WALKER v R [2020] NZCA 386

WALKER v R [2020] NZCA 386 [2 September 2020]NOTE: ORDER MADE IN THE HIGH COURT SUPPRESSING THE NAMEOF THE PRISON INFORMANT AND PARTS OF HIS EVIDENCE REMAINSIN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA39/2019[2020] NZCA 386BETWEEN RANGITERA SPENCER WALKERApplicantAND THE QUEENRespondentHearing: 27 July 2020Court: French, Woolford and Dunningham JJCounsel: N Levy QC and O S Winter for ApplicantS K Barr for RespondentJudgment: 2 September 2020 at 9.30 amJUDGMENT OF THE COURTA The application to adduce the evidence of Shaun Sullivan is declined.B The application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] In 2009, Mr Walker was convicted of murder. The conviction followed a threeweek jury trial in the High Court where he was represented by the late Mr Greg King.The trial Judge, Wild J, sentenced Mr Walker to life imprisonment with a minimumperiod of imprisonment of 11 years.1[2] Ten years later, Mr Walker seeks to appeal his conviction primarily onthe grounds that a co-offender has recently claimed he was solely responsible forthe murder.[3] Mr Walker accordingly applies for leave to adduce new evidence from thatco-offender. It is contended that if the new evidence is accepted, this Court shouldsubstitute Mr Walker's conviction for murder with a conviction for causing grievousbodily harm, rather than ordering a retrial.[4] As an alternative ground of appeal, it is argued there was or may have beena miscarriage of justice because the trial Judge failed to give the jury eitheran intoxication direction or a direction to consider Mr Walker's state of mind havingregard to his youth. Mr Walker was aged 15 at the time of the murder.The Crown case at trial[5] At approximately 6.30 am on 9 October 2008, Mr Paul Irons was found lyingunconscious in the shrubbery of Triangle Gardens in Featherston. He had beenseverely beaten and some of his property stolen. As the Crown prosecutor later toldthe jury, the intensity of the attack was such that parts of his body and head wereliterally broken. He had been punched, kicked and stomped on.[6] Mr Irons never regained consciousness and died in hospital a few days later.[7] When interviewed by police, Mr Walker admitted he had been with a groupwho attacked Mr Irons. However, he denied personally ever hitting him. He said allhe had done was to steal Mr Irons' property. He only made physical contact withMr Irons as he tried to wrest his bag off him. Mr Walker further stated that afterthe others had finished beating him, he went back to where Mr Irons lay on the groundto check his jacket to see if there was anything to steal. The others told him to put1 R v Sullivan HC Wellington CRI 2009-485-86, 10 February 2010 at [42].Mr Irons in the recovery position which he did. He said he could hear Mr Ironsmoaning and making gargling noises.[8] Mr Walker declined to name the others in the group. He said he did not knowwhy they had given Mr Irons "a hiding" but suggested they were drunk.[9] In light of other evidence, the police did not accept Mr Walker's claims abouthaving only a peripheral role in the attack. He was charged with murder, along withtwo associates Mr Sullivan, a man aged 25 years, and a 19 year old,Mr Kupa-Caudwell.[10] The Crown case at trial was that all three had administered the beating.The blows each of them had inflicted had materially contributed to Mr Irons' deathand were done with murderous intent. It was said the three had been overtaken bya pack mentality, fuelled by aggression, alcohol and stupidity and that in beatingMr Irons to the extent they did, they knowingly ran the risk of killing him but simplydid not care.[11] The evidence called by the Crown was to the following effect.[12] On the night of 8 October 2008, the three accused were at a party also attendedby Mr Irons. During the course of the evening, Mr Walker threatened Mr Irons andMr Sullivan got involved in a physical altercation with another partygoer.[13] The three left the party at approximately 12.30 am and headed into the centreof town. They were accompanied by two other associates, Messrs Poutu and Murray.[14] En route, the group encountered Mr Irons. He was behaving oddly as he cametowards them. This annoyed the group. Mr Kupa-Caudwell swung a punch at him,prompting Mr Irons to run off. Mr Walker and Mr Sullivan gave chase. The lattertackled Mr Irons to the ground on the footpath by the local museum. As he lay onthe ground, both Mr Sullivan and Mr Walker punched and kicked him.[15] Mr Irons managed to get up and run towards the Triangle Gardens. He trippedand fell into a grassy area. There, Messrs Sullivan and Walker set upon him again,kicking him on the ground, as did Mr Kupa-Caudwell. The kicks were aimed athis body and head. Mr Kupa-Caudwell stopped and withdrew near to whereMessrs Murray and Poutu were standing watching. Messrs Sullivan and Walkercontinued to assault Mr Irons.[16] At some stage, the two dragged Mr Irons into the shrubbery area of the gardenand both resumed kicking and stomping him in the head and body. According tothe Crown case, it was in the shrubbery area where the bulk of the fatal injuries wasadministered.[17] Before leaving the scene, the three accused rifled through Mr Irons'belongings. Most of the property they stole was dumped in a bin near the museumapart from a cell phone and car keys which they took away with them.[18] They then walked to a house where they knew Mr Irons was staying and triedunsuccessfully to open a vehicle using the stolen keys. The group then dispersed.[19] Based on evidence of cell phone records and Mr Walker's best guess ofthe time between when he left the party and the time the group dispersed, the Crowncase was that the attack occurred between 12.30 am and 3.30–4.00 am.[20] None of the three accused gave evidence at trial. Each ran defences that toa greater or lesser extent sought to put the blame on one or both of the others.Mr Walker's defence was that what he said in his police interview was true. It wasalso submitted on his behalf that even if the jury were to decide he had participated inthe assault, they could not be sure he was guilty of the extreme violence that endedMr Irons' life and could not be sure he had murderous intent.[21] The main items of evidence against Mr Walker were:(a) His admission to police that he was present during the attack and hadthreatened Mr Irons at the party.(b) The evidence of the two eyewitnesses Messrs Murray and Poutu.(c) Evidence of Mr Irons' blood on his trousers and shoes.(d) His lies to the police about the extent of his involvement and the shoeshe was wearing that night.(e) The evidence of highly incriminating admissions made by Mr Walkerto four of his friends on 9 October 2008. They included a witnesswhom Wild J described at sentencing as a particularly impressivewitness in terms of the clarity of her evidence.2 She said that Mr Walkerhad told her that he had done a lot of head damage and stomped onMr Irons' head a lot.(f) Inferences to be drawn from his conduct in leaving Mr Irons lying atthe scene unconscious and trying to steal his vehicle as well as attemptsto wash blood off his shoes.[22] The jury found Mr Walker and Mr Sullivan guilty of murder. The juryacquitted Mr Kupa-Caudwell of murder but found him guilty of manslaughter.At sentencing Wild J said the verdict of manslaughter indicated the jury was not surethat Mr Kupa-Caudwell joined in the kicking with murderous intent, that is, knowingthat the kicks might result in Mr Irons' death and not caring whether they did or not.3[23] The Judge sentenced Mr Kupa-Caudwell to a term of imprisonment of six yearswith a minimum period of imprisonment of three years.4 Mr Sullivan was sentencedto life imprisonment with a non-parole period of 12 years.5 As already mentioned,Mr Walker was sentenced to life imprisonment with a minimum period ofimprisonment of 11 years.6 The Judge said he was unable to differentiate betweenthe two in terms of their respective roles in the murder but a shorter non-parole periodwas justified in the case of Mr Walker because of the age disparity, Mr Walker's lackof previous convictions and his remorse.72 At [19].3 At [22].4 At [57].5 At [31].6 At [42].7 At [39]–[42].[24] Both Mr Kupa-Caudwell and Mr Sullivan unsuccessfully appealed theirconvictions to this Court in 2010.8 Mr Kupa-Caudwell also appealed his sentencewhich was allowed in part, this Court quashing the minimum period of imprisonmentof three years.9[25] Mr Walker did not appeal at the time.The new evidence[26] The new evidence Mr Walker seeks to adduce consists of affidavit evidencefrom Mr Sullivan in which Mr Sullivan purports to disclose that he and he alone wasresponsible for Mr Irons' death.[27] Both Mr Sullivan and Mr Walker are still in prison.[28] In response to Mr Sullivan's affidavit, the Crown filed an affidavit fromMs Perkins, a psychologist from the Department of Corrections, who oversawthe process by which the alleged confession was taken by Corrections and Mr Walkerinformed. The Crown also filed an affidavit from a police detective, David Keane,analysing recorded telephone calls made by Mr Sullivan and Mr Walker from theprison in December 2018 and January 2019.[29] The affidavit from the detective prompted Mr Walker to file an affidavithimself proffering an explanation for the phone calls.[30] The circumstances of Mr Sullivan's disclosure are that on or about11 December 2018 he arrived at the same prison where Mr Walker has been servinghis sentence. The two men had not seen other since the trial in 2009.[31] On 21 December 2018, Mr Sullivan told his therapist at the prison that afterseeing Mr Walker in the unit, he had become overwhelmed by guilt. He said he hadcarried a secret for many years, namely that it was him and him alone who hadadministered the fatal blows. It had been a heavy burden, but he could no longer8 Kupa-Caudwell v R [2010] NZCA 357.9 At [106].maintain his lie. He wanted to tell Mr Walker the true story and follow correct legalprocess as he believed that Mr Walker had been wrongly convicted of murder.[32] Mr Sullivan then proceeded to tell the therapist a new account of how Mr Ironsdied that night. The account given to the therapist is essentially the same as that givenby Mr Sullivan in his affidavit tendered in this Court.[33] Mr Sullivan says that while a group assault did occur as alleged at the trial,it was him who ordered the group to attack Mr Irons and threatened to harm them ifthey did not comply. Mr Walker did not want to become involved, but Mr Sullivantold him he had no choice, otherwise he would join Mr Irons.[34] Mr Sullivan said he thought they stopped the group attack because they foundthe cell phone and the car keys. After going to Mr Irons' house to see if the keys fittedany cars, they went to a friend's house. After using the bathroom there, he left on hisown.[35] He walked past where the group had left Mr Irons, but then turned back andwent to where Mr Irons was. He said he was not sure why he did that.[36] When he returned to where Mr Irons was, Mr Irons had gotten back up.He was on his feet and looking directly at Mr Sullivan. At that point, Mr Sullivan"freaked out". Mr Irons started to walk away, limping. He had only taken one or twosteps away from Mr Sullivan when the latter hit him from behind on the side ofthe head. Mr Sullivan says he remembers thinking that he was going to kill Mr Ironsbecause Mr Irons might identify him.[37] Mr Sullivan claims he then hit Mr Irons a second time. Mr Irons went downagain and Mr Sullivan continued to hit him. He kicked and punched him all over hisupper body and head. He stomped on him and jumped on his head. He says he doesnot know how many times he stomped on Mr Irons, but it would have been around sixtimes or more. It was with full force with some blows using both of his feet at the sametime.[38] Mr Irons was "out to it" and Mr Sullivan then walked off to another friend'shouse. He went inside and slept on his couch. The friend did not see him enter.Mr Sullivan says he was not sure if the friend was there or not.[39] The alleged solo attack consists of the same sort of violence — kicking,punching and stomping — as the group attack. It also is said to have taken place inthe same shrubbery area where the group attack finished and time wise must havetaken place within less than four hours of the group attack finishing. For those reasons,it is consistent with the forensic evidence given at trial both as to the location ofthe attack, the nature of the trauma sustained by Mr Irons and the estimated likely timeof the attack. The forensic experts are not able to say how many separate attacks therewere.[40] After making his disclosure to Corrections staff, Mr Sullivan was asked howMr Walker was likely to react once he heard the confession. Mr Sullivan said he wouldexpect Mr Walker to hit him. That raised obvious safety concerns. Mr Sullivanpromised he would not say anything to Mr Walker until the therapists had returnedfrom their Christmas break.[41] On 7 January 2019, Mr Sullivan advised his therapist that he had managed tomaintain confidentiality over the break. Subsequently Corrections staff met withMr Sullivan to advise of possible dates for a meeting with Mr Walker and the process.That included advice that after disclosure to Mr Walker, Mr Sullivan would beremoved from the unit.[42] On 16 January 2019, Mr Sullivan told his psychologist that he had accidentallytold Mr Walker that he was moving out of the unit. Mr Walker was asking a lot ofquestions. Mr Sullivan said he wanted to do the meeting straight away because he didnot believe he would be able to withhold it from Mr Walker any longer.[43] The meeting with Mr Walker duly took place that same day. It was describedby Corrections staff in attendance as highly emotional. Both men were tearful.Mr Walker was so shocked by Mr Sullivan's disclosure that he became physically sick.Analysis of the new evidence[44] The principles governing the admission of new evidence on appeal are thatthe evidence must be fresh, credible and cogent.10[45] There is no question that Mr Sullivan's new evidence is fresh. He has nevertold anyone this account before and it could not with reasonable diligence have beenobtained by Mr Walker at trial.[46] However, we have come to the very clear view that the evidence is not credible.It has all the hallmarks of a story that has been concocted by the two co-offenders.[47] We say that for the following reasons.[48] First, there is the fact the two both went out of their way to createthe impression — which we find to be false — that prior to the joint meeting on16 January 2019 they had never discussed the new evidence with each other. Theymade that claim both to Corrections staff and on oath to this Court.[49] However, taped phone calls between Mr Walker and third parties in Decemberand January before the joint meeting show that claim to be demonstrably untrue. It isclear in our view that Mr Walker knew all along what Mr Sullivan's story was goingto be and that his apparent shock at the joint meeting was regrettably feigned todeceive. Mr Walker attempted in evidence to explain away the phone calls but hisexplanations at times bordered on the absurd.[50] We are reinforced in this conclusion by consideration of the fact that on20 December 2018 — the day before Mr Sullivan made his all-important disclosureto his therapist — Mr Walker was recorded as having disclosed to a different therapistthat he believed Mr Sullivan had gone back to the scene of the crime and murderedthe man they attacked. Mr Walker said he had always had this suspicion but had neverdisclosed it to anyone before.10 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].[51] We consider it a highly improbable coincidence that Mr Walker would withoutknowing about the new evidence have told his therapist the exact same story asMr Sullivan was to disclose the very next day. The much more likely inference is thatthe two had already discussed it and knew what they were each going to say.[52] Other questions arise from the evidence of what Mr Walker said to his therapist.Questions which further detract from Mr Walker's credibility.[53] Mr Walker said he had always entertained this suspicion of a later attackprimarily because when Mr Walker last saw Mr Irons he had his trousers on whereaswhen Mr Irons was found his trousers were down. That would be somethingMr Walker knew at the time of the trial. If he had truly entertained these suspicions,it would be reasonable to expect him to mention this to trial counsel Mr King. He didnot.[54] Another explanation Mr Walker gave for always entertaining these suspicionswas the condition that Mr Irons was in when he left the scene. Mr Walker toldthe therapist Mr Irons was alive, and that Mr Walker's fear was that Mr Irons wouldcome looking for him and attack him. He was therefore, he said, very surprised tohear subsequently that Mr Irons had died.[55] That claim is totally at odds with the evidence of what he told his friends inthe aftermath of the attack about Mr Irons' condition. He told them he had smashedup Mr Irons really badly and left him not moving. He asked one friend to hide him andasked another "did we kill him?" When the person replied he thought they had,Mr Walker's response was not one of surprise, but "[t]hat's gangster."[56] Moreover, if Mr Walker had always harboured these suspicions about a laterattack, it does not make sense why he would be quite so shocked and astounded tothe point of being physically ill at the joint meeting in January 2019.[57] A further reason we reject the new evidence is that Mr Sullivan's account isinherently implausible. It involves a scenario that after lying in the shrubbery for atleast two hours or more, Mr Irons happens to stand up just at the very momentMr Sullivan happens to walk past. It also involves Mr Irons only managing to geta couple of steps away from where he was standing before Mr Sullivan knocks him tothe ground again, therefore conveniently still being in the shrub area.[58] Not only is this account inherently implausible, Mr Sullivan added newimplausible details under cross-examination when pressed to explain why he turnedaround. As mentioned, in his affidavit he said he did not know why he had turnedaround. Under cross-examination however, he said he heard gurgling and choking inthe garden and that was most probably the reason he turned around. His affidavit hadmade no mention of hearing gurgling and choking. And he never told his therapistthat either.[59] When asked to explain why it had not been mentioned in his affidavit, the onlyexplanation Mr Sullivan could give was that it had just come out of his mouth.[60] As already mentioned Mr Walker himself told the police he heard Mr Ironsmoaning and gargling blood. We consider it most unlikely that Mr Irons was stillgurgling or gargling after several hours.[61] It also does not make sense that Mr Sullivan "freaked out" when he sawMr Irons stand and look at him. If, as is now claimed, Mr Irons was ok and not at riskof dying when the group left him, he was always going to be able to identify them.[62] Another important aspect of Mr Sullivan's new evidence we find lacking incredibility is his claim that he forced Mr Walker to join in the attack. The claim issupported by Mr Walker who says he was scared of Mr Sullivan. His professed fearof Mr Sullivan is important to his narrative because it is also the reason he advancesfor never telling anyone about his suspicion of a later attack.[63] There was certainly a significant age disparity between the two. Mr Walkerwas 15 and Mr Sullivan 25. However, we do not accept as credible the claim thatMr Walker was scared of Mr Sullivan for the following reasons:(a) Mr Walker had known Mr Sullivan all his life. He told police in 2008that they "have some good laughs" and had "been getting a bit closer".(b) Both are members of the same gang and when Mr Sullivan arrived atthe unit, Mr Walker defended him to his fellow inmates and told themMr Sullivan was his friend.(c) The claim about being too fearful of Mr Sullivan to make allegationsabout him is at odds with the evidence of the statements Mr Walkermade to his friends the day after the attack. According to theirevidence, he named Mr Sullivan as one of the attackers and describedthe violence Mr Sullivan had meted out to Mr Irons. He also never toldthem that Mr Sullivan forced him to join in.(d) The claim is also at odds with the defence run on his behalf by Mr Kingat trial. Mr King put the blame on Mr Sullivan for the fatal blows.There is no suggestion that Mr King was not acting on instructions intrying to put the blame on Mr Sullivan.[64] Finally, we note that Mr Sullivan's new evidence is inconsistent with anyaccount he has previously given, including a detailed account which he gave to aprison informant. Mr King on behalf of Mr Walker described the informant's evidenceat trial as gold standard because it contained information regarding attempteddestruction of clothing that was found to be true and which the informant could onlyhave acquired from Mr Sullivan.[65] The informant testified that Mr Sullivan had told him that at the very end ofthe group attack, he put in two big stomps while Mr Irons was lying on the ground inthe shrubbery area. Mr Sullivan stated he did that, saying to the rest of the groupwords to the effect "let's finish him off and put him out of his misery". Mr Irons wasgurgling blood. There was a cracking noise after each of the two stomps and Mr Ironsstopped moving. According to Mr Sullivan's account as relayed by the prisoninformant, Mr Walker then farted in Mr Irons' face.[66] In cross-examination before us, Mr Sullivan did not deny ever saying thesethings to the informant. Surprisingly, given the subject matter, he said he could notrecall.[67] To summarise, in our view, the two men have deliberately lied when theyclaimed never discussing with each other that Mr Sullivan would come forward witha new story of a later attack. The account of the alleged later attack is itself inherentlyimplausible and was embellished at the hearing before us. It does not make sense.Mr Walker's claims of being fearful of Mr Sullivan at the time are also not crediblebeing inconsistent with the way his case was run at trial and the evidence of his friendsat trial. So too his claims that at the time he was surprised to hear that Mr Irons haddied. Mr Sullivan's new account is also inconsistent with accounts he has givenpreviously.[68] In light of all the above, we have come to a clear conclusion that the newevidence is fabricated. Leave to adduce it as further evidence on appeal is thereforedeclined.[69] Finally, for completeness we record that in coming to this conclusion we havenot overlooked competing submissions about Mr Sullivan's possible motives incoming forward. The Crown argued he had nothing to lose by fabricating this story tohelp out a friend and fellow gang member. Conversely, Mr Walker's counsel Ms LevyQC contended Mr Sullivan would have no motive to fabricate evidence and that hedid have something to lose. Mr Sullivan said he had been advised (by Mr Walker'sco-counsel Mr Winter) that it might impact adversely on his chances of getting parole.[70] The possibility that Mr Sullivan might suffer a personal disadvantage incoming forward is a factor which is favourable to Mr Walker's case. However, it iscompletely outweighed by the other matters identified above which strongly point tothe evidence being false.[71] We now turn to the alternative ground of appeal, namely that a miscarriage ofjustice has arisen from the Judge's failure to give an intoxication and youth direction.It was common ground that the Judge did not give a direction on intoxication and nordid any of the defence counsel, including Mr King, seek one.Absence of directions on intoxication and youth[72] In order to advance an appeal based on alleged failings in a summing up thatwas given 10 years ago, Mr Walker requires leave to appeal out of time.[73] The test to be applied in determining whether to grant an extension of time iswhether it is in the interests of justice, taking into account all relevant circumstances.11This Court has held that a "long delay is a major factor weighing against leave beinggranted and, if unexplained, would usually be decisive".12 The merits, or lack of merit,of an appeal are also a weighty factor.[74] Mr Walker told us that Mr King spoke to both him and his family afterthe sentencing and advised that it was not worth appealing. Mr Walker did not ask fora second opinion. He did not say this expressly, but we infer the advice from Mr Kingwas the reason he did not appeal at the time. There was no other explanation aboutthe delay in the intervening years. He did not say he had never consulted other lawyersbefore the story about fresh evidence surfaced.[75] As regards the merits, the first point we would make, in fairness to Mr King,is that in our view it is much more likely he made a deliberate tactical decision not toseek a direction on intoxication rather than overlooking it as Ms Levy submitted.The thesis she advanced on behalf of Mr Walker involves Mr King forgettingthe matter not only at trial but again when advising on appeal prospects. This despitethe fact that the consumption of alcohol was a feature at the trial, the Crown suggestingit had the effect of disinhibiting the group and the defence suggesting the alcoholexplained the otherwise inexplicable callousness. Mr King was an experienced andhighly respected advocate who, as a number of other cases demonstrate, was wellversed in the law relating to intoxication and intent. The trial record shows that herepresented Mr Walker with considerable skill and competence.11 R v Lee [2006] 3 NZLR 42 (CA) at [96]–[99]. See also R v Knight [1998] 1 NZLR 583 (CA) at587.12 At [115].[76] We also note that after the Judge had given his summing up, there was a lengthydiscussion with all counsel during which counsel identified a number of concerns withthe summing up and which led to the Judge recalling the jury and making someadditional comments. The need for an intoxication direction was never raised by anyof the defence counsel, who like Mr King, were also experienced lawyers. We furthernote that the failure to give an intoxication direction was never part of the appeals thatwere taken to this Court in 2010.[77] In any event, regardless of what Mr King's thinking may have been, weconsider that having regard to all the evidence it is not tenable to suggest thatan intoxication direction may have affected the outcome. Indeed, we consider thatgiving such a direction carried with it the real risk that it would undermine Mr Walker'sprimary defence which relied on the detailed account he gave police. He claimed tobe able to recall the detail of his own actions, the assaults by the others as well as theinjuries to Mr Irons. The account he gave also involved him being capable ofparticipating actively in the stealing of the property, putting Mr Irons in the recoveryposition, dumping the stolen property, considering whether to burn it to get rid of theevidence, consciously deciding against that course of action because it might attractunwanted attention from the fire brigade as well as trying the keys in several vehicles.He has now of course sworn an affidavit saying he can recall the state of Mr Iron'sclothing.[78] As regards the Judge's failure to give a youth direction, Ms Levy relies on thedecision of this Court in Churchward v R, a decision that was actually issued two yearsafter the trial.13 Even under Churchward v R however such a direction while describedas "preferable" is not mandatory.14 In this case, as in Churchward v R itself, the jurywas well aware of Mr Walker's age. Mr King had also specifically drawn it to thejury's attention and asked them to take it into account when assessing Mr Walker'sknowledge and appreciation of the likely consequences of the assault. Nocounter-intuitive evidence was required to establish that 15 year olds do not alwaysforesee the consequences of their actions. That was self-evident. In our view, the13 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.14 At [12].absence of a direction on youth in this case could not conceivably have caused orcreated the risk of a miscarriage.[79] The length of the delay, the absence of any cogent explanation for the delayand the lack of merit in the proposed appeal have persuaded us it would not be in theinterests of justice to grant an extension of time.Outcome[80] The application for leave to adduce the further evidence of Shaun Sullivan isdeclined.[81] The application for an extension of time to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent