W (SC 14/2021) v The the Queen - [2022] NZSC 66

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES/VICTIMS/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

NOTE: INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT REMAINS IN FORCE UNTIL FINAL DETERMINATION OF THE NAME SUPPRESSION APPLICATION IN CRI-2016-009-687.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 14/2021
[2022] NZSC 66

BETWEEN	W (SC 14/2021) Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook and Ellen France JJ
Counsel:	Applicant in person M R L Davie for Respondent
Judgment:	25 May 2022

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

BThe application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr W was convicted at trial of meeting a young person after grooming,[1] two charges of supplying cannabis to a person aged under 18 years,[2] and doing an indecent act on a young person.[3] Mr W appealed unsuccessfully against conviction to the Court of Appeal.[4] He now seeks leave to appeal to this Court.

Background

[1]Crimes Act 1961, s 131B(1).

[2]Misuse of Drugs Act 1975, s 6(1)(d) and (2)(c); and Crimes Act, s 66(1)(b).

[3]Crimes Act, s 134(3).

[4]W (CA252/2017) v R [2019] NZCA 367 (French, Mallon and Moore JJ) [CA judgment].

As the Court of Appeal noted, in describing the incidents relating to the charges, the teenage complainants said Mr W approached them at a shopping mall, befriended them and gave them food, clothes, a place to stay and ultimately cannabis. One of the complainants also alleged that while he was sleeping at Mr W’s house, Mr W indecently assaulted him.
It is useful to say a little about the procedural history up to the present application.
The trial took place in November 2016. The appeal to the Court of Appeal was filed the following year, in May 2017. Mr W instructed counsel to act for him on the appeal. There were various delays. Assessors’ reports as to Mr W’s fitness to stand trial, prepared for the District Court under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, were filed in support of the appeal. The appeal was set down for hearing in April 2019. There were further delays when an affidavit from Mr W was not filed on time. The appeal was set down again to be heard on 1 August 2019. Ultimately, the Court of Appeal declined to adjourn that fixture and the appeal proceeded on 1 August. The judgment of the Court of Appeal was delivered on 20 August 2019.
Mr W’s notice of appeal in this Court was filed nearly 18 months later, on 12 February 2021. Mr W made various other applications to the Court.[5] Then, on 9 March 2022, following an application from the respondent, the Court gave Mr W 10 working days’ notice under s 338(2) of the Criminal Procedure Act 2011 that if his submissions were…

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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Details

Case: [2022] NZSC 66
Decision Date: 25 May 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal from Mr W, who was convicted of multiple charges including meeting a young person after grooming, supplying cannabis to a person under 18, and doing an indecent act on a young person. Mr W's application for leave to appeal was dismissed, and the application for an extension of time to apply for leave to appeal was granted. The court found that the appeal would largely involve revisiting the factual issues already considered by the Court of Appeal, and no question of general or public importance arises. The court also found that there was no miscarriage of justice or a risk of a miscarriage of justice in the trial. The court noted that Mr W had engaged with his counsel in the Court of Appeal over the appeal. The application for leave to appeal is dismissed, and the application for an extension of time to apply for leave to appeal is granted.

The court considered the proposed grounds for appeal, including issues related to fitness to stand trial, the need for support, trial publicity, and disclosure. The court found that the issues about fitness to stand trial and the need for support which Mr W wishes to raise are factual ones, and no question of general or public importance arises. The court also found that Mr W does not particularise the problems said to arise in terms of disclosure, and there is no evidence that material about Mr W was viewed by jurors. The absence of consideration of these issues by the Court of Appeal also points against a grant of leave. The application for leave to appeal is dismissed, and the application for an extension of time to apply for leave to appeal is granted.

Orders