JAMES HAY WALLACE v R [2023] NZSC 24

JAMES HAY WALLACE v R [2023] NZSC 24 [21 March 2023]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: COURT OF APPEAL ORDER EXTENDING THE HIGH COURTINTERIM ORDER SUPPRESSING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF THE APPLICANTUNTIL 30 MARCH 2023 ([2023] NZCA 56).IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 19/2023[2023] NZSC 24BETWEEN JAMES HAY WALLACEApplicantAND THE KINGRespondentCourt: Glazebrook, Williams and Kós JJCounsel: D P H Jones KC for ApplicantM J Lillico for RespondentJudgment: 21 March 2023JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The application for bail is dismissed.____________________________________________________________________REASONS[1] The applicant, Sir James Wallace, was sentenced to two years four monthsimprisonment, having been found guilty by a jury of two charges of attempting todissuade the complainant, H, from pursuing his complaint, and three charges ofindecent assault.1 The assaults were against three different complainants of whom Hwas the most recent.[2] The applicant seeks leave to appeal against conviction and sentence. He alsoseeks bail pending this Court's consideration of his appeal, should leave be granted.Conviction appeal[3] The proposed conviction appeal advances several possible grounds, but theonly one of real substance relates to the effect of a s 9 Evidence Act 2006 admissionof facts relevant to the indecent assault of H.Background[4] H was staying in the staff quarters at the applicant's home on the night inquestion. H had contracted food poisoning, was nauseous and went to bed. It iscommon ground that in the small hours, the applicant went into the complainant'sroom wearing only his underwear and left around 16 minutes later. The applicant sayshe went there out of concern for the complainant. The complainant says the applicantgot into bed with him and indecently assaulted him. The issue is timing. H's evidencewas that while the applicant was assaulting him in bed, he (H) surreptitiously phonedthe house manager (S) to get help. According to S's verified phone data, that call wasmade at 2.29 am.[5] Video footage retrieved from the house surveillance system showed theapplicant entering the staff quarters where H's room was located. The relevant footagewas time stamped 1.31 am. It showed he left around 1.47 am. The parties agreed ajoint statement of agreed facts under s 9(2) and (3) of the Evidence Act. This acceptedthat the time stamp should be adjusted to take account of daylight saving. It provided:"The time stamp recorded on the CCTV footage is incorrect. The correct time is onehour later than the time shown on the footage."[6] This adjustment suggested the applicant entered the staff quarters area at2.31 am and left at 2.47 am. Assuming the time stamp as adjusted was accurate, and1 R v Wallace [2021] NZHC 1213 (Venning J).the jury accepted it as such, this meant the complainant's evidence about the applicantbeing in bed with him when he made the call could not be correct, the call having beenmade at 2.29 am.[7] Immediately before the High Court Judge summed up to the jury, the applicantbrought a s 147 Criminal Procedure Act 2011 application relying on this timingmismatch. The application was dismissed. The Judge's starting point was that thetiming of the phone call was not an element of the offence that the Crown had to prove.He then reasoned:2There are at least two possible explanations for the disconnect between thetimes recorded on [S's] phone and the time stamp on the CCTV still. While itis an agreed fact that the correct time on the CCTV footage is one-hour later,as was confirmed in the evidence to the jury, that was to take account of thedaylight saving adjustment. There remains the possibility that the time stampis inaccurate; there is no direct evidence about that. It is also possible thatgiven his distressed state, [H] was wrong about when he tried to call [S].Court of Appeal[8] In the appeal to the Court of Appeal, the Crown said it had made a mistake inthe s 9 statement.3 It sought to adduce an affidavit by the member of the applicant'sstaff who had extracted the footage from the surveillance system. The staff memberdeposed that in fact the time stamp was 50 minutes slow, not one hour. This wouldhave had the applicant entering the staff quarters at 2.21 am, eight minutes before H'sphone call. In cross examination however, the staff member further adjusted thetiming to 43 minutes slow. 2.21 am would have fitted perfectly with the complainant'snarrative, but 2.14 am would have seen H phoning S just as the footage showed theapplicant leaving the staff quarters.[9] The Court of Appeal refused to admit the affidavit because it was not definitiveas to timing and so could not meet the cogency test. Like the trial Judge, the Courtheld that since the timing of the phone call was not an element of the offence, the jurycould have concluded that H was mistaken or lying when he said he called S while theapplicant was in bed with him. In any event, there were other indicators of guilt:2 R v W [2021] NZHC 646 at [14].3 Wallace v R [2023] NZCA 6 (Collins, Ellis and Dunningham JJ).opportunity (the applicant admitted he was in the room), propensity (the other twoindecent assaults against different complainants), and the fact that the complainantimmediately complained to S and then soon after to doctors and the police.Applicant's submission[10] The essence of the applicant's case in relation to timing is that the alternativeroute to conviction proposed by the Court of Appeal had an air of artificiality. He saysthat the Crown's closing at trial relied heavily on the coincidence between thedistressed phone call and the applicant's presence in the room as confirming thecomplainant's story.4 It is, the applicant submits, quite unrealistic, in light of the waythe Crown pitched its case, to suggest the jury could have unravelled evidence of thephone call from the assault itself; and disbelieved the former while believing the latter.Analysis[11] We accept that Crown counsel did focus in closing on the timing of the phonecall as confirming H's account. But defence counsel pointed out the timing difficultiesthat created and, having dismissed the s 147 application, the trial Judge drew the jury'sattention to the inconsistency between the CCTV time stamp and the time of the phonecall. He directed that this was something the jury would "need to consider carefully"in the context of the wider body of circumstantial evidence. The jury may haverejected the timestamp evidence as unreliable because it was so inconsistent with otherevidence they accepted, or they may simply have concluded that H was lying ormistaken about when he made the call. Either way, we do not think it is genuinelyarguable that the adjusted time stamp neutralises all other contextual factors identifiedby the Court of Appeal, including H's testimony about the assault and thecircumstantial evidence tending to support it. The circumstantial evidence includedthe propensity evidence, the fact that the applicant admitted being in H's room in hisunderwear and the complaint H made to S shortly thereafter.[12] We are satisfied that this ground is essentially a factual challenge that does notgive rise to a question of general or public importance, and we see no risk that justice4 Defence counsel made much of this in closing, so it was squarely before the jury.may have miscarried.5 As to the other conviction grounds, we are not satisfied thatthey have sufficient prospects of success to warrant the grant of leave.Sentence appeal[13] The sentence appeal challenges the magnitude of the uplift for the threeindecent assault charges, the effect of which was to take away the possibility of homedetention.[14] The starting point for all charges was set at five years' imprisonment, made upof three years six months' for the two attempts to dissuade and 18 months' for theindecent assaults. The Judge then considered the totality and adjusted the startingpoint to four years, three months. That was reduced by approximately 45 per cent totake account of the applicant's age, contribution to society and health needs; leavingan end sentence of two years, four months.[15] We do not see that sentence or the component relating to the indecent assaultsas other than orthodox. There is no appearance of miscarriage.6Conclusions[16] The application for leave to appeal against conviction and sentence isdismissed. As a consequence, the application for bail is also dismissed.Suppression[17] The Court of Appeal's interim suppression orders will lapse on 30 March 2023.After that date this judgment can be published in full unless, before that date, Sir Jamesor McLean's Mansion Charitable Trust, the connected party that made a separate5 Senior Courts Act 2016, s 74.6 Senior Courts Act, s 74.application to the Court of Appeal, file an application for leave to appeal to this Courtagainst the Court of Appeal's judgment on name suppression.7Solicitors:Doug Cowan, Auckland for ApplicantCrown Law Office, Wellington for Respondent7 Wallace v R [2023] NZCA 56.