T v The King - [2024] NZHC 2129

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR

IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-441-15 [2024] NZHC 2129

BETWEEN
T

Appellant

AND

THE KING

Respondent

On the Papers

Appearances:

Appellant in person

L Marshall for the Respondent

Judgment:

31 July 2024

JUDGMENT OF GWYN J

(Dismissal of appeal)

Introduction

[1] T seeks to appeal a decision of Judge Matenga in the Napier District Court convicting him of two counts of indecent assault on a girl aged 13.1 He has already served his sentence and has been released.2

1 Crimes Act 1961, s 134(3). The maximum penalty is seven years’ imprisonment.
2 As recorded in T v R HC Napier CRI-2023-441-015, 21 March 2024 (Minute of Grau J) at [5].

T v R [2024] NZHC 2129 [31 July 2024]

[2] T has failed to take the necessary steps to pursue the appeal as directed by minutes of the Court. The Court is now to deal with an application for dismissal of the appeal on the papers under s 338 of the Criminal Procedure Act 2011.3

The offending

[3] Between 10.00 pm on 12 November 2022 and 7.30 am on 13 November 2022, the complainant was sleeping alone in her grandmother’s bed. She awoke to find T sitting on the bed next to her and groping her buttocks over her clothing, touching her chest and squeezing her breast. While touching her, T was masturbating.

Procedural history

[4] On 19 June 2023 Judge Matenga in the Napier District Court convicted T on both charges following a Judge-alone trial.4 On 18 July 2023 the Judge sentenced T to 13 months’ imprisonment with standard and special post-release conditions.5 As a result T was registered under the Child Protection (Child Sex Offenders Government Agency Registration) Act 2016.

[5] On 31 July 2023 Mr Jefferson (T’s trial counsel) filed a notice of appeal against conviction under s 229 of the Criminal Procedure Act. The appeal states that the evidence given at the Judge alone trial by the complainant was unreliable and insufficient to find the charges proved and also challenges the trial Judge’s decision to decline the grant of a s 106 discharge without conviction. A hearing of the appeal was scheduled for 7 November 2023.

[6] On 5 September 2023 the Registry confirmed the timetabling for the hearing set down for 7 November 2023.

[7] On 19 October 2023 the Court received a memorandum from Mr Jefferson stating that T had raised issues about trial preparation and counsel conduct, thus

3      As directed in T v R HC Napier CRI-2023-441-15, 9 July 2024 (Minute of McQueen J).
4      R v T [2023] NZDC 11279.
5      R v T [2023] NZDC 14909.

requiring alternative counsel to conduct the appeal. Counsel accordingly…

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 T v The King

Details

AGLC: T v The King [2024] NZHC 2129
Case: [2024] NZHC 2129
Decision Date: 31 July 2024

CaseChat Overview and Summary

T appeals his conviction of two counts of indecent assault on a 13-year-old girl. T has already served his sentence and been released. The High Court is required to determine whether the appeal should be dismissed for T's failure to comply with procedural orders. The court considered the statutory requirements for dismissal, the merits of the appeal, and the interests of justice. The court found that T had failed to comply with the procedural orders, despite multiple opportunities, and that there was no clear basis upon which the appeal would succeed. The court dismissed the appeal under section 338 of the Criminal Procedure Act 2011, noting that finality is important for the young victim.

Final orders:
1. The appeal is dismissed.
2. The appellant's name is suppressed under s 200(2)(f) of the Criminal Procedure Act 2011.
3. The complainant's name is suppressed under s 203 of the Criminal Procedure Act 2011.

Orders