HITCHCOCK v R [2020] NZCA 505

HITCHCOCK v R [2020] NZCA 505 [16 October 2020]NOTE: PUBLICATION OF NAME, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA608/2017[2020] NZCA 505BETWEEN IAN EDWARD HITCHCOCKAppellantAND THE QUEENRespondentCourt: Collins, Mallon and Ellis JJCounsel: D A Ewen for AppellantC A Brook and E J Hoskin for RespondentJudgment:(On the papers)16 October 2020 at 3.00 pmJUDGMENT OF THE COURTA The application to recall this Court's judgment, Hitchcock v R [2016]NZCA 465 is granted in relation to Mr Hitchcock's convictions on Count 1and Count 3 of the Indictment.B The application to adduce further evidence is granted.C Mr Hitchcock's appeal against his convictions in relation to Counts 1 and3 is allowed. His convictions in relation to those two counts are quashed.D The sentences of the remaining counts are amended in accordance with[21].E No retrial is ordered.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 28 September 2016, this Court dismissed Mr Hitchcock's appeal in relationto 12 convictions for rape, unlawful sexual connection, cannabis dealing andattempting to pervert the course of justice.1[2] Mr Hitchcock now applies to have this Court recall its judgment in relation tohis convictions for two offences, namely:(a) that he raped A on or about 10 September 2011 (Count 1 inthe Indictment); and(b) that he engaged in unlawful sexual connection with A also on10 September 2011 (Count 3 in the Indictment).[3] The Crown accepts we should recall our earlier judgment and allowMr Hitchcock's appeal against his convictions in relation to the two convictions towhich the recall application relates.Background[4] Mr Hitchcock's trial took place in the District Court at Christchurch inFebruary 2015. The key witnesses for the Crown were:(a) A, who at the time of the alleged offending was aged 13. As we havenoted, Mr Hitchcock was convicted of raping A and sexual violation byunlawful sexual connection also in relation to A.1 Hitchcock v R [2016] NZCA 465.(b) B, who at the time of the alleged offending was aged 14. Mr Hitchcockwas found guilty of two charges of sexual connection with a youngperson under 16 in relation to B's allegations.[5] The offending against A and B was alleged to have occurred at Mr Hitchcock'shome on a number of occasions between 10 September 2011 and 1 September 2012.Mr Hitchcock's defence was that no sexual activity took place with the complainants.The jury were instructed to consider issues relating to consent. A question fromthe jury indicated consent was a matter of concern to the jury.[6] Mr Hitchcock was also found guilty of supplying cannabis to A and B anda charge of attempting to pervert the course of justice.[7] On 15 April 2015, Mr Hitchcock was sentenced to five years' imprisonment inrelation to the sexual offending against A.2 He was sentenced to a further four and ahalf years' imprisonment, to be served cumulatively, in relation to the sexual offendingagainst B and other offending. All other sentences were concurrent. Thus, MrHitchcock's total sentence was one of nine years and six months' imprisonment.[8] Two grounds of appeal were unsuccessfully pursued in this Court:(a) The trial Judge had misdirected the jury on the law governing consent.(b) The trial Judge had also misdirected the jury on the mens rea elementof supplying cannabis charges.[9] An application for leave to appeal this Court's judgment was dismissed bythe Supreme Court.32 R v Hitchcock [2015] NZDC 6265.3 Hitchcock v R [2017] NZSC 29.Undisclosed evidence[10] As part of the police investigations, a search warrant was executed atMr Hitchcock's property on 6 June 2013. Amongst the items seized were twocellphones, which were sent to a police electronic crime laboratory.[11] Mr Ewen, Mr Hitchcock's counsel for the recall application, arranged for twoof the phones seized by the police to be examined by an independent forensiclaboratory. A series of exculpatory text messages from A were found on one of thephones.[12] The Crown accepts that a number of the text messages sent by A toMr Hitchcock were highly relevant to the allegations that he had engaged innon-consensual sexual activities with her. This is an appropriate concession becausethe text messages from A to Mr Hitchcock during the period following the allegedoffending, showed A and Mr Hitchcock enjoyed a warm and friendly relationship andthat her messages would have laid a very firm foundation for the defence that anysexual activity between Mr Hitchcock and A was consensual.[13] For reasons that have not been explained to us, none of the text messages weredisclosed to Mr Hitchcock or his counsel before the trial, or before this Courtconsidered Mr Hitchcock's appeal.Recall procedure[14] The Crown acknowledges, that based upon the Supreme Court's decision inUhrle v R,4 there is a "very special reason" requiring this Court to recall its judgmentdismissing Mr Hitchcock's appeal in relation to the two charges we have referred to at[2].[15] Given the cogency of the further evidence obtained from the cellphone andthe Crown's agreement it should be admitted, we grant leave for it to be adduced.4 Uhrle v R [2020] NZSC 62 at [29].[16] The Crown also accepts the threshold is met for this Court to now quashthe convictions on Counts 1 and 3.[17] Having reviewed the relevant evidence, we agree with the submissionadvanced by Mr Ewen and the Crown's acknowledgments. The evidence wouldundoubtedly have laid a very solid foundation for a defence that A either consented toany sexual activity between her and Mr Hitchcock, or that Mr Hitchcock had areasonable belief in her having consented.Disposition[18] The Crown have advised it does not seek a retrial in relation to the two chargesin issue. Instead, the Crown suggests we might substitute the convictions on the twocharges with convictions for unlawful sexual connection with a young person unders 134(1) of the Crimes Act 1961. These were alternative charges to Counts 1 and 3 attrial.[19] The power to substitute a conviction and sentence on one charge with adifferent charge was, at the relevant time, set out in s 386(2) of the Crimes Act.This section has since been replaced by s 234 of the Criminal Procedure Act 2011.Before this Court could follow the course suggested by the Crown, we would need tobe satisfied:5(a) the substituted offence must be one for which the appellant could havebeen convicted at the trial; and(b) the jury must have been satisfied about the facts that would provethe appellant guilty of the substituted offence.[20] The difficulty in substituting convictions in this case is that the undisclosedevidence may have so damaged A's credibility in the minds of the jurors that theywould not have convicted Mr Hitchcock in relation to any of A's allegations. This is5 Dixon v R [2014] NZCA 329, [2014] 3 NZLR 504 at [45].therefore not a case in which we can exercise the power of substitution set out ins 386(2) of the Crimes Act.[21] Mr Hitchcock should not be subject to any sentence that is cumulative to thequashed sentences for Counts 1 and 3. Accordingly, the remaining sentences that arecumulative to the sentences for Counts 1 and 3 are amended to concurrent sentencesimposed with effect from 15 April 2015.Result[22] The application to recall this Court's judgment, Hitchcock v R [2016] NZCA465 is granted in relation to Mr Hitchcock's convictions on Count 1 and Count 3 ofthe Indictment.[23] The application to adduce further evidence is granted.[24] Mr Hitchcock's appeal against his convictions in relation to those two countsis allowed. His convictions in relation to those two counts are quashed.[25] The sentences of the remaining counts are amended in accordance with [21].[26] No retrial is ordered.Solicitors:Crown Law Office, Wellington for Respondent