The Queen v Shepherd

[2009] NZCA 446

IN THE COURT OF APPEAL OF NEW ZEALAND

CA105/2009
[2009] NZCA 446

THE QUEEN

v

BRUCE BENJAMIN SHEPHERD

Hearing:22 September 2009

Court:O'Regan, Venning and Winkelmann JJ

Counsel:W C Pyke for Appellant

A M Powell for Crown

Judgment:30 September 2009 at 10.30 am

JUDGMENT OF THE COURT

A        THE APPLICATION FOR AN EXTENSION OF TIME IN WHICH TO APPEAL IS GRANTED.

B        The following directions apply:

(a)Any further affidavit(s) in support of the appeal are to be filed and served by 9 October 2009;

(b)The appellant is to file a further memorandum by 9 October 2009 to confirm the grounds to be pursued on appeal;

(c)The appeal will be heard on a date to be fixed by the Registrar in consultation with counsel.  The appeal should be heard as soon as possible.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]       Following a jury trial in the High Court at Napier in March 2006 the applicant was convicted of 20 sexual crimes against eight separate complainants, including five counts of rape, two of sexual violation and a variety of counts of indecent assault and inducing indecent acts.  On 4 May 2006 Gendall J sentenced him to 13 years’ imprisonment with a minimum non-parole period of seven years. 

[2]       The applicant filed a notice of appeal with this Court on 3 March 2009.  The appeal is significantly out of time.  The time for filing an appeal as of right under s 388 of the Crimes Act 1961 expired on 2 June 2006.  The applicant applies for leave to extend the time for filing the appeal. 

Decision

[3]       Although the appeal is well out of time, it is apparent from the applicant’s affidavit and the supporting documents filed by Mr Pyke on his behalf that the applicant did not accept the verdicts and has consistently sought to appeal from the time he was sentenced.  He raised the prospect of appeal with a number of counsel but it has only been recently, when the file was referred to Mr Pyke, that any positive steps were taken to advance the appeal.  The delay is largely explained by the failure of the appellant’s earlier counsel to advance the appeal.

[4]       Mr Powell responsibly accepted that the Crown could not argue there was any particular prejudice to the Crown or that the delay would significantly inhibit a retrial if that were the ultimate outcome of the appeal.

[5]       The Crown also accept that there is an arguable appeal point in at least one of the grounds the applicant seeks to raise on appeal.  In summing up on the issue of rape the Judge directed the jury generally and said the Crown had to prove penetration of the genitalia.  But because of the timing in relation to count 7 the offending in that count required proof of penetration of the vagina.  That may be a material factor given the defence denied the incident and in part relied upon the position of the complainant at the time to support the denial that the incident did not happen.  When discussing the specific count the Judge repeated the mistake and directed the jury that penetration for rape needed only to be penetration of the genitalia and not of the vagina. 

[6]       It is neither possible nor appropriate to form any view at this time as to the effect that may have, if any, on the other convictions or the merits of the other proposed grounds of appeal.  But given the limited information and submissions before us at this time, it is not appropriate to confine leave to count 7 alone.

[7]       While we are concerned at the position of the complainants given that they will consider the matter to be behind them, the liberty of the applicant is in issue.  At the age of 74 he is serving a lengthy sentence of 13 years with a minimum non-parole period of seven years.  The application for leave to appeal must be granted. 

Result

[8]       We allow the application for an extension of time in which to appeal and make the following directions:

(a)Any further affidavit(s) in support of the appeal are to be filed and served by 9 October 2009;

(b)The appellant is to file a further memorandum by 9 October 2009 to confirm the grounds to be pursued on appeal;

(c)The appeal will be heard on a date to be fixed by the Registrar in consultation with counsel.  The appeal should be heard as soon as possible.

Solicitors:
Crown Law Office, Wellington