HITCHCOCK v R [2021] NZCA 121

HITCHCOCK v R [2021] NZCA 121 [20 April 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 AND S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA265/2015[2021] NZCA 121BETWEEN IAN EDWARD HITCHCOCKAppellantAND THE QUEENRespondentCourt: Collins, Ellis and Muir JJCounsel: Appellant in personE J Hoskin for RespondentJudgment:(On the papers)20 April 2021 at 9.30 amJUDGMENT OF THE COURTThe further application to recall this Court's judgment, Hitchcock v R [2020]NZCA 505 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 16 October 2020, we granted Mr Hitchcock's application to recall an earlierjudgment in which this Court had dismissed Mr Hitchcock's appeal in relation to 12convictions for rape, unlawful sexual connection, cannabis dealing and attempting topervert the course of justice.1[2] In our recall judgment, we also:(a) granted Mr Hitchcock's application to adduce further evidence;2(b) allowed Mr Hitchcock's appeal against his convictions in relation totwo offences, namely that he had raped a complainant A, and that hehad also engaged in unlawful sexual connection with A;3(c) affirmed Mr Hitchcock's other convictions; and(d) re-sentenced Mr Hitchcock.4[3] Mr Hitchcock now seeks leave for us to recall our recall judgment and quashthe remainder of his convictions.Background[4] Mr Hitchcock's trial took place in the District Court at Christchurch inFebruary 2015. The principal witnesses for the Crown were:(a) A, who at the time of the alleged offending was aged 13. Mr Hitchcockwas convicted of raping and engaging in unlawful sexual connectionwith A on 10 September 2011 at his home.5(b) B, who at the time of the offending was aged 14. Mr Hitchcock wasfound guilty of two charges of sexual connection with a person under16, in relation to B's allegations.6 That offending took place on1 September 2012, also at Mr Hitchcock's home.1 Hitchcock v R [2020] NZCA 505 [Recall judgment]; and Hitchcock v R [2016] NZCA 465.2 Recall judgment, above n 1, at [15].3 At [16]–[17].4 At [21].5 Crimes Act 1961, ss 128(1)(a) and (b) and 128B.6 Section 134(1).[5] Mr Hitchcock was also found guilty of seven charges of supplying cannabis toa person under the age of 18,7 and one charge of attempting to pervert the course ofjustice.8[6] Mr Hitchcock was sentenced to a total term of nine years and six months'imprisonment comprising, five years' imprisonment in respect of the offending againstA and a four-and-a-half-year cumulative sentence of imprisonment for his otheroffending.[7] Mr Hitchcock's appeal was dismissed by this Court in 2016, and an applicationfor leave to appeal was dismissed by the Supreme Court in 2017.9[8] Subsequently, counsel assigned to represent Mr Hitchcock in relation to hisrecall application arranged for a forensic examination of two cellphones seized by thepolice from Mr Hitchcock at about the time he was arrested. That examinationrevealed a number of text messages sent by A to Mr Hitchcock that were highlyrelevant to Mr Hitchcock's defence, that A had engaged in consensual sexual activitywith Mr Hitchcock. None of those text messages were disclosed to Mr Hitchcockbefore his trial or before this Court considered his appeal.[9] When the previously undisclosed text messages eventually came to light, theCrown conceded that this Court should exercise its recall jurisdiction and quashMr Hitchcock's conviction for sexual offending against A. We did so in our recalldecision.Further recall application[10] Mr Hitchcock now asks us to revisit our recall decision, on the basis that thenon-disclosed texts relating to A caused a miscarriage of justice, which invalidated theentire trial. Mr Hitchcock also relies on further text messages and an image of B,which he says would have reduced the credibility of A and B in the eyes of the jury,rendering it unlikely he would have been convicted of the "lesser charges".7 Misuse of Drugs Act 1975, s 6(1)(a).8 Crimes Act, s 117(e).9 Hitchcock v R [2017] NZSC 29.[11] Mr Hitchcock is no longer represented. He and his father have filed writtensubmissions in support of his most recent application.[12] The Crown opposes the further recall application, on the basis that the non-disclosed text messages did not affect the remaining ten convictions. The Crown goesfurther, and says, that the text messages obtained from Mr Hitchcock's phones showthat his drug dealing was more extensive than reflected in the charges in relation towhich he was convicted and that the text messages also are consistent withMr Hitchcock having had sexual intercourse with A and B when they were under age.There is also a suggestion there may have been other young girls involved inMr Hitchcock's offending.Analysis[13] The Supreme Court's decision in Uhrle v R,10 explains that there must be "veryspecial reason" for this Court to recall a judgment.[14] Having examined Mr Hitchcock's submissions in support of his application,we are satisfied that the additional text messages and materials, including the imageof B extracted from Mr Hitchcock's phone, fall well short of demonstrating a "veryspecial reason" to recall our judgment.[15] The further text messages and materials attached to Mr Hitchcock'ssubmissions of 26 January and 22 February 2021, do not undermine the safety ofMr Hitchcock's cannabis convictions or his conviction for perverting the course ofjustice. Similarly, the image of B and related messages fall well short of demonstratingthat a miscarriage of justice occurred when Mr Hitchcock was convicted of unlawfulsexual connection with a person under 16.10 Uhrle v R [2020] NZSC 62 at [29].Result[16] The further application to recall this Court's judgment in Hitchcock v R isdeclined.Solicitors:Crown Law Office, Wellington for Respondent