MILLAR v R [2021] NZCA 548

MILLAR v R [2021] NZCA 548 [20 October 2021]ORDER FORBIDDING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF EF, TPM, MT AND KNF PURSUANT TO S 139 OF THECRIMINAL JUSTICE ACT 1985.NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY SS 139(1) AND 139A OF THE CRIMINALJUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA509/2020[2021] NZCA 548BETWEEN CHRISTIAN DESMOND MILLARApplicantAND THE QUEENRespondentHearing: 18 May 2021Court: Goddard, Venning and Peters JJCounsel: J W Griffiths for ApplicantA J Ewing for RespondentJudgment: 20 October 2021 at 2.00 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is declined.B Order under s 139 of the Criminal Justice Act 1985 forbidding publicationof the name or any particulars likely to lead to the identification of EF,TPM, MT and KNF.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The applicant, Mr Millar, seeks to appeal against his conviction on two chargesof sexual connection with a young person under 16, FF, by digital penetration.1The convictions followed a jury trial in August 2014 before Judge Tompkins in theDistrict Court at Wellington. The jury was unable to reach a verdict on a third,representative, charge of sexual connection with FF by sexual intercourse(third charge).[2] Mr Millar was not represented at trial but was assisted by counsel appointed asan amicus, Mr Bryan Yeoman.[3] On 18 November 2014, the Judge sentenced Mr Millar to two years andeight months' imprisonment and gave him a "first strike" warning under s 86B of theSentencing Act 2002.2 The Judge also discharged Mr Millar on the third charge, whichthe Crown decided not to pursue on a retrial.3[4] As a consequence of his convictions, Mr Millar was registered on the Child SexOffender Register when the relevant legislation was enacted in 2016.4[5] Mr Millar requires a very substantial extension of time to appeal, having filedhis notice of appeal on 10 September 2020. The prosecution having been commencedprior to 1 July 2013, any appeal was required to be lodged within 28 days of sentence(that is 28 days from 18 November 2014), so by mid-December 2014.5 Thus the noticeof appeal was approximately five years and nine months out of time.[6] The Crown opposes any extension of time to appeal. Crown counsel,Ms Ewing, submits Mr Millar has not given a sufficient explanation for the delaybetween conviction and the filing of his notice of appeal, the Crown is likely to beprejudiced at any retrial by the delay, and the proposed appeal lacks merit.1 Crimes Act 1961, s 134(1).2 R v Millar DC Wellington CRI-2013-085-2668, 18 November 2014 at [13].3 At [2].4 Child Protection (Child Sex Offender Government Agency Registration) Act 2016.5 Crimes Act, s 388(1) applies: see Criminal Procedure Act 2011, s 397(2).[7] If an extension of time is granted, the appeal would be determined unders 385(1) Crimes Act 1961. Of the grounds in s 385(1), Mr Griffiths, counsel forMr Millar, contends there was a miscarriage of justice. In particular, he submits therewas an error, irregularity or occurrence at trial which either created a real risk theoutcome of the trial was affected,6 or which rendered the trial unfair. 7Extension of time[8] Section 388(2) of the Crimes Act permits this Court to extend the time allowedfor filing a notice of appeal. The discretion is to be exercised so as to best serve theinterests of justice, which in turn requires balancing the wider interest of society in thefinality of a decision against the interests of the individual applicant in having theconviction reviewed.8 And, as this Court said recently in C (CA667/2020) v R, relevantconsiderations include whether the delay is adequately explained, and whether thereare compelling reasons to extend time.9 The Court may also consider the seriousnessof the charges, the strength of the proposed appeal, the effect on others, and prejudiceto the Crown.10 There is a strong public interest in the final determination of cases ofsexual offending because of the significant effects of a retrial on complainants.11[9] Again, as in C, we shall consider the explanation given for the delay in bringingthe appeal and the apparent merits of the appeal and then, in light of those factors,assess the overall interests of justice.Reasons for delay[10] It is clear that Mr Millar wished to appeal against his convictions as soon aftertrial as possible, and before sentencing. Mr Yeoman advised Mr Millar that he wouldhave to wait until he had been sentenced, that Mr Yeoman could not assist him as he6 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [70].7 There is no specific reference to the unfair trial ground in s 385(1) of the Crimes Act, but it hasbeen accepted as a ground relating to a miscarriage of justice: see Haunui v R [2020] NZSC 153at n 46; Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77]–[78]; and Wiley v R [2016]NZCA 28, [2016] 3 NZLR 1 at [34].8 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [103].9 C (CA667/2020) v R [2021] NZCA 271 at [8].10 Oketopa v R [2020] NZSC 75 at [18]; and R v Lee, above n 8, at [95]–[99], adopting R v Knight,above n 8, at 587.11 S (CA88/2014) v R [2014] NZCA 583 at [13], citing Williams v R [2010] NZCA 616 at [23].might be required to give evidence at the hearing of any appeal, and at best any appealwould result in a retrial on all three charges. On the other hand, Mr Yeoman expectedMr Millar to have no difficulty in obtaining legal aid for an appeal.[11] Mr Millar's evidence was that he did not receive all of Mr Yeoman'scorrespondence on the subject of an appeal, noting that one letter in September 2014had, contrary to his request, not been sent to his PO Box (although Mr Yeoman'srecollection was that he sellotaped it to Mr Millar's door), and that another, sent to theprison immediately after sentencing, had been addressed to "Chris", not"Christian Millar" and did not specify the "unit" at the prison in which Mr Millar washoused.[12] In an affidavit filed in support of his appeal, Mr Millar states that whilst inprison he did not have "easy access" to the resources he felt he needed to build a strongcase on appeal; that he was under the impression he needed to obtain evidence to provehis innocence to strengthen his prospects; and that he was discouraged byMr Yeoman's advice that a successful appeal would only bring about a retrial.Mr Millar's evidence is he did not then understand that the third charge had beendismissed.[13] Mr Millar states that in March 2015 he tried to complain to theIndependent Police Conduct Authority, although he does not say how he thought thiswould assist him; that he was in ill-health; and that he only received his sentencingnotes two years after sentencing. For personal and other reasons, Mr Millar was ata very low ebb after his release in July 2017. Mr Millar's evidence is that thereafterhe contacted three lawyers to pursue an appeal but received no response. Mr Millarannexed to his affidavit an email of 28 November 2019 to one of those lawyers.Mr Millar has also found it difficult if not impossible to get work in his trade, becauseof his convictions.[14] Despite all of these matters, there is no doubt that Mr Millar knew he hada right of appeal and that it had to be exercised promptly. Mr Millar's affidavit doesnot explain why he did not bring this appeal much earlier. Subject to some furthercorrespondence with Mr Yeoman in late November 2016 and early 2017, Mr Millardid nothing of consequence to pursue an appeal prior to lodging this application in2020. As this Court also said in C, many unrepresented appellants manage to file anappeal and to obtain legal aid in connection with their appeal whilst in prison.12[15] Accordingly, there is nothing like a sufficient explanation for the inordinatedelay in filing the appeal.Merits[16] We turn now to consider the merits of the proposed appeal.[17] Mr Griffiths submits a miscarriage of justice arose in that errors or occurrencesat trial, individually or collectively, created a real risk the outcome was affected orrendered the trial unfair. The alleged errors are:(a) The DVD of an interview of Mr Millar after his arrest containedstatements which were prejudicial to him and which ought to have beenexcluded. Moreover, those statements having been played to the jury,the trial Judge failed to direct on them.(b) The trial Judge erred by declining Mr Yeoman's application pursuant tos 44 of the Evidence Act 2006 (the Act).(c) Mr Millar's defence was not adequately put and thus a real possibilityof an acquittal was lost.(d) Mr Yeoman did not perform his role competently. In particular,Mr Griffiths contends Mr Yeoman overlooked important matters inmaking the s 44 application; failed to provide Mr Millar with alldisclosure and to request disclosure he ought to have realised had notbeen given; failed to develop a "theory of the case"; failed to putMr Millar's case sufficiently to prosecution witnesses; and failed togive a closing address for Mr Millar.12 C (CA667/2020) v R, above n 9, at [19].Chronology[18] The offending of which Mr Millar was convicted was said to have beencommitted on 25 May 2011, and between 25 May 2011 and 8 June 2011. FF wasaged 14 at the time and Mr Millar in his early 50s.[19] To put the submissions in context, it is necessary to set out the chronology ofevents in some detail.[20] Mr Millar came to know FF and EF, her 16-year-old cousin, in 2011.Mr Millar's wife worked with, and was friendly with, FF's aunt with whom FF andEF were living at the time.[21] On 13 April 2012, the year after the offending occurred, EF (not FF) madea complaint to the police regarding two matters. EF, who had relocated by this time,first alleged abusive conduct by the aunt against the girls. Her second complaintconcerned Mr Millar's sexual activity with FF.[22] EF gave a formal written statement to the police on 28 July 2012 in which sheprovided details of Mr Millar's offending against FF, by reference to diary entries shehad made. EF also said that Mr Millar would telephone the girls at home when theaunt was working, and that he had given FF an MP3 player and also "Pacific Talk"cards so that she and EF could call home.[23] By 2 September 2012, FF had also relocated from the aunt's address.Detective Adamson, the Officer in Charge, spoke to FF that day and told her that EFhad been interviewed about "things that happened between [FF] and [Mr Millar]".In response, FF said that she had not spoken about Mr Millar previously because she"forgot". The reference to "previously" relates to FF's disclosure earlier in 2012 ofsexual activity with two other males, TPM and MT, in respect of which she had alsobeen interviewed and to which we refer below.[24] It is possible Detective Adamson's jobsheet recording this conversation withFF was not disclosed to the defence.[25] FF then gave an evidential video interview (EVI) in November 2012 regardingMr Millar's offending.[26] Mr Millar was charged on 7 March 2013, following which the DVD interviewreferred to in [17](a) above took place. Mr Millar denied knowing FF and EF, deniedany offending, denied purchasing the phone cards and MP3 player, and denied makingtelephone calls to the aunt's apartment.[27] The next matter of note is a statement that the aunt gave to Detective Adamsonon 12 March 2013. The aunt had telephoned FF on 11 March 2013, having only justbeen informed of the allegations against Mr Millar. The aunt's statement records FFas saying that Mr Millar had first visited her, FF, at the apartment where they livedafter she, EF and the aunt had gone on an outing with him, but that "nothinghappened". The aunt went on to ask if Mr Millar had ever touched FF's vagina andFF said "no". The aunt told FF not to hide anything and to tell her the truth, and FFagain said "nothing happened".[28] FF then gave a second EVI in August 2013, which was concerned with thepurchase of the MP3 player.TPM and MT[29] In circumstances we need not address, in February 2012 the aunt learnt that EFand FF had both been engaging in sexual activity whilst she had been away on holiday.The aunt contacted the police. On 2 February 2012, FF was interviewed bya Constable Watts and referred to sexual activity with TPM and MT but did not referto any sexual activity with Mr Millar eight or nine months prior.[30] In February and March 2012, FF gave two EVIs to specialist policeinterviewers. In each case, an interpreter was present. In these EVIs, FF spoke ofsexual activity with TPM and MT. Again, FF made no reference to any sexual activitywith Mr Millar and in each interview replied "No" to the question "has anyone else had sex with you?".[31] Detective Adamson interviewed TPM and also another man KNF (with whomEF had been associating) in August 2012, but ultimately did not pursue charges againsteither TPM or MT.[32] It is not entirely clear that Constable Watts' notes were disclosed to the defence.However, the transcripts of FF's EVIs regarding TPM and MT were, as were those ofTPM and KNF.Appointment of Mr Yeoman[33] Although Mr Millar briefed counsel initially, he was unable to continue to paycounsel's fees. Mr Millar then sought but was declined legal aid.[34] In September 2013, Judge Barry directed the appointment of an "amicus pursuant to s 95 and [to] assist the Court". Although s 95 of the Act prohibitsa defendant in a sexual case from personally cross-examining a complainant, the courtmay appoint a person to put the defendant's questions to the complainant.13Mr Yeoman was assigned the following month. As it happened, and as appears below,Mr Yeoman did do more than cross-examine FF. A number of the steps he took, or didnot take as the case may be, were the subject of evidence before us and submissions.Trial[35] At the outset of the trial, Mr Yeoman made an application pursuant to s 44 ofthe Act, seeking permission to ask questions relating to "the past sexual experienceand behaviour of [FF]". Absent permission, s 44 prohibited Mr Yeoman putting anyquestion to any witness relating directly or indirectly to the sexual experience of FFwith any person other than Mr Millar.[36] The Judge declined the application, something we discuss below.14 There isa difference between Mr Yeoman and Mr Millar as to whether the latter wished to seekan adjournment of the trial to appeal the Judge's decision but, in any event, the trialproceeded.13 Evidence Act 2006, s 95(5).14 R v Millar DC Wellington CRI-2013-085-2668, 11 August 2014 (Ruling 1 of Judge Tomkins).[37] The issue at trial was whether Mr Millar had done the acts alleged.[38] The Crown called evidence from FF, EF, the aunt, Mr Millar's wife (nowdeceased), third parties, and Detective Adamson.[39] FF's EVIs of November 2012 and August 2013 were played to the jury as herevidence-in-chief. In those EVIs, FF gave evidence of digital penetration by Mr Millaron the two occasions charged but denied sexual intercourse.[40] EF, who gave her evidence-in-chief viva voce, said she had observed the firstincident of digital penetration; that FF had told her of the second (hearsay butpresumably led as a prior consistent statement by FF); and that she had observed FFand Mr Millar in circumstances which suggested they were having or had had sexualintercourse. EF's evidence on this latter point was the only evidence in respect of thethird charge, FF having denied it.[41] The evidence of the aunt and Mr Millar's wife was inconsequential.[42] The third parties' evidence tended to corroborate FF and EF's accounts thatMr Millar had given gifts to FF, such as telephone cards, and that he had bought heran MP3 player, and suggested Mr Millar had lied to the police when he denied doingany such thing. Records of telephone calls made from Mr Millar's landline and/orcellphone to the aunt's address, whilst the aunt and Mrs Millar were proved to be atwork, but Mr Millar was not, were also produced.[43] Mr Yeoman cross-examined FF, and then both Mr Millar and Mr Yeomancross-examined the remaining witnesses. Mr Griffiths submits that Mr Yeoman'scross-examination of FF and other witnesses was inadequate.[44] Mr Millar did not give or call evidence but, as we have said, his DVD interviewwas played to the jury.[45] In closing, Crown counsel placed considerable emphasis on EF as the mostreliable witness. As we have said, EF was the only person giving evidence in respectof the third charge.[46] Mr Millar made his own closing remarks to the jury, in which he also deniedthe offending. Another criticism levelled at Mr Yeoman is that he himself did notmake the closing for Mr Millar.Grounds of appealDVD[47] As played to the jury, Mr Millar's DVD included the following statement:... [my son rang] me up and I wasn't feeling – and that's why I went back and,you know, and I tried to do, you know, we – no, ah, even when we –I remember standing in the Court when I was charged and they, they said oh,there's no hope for us and I, you know, that was total, um, you know, I tried,you know, I, I was tried and, ah, and I've tried to, you know, like, you know,we've had, we've had some bumpy rides, yes, and I've had some bumpyemployment times as well, things like that, and I've had some, you know, it'scost me a lot ...[48] Mr Griffiths submits this statement was highly prejudicial to Mr Millar,referring as it does to his having previously appeared in Court on another charge.[49] There is nothing in this submission. Prior to trial, the prosecutor suggested toMr Yeoman that this statement, with others, be deleted. Mr Yeoman soughtMr Millar's instructions on the proposed deletion but these were not forthcoming.Accordingly, no issue arises. Nor do we consider the statement could have had anyeffect on the jury's deliberations.Section 44 application[50] Two issues arise in respect of the application that Mr Yeoman made under s 44of the Act. These are whether the Judge erred in dismissing the application on thebasis it was put and, if not, whether the application might have been put on a basismore likely to succeed. We shall deal with the first of these here and the second furtheron in the judgment.[51] The effect of s 44 is that a Judge may only give permission to cross-examinea witness regarding the complainant's sexual conduct with persons other than thedefendant if satisfied such questioning is of "such direct relevance to facts in issue inthe proceeding that it would be contrary to the interests of justice to exclude it".[52] Mr Yeoman filed his application pursuant to s 44 only the day (literally, on theSunday) before the trial commenced. He did not file written submissions in supportof the application but in a memorandum in support sought leave to question FF onwhether she was engaged in sexual relationships with TPM and MT at the time of theoffending with which Mr Millar was charged; whether TPM and MT knew of theother's relationship with her; whether FF was scared of physical abuse at the hands ofher aunt and other family members if the relationships came to light; whether FF andEF had fabricated allegations against Mr Millar once those other relationships becameknown and with a view to blaming a "Palagi"; and the police decision not to prosecuteTPM.[53] As the Judge (correctly) construed Mr Yeoman's overall submission, it was thatFF and EF were motivated to fabricate the allegations against Mr Millar to cover upthe activity with TPM and MT, about which FF was embarrassed.[54] Not surprisingly, the Judge was not persuaded the threshold was met. FF'ssexual activity with TPM and MT was acknowledged; the charges against Mr Millararose not from FF's complaint but EF's; FF herself denied the third charge; and therewas nothing to suggest FF was prone to making false allegations. The Judge did noterr in declining the application, given the basis on which it was put. On the contrary,the Judge was correct to do so.Unfair trial resulting in miscarriage of justice[55] We can deal relatively briefly with Mr Griffiths' submission that the trial wasunfair because Mr Millar's defence could not be adequately conducted withoutcounsel's assistance and, as a result, a real possibility of an acquittal was lost.[56] We do not accept that Mr Millar's defence could not be adequately conductedwithout counsel's assistance. There were no difficult legal or evidential issues toconfront, other than the s 44 application which Mr Yeoman advanced.[57] Moreover, the reality of the trial was that in large part Mr Millar did haverepresentation. Mr Yeoman did much of what any counsel could be expected to do.He was present at all pre-trial conferences, he attended to pre-trial matters such as theprovision of disclosure to Mr Millar, the viewing (or not as it turned out) of EVIs and,after the Crown closed its case, he applied to the Judge for a discharge for Mr Millaron charge 3. As we have said, Mr Yeoman also cross-examined other witnesses, afterMr Millar had done so.[58] Mr Yeoman did not make closing remarks to the jury for Mr Millar and it iscorrect that Mr Millar did not address the burden or standard of proof or other matterswhich would usually be expected of defence counsel. That said, the Judge gavea comprehensive summing-up, including directions on these matters, and encapsulatedMr Millar's defence which, as we have said, was that the offending had not occurred.Accordingly, we are not persuaded that the trial was unfair in the sense of s 385(1) ofthe Crimes Act.Real risk outcome affected resulting in miscarriage of justice[59] Mr Griffiths also submits that an error, irregularity or occurrence at trial createda real risk the outcome of the trial was affected.[60] Mr Griffiths submits Mr Yeoman made several errors at trial, and mostsignificantly in cross-examination of FF and other witnesses.[61] First, Mr Yeoman did not cross-examine FF, or the aunt, regarding theirconversation in March 2013 in which FF denied that Mr Millar had touched her vaginaand, when pressed, said that nothing had happened. This was an obvious line ofquestioning, did not require permission under s 44, and Mr Yeoman had the aunt'sformal written statement.[62] Secondly, and this is the second issue arising in respect of s 44, Mr Yeomandid not seek permission under s 44 to cross-examine FF on her failure to refer to anyoffending by Mr Millar when interviewed regarding her sexual activity with TPM andMT.[63] Mr Griffiths submits the Judge is likely to have granted permission under s 44to cross-examine FF about these omissions had Mr Yeoman premised the applicationon this basis.[64] Mr Griffiths referred us to this Court's decision in K (CA188/2011) v R insupport of this submission.15[65] The appellant in that case had been charged with sexual offending against A.Defence counsel had applied for permission to question A about comments she wassaid to have made to her sister, B, in two separate discussions, in which A alleged thattwo men she identified had offended against her sexually but did not refer to theappellant. A's first discussion with B was likely to have post-dated the commencementof the appellant's alleged offending, and the second would have post-dated all of theappellant's alleged offending.[66] The District Court Judge declined permission. However, this Court allowedthe appeal saying that such evidence was directly relevant to A's credibility:16If [A] accepted that she did not disclose offending involving the appellant ata time when she disclosed offending of a sexual nature by other older males,albeit different in terms of the sexual acts, to a confidante, that would assistthe defence case that this offending did not occur. It may, for example, bolstera submission that no immediate disclosure was made about this offendingbecause it did not occur.[67] Mr Griffiths contends that Mr Yeoman also overlooked other lines of enquiry.For instance, Mr Griffiths submits that Mr Yeoman also ought to have sought tocross-examine FF on a statement in her February 2012 EVI to the effect that digitalpenetration by TPM was a "totally new feeling" even though Mr Millar was said tohave penetrated her digitally, and prior to TPM doing so; that there ought to have beencross-examination of EF as to her motivation for going to the police in April 2012; andas to a discrepancy between EF's initial recollection of what FF was wearing at thetime of the first incident and EF's evidence at trial.15 K (CA188/2011) v R [2011] NZCA 146 at [12].16 At [12].[68] Ms Ewing did not accept that Mr Yeoman had made the errors attributed to himand, in any event, submits that those alleged were not significant given the evidenceagainst Mr Millar or that the Crown would have countered whatever evidence mighthave been adduced.[69] Although before us Ms Ewing accepted that Mr Yeoman's failure to put FF'sdenial to her constituted an error, she subsequently retracted that concession.Ms Ewing submits that, had FF and the aunt been cross-examined on this point,Mr Millar's defence would not have been advanced greatly because the jury wouldhave rationalised FF did not wish to discuss the matter with her aunt. Ms Ewing alsosubmits that the Crown would have responded by adducing evidence from TPM andKNF of a prior consistent statement by FF to the effect that she was having a sexualrelationship with an older, "Palagi" male.[70] As to the alleged omissions in the s 44 application, Ms Ewing submits thatK v R would be decided differently now, given accepted expert evidence that a failureto complain at a particular point in time says nothing about whether a subsequentcomplaint of offending is true.17[71] Ms Ewing also submits that ultimately none of these matters provide anyexplanation as to why both FF and EF would lie on oath.Discussion[72] The first issue is whether Mr Yeoman made an error or errors in the senserequired by the authorities in relation to s 385(1) of the Crimes Act.[73] It appeared from the affidavit and viva voce evidence before us that there wasa lack of clarity between Mr Yeoman and Mr Millar as to extent to which Mr Yeomanwould participate at trial. We accept that Mr Yeoman was expecting a greater degreeof engagement from Mr Millar in advance of trial, including how he, Mr Millar,proposed to cross-examine witnesses. Moreover, this Court's decision in Fahey v Rwas not delivered until 2017 so counsel in Mr Yeoman's position did not have the17 Mathew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA44.9].benefit of the clear distinctions that case draws between the role of an amicus on theone hand and standby counsel on the other.18[74] However, all of that said, Mr Yeoman was appointed to cross-examine FF, andhe was required to perform that task and any others he undertook competently.19[75] We are satisfied that Mr Yeoman erred in failing to put to FF that she had deniedany offending by Mr Millar in the conversation with her aunt in March 2013. Had thatbeen put to FF, it is inevitable that it would have also been put to the aunt.[76] In response to questioning from Mr Griffiths, Mr Yeoman said these omissionsreflected "tactical" decisions by him, made because he did not know how Mr Millarproposed to proceed with his cross-examination.[77] We have reservations about that explanation. We have reviewed thecross-examination Mr Yeoman prepared for FF and it makes no reference to the aunt'sMarch 2013 statement, suggesting the point may have been overlooked. In any event,it was for Mr Yeoman to clarify any matters required with Mr Millar before heembarked on the cross-examination of FF. This was particularly so because FF'sdenial to the aunt was one of the very few grounds the defence had to challenge FF'scredibility.[78] We also accept Mr Griffiths' submission that Mr Yeoman erred in not seekingleave to cross-examine FF on her failure to refer to Mr Millar when being interviewedregarding TPM and MT, especially as some of the activity discussed in those EVIswas alleged to be non-consensual. Also, whatever the current merits of Ms Ewing'ssubmission regarding K v R, at the time of trial it was a recent authority of this Courtthat was entirely on point, and it is likely to have been followed had it been referredto the Judge.[79] The other matters raised by Mr Griffiths, referred to in [67] above, are of farless significance in the context of this case and it is unnecessary for us to address them.18 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392.19 R v McFarland [2007] NZCA 449 at [60] and [64]–[65], endorsing Sunguswan v R, above n 6(summarised in R v Scurrah CA159/06, 12 September 2006).Even if they could be seen as irregularities, they are immaterial: they plainly couldnot, either singly or collectively, have affected the result of the trial.20[80] The more difficult question is whether these errors created a real risk theoutcome of the trial was affected in the sense explained in Haunui v R.21 This firstrequires consideration of whether there is a reasonable possibility another verdictwould have been reached had the error(s) not occurred. If the answer to that questionis no, the appeal will be dismissed.[81] We consider that there is no reasonable possibility that the jury would havereached another verdict if these errors had not been made.[82] Two of us (Goddard and Venning JJ) consider the jury was clearly satisfied thatMr Millar had lied about his interactions with FF. The third parties' evidence at trialestablished that Mr Millar's "Flybuys card" had been used to purchase severalPacific Talk cards between February and July 2011; that the same card had been usedto purchase an MP3 player at Noel Leeming on 11 June 2011, being the date ofpurchase that EF had recorded in her diary; and that telephone calls had been placedfrom Mr Millar's landline and cellphone to the aunt's apartment when the aunt andMr Millar's wife were at work, and Mr Millar was not. Although a lie by an offender(Mr Millar to the police) may not be indicative of guilt, in this case the evidence fromthe third parties was entirely consistent with FF and EF's accounts that the purchaseshad been made, whether as an inducement or reward. No alternative explanation wasoffered at trial, or before us.[83] Against that backdrop, there is no reasonable possibility thatcross-examination by Mr Yeoman about FF's March 2013 conversation with her aunt,and about FF's failure to refer to Mr Millar when interviewed about sexual activitywith TPM and MT, could have resulted in a different verdict. As Ms Ewing submitted,there were reasonable (indeed, obvious) explanations for FF's denial to her aunt, andomissions to refer to Mr Millar when interviewed about other matters. Those matters,20 Haunui v R, above n 7, at [53], quoting R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at[30]. Haunui was decided under s 232 of the Criminal Procedure Act but this Court's approachremains the same as under s 385 of the Crimes Act: see Haunui, above n 7, at [50] and [58].21 Haunui v R, above n 7, at [67]–[68].even taken at their highest, do not cast any material doubt on the reliability orcredibility of the detailed evidence given by FF and EF on oath at the trial; evidencewhich was consistent with the third parties' evidence. There is no real prospect that ifthese errors had not occurred, that could have led a reasonable jury to preferMr Millar's bald denials of any contact with FF to the evidence of FF, EF and the thirdparties, and reach a different verdict.[84] The other member of the panel (Peters J) agrees that the third parties' evidenceis conclusive against Mr Miller for the reasons given in [82]. But for that evidence,she would have considered there was merit in the appeal and, in particular, that themerits of FF's explanations, if any, are a matter for the jury alone.[85] In those circumstances, even if time to appeal were extended, we do notconsider Mr Millar would be able to establish there is a real risk the outcome of thetrial was affected by Mr Yeoman's errors. Thus the appeal lacks merit.Overall interests of justice[86] Given Mr Millar's inordinate delay in bringing his appeal and the lack of meritin the proposed appeal, the overall interests of justice lie in declining an extension oftime in which to appeal.[87] To protect the identity of FF, we find it is in the interests of justice to make anorder under s 139 of the Criminal Justice Act 1985 forbidding publication of the nameor any particulars likely to lead to the identification of EF, TPM, MT and KNF.Result[88] The application for an extension of time to appeal is declined.[89] Order under s 139 of the Criminal Justice Act forbidding publication of thename or any particulars likely to lead to the identification of EF, TPM, MT and KNF.Solicitors:Mainstreet Legal Ltd, Upper Hutt for ApplicantCrown Law Office, Wellington for Respondent