CHRISTIAN DESMOND MILLAR v R [2022] NZSC 6

CHRISTIAN DESMOND MILLAR v R [2022] NZSC 6 [17 February 2022]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF EF, TPM, MT ANDKNF PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT AND ANYPERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS AWITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 146/2021[2022] NZSC 6BETWEEN CHRISTIAN DESMOND MILLARApplicantAND THE QUEENRespondentCourt: William Young, Glazebrook and O'Regan JJCounsel: J W Griffiths for ApplicantR E King for RespondentJudgment: 17 February 2022JUDGMENT OF THE COURTA The application for leave to appeal against the Court of Appealjudgment refusing an extension of time is dismissed for want ofjurisdiction.B The application for an extension of time to appeal direct to thisCourt against conviction is dismissed.C We make an order prohibiting publication of names, addresses,occupations or identifying particulars of EF, TPM, MT andKNF pursuant to s 202 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS[1] The applicant was tried in August 2014 on charges alleging sexual offendingagainst a single complainant. He was subsequently sentenced to two years eightmonths' imprisonment.1 Almost six years later, he lodged a notice of appeal in theCourt of Appeal and sought an extension of time to do so. The case fell to bedetermined under the relevant provisions of the Crimes Act 1961, in particular,s 388(2) which conferred a power to extend the time for appeal and s 385(1) whichprovided the criteria for determining appeals against conviction.2 The application foran extension of time was refused by the Court of Appeal in a judgment delivered on20 October 2021.3 The applicant now seeks leave to appeal against that judgment or,in the alternative, leave to appeal (along with the necessary extension of time) againsthis conviction in the District Court.[2] We are satisfied that we have no jurisdiction to entertain an appeal from theCourt of Appeal judgment,4 as is apparent from a number of judgments of this Court,including Petryszick v R5 and Fergusson v R.6 In dismissing the application for anextension of time, the Court of Appeal naturally had regard to the s 385(1) criteria.Contrary to the submissions on behalf of the applicant, this does not mean that itsjudgment should be treated as the dismissal of an appeal.1 R v Millar DC Wellington CRI-2013-085-2668, 18 November 2014 at [13] (Judge Tompkins)[DC sentencing notes].2 As the proceeding was commenced before 1 July 2013, ss 385 and 388 of the Crimes Act 1961apply: Criminal Procedure Act 2011, s 397(2).3 Millar v R [2021] NZCA 548 (Goddard, Venning and Peters JJ) [CA judgment].4 As the proceeding was commenced before 1 March 2017, the Supreme Court Act 2003 applies.Section 10(a) established the Supreme Court's jurisdiction to hear and determine appealsauthorised by Part 13 of the Crimes Act (later Part 6 of the Criminal Procedure Act).Section 383A(1) of the Crimes Act allowed a convicted person to appeal to the Supreme Court(with leave) against a decision of the Court of Appeal on appeal under s 383. Section 383(1)(a)allowed a convicted person to appeal against conviction to the Court of Appeal (or, with leave, tothe Supreme Court).5 Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153 at [26].6 Fergusson v R [2013] NZSC 28, (2013) 26 CRNZ 173 at [8].[3] This Court has jurisdiction to grant leave for a leapfrog appeal against theapplicant's conviction,7 but this is subject to the Court being satisfied that there areexceptional circumstances which warrant an appeal direct to it.8 It would also requirean extension of time.9[4] The explanations advanced by the applicant for his delay (such as no legalrepresentation, difficulties in communicating with the lawyer assigned to assist him attrial, alleged errors in what he was told by that lawyer, practical impedimentsassociated with his imprisonment and him generally being at a low ebb) provide atmost justification for some limited delay. They are, however, inadequate to explainthe delay that occurred. This was also the view of the Court of Appeal.10[5] The merits of the proposed appeal were also thoroughly addressed by theCourt of Appeal as part of its consideration of the application for an extension oftime.11[6] As that Court concluded, there is substantial scope for argument that there wereerrors on the part of counsel assigned to assist the applicant; most particularly in (a) notcross-examining the complainant's aunt about the complainant having told her that theapplicant had not touched her vagina and (b) not seeking permission to cross-examinethe complainant under s 44 of the Evidence Act 2006 on her failure to refer to theapplicant when being interviewed about her sexual activity with other males.12[7] The inherent significance of these errors was limited. Evolving disclosure byyoung complainants is common. As well, there was evidence which the Crown couldhave adduced to rebut the allegation of recent fabrication which would have beenimplicit in such cross-examination. Further, and more importantly, the Crown caserelied on not just the evidence of the complainant but more substantially on that of her7 Supreme Court Act, s 14; and Crimes Act, s 383.8 Supreme Court Act, s 14. It must also be necessary in the interests of justice for the Supreme Courtto hear and determine the proposed appeal: ss 13 and 14.9 Supreme Court Rules 2004, r 11(4).10 CA judgment, above n 3, at [15].11 At [16]–[87]. The applicant contended that there was a miscarriage of justice pursuant tos 385(1)(c) of the Crimes Act, due to alleged errors, irregularities and occurrences at trial thatcreated a real risk the outcome of the trial was affected or rendered it unfair: at [7].12 At [75] and [78].cousin, whose account of events was not affected by prior inconsistent statements and,indeed, was supported by contemporaneous diary entries.[8] The significance of these errors was further diminished by the underlyingdynamic of the trial. When first interviewed by the Police, the applicant denied notonly the offending but also knowing the complainant or her cousin.13 As both theJudge at sentencing and the Court of Appeal in dismissing the application for anextension of time concluded, this denial was shown at trial to be completely untrue.14The contact which was established (including the gift of an MP3 player and telephonecalls) provided substantial support for the evidence of the cousin and correlated wellwith her diary entries.15 Against this background the Court of Appeal concluded thatthere was not a real risk that the errors made had affected the outcome of the trial.16[9] We see the approach of the Court of Appeal to the fairness of the trial and thecorresponding absence of a risk of a miscarriage of justice as convincing. The errorsmade in the presentation of the defence were all fully addressed by the Court of Appealwith the case addressed very much as if counsel assisting had been the applicant'scounsel,17 an approach which seems to us to have been appropriate. Counsel for theapplicant maintained that the applicant's dishonesty at interview did not preclude thejury from acquitting the applicant if not satisfied that the Crown had proved its case.While this is so, the applicant's obviously dishonest denial of association meant thatthe jury did not receive from the defence a plausible innocent explanation for provenconduct on his part that provided substantial support for the evidence of thecomplainant and particularly her cousin.[10] The Court of Appeal also rejected the view that the complainant's lack of legalrepresentation made the trial unfair; this on the basis that the applicant had receivedsubstantial assistance at trial from counsel appointed to assist him and from the wayin which the Judge had conducted the trial.18 We see no appearance of error in thisapproach.13 DC sentencing notes, above n 1, at [5].14 At [5]; and CA judgment, above n 3, at [42] and [82].15 CA judgment, above n 3, at [82].16 At [83] and [85].17 At [55]–[79].18 At [57] and [58].[11] In terms of the application for leave to appeal direct to this Court againstconviction, nothing has been advanced to suggest that the exceptional circumstancestest has been satisfied. Further, the extraordinary delay in challenging the convictionhas not been acceptably explained. As well, the time that has elapsed since the trialand substantial later developments, including the Court of Appeal decision inFahey v R,19 mean that there would be no substantial utility in exploring as a point ofgeneral or public importance the role of counsel assisting in a trial of this sort.20 Thisis all the more so as it is difficult to see how such exploration would be likely to assistthe applicant in terms of outcome. Finally, we see no appearance of a miscarriage ofjustice.21[12] The application for leave to appeal from the Court of Appeal judgment istherefore dismissed for want of jurisdiction and the application for an extension oftime to appeal direct to this Court against conviction is likewise dismissed.[13] To protect the identity of the complainant, we make an order prohibitingpublication of names, addresses, occupations or identifying particulars of EF,TPM, MT and KNF pursuant to s 202 of the Criminal Procedure Act 2011.Solicitors:Main Street Legal Limited, Upper Hutt for ApplicantCrown Law Office, Wellington for Respondent19 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392.20 Supreme Court Act, s 13(2)(a).21 Section 13(2)(b).