extension of time to appeal was filed over three years after the time limit had expired. The appeal was heard separately from the proposed appeal. The applicant was accused of sexually offending against a child, involving kissing the girl's genital area and exposing himself to her. Evidence of photographs of children on the wall and children's underpants found in the applicant's house was presented in court. The applicant's mother provided an affidavit explaining the difficulties in obtaining legal assistance to file an appeal.

The legal issues before the court were whether the applicant's application for an extension of time to appeal should be granted, and if so, what factors should be taken into account in making that decision. The court considered the delay in filing the appeal, the explanation for the delay, and the merits of the appeal. The court also considered the interests of the victim, the public interest in the finality of court decisions, and the interests of justice in the particular case.

The court held that the delay in filing the appeal was extensive, but the applicant's intention to appeal was always present, and the delay had been explained. The court found that a serious question had been raised as to the admissibility of evidence given at the applicant's trial, and the harm caused by this evidence could not be undone. The court also noted that the case involved a child complainant, who may be required to give evidence again if the appeal was successful. However, the court was satisfied that in this case, it was in the interests of justice that an extension of time be granted for the applicant's appeal.

The court allowed the application for an extension of time to appeal against conviction. The court directed that the applicant's appeal be determined separately from the proposed appeal. The court did not make any orders regarding the substantive merits of the appeal, but rather focused on the procedural issue of the extension of time to appeal.

Orders