STAIRMAND v R [2023] NZCA 46

STAIRMAND v R [2023] NZCA 46 [8 March 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA459/2022[2023] NZCA 46BETWEEN JACK LINDON BENCE STAIRMANDAppellantAND THE KINGRespondentHearing: 21 February 2023Court: Gilbert, Ellis and Davison JJCounsel: T J Conder and R J Gerard for AppellantE J Hoskin and B So for RespondentJudgment: 8 March 2023 at 2 pmJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal against conviction is dismissed.__________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Stairmand pleaded guilty to four charges of indecent assault arising out ofan incident that took place on 9 January 2021. He was sentenced on 6 September 2022to five months' community detention and 12 months' supervision.1 Mr Stairmandappeals against conviction claiming the prosecution was an abuse of process.[2] When the complainant initially reported the matter to the police, she did notsubmit to a formal interview and made it clear that she did not want Mr Stairmand tobe charged. The police subsequently spoke to Mr Stairmand without cautioning himand advised him of the allegations. He said he had consumed a whole bottle ofJägermeister that night and had no recollection of the events. The police toldMr Stairmand that, in view of the stance taken by the complainant, he would not becharged. The police followed up with a letter to Mr Stairmand confirming this.[3] Approximately three weeks later, the complainant notified the police that shehad changed her mind. Following further investigation, including formallyinterviewing the complainant and obtaining statements from two other witnesses,the police charged Mr Stairmand with indecent assault.[4] Mr Stairmand argues that he was induced to make his initial statement tothe police in breach of his right to silence and in breach of the Chief Justice's PracticeNote on Police Questioning;2 he was effectively "punished" by the "warning" lettersent by the police at that time; the subsequent laying of the charges therefore offendsthe rule against double jeopardy; he was also prejudiced in preparing his defence(including by not gathering evidence at that time) as a result of the police initiallyadvising him that he would not be charged; and he claims that the charging decisionwas improperly delegated to the complainant.[5] Mr Stairmand applied for the charges to be stayed or dismissed on this basis,but his application was declined by Judge G Matenga.3 Mr Stairmand says that hissubsequent guilty pleas were entered as a result of this judgment, which he claims waswrong in law. He maintains that the prosecution was an abuse of process and he shouldnot have been convicted. It is common ground that a conviction appeal is the correct1 R v Stairmand [2022] NZDC 21311.2 Practice Note — Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.3 Police v Stairmand [2022] NZDC 3852 [Dismissal judgment].procedural pathway to challenge convictions following a guilty plea where it is allegedthe underlying prosecution was an abuse of process.4The facts[6] The complainant and Mr Stairmand, both aged 20 at the time, had been friendsfor approximately seven years but were not in a relationship. On the night of8 January 2021, the complainant attended a party with other friends at Mr Stairmand'shome. After the complainant became heavily intoxicated, she went to sleep fullyclothed, under several blankets, on a couch in the living room. At about 4 am, she waswoken by Mr Stairmand kissing her on her neck, squeezing her bare breasts frombehind (having undone her top) and placing his hand on her pubic area under herunderwear. She could feel his erect penis against her back. The complainant calledout her partner's name. This caused Mr Stairmand to get up. The complainant rolledover and saw him pulling up his pants. He then went to sleep on the other couch, andshe left a short time later.Complaint and charging decision[7] Mr Stairmand says he received a Snapchat message from the complainant laterthat day to the effect that she had woken up to find him lying next to her and trying toundo her trousers. Mr Stairmand says he has no recollection of this because of hishigh level of intoxication but he immediately apologised for whatever had happened,also by Snapchat messages. The complainant took copies of Mr Stairmand'smessages, but no record of her initial message to him was kept.[8] On 12 January 2021, the complainant reported the matter to the police.Later that day, two police officers met with the complainant and her stepfather atthe police station. Her details and brief details of the allegations were recorded.Photographs of the complainant's phone displaying the Snapchat communicationswere also taken. The complainant was told about the investigation and court processesand advised of the support services available to her. The complainant made it veryclear that she intended to terminate all contact with Mr Stairmand, but she did not wish4 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].to see him arrested or charged. She wanted the matter simply to be recorded and forhim to be spoken to.[9] One of the police officers contacted Mr Stairmand on 14 January 2021 and heagreed to meet at the police station the following day, knowing that this concernedthe incident. The detective sergeant explained in his affidavit what happened atthis meeting as follows:17. During our 30-minute meeting I discussed with [Mr Stairmand]the circumstances in which the complainant came to Police.18. I advised him that the complainant has disclosed an indecent assaultor more likely an assault with intent to commit sexual violation, and Iexplained the ingredients and maximum penalty for those offences inNew Zealand.19. I advised [Mr Stairmand] that the complainant has elected not toprovide a statement to Police, as she does not wish to see him arrestedor charged.20. I explained that she only wished to prevent him from ever doing thisto someone else, that he was lucky on this occasion, and that he willnot be arrested or charged in respect of this matter.21. I explained that [Mr Stairmand] will be listed in the file as a 'suspect'and the complainant a 'victim', but otherwise the matter will be filed.22. I explained to [Mr Stairmand] that this was not a conviction or awarning as the complainant had not made a statement to Police, andso he did not need to disclose this.23. I did indicate to him however that he may have employmentdifficulties should he be vetted.24. I was clear that due to the complainant's decision I wasn't planningon cautioning him or needing for him to provide me with his accountof the incident, however he was given the opportunity to speak.26. Without caution he stated he had no memory of the events thatoccurred, that he had consumed a whole bottle of Jage[r]meister onthat night, and that he was totally disgusted in himself since thecomplainant told him what happened.27. [Mr Stairmand] agreed not to contact the complainant, her partner orfamily in any way, but asked Police to relay an apology to them all.28. [Mr Stairmand] asked that Police relay to her how thankful he is toher for choosing this path, as opposed to formalising a complaint.[10] The detective sergeant sent a follow up letter to Mr Stairmand that day:Thank you for your time earlier today. As you are aware, it has been allegedthat whilst [the complainant] was asleep at your address in the early hours ofthe 9th January 2021, you sexually assaulted her.Whilst [the complainant] has elected not to formalise her complaint forreasons outlined, this letter serves to formally advise you that assault withintent to commit sexual violation is a serious offence against section 129(1)of the Crimes Act 1961. It carries a maximum penalty upon conviction of10 years imprisonment.Should [the complainant] have decided to formalise her complaint I believethere would have been sufficient evidence to have charged you.You have outlined to me what appears to be genuine remorse, as well as anapology and gratitude to [the complainant] which I have relayed to her.You also acknowledged to me a problem with alcohol and so I have madea referral on your behalf to Te Poutama Tautoko; a counselling service throughTe Taiwhenua O Heretaunga for persons aged 18 years and over who areaffected by alcohol.This matter will now be filed with no further action taken. A copy of this fileand this letter will be retained in Police information systems however forfuture reference, including vetting purposes.If you have any further queries please do not hesitate to contact me.[11] On 10 February 2021, the complainant sent a text to police advising that shehad changed her mind and wanted to press charges. She said she was now willing tosubmit to a formal interview. She explained that Mr Stairmand was "changingthe story" and it was making her "feel horrible". In a subsequent meeting at the policestation, the complainant elaborated her concerns that Mr Stairmand was continuing todrink and use drugs and had minimised his actions, saying to her friends that he onlytried to kiss her.[12] The detective sergeant had concerns about progressing the complaint given theway the matter had been initially dealt with in accordance with the complainant'swishes. However, he referred the matter to district coordinator for Adult SexualAssault. An evidential video interview was conducted on 24 February 2021 in whichthe complainant confirmed her initial allegations. After referring the matter tothe police legal section, a decision was made that the matter could be pursued.Statements were then taken from two further witnesses who were at the party andobserved Mr Stairmand standing over the complainant in the early hours ofthe morning. Those statements were completed in April and May 2021.[13] Police attempted to speak with Mr Stairmand on 26 May 2021, but he was nothome. On 9 June 2021, police again visited Mr Stairmand's house. He was again notat home, but police spoke to his mother and advised her that a lawyer should beengaged before Mr Stairmand decided whether to participate in an interview. A lawyerwas duly instructed following which Mr Stairmand declined to make a statement.[14] The police decided to proceed with a prosecution and a charge of indecentassault was filed in the District Court on 24 June 2021.Application to dismiss the charge[15] Mr Stairmand applied to have the charge dismissed under s 147 of the CriminalProcedure Act 2011 on the basis that the prosecution was an abuse of process.The application was heard on 6 December 2021. The grounds of this application wererecorded in the judgment of Judge Matenga dismissing it:5Prejudice(a) Mr Stairmand was invited to make a statement without cautionfollowing a commitment that he would not be charged. It is submittedthat this has prejudiced Mr Stairmand's ability to defend a charge ornegotiate an outcome with the police and that he has lostthe opportunity to gather content for any evidence as a result.Double jeopardy(b) The letter dated 15 January 2021 was a formal warning that was givenby Police to [Mr Stairmand], and constitutes a form of punishment forthe offence. To allow Mr Stairmand to be prosecuted for the chargeafter that warning was recorded would expose him to double jeopardyin breach of the [New Zealand Bill of Rights 1990].Improper delegation(c) It is submitted that the record demonstrates the decision to lay a chargewas made by the complainant and not by Police and that such is aninappropriate delegation of the police prosecutorial discretion.5 Dismissal judgment, above n 3, at [5].Mistake of Fact(d) The decision to prosecute Mr Stairmand is based on amisapprehension (by the complainant) of Mr Stairmand's continueduse of alcohol and drugs.[16] The Judge dismissed the application on 7 March 2022 for the followingreasons. First, the 15 January 2021 letter from the police was not a formal warning; itsimply recorded the police decision that no further action would be taken becausethe complainant had decided not to formalise her complaint.6 The letter was nota penalty and the principle of double jeopardy was not engaged.7 Secondly, the policehad acted fairly in their dealings with Mr Stairmand.8 Thirdly, Mr Stairmand had notshown material prejudice.9 Any statement made by him in the absence of a propercaution would not be admissible at the trial.10 Finally, the police did not makethe decision to charge Mr Stairmand on the basis of the complainant's belief in hiscontinued use of alcohol or drugs; rather, the decision was made based onthe complainant's formal statement which provided a proper evidential basis tosupport the charge.11Amended charges, guilty pleas, and disposition[17] On 10 March 2022, the Crown assumed responsibility for the prosecution.[18] An amended charge notice listing four charges of indecent assault was filed on8 April 2022 (kissing the complainant's neck, touching her breasts, touching her pubicarea on the first occasion, and touching her pubic area on the second occasion).[19] Mr Stairmand accepted a sentence indication given on 9 August 2022.He entered guilty pleas to the charges and was sentenced on 6 September 2022.6 At [13].7 At [19].8 At [14].9 At [16]–[18].10 At [17].11 At [22].Appeal[20] Mr Stairmand maintains on appeal that the prosecution was an abuse of processfor the reasons summarised at [4] above. These largely mirror the submissionsunsuccessfully advanced before Judge Matenga.Application to adduce further evidence[21] Mr Stairmand completed an affidavit in support of his appeal which he seeksleave to adduce.12 He attached to this affidavit correspondence between his solicitorsand the Crown solicitor after the Crown assumed responsibility for the prosecution.This correspondence evidences Mr Stairmand's unsuccessful attempts to negotiate aresolution based on a modified version of the facts which he claims more closelyconformed to the initial allegation the complainant made in her first Snapchatmessage. We decline to admit this evidence because it is not cogent. It adds nothingmaterial to the analysis of whether there has been an abuse of process.Legal principles[22] It is well settled that a decision to stay a prosecution for state misconduct andthereby preclude the determination of a criminal charge on its merits is an extremestep that will only be taken in the clearest of cases.13 The analysis is forward-lookingand requires consideration of the impact of the misconduct on the fairness ofthe proposed criminal trial or the integrity of the judicial process.14[23] Richardson J explained the rationale and threshold requirements forintervention in Moevao v Department of Labour:15The justification for staying a prosecution is that the Court is obliged to takethat extreme step in order to protect its own processes from abuse. It does soin order to prevent the criminal processes from being used for purposes aliento the administration of criminal justice under law. It may intervene in thisway if it concludes from the conduct of the prosecutor in relation tothe prosecution that the Court processes are being employed for ulteriorpurposes or in such a way (for example, through multiple or successiveproceedings) as to cause improper vexation and oppression. The yardstick is12 Court of Appeal (Criminal) Rules 2001, r 12B.13 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [37]; and Wilson v R, above n 4, at [60].14 Wilson v R, above n 4, at [40].15 Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.not simply fairness to the particular accused. It is not whether the initiationand continuation of the particular process seems in the circumstances to beunfair to [them]. That may be an important consideration. But the focus is onthe misuse of the Court process by those responsible for law enforcement. It iswhether the continuation of the prosecution is inconsistent with the recognisedpurposes of the administration of criminal justice and so constitutes an abuseof the process of the Court.[24] The Full Court of this Court emphasised in Fox v Attorney-General the veryhigh threshold required to justify intervention on abuse of process grounds:16Conduct amounting to abuse of process is not confined to that which willpreclude a fair trial. Outside of that category it will, however, be of a kindthat is so inconsistent with the purposes of criminal justice that for a Court toproceed with the prosecution on its merits would tarnish the Court's ownintegrity or offend the Court's sense of justice and propriety.[25] The court will exercise constitutional restraint in supervising prosecutorialdecisions and will not normally interfere merely because the prosecuting authoritybacktracks on a charging decision, including an agreement as to which chargesa defendant will face.17Overall assessment[26] In our view, the present case comes nowhere near meeting the thresholdrequired to justify intervention on abuse of process grounds. It is clear that the policeacted in good faith throughout, paying careful attention to their duties and obligations.The prosecution was pursued for an entirely proper purpose and we see no room forany suggestion of vexatiousness or oppression. We do not consider it is seriouslyarguable that the sequence of events leading to the charging decision could offendreasonable standards of justice and propriety. The police did not negotiate anyagreement with Mr Stairmand. Rather, they were required to respond to the situation,likely not uncommon, where a complainant alleging sexual assault initially does notwant to lay a formal complaint but later has a change of heart. We cannot see howthe court's own integrity would be tarnished by carrying out its duty to hear anddetermine the charges in these circumstances.16 Fox v Attorney-General, above n 13, at [37].17 At [39]; Jardine v R [2016] NZCA 371 at [29]; and Rider v District Court [2021] NZHC 1967.Improper delegation?[27] The submission that the charging decision was improperly delegated tothe complainant is simply wrong. The complainant made the decision to make aformal complaint and submit to an evidential interview. However, the initial chargingdecision was made by the police. The charges to which Mr Stairmand pleaded guiltywere substituted by the Crown solicitor.Double jeopardy?[28] The double jeopardy argument is misconceived. The letter from the policedated 15 January 2021 was not, and did not purport to be, a penalty. Mr Stairmandhas been prosecuted and penalised only once for this offending.Failure to caution[29] Even if it were correct that Mr Stairmand ought to have been cautioned whenhe was first spoken to by the police, the appropriate remedy (if any) would beexclusion of the statement on the basis it was unfairly obtained. It could not justifystaying the prosecution as an abuse of process. Moreover, the only relevant statementMr Stairmand made to the police concerned the amount of alcohol he had consumed,that he was totally disgusted with himself, and that he could not recall the events.This was not a significant revelation. That Mr Stairmand had consumed alcohol toexcess and could not recall what happened was implicit in the Snapchat messages hesent to the complainant on the same day the incident occurred, for example:[Mr Stairmand]:Ewwwwww bro I'm fucking sorry that's disgustingWtf was I uptoI'm so fucking sorryThat's fucking disgusting of me[The complainant]:It's ok jack I just need some time to process things I'm all over the placeMr Stairmand:That's fuuuuuukedI'm so sorry bro[The complainant]:It's ok jack just maybe need to watch how much you drink[Mr Stairmand]:I'm sorry bro that shits fucking disturbing to hear, I'm disgusted in myself Ihave no idea where tf that shit came fromIt's not ok at all at any fucking pointPrejudice to fair trial rights?[30] We also consider Mr Stairmand overstates the prejudice he claims to havesuffered as a result of being told initially that he would not be charged. He claims thatthe initial Snapchat message he received from the complainant was limited to anallegation that he had tried to remove her trousers. He says he would have madea contemporary record of his recollection of this message if he had not been told hewould not be charged. He says he could have used that recorded recollection tochallenge the complainant's credibility at the trial. This is a very tenuous argument.Mr Stairmand could have challenged the complainant on this basis had he wished todefend the charges. In any case, it seems inherently implausible that the complainant'scredibility could be impugned on such a flimsy basis. We cannot accept thatthe process followed by the police precluded a fair trial or that the prosecution shouldotherwise have been halted as an abuse of process.Result[31] The application to adduce further evidence is declined.[32] The appeal against conviction is dismissed.Solicitors:Holland Beckett Law, Tauranga for AppellantCrown Law Office, Wellington for Respondent