C (CA667/2020) v R [2021] NZCA 271

C (CA667/2020) v R [2021] NZCA 271 [24 June 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: DISTRICT COURT ORDER [2016] NZDC 20286 PROHIBTINGPUBLICATION OF THE APPLICANT'S NAME REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA667/2020[2021] NZCA 271BETWEEN C (CA667/2020)ApplicantAND THE QUEENRespondentCourt: Goddard, Venning and Peters JJCounsel: H G de Groot for ApplicantR K Thomson for RespondentJudgment:(On the papers)24 June 2021 at 11.00 amJUDGMENT OF THE COURTThe application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] Following a trial in the District Court before Judge Barkle and a jury inAugust 2016, Mr C was convicted on four charges of sexual offending against hisstep-daughter. He was also convicted on a representative charge of supplying her withcannabis. The charges related to events between 2010 and 2015.[2] On 12 October 2016, Mr C was sentenced to four years' imprisonment, witha minimum non-parole period of two years.1[3] On 17 November 2020, Mr C filed a notice of appeal against conviction, justover four years after the expiry of the time for filing an appeal.2 He seeks an extensionof time for filing an appeal under s 231(3) of the Criminal Procedure Act 2011 (CPA).That application is opposed.[4] Mr C had previously been convicted of a murder committed in 1989 and wassentenced to life imprisonment. He was on parole at the time of the events that led tohis 2016 convictions. The Parole Board made a final recall order at a hearing on18 November 2015. At that time, he was facing the charges that resulted in the 2016convictions. He has now served the sentence imposed in 2016, but remains in custodypursuant to the life imprisonment sentence.Extension of time to appeal: relevant principles[5] Section 231(2) provides that a notice of appeal must be filed within 20 workingdays after the date of sentence for the conviction appealed against. So the last day onwhich Mr C could file an appeal as of right was 10 November 2016.[6] Section 231(3) provides that the first appeal court may extend the time allowedfor filing a notice of appeal. The discretion to extend time must be exercised againstthe backdrop of the rationale for the time limit in s 231(2): in particular, the importanceof finality in litigation.3 The touchstone for the court's decision under s 231(3) is theinterests of justice. Relevant considerations include whether the delay is adequatelyexplained, and whether there are compelling reasons to extend time. The court mayalso consider the seriousness of the charges, the strength of the proposed appeal, theeffect on others, and prejudice to the Crown. The availability of fresh evidence mayalso be a relevant factor.41 R v [C] [2016] NZDC 20286 at [34]–[38].2 Under s 231(2) of the Criminal Procedure Act 2011, any appeal against conviction was requiredto be filed by 10 November 2016, 20 working days after sentence was passed.3 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [103].4 Oketopa v R [2020] NZSC 75 at [18]; R v Knight, above n 3, at 587; and R v Lee, above n 3,at [95]–[99].[7] Finality is a "powerful consideration"5 in determining where the interests ofjustice lie, because it is "integral to justice".6 In particular, there is a strong publicinterest in the final determination of cases of sexual offending because of thesignificant effects of a retrial on complainants.7[8] In order to apply these principles to the present case, we begin by consideringthe explanation given for the lengthy delay in bringing the appeal. We then considerthe apparent merits of the appeal. In light of those factors, we assess the overallinterests of justice.The explanation for the delayMr C's explanation for the delay[9] The delay in filing a notice of appeal in this case was, as noted above, a littleover four years. Mr C was aware that he could appeal in late 2016. His counsel attrial was Mr Fairbrother QC. Mr Fairbrother discussed the possibility of an appealwith Mr C following sentencing. Mr Fairbrother gave Mr C written advice on his rightto appeal in a letter dated 3 November 2016. The letter advised Mr C that he had20 working days to appeal, and that the Court can (and usually does) extend that timelimit if it takes several weeks or months to decide what to do. The letter attacheda draft notice of appeal. The letter noted that the draft notice of appeal lacked groundsfor appeal, and that Mr C would need to "advance some grounds as soon as possible".The letter continued:Sadly, I cannot see any ground for an appeal, but you might ask Legal Aid toappoint another lawyer to review your case and advise you on that. If youdecide to sign and file the attached notice of appeal, legal aid will contact youand send you an application for legal aid.[10] Mr C says he took this to mean that he had no grounds for an appeal, and thatif a QC was telling him that, another lawyer would not be able to do anything. He sayshe did not know how to file the notice of appeal. He did not know what to write on it5 R v Knight, above n 3, at 587.6 Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [10] and [12].7 S (CA88/2014) v R [2014] NZCA 583 at [13]; and Williams v R [2010] NZCA 616 at [23].or where he was supposed to send it. He did not know what grounds to insert. He hadno idea what to say.[11] Mr C says that following his conviction and sentence he was discouraged anddepressed. However, over time he began to feel better mentally and decided that hewanted to appeal. In his evidence in support of the application, Mr C says thisoccurred in mid to late 2017. He says he started to try to find a lawyer, but it was moredifficult than he had expected. In early 2018 he made contact with Mr Phelps. Theyspoke on the phone a couple of times. Mr Phelps advised him that he should apply forlegal aid in relation to an application for parole. Mr C's impression was that Mr Phelpswould represent him for parole and would also discuss an appeal. Mr C obtained legalaid in connection with his parole hearing. However, Mr Phelps did not provide anyadvice in relation to a possible appeal or take any steps towards filing an appeal.[12] Parole was declined on 19 November 2018. The Parole Board consideredwhether Mr C should be granted parole in relation to the life sentence he was servingfor the 1989 murder, and the four-year sentence imposed in 2016.[13] Mr C says that around this time — that is, late 2018 — he learned from prisonstaff that he could get legal aid even though he did not have an appeal filed. He againstarted to try to contact other lawyers. He made contact with one lawyer in June 2019,who said he was busy. He made contact with another lawyer in August 2019 and filledin legal aid forms for an appeal. Mr C was granted legal aid in October 2019, but thelawyer he had contacted was not able to do the case and he was reassigned to thePublic Defence Service (PDS). After some discussions with the PDS lawyer aboutpossible grounds of appeal, he was advised that the concerns he had identified aboutthe amendment of one of the charges he faced at trial did not give rise to a reasonableground to appeal.[14] Mr C then contacted multiple lawyers in early 2020 but made little progress.He says he found it difficult to explain his grounds for appealing. He got theimpression that no-one was very interested in acting for him because he could notexplain why he wanted to appeal "in legal words".[15] Eventually, some time in March or April 2020, Mr C received a letter fromMr de Groot, his current lawyer, providing him with legal aid forms. He filled in thoseforms and legal aid was approved. Mr de Groot then provided appeal forms, whichMr C signed and returned. Mr C says there was some further delay while documentsfrom the trial were obtained. A further notice of appeal was prepared, which Mr Csigned on 14 November 2020. It appears that there was some difficulty in obtainingcertain relevant documents, but ultimately a decision was made that the appeal shouldbe filed despite those documents not being located.[16] Mr de Groot submits that the evidence discloses an initial delay (to early 2018)that is not excessive and is reasonably explained, having regard to the advice Mr Creceived that there were no grounds to proceed. He submits that the fact that Mr Cwas advised of an appeal right is not determinative.8 Advice from Mr Fairbrother andothers that there were no appeal grounds could justify an extension of time.9Mr de Groot submitted that if an appeal had been filed by the first lawyer Mr Capproached, an extension would probably have been granted if the applicationidentified any arguable grounds of appeal. The balance of the delay, from early 2018onwards, could not properly be ascribed to Mr C. He was making sustained anddiligent efforts to progress matters.10 Mr de Groot noted the difficulty of filing anappeal without clear grounds. Yet as he also noted, it can be difficult to establishwhether there are grounds without a trial record — which can usually only be obtainedonce legal aid is granted, and an appeal filed.Discussion[17] We do not consider that the almost 18-month delay from sentencing until Mr Cfirst approached another lawyer, in early 2018, has been adequately explained. Mr Cwas provided with a completed notice of appeal which referred to grounds "to beadvised". The notice of appeal could have been signed and filed immediately, andsteps could then have been taken to obtain legal aid and review the existence ofgrounds for appeal.8 Citing R v Lee, above n 3, at [126].9 Citing Akuhata v R [2020] NZCA 19 at [143].10 Citing R v Osborne [2009] NZCA 168 at [10]; and Snell-Scasbrook v R [2014] NZCA 131 at [4]and [8].[18] Nor do we consider that the failure to pursue an appeal in the course of 2018has been satisfactorily explained, even taking into account the difficulties Mr Cdescribes.[19] We accept that Mr C made concerted efforts from 2019 onwards to pursue anappeal. Even so, those efforts were unsuccessful. Many intending appellants domanage to file an appeal (with or without legal representation) and obtain legal aid inconnection with that appeal. It seems likely, consistent with Mr C's explanation, thatthe difficulties he encountered stemmed from his inability to articulate any basis onwhich an appeal could be pursued. That requires us to consider whether there was anypotential ground of appeal that Mr C could not reasonably have been expected toidentify and pursue, but that is nonetheless sufficiently meritorious that leave shouldnow be granted. We address that question below.The merits of the appealMr C's submissions on the merits of the appeal[20] Mr de Groot submits that there are a number of seriously arguable grounds ofappeal in this case. He says that in addition to the private interests of Mr C, the strongpublic interest in ensuring that trials are fair, and are perceived to be fair and conductedin accordance with the law, is engaged.11 He identifies four grounds of appeal thatwould be pursued if leave is granted:(a) Certain submissions made by the Crown in opening and/or closinglacked a foundation in the evidence and should not have been made.(b) Mr C was convicted under s 131(1) of the Crimes Act 1961, whichcreates the offence of sexual connection with a dependent familymember under the age of 18 years. The term "dependent familymember" is defined in s 131A. It was an integral element of the chargeagainst Mr C that he had "power or authority" over the complainantwho was his step-daughter. Mr C wishes to argue that his step-daughter11 Citing R v Lee, above n 3, at [128].did not meet the test for a dependent family member because she waseffectively a boarder in the family home, paying rent as an independentadult. Mr de Groot says that the Crown misled the jury by submittingthat "power or authority" could be inferred from the step-parentalrelationship and the sexual activity that occurred. He also says thattailored directions ought to have been given in relation to this test.(c) Various motives were put in issue at trial, but no motive directions weregiven by the Judge in summing-up.(d) Trial counsel failed to cross-examine on significant inconsistenciesbetween the complainant's evidential video interview (EVI) and hertrial evidence.[21] We consider the strength of each of these arguments in turn below.First ground: Lack of evidential support for Crown submissions[22] Mr de Groot submits that the Crown invited five inferences in support of itscase, which had no foundation in the trial evidence or were contrary to the trialevidence:(a) The complainant "playing up" at school was "not surprising given whatshe was experiencing at home".(b) The complainant running away from home was related to the offending.The Crown submitted "again, given what was happening at home, youmay not think that [running away] is too surprising".(c) The complainant worked long nights and long shifts to minimise theopportunities for Mr C to offend against her.(d) The complainant ran away from home for good because of theoffending that was the subject of one of the charges.(e) The complainant did not disclose the offending to authorities, becauseher mother had witnessed a specific incident at the family home and"pretended that nothing happened at all".[23] Mr de Groot submits that the purpose of these submissions was to bolster thecomplainant's credibility by situating her evidence within a generic narrative of sexualoffending that would have been intuitive to the jury.[24] It is well established that a prosecutor must not advance factual contentions forwhich there is no foundation in the evidence.12 However, the argument that theCrown's opening and closing addresses misrepresented the trial evidence, andoccasioned a miscarriage of justice in this case, is weak.[25] There was evidence that the complainant had been in trouble regularly at herschool, and left school at the end of 2014. There was also evidence that she had runaway repeatedly from the age of about 15. It was open to the prosecutor to invite theinference that this behaviour reflected what the complainant was experiencing athome. Equally, Mr C was able to submit that the complainant was a troubled youngperson whose allegations should be discounted.[26] The complainant gave evidence that she preferred to work nights to "get awayfrom home".[27] The complainant gave evidence that after the final incident of sexualintercourse, she had another shower, got ready for work, then went to work and "didn'tcome back [home]". It was open to the prosecutor to invite the inference that it wasbecause of the sexual offending that she left home permanently.[28] The complainant gave evidence about an occasion when her mother had comein and seen Mr C with his hand on the complainant's thigh. It was open to theprosecutor to submit that this had happened and might have contributed to thecomplainant's reluctance to report the offending to other adults.12 Porter v R [2015] NZCA 448 at [11(b)].[29] In closing, trial counsel for Mr C was critical of the Crown's theorising andencouraged the jury not to make assumptions. That submission was noted by the Judgein his summing-up for the jury.[30] The argument that these Crown submissions gave rise to a miscarriage ofjustice is not in our view a strong one.Second ground: was the complainant a "dependent family member"?[31] The question of whether the complainant was a "dependent family member"for the purposes of s 131 of the Crimes Act was squarely before the jury. Trial counselmade an (unsuccessful) application for dismissal of the charges under s 147 of the CPAat the close of the Crown case on this basis. The issue was addressed in both theCrown and defence closing addresses. It was identified in the Judge's summing-up,and in the question trail, as a crucial question of fact for the jury to decide in relationto charges 4 and 5.[32] At no point was it suggested that merely being a step-child, coupled with thefact of sexual activity, sufficed for the requisite "power and authority".[33] We accept the Crown's submission that the main difficulty with this argumentis that the complainant had given evidence which, if accepted, showed Mr C was ina position of power and authority in relation to her. He was the only father she hadknown, she was living at home as a member of the family (albeit one contributingfinancially), and the evidence about his demands for sex and her response to thosedemands was consistent with the existence of an authority relationship. As the Crownpoints out, Mr C's own defence emphasised that he was effectively the complainant'sfather and claimed that this was a reason why he would never touch herinappropriately.[34] It seems to us there is little merit in this ground of appeal.Third ground: absence of motive direction[35] Mr de Groot says that various motives were put in issue at trial:(a) The complainant's motive to lie in order to maintain a relationship withher partner, a much older man of whom her parents disapproved.(b) The complainant's absence of motive to lie about the offending.(c) The complainant's mother's motive to lie about the incident when shesaw Mr C touch her daughter inappropriately.[36] As this Court noted in R v E, the need for a motive direction will depend onhow much stress is placed on issues of motive at trial.13 In particular, it is importantto avoid any suggestion that in the absence of evidence of motive for a complainant tolie, the onus of proof shifts to the defendant.14 Mr de Groot submits that a tailoreddirection was required that dealt with each motive, the evidence for it, and a firminstruction the onus never shifted to the defence. He submits the jury also needed tobe told that if it was not positively satisfied of motive, it should not leap to a conclusionof guilt. Similarly, if the jury was unsure how a person could be motivated to lie inthe absence of an offence, it should not assume the complainant was truthful.[37] However, we do not consider that in this case there was any real risk the jurycould have viewed the burden of proof as having shifted from the Crown.15 The Judgegave clear directions on the onus of proof, including the tripartite direction. The Judgeidentified the question of who was telling the truth as the central question in the trial.The jury was reminded on multiple occasions that it was not for Mr C to proveanything, but for the Crown to prove his guilt beyond reasonable doubt. Against thatbackdrop, the argument that a miscarriage of justice resulted from the absence ofspecific directions on motive appears weak.13 R v E [2007] NZCA 404, [2008] 3 NZLR 145 at [127].14 R v Henderson [2007] NZCA 524 at [46]–[47].15 R v E, above n 13, at [125].Fourth ground: absence of cross-examination of complainant on inconsistencies withEVI[38] Mr de Groot submits that there were major inconsistencies betweenthe complainant's EVI and her trial evidence. The EVI was not played at trial.Mr de Groot says that if the differences had been put to the complainant incross-examination, "counsel likely would have been able to marshal them to real effectin closing". Mr de Groot acknowledges that the suggested error does not relate toa "fundamental" trial decision of the kind identified in Hall v R.16 But he submits thatthe potential error is of sufficient significance that it could have had an influence onthe outcome of the trial.[39] We see real force in the Crown's submission that the decision not tocross-examine on the EVI was likely to have been a strategic decision, for which therewere good reasons. If the complainant had been cross-examined on theinconsistencies, that would have given her the opportunity to repeat the more seriousaccount she had given to the police in her EVI, including details omitted from her trialevidence such as forceable removal of her clothing when she refused to have sex. It isdifficult to see how a decision not to cross-examine the complainant by reference toher EVI, and expose Mr C to the risk that the complainant would adopt the moreserious version of events, could be seen as a material error by trial counsel, or couldhave caused a miscarriage of justice.Other factors relied on by Mr C[40] Mr de Groot also emphasises the following factors, which he says are relevantto an overall assessment of where the interests of justice lie:(a) The importance of the liberty of the subject. Mr de Groot says that theconvictions Mr C wishes to challenge are the operative cause of hiscontinued detention. His sentence for this offending has expired, butdetention under his earlier life sentence may continue indefinitely in theabsence of a successful appeal. Mr de Groot submits that this featureof the case is of major, and perhaps decisive, significance.16 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].(b) There would be no prejudice to the Crown as a result of granting leave,beyond what would have occurred if the appeal had been filed in theordinary way.(c) The convictions are serious ones. There could hardly be a greatersource of stigma than convictions for sexual offending against children.Mr de Groot says that this also favours the grant of leave.[41] We accept that the convictions relate to serious offending and have a continuingeffect on Mr C despite their expiry. Those are factors that would count in favour of anextension of time to appeal, particularly if the delay were short or the proposedgrounds of appeal appeared strong.Do the interests of justice favour an extension of time?[42] Taking into account all of the factors considered above, we are firmly of theview that the overall interests of justice do not favour extending time to bring an appealin this case. The delay is lengthy. Much of it is not satisfactorily explained.[43] As noted above, there is a strong public interest in the final determination ofcases of sexual offending because of the significant effects of a retrial oncomplainants.17 Re-opening these proceedings more than four years after the trial andMr C's conviction is likely to have significant adverse effects on the complainant.Complainants "depend very much on finality for closure and recovery".18 Re-openinga conviction may occasion acute stress to a complainant, including as a result of theprospect of being required to give evidence again.19 In this case, the complainantcould reasonably have expected that these matters had been finally resolved, providingsome form of closure, and that she could now focus on recovery. Re-opening theproceedings after such a significant delay, with the associated risk of re-traumatisingthe complainant, could be justified only if the merits of the appeal appearedsufficiently strong that this was necessary in the interests of justice.17 See above at [7].18 Lyon v R, above n 6, at [12].19 Kentwell v R [2014] HCA 37, (2014) 252 CLR 601 at [29].[44] The apparent strength of the proposed grounds of appeal in this case falls wellshort of the level required to justify re-opening the proceedings after such a long delay.[45] The difficulty that Mr C and the lawyers he initially approached experiencedin formulating arguable grounds of appeal reflects the absence of any compellinggrounds of appeal in this case. Whether one takes the concerns identified separatelyor in combination, the argument that there was a miscarriage of justice at trial does nothave sufficient apparent merit to overcome the public interest in finality, having regardto the likely emotional harm to the complaint from re-opening these matters more thanfour years later.Result[46] The application for an extension of time to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent