Snell-Scasbrook v R [2014] NZCA 131 (8 April 2014)

Last Updated: 17 April 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA780/2013 [2014] NZCA 131
BETWEEN	ANDREW GREGORY SNELL-SCASBROOK Applicant
AND	THE QUEEN Respondent

Hearing:	1 April 2014
Court:	O’Regan P, Keane and Andrews JJ
Counsel:	N J Sainsbury for the Applicant J E Mildenhall for the Respondent
Judgment:	8 April 2014 at 4.30 pm

JUDGMENT OF THE COURT

The application for extension of time to appeal against conviction is allowed.
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REASONS OF THE COURT

(Given by Andrews J)

Introduction

[1] On 27 August 2010, following a trial in the District Court at Wellington before Judge Tuohy and a jury,^[1] the applicant was found guilty of two charges of sexual violation by unlawful sexual connection and one charge of doing an indecent act with intent to offend. He was subsequently sentenced to a total of seven years imprisonment.
[2] On 15 November 2013, the applicant filed a notice of appeal, just over three years out of time. This Court has directed that his application for extension of time should be determined separately from the proposed appeal.

Background

[3] The applicant was accused of sexual offending against a five to six year old girl. The offending involved the defendant kissing the girl’s genital area, and on one occasion exposing himself to her. Some four years after the alleged offending, the applicant’s house was searched and the police found photographs of children on the wall, and a number of pairs of children’s underpants in the drawer next to his bed. Some of the underpants had stains on them. In evidence at trial, a police officer said that it was her personal opinion that the underwear smelt of semen. The underwear had not been tested.
[4] The applicant says that he wanted to appeal immediately following his conviction, but was advised (in April 2011) that he did not have grounds. He tried to get a second opinion, but this was difficult as he was in custody. His mother has sworn an affidavit setting out her attempts to find a lawyer to help with an appeal. She contacted another lawyer in May 2011, but he advised her (in about December 2011) that he could not help. She spoke to a third, then a fourth, lawyer, but still could not find someone prepared to help. In August 2012, she contacted a firm of solicitors who had done legal work for the family. Contact was eventually made with the appellant’s current counsel through that firm in early 2013.

Submissions

[5] Mr Sainsbury submitted that the reasons for the appeal being lodged out of time (and the time taken to file the appeal) were well explained in the affidavit of the applicant’s mother. Mr Sainsbury also submitted that there is sufficient strength in the appeal to balance against other factors such as the desirability of finality in criminal proceedings, especially in the case of sexual offending against a child.
[6] He submitted that the essence of the appeal turned on the admissibility of the evidence concerning the presence and smell of the children’s underwear, and an insinuation in cross-examination of the applicant that he would masturbate into the underwear while looking at photos of children. Mr Sainsbury submitted that its purpose could only have been to show the jury that the applicant had a propensity to be sexually interested in children; that no application had been made to admit it as such; and it should not have been admitted. He acknowledged that the trial Judge gave clear directions to the jury about the danger of relying on this evidence but said the harm could not be undone.
[7] For the respondent, Ms Mildenhall submitted that while the delay in filing the appeal was, to a degree, explained, it is extensive, and the proposed appeal is without substantive merit. She submitted that on the balancing test approach, there are no relevant factors that outweigh either the interests of the victim, or the public interest in the finality of court decisions.

Decision

[8] There was clearly a long delay before the appeal was filed. However, we are satisfied that it was always the appellant’s intention to appeal and the delay has been explained. As this Court said in R v Knight, the touchstone is the interests of justice in the particular case.^[2] We are required to balance the wider public interest in the finality of decisions against the interests of the individual concerned.
[9] In this case, we are particularly concerned that the case involves a child complainant, who may be required to give evidence again, should the appeal succeed. Mr Sainsbury said that concern is ameliorated to some extent by the fact that the child had given an evidential video interview, and this was, and could be again, admitted as her evidence-in-chief at trial. While that is true, the requirement for a child complainant to recall the incidents again after such a delay is still a real concern. Against that, we are satisfied that a serious question has been raised as to the admissibility of evidence given at the applicant’s trial.

[10] On balance, we are satisfied that in this case it is in the interests of justice that an extension of time be granted for the applicant’s appeal.

Solicitors:
O’Regan Arndt Peters and Evans, Wellington for Applicant
Crown Law Office, Wellington for Respondent

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^[1] R v Snell-Scasbrook DC Wellington CRI-2009-032-5213, 27 August 2010.

^[2] R v Knight [1998] 1 NZLR 583 (CA) at 587. See also R v Tohu [2008] NZCA 89 at [20]–[27].