NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT/PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2019-416-000002
[2019] NZHC 2436
BETWEEN
LESLIE JOHN TAPP
Appellant
AND
THE QUEEN
Respondent
Hearing:
17 September 2019
Appearances:
E J Forster for the Appellant
R K Thomson for the Respondent
Judgment:
26 September 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Leslie John Tapp, appeals his conviction1 and sentence2 following a Judge-alone trial before Judge Cathcart in the District Court at Gisborne. Mr Tapp was sentenced to concurrent terms of four years’ imprisonment and 18
1 R v Tapp [2018] NZDC 19516 [Conviction Decision].
2 R v Tapp [2018] NZDC 25471 [Sentencing Decision].
TAPP v R [2019] NZHC 2436 [26 September 2019]
months’ imprisonment for one charge each of assault with intent to commit sexual violation3 and doing an indecent act on a young person respectively.4 Mr Tapp chose to represent himself at trial.
[2] Mr Tapp now appeals his conviction on the basis his self-representation resulted in an unfair trial and, in consequence, a real possibility of acquittal was lost. He also appeals his sentence, saying it was manifestly excessive. In addition, Mr Tapp seeks leave to adduce fresh evidence on appeal.
Background
[3] At around 10 pm on 3 May 2017, Mr Tapp was at the complainant’s home in Gisborne where the complainant lived with her siblings and mother, who was a friend of Mr Tapp. The complainant was 13 years old at the time. Mr Tapp, the complainant’s mother and others were drinking alcohol. They drank into the early hours of the following morning.
[4] At around 2 am, the complainant went to bed. Shortly after, Mr Tapp went into the complainant’s bedroom and got into bed with her while she was sleeping. At some stage, Mr Tapp got up and shut the door slightly, leaving it ajar.
[5] Mr Tapp then returned to the complainant’s bed and began kissing her cheek. She woke up and tried to leave the room but was stopped by Mr Tapp. He then removed his pants and underwear, so that he was naked from the waist down, and pulled the complainant onto his torso. She resisted but could not overpower him. He then told her to remove her pants. When she refused, Mr Tapp attempted to remove her pants himself.
[6] The complainant repeatedly called out to Mr Tapp’s daughter who was also in the house. When Mr Tapp’s daughter entered the bedroom, she found Mr Tapp on the bed with the complainant who was crying. Mr Tapp’s daughter attempted to console the complainant before confronting Mr Tapp about what had happened. She…
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.
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Tapp v The Queen [2019] NZHC 2436
Case
[2019] NZHC 2436
Decision Date
CaseChat Overview and Summary
In Tapp v The Queen, Leslie John Tapp appealed both his conviction and sentence following his trial in the District Court at Gisborne. Tapp was convicted of assault with intent to commit sexual violation and doing an indecent act on a young person. He was sentenced to four years and 18 months imprisonment respectively. Tapp appealed on the grounds that his self-representation resulted in an unfair trial and a real possibility of acquittal was lost, and that his sentence was manifestly excessive. Tapp also sought leave to adduce fresh evidence on appeal. The High Court dismissed both appeals. Tapp’s appeal against conviction was dismissed on the basis that his trial was not unfair despite his self-representation, as he had the assistance of standby counsel and the District Court Judge afforded him leeway in conducting his defence. The Court found a real possibility of acquittal was not lost because the Crown’s case was strong and there was corroboration between the witnesses’ accounts. Tapp’s appeal against sentence was dismissed on the basis that the starting point of four years’ imprisonment was within range, given the seriousness of the offending and the absence of any mitigating factors personal to Tapp.