Williamson v The Queen - [2020] NZHC 1791

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-214

[2020] NZHC 1791

BETWEEN
MARK ROBERT WILLIAMSON

Appellant

AND

THE QUEEN

Respondent

Hearing: 23 June 2020

Appearances:

Appellant in person

Z R Johnston for Respondent N C Chisnall standby counsel

Judgment:

23 July 2020

JUDGMENT OF ELLIS J

[1] In April 2015, following a trial before Judge Down in the District Court, Mr Williamson was convicted of sexual offending against SD, a boy who was aged between 12 and 13 at the relevant time.1 At trial, Mr Williamson gave evidence denying any and all sexual contact or conduct with SD.

[2] Mr Williamson was sentenced to nine years’ imprisonment and ordered to pay reparations of $20,000.2

[3] Now, four years later, Mr Williamson seeks to appeal against his conviction and sentence. He asserts a miscarriage of justice has occurred because he now admits

1 R v Williamson [2015] NZDC 10648. I note that there is another version of the judgment: [2015] NZDC 6995. Strangely, that is headed “Notes of Judge J C Down on Sentencing”, despite it being an amended version of the Judge’s original verdicts decision. The amendments are only to form. To avoid confusion, this judgment’s quotes and pinpoints refer only to the original version of Judge Down’s verdicts decision.
2 R v Williamson [2015] NZDC 13746.

WILLIAMSON v R [2020] NZHC 1791 [23 July 2020]

sexual contact with SD but says it was consensual. He contends his trial counsel failed to explain that the charges were “based entirely upon the issue of consent”, and that the availability of a “defence” based on consent has only become evident to him in the context of his recent parole hearings.3

Procedural issues

First appeal court and standby counsel

[4] Mr Williamson’s appeal was originally filed in the Court of Appeal. Because Mr Williamson was self-represented, and because of the nature of the appeal (which, among other things, would involve cross-examination of Mr Williamson and his trial counsel), the Court appointed Mr Chisnall as standby counsel. The appeal was set down for hearing on 24 June 2020.

[5] On 29 May, however, Ms Johnston for the Crown filed a memorandum identifying a problem. The short point is that because Mr Williamson’s trial was before a judge alone, his appeal should have been filed in this Court.4 On 10 June, Gilbert J in the Court of Appeal dismissed the appeal for want of jurisdiction.

[6] The appeal was then re-filed in the Auckland High Court and arrangements were made for a hearing to take place before me on 24 June. At the start of the hearing I confirmed Mr Chisnall’s appointment as standby counsel in this Court. I am grateful to him for his assistance.

Suppression

[7] SD’s name and identifying details are automatically suppressed, given the nature of the offending and his age. The names of two other boys/young men (Z and
D) who were homestay students living with Mr Williamson for…

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 Williamson v The Queen

Details

AGLC: Williamson v The Queen [2020] NZHC 1791
Case: [2020] NZHC 1791
Decision Date: 23 July 2020

CaseChat Overview and Summary

In the case of Williamson v The Queen, the appellant, Mark Robert Williamson, sought to appeal his conviction and sentence for sexual offending against a minor. The appeal was initially filed in the Court of Appeal but was later re-filed in the Auckland High Court. Williamson contended that a miscarriage of justice had occurred because he now admitted to consensual sexual contact with the victim but claimed that his trial counsel failed to adequately explain the relevance of consent, resulting in a flawed defence strategy. The appeal hinged on two grounds: trial counsel error and the adequacy of the District Court reasons for rejecting the reasonable belief in consent.

The court found that Williamson's instructions to his trial counsel were to deny all allegations of sexual activity, and there was no failure to follow instructions. The documentary record indicated that Williamson understood the significance of consent, and his motivation to deny everything was to avoid imprisonment. The court also found that the District Court Judge adequately considered the issue of consent and reasonable belief in consent, providing detailed reasons for his conclusions, even though detailed reasons for the findings on reasonable belief in consent were not required.

Considering the usual factors relevant to applications for leave to extend time, the court declined to grant leave due to the absence of merit in the proposed appeal, the length of the delay, and the need for finality in criminal proceedings, particularly in cases of sexual offending. Consequently, the appeal against the conviction and sentence was dismissed.

Orders