WILLIAMSON v R [2021] NZCA 62

WILLIAMSON v R [2021] NZCA 62 [12 March 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA460/2020[2021] NZCA 62BETWEEN MARK ROBERT WILLIAMSONApplicantAND THE QUEENRespondentCourt: Goddard, Lang and Hinton JJCounsel: Applicant in personS E Trounson for RespondentJudgment:(On the papers)12 March 2021 at 11.00 amJUDGMENT OF THE COURTThe application for leave to appeal is declined for want of jurisdiction.____________________________________________________________________REASONS OF THE COURT(Given by Hinton J)[1] Mr Williamson purports to apply for leave to bring a second appeal againstconviction and sentence. In fact, he requires leave to appeal against Ellis J's refusalto grant leave to bring a first appeal out of time.1 For the reasons we note below, thatis not something he can do, and so his application must fail.1 Williamson v R [2020] NZHC 1791 [High Court judgment].[2] On 23 April 2015, at the conclusion of a Judge-alone trial before Judge Downin the District Court at Auckland, Mr Williamson was convicted on two charges ofdoing an indecent act on a young person,2 and five charges of sexual violation byunlawful sexual connection.3 One further charge of grooming was dismissed, and notguilty verdicts entered on two further charges of sexual violation.4[3] All of these charges related to events over the course of the year betweenSeptember 2012 and December 2013, and all related to the same boy S, who was aged12 to 13 at the time. S had started visiting Mr Williamson at his home, having takenan interest in Mr Williamson's hobby. A friendship was struck up, and S started tospend most afternoons at Mr Williamson's home. Mr Williamson began to touch Sinappropriately, leading to oral and anal intercourse. S told police he had sexualconnection with Mr Williamson about 50 times altogether. The Judge concluded thatS's consent was "fluctuating" during the period — thus the not guilty verdicts on twoof the charges of sexual violation.[4] On 16 July 2015, Judge Down sentenced Mr Williamson to nine years'imprisonment on the lead charges of sexual violation, with concurrent sentences inrespect of the other charges.5 He also ordered Mr Williamson to pay reparations of$20,000 to S, which the Judge understood S's family would hold on trust for S.6[5] In 2019, some four years later, Mr Williamson sought leave to appeal out oftime against conviction on the basis his sexual connection with S was consensual; histrial counsel failed to understand the centrality of the issue of consent (and thereforeerred); and the Judge's reasons were inadequate having regard to the decision inSena v Police.7[6] Having evaluated in some detail the merits of the proposed appeal,on 23 July 2020, Ellis J declined Mr Williamson's application for leave to appeal out2 Crimes Act 1961, s 134(3).3 Section 128(1)(b).4 R v Williamson [2015] NZDC 6995 at [81]–[84].5 R v Williamson [2015] NZDC 13746 at [36].6 At [37].7 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575.of time against conviction.8 In summary, Ellis J concluded that Mr Williamson's trialcounsel had acted competently in response to Mr Williamson's instructions during thetrial which were to the effect that the alleged incidents did not occur. Ellis J alsoconsidered that the trial Judge's reasons were adequate. The unmeritorious nature ofthe appeal, coupled with the absence of a good explanation for the delay in filing theappeal and the need for finality was, in Ellis J's view, fatal to the application for anextension.9[7] Mr Williamson had also sought leave to appeal out of time against sentence.This was contingent on the success of the conviction appeal as he contended that hewas liable at most for sexual connection with a young person rather than sexualviolation and therefore the maximum penalty would be halved.10 Leave to bring theconviction appeal having been declined, Ellis J also dismissed the application for leaveto appeal out of time against sentence.11[8] As noted at the outset, Mr Williamson, who is now self-represented, appliesfor leave to appeal against Ellis J's decision. The proposed appeal is much the sameas the proposed first appeal in respect of which Ellis J declined leave, except thatMr Williamson has now added scandalous allegations of incompetence andmalfeasance against standby counsel who appeared in the High Court.[9] Had Ellis J in fact determined a first appeal, then in terms of ss 237(1) and253(1) of the Criminal Procedure Act 2011 (the Act), Mr Williamson could with leaveof this Court (the second appeal court)12 appeal against her determination.[10] However, Ellis J did not determine a first appeal. Rather, the Judge declinedto exercise her discretion to extend time for filing a first appeal under ss 231(3) and248(4)(a) of the Act. There being no grant of an extension, Mr Williamson's firstappeal was not in fact commenced.138 High Court judgment, above n 1, at [79].9 At [76].10 At [27].11 At [78].12 Criminal Procedure Act 2011, ss 238(b) and 254(b).13 Sections 231 and 248 of the Criminal Procedure Act provide that a first appeal against convictionor sentence respectively is commenced by the filing of a notice of appeal within 20 working daysafter the date of sentence or later if the court extends time.[11] Sections 231(3) and 248(4)(a) contain no reference to any right of appealagainst a refusal to extend time. The same or similar wording for an application toextend time as used in those sections is used in relation to all the other appellatepathways created by pt 6 of the Act. None contains any provision for a right tochallenge a refusal to grant an extension of time by the first appeal court and it is nowwell settled that this Court has no jurisdiction to hear such an appeal.14[12] The same position applied under the previous legislation, as was stated inDouglas v R:15[7] This Court recently confirmed that, where a High Court Judge refusesan application for an extension of time, no further steps will be available tothe applicant by way of challenge in this Court.[13] It follows that this Court has no jurisdiction to consider Mr Williamson'sapplication.Result[14] The application for leave to appeal against the decision of the High Courtrefusing leave is accordingly declined for want of jurisdiction.Solicitors:Crown Law Office, Wellington for Respondent14 See for example Nottingham v District Court at Auckland [2018] NZCA 345 at [27]–[32].15 Douglas v R [2014] NZCA 219 (footnote omitted).