BALCHIN v R [2016] NZCA 563

BALCHIN V R [2016] NZCA 563 [30 November 2016]NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA295/2016[2016] NZCA 563BETWEEN PAUL LESLIE BALCHINAppellantAND THE QUEENRespondentCourt: Asher, Dobson and Ellis JJCounsel: P N Ross for AppellantI R Murray for RespondentJudgment:(On the papers)30 November 2016 at 10.00 amJUDGMENT OF THE COURTA An extension of time to appeal is granted.B The appeal is allowed.C Mr Balchin's conviction on count 2 on the indictment in the proceedings CRI 2010-092013291 is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] In 2011 and 2012 Mr Balchin pleaded guilty to a number of charges contained in two separate indictments. One was a representative charge of assault ona child under the age of 14 under s 194(a) of the Crimes Act 1961 (the Act). He wassentenced to a total of four years' imprisonment for all offending.1[2] Mr Balchin now seeks to appeal his conviction on the s 194(a) charge on the basis that the conviction was entered without jurisdiction because of the time limit that was, at the time, contained in s 10B of the Act.2[3] The Crown does not oppose an extension of time for the appeal and accepts that the conviction must be quashed. We agree. Our brief reasons follow.The law[4] It is well-established that an appeal against conviction arising from a guilty plea will only be successful in exceptional circumstances. The appellant must show that a miscarriage of justice will result if the conviction is not overturned.3 There are at least three categories of case in which this can occur. One is where, on the admitted facts, the appellant could not in law have been convicted of the offence charged. That category includes cases when a proceeding is out of time.4 A conviction entered in those circumstances is entered without jurisdiction and is a nullity.[5] As we have said, in Mr Balchin's case the relevant time limit is that which was contained in s 10B of the Act. Section 10B applied to:(a) an offence punishable by a fine only, where the maximum fine that may be imposed in respect of that offence is less than $2,000; and(b) an offence punishable by imprisonment, where the maximum term of imprisonment that may be imposed in respect of that offence is less than 3 years.1 R v Balchin DC Manukau CRI-2011-055-1350, 11 June 2012.2 Mr Balchin has already served his sentence, so does not appeal it.3 R v Le Page [2005] 2 NZLR 845 (CA) at [16]; R v Merrilees [2009] NZCA 59 at [33]–[34];Penniket v R [2016] NZCA 154 at [6]–[7].4 R v Le Page, above n 3, at [18].[6] The section imposed two constraints on prosecutions for such offences, namely that:(a) the prosecution must be commenced within 10 years of the offence date; and(b) the charge must be resolved (by trial or plea) within 10 years of the offence date.Discussion[7] The maximum penalty for a charge under s 194(a) is two years'imprisonment. The relevant offending was alleged in the indictment to have occurred between 24 February 1996 and 1 February 2001. The charge was not laid until 3 December 2010 and it was not resolved until 14 December 2011. Accordingly:(a) to the extent the charge covered offending between 24 February 1996 and 3 December 2000 it was both commenced and resolved out of time; and(b) to the extent the charge covered offending between 3 December 2000 and 1 February 2001 it was resolved out of time.5[8] The consent of the Attorney-General for an extension of the statutory timelimit was neither sought nor granted in Mr Balchin's case. There was, accordingly,no jurisdiction to convict Mr Balchin on the s 194(a) charge.Result[9] Accordingly:(a) an extension of time to appeal is granted;5 We note that the limitation problem appears to be compounded here by the fact that the complainant turned 14 on 16 March 2000. The representative charge could not properly have related to anything that occurred after that date in any event.(b) the appeal is allowed; and(c) Mr Balchin's conviction on count 2 on the indictment in theproceedings CRI 2010-092013291 is quashed.Solicitors:Crown Law Office, Wellington for Respondent