Reference to the Court of Appeal of the Question of the Conviction of Robert Bruce Sims for Sexual Violation by Rape MICHAEL HARDIE BOYS, Governor-General ORDER IN COUNCIL At Wellington this 8th day of December 1997 Present: His Excellency the Governor-General in Council His Excellency the Governor-General, acting under section 406 (a) of the Crimes Act 1961 and by and with the advice and consent of the Executive Council, refers the question of the conviction of Robert Bruce Sims for the offence of sexual violation by rape to the Court of Appeal for hearing and determination. The background to, and the reason for, the reference appear in the Schedule. Schedule 1. Interpretation In this schedule, ``Applicant'' means Robert Bruce Sims: ``ESR'' means the Institute of Environmental Science and Research Limited: ``Examining doctor'' means the medical practitioner to whom the complainant was taken for a medical examination on the evening of 2 February 1995 and whose evidence for the Crown was read at the applicant's trial. Background 2. Trial and appeal (1) On 5 July 1996 the applicant was convicted in the District Court at Auckland on 1 count of sexual violation by rape. (2) On 5 August 1996 the applicant was sentenced by the District Court at Auckland to 9 years imprisonment. (3) On 5 September 1996 the Court of Appeal (a) Dismissed the applicant's appeal against his conviction; and (b) Allowed his appeal against sentence; and (c) Substituted a sentence of 8 years imprisonment. 3. Evidence at trial Evidence at the applicant's trial included (a) Evidence given by the complainant that sexual intercourse without her consent took place at the applicant's home during a visit made there on 1 February 1995 at his invitation and that, during the intercourse, ejaculation and bleeding occurred: (b) Evidence given that various items of clothing were uplifted from the complainant's address and sent for analysis by ESR and that these items included a pair of underpants from the complainant's bedroom: (c) Evidence given that the analysis by ESR showed no semen either on the underpants or on genital swabs and smears taken from the complainant: (d) Evidence given that the analysis by ESR showed there was no blood staining on the underpants, apart from what appeared to be an old stain, and there was some blood on the genital swabs: (e) Evidence, read by consent, from the examining doctor, which stated that the complainant's external genitalia were red and sore around the entrance to the vagina, and the edges of the hymen were reddened, and concluded that these findings were consistent with but not necessarily indicative of the alleged assault. 4. Applicant's application for exercise of mercy of Crown (1) The applicant made an application, dated 30 July 1997, for the exercise of the mercy of the Crown in respect of his conviction for sexual violation by rape. (2) The grounds of the application are, among others, that (a) The applicant had inadequate legal representation at his trial and on his appeal; and (b) There is evidence indicating the unlikelihood of the applicant having had sexual intercourse with the complainant. (3) The submissions in support of the grounds are, among others, that (a) The applicant's counsel failed at trial to call any evidence about the applicant's impotence: (b) The applicant's counsel failed at trial to challenge the examining doctor's evidence and, in particular, failed to explore other possible causes for the complainant's symptoms, including habitual masturbation: (c) The applicant's counsel failed at trial to call any scientific evidence to maximise the impact and significance for the defence of the absence of semen on the underpants and the genital swabs and smears: (d) The applicant's counsel afforded him inadequate legal representation in arguing his appeal to the Court of Appeal instead of arranging alternative counsel. 5. Documents (1) The applicant tendered the following documents, among others, in support of the application: (a) An affidavit dated 18 July 1997 by his wife stating (i) That she and the applicant had not had sexual intercourse since 1 August 1990, when the applicant injured his back in an accident, because the applicant has been unable to achieve an erection since that date; and (ii) That she was expecting to give evidence at her husband's trial but was not called by his counsel; and (b) An affidavit dated 22 July 1997 by his counsel at his trial and appeal stating (i) That she now considers that the decision not to call the applicant's wife to give evidence at the trial may have been an error of judgment; and (ii) That she now regrets not calling expert evidence at trial on the issues of the existence or otherwise of a sign of recent trauma and the absence of semen on the underpants and genital swabs and smears analysed by ESR; and (iii) That she now regrets that she allowed the evidence from the examining doctor to be read at trial and that, had the examining doctor been called to give evidence, she would have cross examined the examining doctor about possible alternative causes, including masturbation, for the symptoms observed by the examining doctor; and (iv) That she now takes the view that it might have been advisable for new counsel to have represented the applicant on appeal; and (c) Reports from Gordon Howie and Peter Wong, orthopaedic surgeons, dated 24 October 1990 and 20 May 1992 respectively; and (d) A report from Ian Holdaway, a professor of medicine and consultant endocrinologist and physician, dated 16 March 1995; and (e) A letter from Frank Sims, a retired medical practitioner and the applicant's uncle, dated 30 September 1997. (2) In response to a letter from the applicant's current counsel, the District Court Judge who presided over the applicant's trial, in a letter to the Secretary for Justice dated 26 September 1997, (a) Expresses concern that the verdict in the case might well have been different if the defence case had been handled differently; and (b) Expresses surprise that evidence on the issue of the applicant's impotence, if available, was not called at trial; and (c) Expresses the view that the absence of any defence medical evidence and cross examination of the examining doctor seemed to assist the Crown. Reason 6. Reason The reason for the reference is that the documents described in clause 5 indicate that evidence is available that could lead the Court of Appeal to the conclusion that the legal representation of the applicant at his trial and on his appeal was inadequate and that a miscarriage of justice might have occurred. MARIE SHROFF, Clerk of the Executive Council.