Sex offender appeals for retrial

A convicted sexual predator hopes a retrial will allow him to clear his name and stay out of jail.

The Palmerston North man, whose name, age and occupation are suppressed, was convicted by a jury this year on two counts of indecently assaulting a female client in January 2008.

The same jury acquitted him on eight similar charges against other clients.

He was given a nine month jail sentence, but spent only a few nights behind bars before Judge Grant Fraser released him on bail in May pending his appeal against the charges and his sentence.

Yesterday the Court of Appeal in Wellington heard from the man's lawyer, Greg King, that fresh evidence, inconsistent verdicts and a misdirection from the judge to the jury were grounds for a retrial.

The Manawatu Standard cannot publish all details heard by appeal court judges Lyn Stevens, Simon France and Graham Pankhurst, as it could identify the man.

Mr King said during the jury's deliberations an instruction from the judge, although later corrected, had confused burden of proof requirements.

In response to a question from the jury, the judge had said jurists must be sure the man believed his client had consented to his actions.

"That's just a complete misrepresentation," Mr King said.

The onus was on the Crown to prove beyond reasonable doubt the man's actions were sexually motivated, he said.

The female client the man was convicted of assaulting had failed to mention her concerns at the time and had afterwards returned for another appointment. She and the other two complainants had only approached police months later.

"We're saying that everything that happened in that room was done with consent or at the very least, his belief in consent," Mr King said.

For a man with no previous convictions, nine months' imprisonment was too harsh. A community based sentence or electronic monitoring would be more appropriate, he said.

Crown lawyer Fergus Sinclair said the man's acquittal on the other eight charges showed that the jury had engaged with the idea of belief in consent.

The three judges have reserved their decision.

The man's bail continues. Should a retrial be ordered, the judges indicated current suppression restrictions surrounding the case would remain. Mr Sinclair did not oppose this.

The man is no longer actively involved in the business where the offending occurred, although he remains a 50 per cent silent partner in the operation with the other half held by his estranged wife.

Throughout the appeal the man, dressed in a black suit, sat silently in the public gallery with a female support person. It was a condition of his bail that he attend.

When approached outside court, he declined to comment.

- © Fairfax NZ News