SILVIA CARTWRIGHT, Governor-General
ORDER IN COUNCIL
At Wellington this 18th day of April 2005
Present:
HER EXCELLENCY THE GOVERNOR-GENERAL IN COUNCIL
Reference
(1) Her Excellency the Governor-General refers to the Court of Appeal the questions of:
(a) P’s convictions for sexual offences against complainant A, entered in the High Court at Auckland on 8 August 1997; and
(b) P’s sentence for sexual violation against complainant B, imposed in the High Court at Auckland on 10 February 1999.
(2) Her Excellency the Governor-General makes this reference:
(a) under section 406 (a) of the Crimes Act 1961;
(b) on the advice and with the consent of the Executive Council; and
(c) in the light of the background, and for the reasons, stated in the Schedule.
Schedule
1. Interpretation—In this Schedule:
“the applicant” means P.
Background
2. Trial, sentence and appeal for offences against complainant A—(1) On 8 August 1997, the applicant was convicted in the High Court of the following sexual offences against complainant A:
(a) two counts of sexual violation by rape;
(b) three counts of sexual violation by unlawful sexual connection; and
(c) four counts of inducing a girl to do an indecent act.
(2) The applicant’s convictions were based entirely on the credibility of complainant A.
(3) On 9 September 1997, the applicant was sentenced in the High Court to 11 years’ imprisonment.
(4) On 18 February 1998, the Court of Appeal dismissed the applicant’s appeal against conviction and sentence.
3. Trial, sentence and appeal for offences against complainant B—(1) On 22 July 1998, the applicant was convicted in the High Court of the following sexual offences against complainant B:
(a) one count of sexual violation by rape; and
(b) one count of sexual violation by unlawful sexual connection.
(2) On 10 February 1999, the applicant was sentenced in the High Court to preventive detention.
(3) The sentencing Judge was entitled to sentence the applicant to preventive detention or to an additional term of imprisonment. The Judge’s decision to impose preventive detention was influenced by the convictions described in clause 2 (1).
(4) On 26 July 1999, the Court of Appeal dismissed the applicant’s appeal against sentence.
4. Application for exercise of prerogative of mercy—(1) The applicant applied to the Governor-General on 10 October 2003 for the exercise of the mercy of the Crown in respect of the convictions described in clause 2 (1).
(2) The Governor-General sought the advice of the Minister of Justice on the application.
(3) The Minister of Justice appointed a Queen’s Counsel to advise him on the application.
5. Complainant A’s retraction—(1) Since the applicant’s convictions on 8 August 1997, complainant A has stated that:
(a) the applicant did not sexually abuse her; and
(b) the evidence she gave at the trial that she had been abused by the applicant was false.
(2) Complainant A made these statements:
(a) in a letter dated 12 August 2002 from complainant
A to the applicant;
(b) in an affidavit dated 9 September 2002 by complainant A; and
(c) in interviews with the Queen’s Counsel referred to in clause 4 (3) on 26 April 2004 and 30 July 2004.
Reasons
6. Reasons—(1) The reason for the reference in respect
of the applicant’s convictions entered on 8 August 1997
is that the information in clause 5 indicates that evidence is now available that:
(a) was not available at the time of the applicant’s trial and appeal; and
(b) could lead the Court to conclude that a miscarriage of justice might have occurred.
(2) The reason for the reference in respect of the applicant’s sentence of preventive detention imposed on 10 February 1999 is that, as described in clause 3 (3), the imposition of the sentence was influenced by the convictions entered on
8 August 1997. If the convictions are overturned, the Court may wish to reconsider the sentence of preventive detention.
DIANNE MORCOM, Clerk of the Executive Council.