IN THE SUPREME COURT OF NEW ZEALAND
SC 35/2007
[2007] NZSC 63
PHILIP DAVID STURM
v
THE QUEEN
Court: Tipping, McGrath and Anderson JJ
Counsel: P J Davison QC for Applicant
M D Downs for Crown
Judgment: 2 August 2007
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
REASONS
[1] Mr Sturm seeks leave to appeal from the Court of Appeal’s dismissal of his
appeal against convictions for sexual offending. They included an offence of
stupefying the complainant with intent to facilitate the commission of sexual
violation. The application as it relates to the other convictions depends on whether
leave is given in respect of the stupefying conviction.
[2] In the Court of Appeal the applicant argued that the trial Judge had failed to
direct the jury properly on the stupefying count. He argued that the charge involved
a dual intent and the Judge had not made this clear. First there had to be an intent to
stupefy, and second there had to be an intent to facilitate the crime of sexual
violation. The Judge had not expressly referred to the intent to stupefy. The Court
of Appeal held that he should have done so but that no miscarriage of justice arose
because the Judge’s directions conveyed the substance of what the Crown had to
prove. The applicant seeks to challenge this conclusion on the premise that although
the Court of Appeal’s conclusion was in his favour on the point of law, the Court
was wrong in its ultimate conclusion of no miscarriage. The applicant also seeks to
put in issue the proper application of the proviso to s 385 of the Crimes Act 1961.
[3] We do not consider the issues which the applicant seeks to raise satisfy the
requirements of s 13 of the Supreme Court Act 2003. The point of law was decided
in the applicant’s favour in the Court of Appeal. Whether the Judge’s directions in
their overall impact sufficiently complied with the correct legal analysis is a point
specific to this case. We do not regard the case as justifying any examination of the
proviso. In coming to this conclusion we should not be regarded as endorsing the
Court of Appeal’s dual intent analysis. There is a case for saying that proof of an
intent to facilitate a crime by stupefying the victim necessarily involves the presence
of an intent to stupefy. But we leave that point open.
[4] We consider the Court of Appeal was correct in this case to decide that, even
if analytically two discrete intents must be proved, the Judge’s directions and the
practical realities of the case meant that no miscarriage arose from the failure of the
Judge to direct in precisely those terms. That being so, none of the issues which the
applicant seeks to raise stands any realistic chance of leading to a different outcome
in this Court from that reached in the Court of Appeal. We therefore find that the
applicant has not established that it is necessary in the interests of justice for leave to
be granted. Specifically, we are satisfied that no appearance of any substantial
miscarriage of justice has been shown.
[5] For these reasons the application for leave is dismissed.
Solicitors:
Crown Law Office, Wellington