SILVIA CARTWRIGHT, Governor-General
ORDER IN COUNCIL
At Wellington this 13th day of June 2005
Present:
HER EXCELLENCY THE GOVERNOR-GENERAL IN COUNCIL
Reference
(1) Her Excellency the Governor-General refers to the Court of Appeal the question of the convictions of Graham Ashley Robert Palmer for sexual violation entered in the High Court at Auckland on 7 October 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 reason, stated in the Schedule.
Schedule
1. Interpretation—In this Schedule:
“the applicant” means Graham Ashley Robert Palmer.
“the complainant” means complainant C.
Background
2. Trial—(1) The applicant was charged with two counts of sexual violation of the complainant on 22 January 1999.
(2) The trial took place at the High Court in Auckland between 27 September 1999 and 7 October 1999.
(3) The complainant gave evidence that:
(a) she left her home with the applicant about 8.30 p.m. to 8.45 p.m. on 22 January 1999;
(b) the applicant drove her to a house in Manurewa;
(c) the acts of sexual violation occurred at the house; and
(d) the applicant drove her home at about 11.00 p.m.
(4) The applicant’s defence was that he had no contact with the complainant on 22 January 1999.
(5) The applicant was convicted of the charges on 7 October 1999.
3. Appeal—(1) The applicant appealed to the Court of Appeal.
(2) The appeal was:
(a) heard on 19 February 2001; and
(b) dismissed on 8 March 2001.
4. Application for exercise of prerogative of mercy—(1) The applicant applied to the Governor-General, in an application dated 27 April 2004, for the exercise of the mercy of the Crown in respect of the two sexual violation convictions, among others.
(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. Significance of incoming phone calls—(1) On 4 October 1999, at the applicant’s trial, a Telecom employee gave evidence that there were no incoming phone calls to the complainant’s home between 6.00 p.m. on 22 January 1999 and 6.00 a.m. on 23 January 1999.
(2) On 9 August 2001, at a depositions hearing in a private prosecution by the applicant of the complainant’s former boyfriend, a Telecom employee gave evidence that there were incoming phone calls to the complainant’s home on
22 January 1999 at 8.30 p.m., 8.54 p.m., 9.29 p.m. and 9.48 p.m.
(3) Telecom’s counsel confirmed to the Queen’s Counsel that the records of the four calls produced in evidence by its employee on 9 August 2001:
(a) are true and correct Telecom records; and
(b) show that the calls were answered.
(4) As one ground of the applicant’s application for the exercise of the mercy of the Crown, he submits that:
(a) the complainant could not have been with him at the time that she said the acts of sexual violation occurred because she must have answered the four incoming calls; and
(b) the complainant must have answered the calls because:
(i) the only other people at her home when the calls were made were a 4-year-old child and the child’s father; and
(ii) the child’s father said in statements to the police that he spent the evening asleep.
Reason
6. Reason—The reason for the reference is that the information described in clause 5 (2) and (3) indicates that evidence is now available that was not available at the time of the applicant’s trial and appeal and that could lead the Court to conclude that a miscarriage of justice might have occurred.
DIANE MORCOM, Clerk of the Executive Council.