RAYMOND JOHN BELSEY v R [2023] NZSC 75

RAYMOND JOHN BELSEY v R [2023] NZSC 75 [26 June 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 27/2023[2023] NZSC 75BETWEEN RAYMOND JOHN BELSEYApplicantAND THE KINGRespondentCourt: O'Regan, Ellen France and Williams JJCounsel: Applicant in personB F Fenton for RespondentJudgment: 26 June 2023JUDGMENT OF THE COURTThe application for an extension of time to apply for leave toappeal is dismissed.____________________________________________________________________REASONS[1] The applicant applies for leave to appeal against a judgment of theCourt of Appeal.1 In that judgment, the Court of Appeal dismissed the applicant'sappeal to that Court against his conviction for sexual violation by unlawful sexualconnection. The applicant had been convicted of that offence after a District Courtjury trial and sentenced to a term of imprisonment of three years and four months.21 Belsey v R [2022] NZCA 484 (Gilbert, Brewer and Moore JJ) [CA judgment].2 R v Belsey [2022] NZDC 16117 (Judge Turner). He was also convicted of intentional damage ofa wooden panel in the dock of the trial Court, a charge to which he pleaded guilty.The applicant also appealed to the Court of Appeal against sentence, but that appealwas abandoned.[2] The applicant was a serving prisoner at the time of the offending and the victimwas the applicant's cellmate. The victim alleged the applicant digitally penetrated hisanus three times with his thumb, after an argument that had led to the applicantbecoming angry.[3] The applicant was represented by counsel at the trial and in theCourt of Appeal, but now pursues his application for leave in this Court in person.[4] The application for leave to appeal was filed about four months out of time.We therefore treat it as an application for extension of time to apply for leave, as wellas an application for leave. The respondent opposes an extension of time, on the basisthat the proposed appeal has no merit.[5] In its decision, the Court of Appeal accepted that some errors were made duringthe applicant's trial. In particular, a police officer should not have read out a record ofthe allegations made against the applicant by the victim when the officer wasrecounting her interview of the applicant.3 However, the Court considered that nomiscarriage of justice arose from this. The jury had already heard the victim'sevidence which was substantially the same as the allegations recorded during thepolice interview.4 Additionally, the Court rejected an argument that significant unfairprejudice arose because the police officer referred to the fact that the applicant becameaggressive after the interview.5 The Court also rejected arguments made on theapplicant's behalf in relation to the trial Judge's summing up.6[6] The applicant's submissions in support of the application for leave do notspecify with clarity what the proposed grounds of appeal are, but it is made clear inthese submissions that the applicant feels he was wrongly convicted and that theallegation made against him by the victim was untrue. He says the victim's injuries3 CA judgment, above n 1, at [17].4 At [17].5 At [20]–[22].6 At [49] and [61].(which were used as evidence supporting the Crown's case) were, in fact,self-inflicted. He also says his trial was unfair and his counsel did not prosecute hisappeal to the Court of Appeal properly.[7] If leave is granted, the applicant wishes to argue that his trial counsel's advicein relation to the giving of evidence at trial (the applicant did not give evidence) waswrong and that his appeal counsel did not listen to his instructions. There appears tobe no suggestion that the applicant was prevented from giving evidence at trial, nor isthere any substance provided as to the alleged failings of his appeal counsel.The applicant also wishes to raise issues about the sentence imposed on him, but, asnoted earlier, his sentence appeal in the Court of Appeal was abandoned. Thatprovides an inauspicious background to any arguments relating to sentence.[8] More generally, the applicant argues he is innocent and was wrongly convicted.However, there is nothing before us to indicate that the jury verdict was unreasonablebased on the evidence before the jury and it was not argued in the Court of Appeal thatthe jury's verdict was unreasonable. Nor is there any appearance of a miscarriage ofjustice in the way the Court of Appeal addressed the argument for the applicant thatthe trial was unfair.[9] There is nothing in the material provided by the applicant that raises any matterof public importance.7 Nor do we see any risk of a miscarriage of justice if leave toappeal is not granted.8 That means the criteria for the grant of leave to appeal are notmet. In those circumstances, there is no point in granting an extension of time to seekleave to appeal.[10] The application for an extension of time to apply for leave to appeal isdismissed.Solicitors:Crown Law Office, Wellington for Respondent7 Senior Courts Act 2016, s 74(2)(a).8 Section 74(2)(b).