IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA673/2018
 [2019] NZCA 370

	
BETWEEN	
BROWNIE JOSEPH HARDING
Applicant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
11 June 2019	

Court:	
Brown, Wylie and Whata JJ	

Counsel:	
Applicant in person
K S Grau for Respondent	

Judgment:	
16 August 2019 at 3.30 pm	

JUDGMENT OF THE COURT
A	The application for an extension of time to appeal against conviction is dismissed.
B	The application for leave to bring a second appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)
Introduction
[1]	Following a jury trial Mr Harding was convicted of kidnapping (unlawful detention of victim with consent obtained by duress) and male assaults female.  On 9 November 2010 he was sentenced to two years and six months’ imprisonment.
[2]	He filed an appeal against his sentence which was scheduled for hearing on 6 September 2011.  However in August 2011 he abandoned the sentence appeal.  Almost six years later Mr Harding applied for the leave of this Court to withdraw his notice of abandonment of appeal against sentence.  That application was declined in November 2017.
[3]	Then on 2 November 2018 he filed an appeal against both his conviction and sentence.  In a minute of 6 November 2018 Winkelmann J directed that the appeal was to be received as if filed on the appropriate form.  Winkelmann J noted that an extension of time to pursue the appeal against conviction would be required as it was filed out of time.  Furthermore, as a prior appeal against sentence had been abandoned, the new appeal should be treated as an application for leave to bring a second sentence appeal.
[4]	Hence this judgment addresses Mr Harding’s application for an extension of time to appeal against his conviction and his application for leave to bring a second sentence appeal from his sentence.  Both applications are opposed.
Application for extension of time to appeal against conviction
Relevant principles
[5]	The power of this Court to extend time to appeal was conferred by s 388(2) of the Crimes Act 1961.  The section provided no guidance as to the factors to be taken into account in considering an extension but the touchstone is the interests of justice in the particular case:  R v Knight.  The Court there said that the overall interests of justice in a particular case may call for balancing the wider interests of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed.
[6]	Other factors of relevance to the balancing test include the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedies sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[7]	As this Court stated more recently in Waters v R:
The need for finality in criminal proceedings suggests that, in the absence of an application which raises a “real concern” that the guilty verdicts were wrong or that a miscarriage of justice may have occurred, an extension of time cannot be justified.  Were the position otherwise, a potential appellant seeking to appeal after a long delay would be put, inappropriately, in the same position as someone who appealed in time.
Strength of the appeal
[8]	There is no challenge to the conviction for male assaults female.  Nor could there be in view of Mr Harding’s acknowledgement in evidence that he grabbed the complainant’s arm and that he thought she was scared when he did so.  The focus of the proposed appeal is the conviction for unlawful detention with consent having been obtained by duress.  The essence of Mr Harding’s argument was expressed in this way in his written submission:
It is not against the law for a father to hold his son, so the physical element isn’t there of the offence and because the question was never asked in trial about my intention or about holding my son, the mental element of the offence isn’t there.
[9]	However the complainant gave evidence that Mr Harding prevented her getting out of her car by grabbing her leg and taking her baby son.  She could not get out of the car with Mr Harding holding her leg.  She tried to do so but he took her son from her.  She then stopped trying to get out of the car because she was not going without her son.  She said that Mr Harding’s arm was on her neck for about two minutes but eventually she managed to get out with her son.  She then ran across the road where a member of the public was standing.  A red mark on her neck was visible in a photograph. 
[10]	The complainant’s evidence was supported by independent witnesses.  The member of the public who was standing across the road heard someone screaming and saying “get off me”, saw a girl in the car with a man’s arm around her, saw that the girl tried to pull herself out of the car and stood up holding a baby.  The girl then ran across the road to the witness, hid behind her and asked for a cellphone to call the police.
[11]	Mr Harding followed and the complainant then ran into a liquor store.  The liquor store manager, who knew the complainant, saw her come running in with the baby and shouting in a distressed state.  He noticed that she was red around the face and neck with marks that looked like she had been grabbed by the throat.  His evidence was unchallenged.  
[12]	Mr Harding admitted in cross-examination that he was holding the complainant in the car, that she was upset and that as soon as she broke free from him she ran straight across the road.  He later sent her apologetic text messages.  
[13]	We agree with the Crown that in essence Mr Harding’s submission is that the verdict on the kidnapping charge was unreasonable.  However the threshold for interference with a guilty verdict on that ground is high.  The Crown noted that where a case is based on credibility findings there is little scope to challenge the verdict.  As this Court said in R v Patel:
In R v Munro [2008] 2 NZLR 87 at [83]–[84] this Court discussed the circumstances in which a verdict based largely on credibility findings can be overturned on the basis of unreasonableness.  The Court indicated that, where an appellate court is in no better position than the jury to assess the credibility of witnesses, it is not likely to be easy for an appellant to show that a verdict is unreasonable.  This is because, in many cases, assessing credibility from a written transcript will not achieve a better result than that achieved by a jury, which has the advantage of hearing and seeing the witnesses in the course of the whole trial.  Verdicts based on credibility are likely to be overturned only where there is contemporary evidence which clearly contradicts the witness or in cases of glaring improbability.  Inconsistencies alone are unlikely to reach that standard.
[14]	We agree with the Crown’s submission that the prosecution case was strong and that the merits of the proposed appeal are weak.
Other factors
[15]	Mr Harding finished serving his sentence many years ago.  Hence the liberty of an individual is no longer involved.
[16]	It is now almost 10 years since the offending occurred and a retrial would cause significant prejudice for the Crown.  We agree with the Crown’s submission that there is a strong public interest in the final determination of cases involving domestic violence.  In the absence of compelling circumstances the complainant should not be subjected to a retrial.
[17]	The delay is considerable and we do not accept there is an adequate explanation for it.  Consequently the application for an extension of time to appeal against conviction is dismissed.
Application for leave to bring a second sentence appeal
[18]	As earlier noted, this is the second occasion on which Mr Harding has sought to appeal his sentence, his first appeal having been abandoned shortly prior to the fixture date.
[19]	The thrust of Mr Harding’s proposed appeal is a challenge to the uplift of six months imposed by the Judge for his prior offending.  In his submission the uplift in respect of convictions for which he had already served the punishment was a breach of s 26 of the New Zealand Bill of Rights Act 1990, amounting to either a retroactive penalty or double jeopardy.  He would seek an order quashing the uplift, leaving a sentence of two years’ imprisonment.
[20]	On Mr Harding’s application to withdraw his notice of abandonment of his first sentence appeal this Court stated:
[11]	Nor do we consider that the interests of justice require reopening.  Mr Harding has long since finished serving the relevant sentence.  The grounds of appeal are far from strong.  Had he been sentenced at the same time for all charges arising out of the 17 June 2009 offending, the judge would have been entitled to uplift for totality.  Moreover, Mr Harding’s previous convictions were not limited to the breaches of protection orders for which he was sentenced in 2009.  They included three for common assault (1996 and 2004), one for injuring with intent to injure (1997) and one for assault with intent to rob (1994).  Judge Harvey’s notes make it quite clear that it was these convictions he was taking into account when imposing the uplift.
[12]	The District Court Judge was required by s 9(1)(j) of the Sentencing Act 2002 to take previous convictions into account, having regard to their seriousness and relevance.  Previous convictions are regarded as relevant if they indicate a tendency to commit the kind of offence for which an offender is being sentenced.  Mr Harding’s convictions indicated a tendency to commit violent offending.  The Judge’s view that an uplift was required for the purposes of personal deterrence and community protection could not be said to give rise to a miscarriage of justice.
[21]	That explanation for the uplift demonstrates why Mr Harding’s proposed ground of appeal based on the New Zealand Bill of Rights Act is misconceived.
[22]	The Crown submits that in reality the Court is being invited to revisit its decision in 2017 declining Mr Harding’s application to withdraw his notice of abandonment on appeal.  It argues that the exceptional jurisdiction identified in R v Smith is not engaged.
[23]	We agree with the Crown’s characterisation of the application.  In order to revisit this Court’s conclusion Mr Harding would need to demonstrate that the preconditions in Smith, as recently discussed by this Court in Lyon v R, are established.  Clearly they are not.
[24]	Consequently Mr Harding’s application for leave to bring a second appeal against his sentence is dismissed.
Result
[25]		The application for an extension of time to appeal against conviction is dismissed.
[26]	The application for leave to bring a second appeal against sentence is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent